# AHER BHAGU JETHA v. THE STATE OF GUJARAT No1·ember 21, 1973

- **Citation:** [1974] 2 S.C.R. 477
- **Court:** Supreme Court of India
- **Decided:** 1974
- **Case number:** Criminal "PI\eal No. 517 of 1969
- **Bench:** M. H. Beg, Y. V. Cuandr.Achud
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/aher-bhagu-jetha-v-the-state-of-gujarat-no1-ember-21-1973-6151
- **Pages:** 4

## Headnote

417
frattict am( !'roudure -Criminal trial-Case with a communal back~:roundAsmsmtnl of e~·Jdence.
.
A riot which was alleged to hnve a communal background re>ullcd in t~e death
of a person. The trial court convicted the. appellant and ~erne ~thcrs under s. 302
read 11ith s. 149. I.P.C. The H1gh Court, m appeal, conv•ctcd <'nly the aHcllant
onder s. 30Z. The High Court, while discarding t~e cu<oe of unlav.ful asumbly as
1er up by the prosecution held the appellant guilty of murder o nly recause the appeUant was found lying injured ncar the scene of occurrence and bau pleaded that he
ns auackeJ by a group of members of the muslim community.
·
Allo11ing the appcnl to this Court,
HELD : The High. Court had not gh·en due importance to the fact that the
appellant had serious injuries on his body. The H igh Court dismissed his state·
ment that he had only a stick with him without eumining the et<dJhility cf his ,..,..
sion wh1ch was ~upport<d by the fact that only n stick wa.< found near bun; while
the only injury on the deceased wns caused by a sharp edged weap<'n
It ts not
=mmon in ca.<cs of a communal natu~ to find witneS>es coming for"asd to
d<pooc fal..:ly about ao attack by a person who is belie,·ed to be guilty, and, panisan
\itn= may depose falsely out of u mismken or misplaced sen<.e of grOUI' lo~~Jty
In the pr<sent r.ue. the panidpatlon of the appellant in the occur"'nce might ha~e
~to
the ~~oitoessa to have been established by his having born fourd ly10g ncar
the sc:ene of IX'CilrTellC" in an injured condition. This may be enough to convince
unsophoSiicated persons of b•s complicity in the murder, but a court of justice has to
~ft and analyse the C\idrn<:c very carefully, particulary in a case "ith a ccmmunal
bacl:graund. to determine whether the case against the accu"d i~ C>t :tbli~~cd ce)oncl
tt&>onablt doubt. {479E-F; 480B·D)
--
C'JIJM!NAL
APPH~ATE 1vRJfD:01l('N
15] of 1970,
Cr'miral Arrul N<'.
, Appeal by Special Leave from the judgment and order dated the
~Sth March 1970 of the Gujarat High Court nt Ahmedabad in Criminal
"PI\eal No. 517 of 1969.
N. P. Ma/res!nrari, fN the appellant.
S. N. Ana11d, M. N. S/Jrof! nnd S. P. Nu,yar, for tlte respondent.

## Text

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AHER BHAGU JETHA
v.
THE STATE OF GUJARAT
No1·ember 21, 1973
{M. H. BEG AND Y. V. CUANDR.ACHUD,JJ.]
417
frattict am( !'roudure -Criminal trial-Case with a communal back~:roundAsmsmtnl of e~·Jdence.
.
A riot which was alleged to hnve a communal background re>ullcd in t~e death
of a person. The trial court convicted the. appellant and ~erne ~thcrs under s. 302
read 11ith s. 149. I.P.C. The H1gh Court, m appeal, conv•ctcd <'nly the aHcllant
onder s. 30Z. The High Court, while discarding t~e cu<oe of unlav.ful asumbly as
1er up by the prosecution held the appellant guilty of murder o nly recause the appeUant was found lying injured ncar the scene of occurrence and bau pleaded that he
ns auackeJ by a group of members of the muslim community.
·
Allo11ing the appcnl to this Court,
HELD : The High. Court had not gh·en due importance to the fact that the
appellant had serious injuries on his body. The H igh Court dismissed his state·
ment that he had only a stick with him without eumining the et<dJhility cf his ,..,..
sion wh1ch was ~upport<d by the fact that only n stick wa.< found near bun; while
the only injury on the deceased wns caused by a sharp edged weap<'n
It ts not
=mmon in ca.<cs of a communal natu~ to find witneS>es coming for"asd to
d<pooc fal..:ly about ao attack by a person who is belie,·ed to be guilty, and, panisan
\itn= may depose falsely out of u mismken or misplaced sen<.e of grOUI' lo~~Jty
In the pr<sent r.ue. the panidpatlon of the appellant in the occur"'nce might ha~e
~to
the ~~oitoessa to have been established by his having born fourd ly10g ncar
the sc:ene of IX'CilrTellC" in an injured condition. This may be enough to convince
unsophoSiicated persons of b•s complicity in the murder, but a court of justice has to
~ft and analyse the C\idrn<:c very carefully, particulary in a case "ith a ccmmunal
bacl:graund. to determine whether the case against the accu"d i~ C>t :tbli~~cd ce)oncl
tt&>onablt doubt. {479E-F; 480B·D)
--
C'JIJM!NAL
APPH~ATE 1vRJfD:01l('N
15] of 1970,
Cr'miral Arrul N<'.
, Appeal by Special Leave from the judgment and order dated the
~Sth March 1970 of the Gujarat High Court nt Ahmedabad in Criminal
"PI\eal No. 517 of 1969.
N. P. Ma/res!nrari, fN the appellant.
S. N. Ana11d, M. N. S/Jrof! nnd S. P. Nu,yar, for tlte respondent.
The Judgment of the Court was delivered by
rha Bto. J.:-The appellant, Ahir Bhagu Jet!Ja, is one of the IS p.:rsons
28thttd Wrth the o)Tcnce of rioting armed with deadly weapons, on
the S of June, 1?68, at about 7 ·30 p. m. nt the viii ago Kumbharia in
batk tate of GuJarat. This riot, which was alleged to h11ve a communal
pet'<i ground~ w~s suid to havo resulted in simple injuries to severar
~I··
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~~ grJcvous inJ'uries to other< und the death of Lalmamad
•flaJI,
· •
l[
'the
~1J1t:d Sessions Judge of Kutch, who tried the ~nse,
a~quitted ~
bttn co Pt:r~ons and convicted the rest of various oflcnces sa.Jd to have
1... Jler~ns ~muted in the course of the riot. Out of those, stx.accused
·~2 Sup, o,?
4
111cluding tht: uppellant, were convicted. under Secuon 302.
478
SUPREME COURT REPORTS
[1974] 2 s.c.tt.
I.P.C. read wi·h ~. 149, I. P. C. and ~'lntenced to im"risonment for
life. On an appC'al to th~ Hi~h Court flf Ol•jarat, the whole story
of riot, as ~ct up, w1n disb:-licvc:d. Seven convicttd J'1Crsons were
acauitted. The 1\J'tO•IJant nlonc was ~l"nvictcd under ~. 302, I. P. C.
and 'cntcnrc:d to life impri~rnment, Anrther acc1•~cd, whro die! nl"t
ap~eal. nnd. who was ccnvictcd vnder a, 324, I. P. C. nnTy ancf ~e-nten·
ced to 9 months rigorous imprisonmf.nt and to pay a .fine of Rs. 300/·
is not befC'rc us. We are, therefore, concerned only with th~ case
against Bhagu J'th11 who has b~cn convicted by th"' Hi~h Court
for an offence punishable under ~. 302. I. P. C., althou~h he was
~harged and convicttd of an dfencc punishable under s. 302 I. P. C.
only with the aid of s. 149 I. P. C. As the charge for rioting failed, he
was not and could not be convicted with the aid of s. l49I. P. C. No
separate charge was fram~d under s. 302 I. P. C. simpliciter.
We
need not consider the effect of the omission in this cue 1\S we arc
satisfied. for reasons given below, that the appeal must be allowed
on a bare examination of all~gations and evidence in the case.
The two groups, between which tension existed, prior to the
occurrence, consisted of Ahirs, who arc Hindu, and Sarna~. who are
Muslims, over the taking out of "tazia'' processions during Mohurrum. On the day of occurrence, Bhuraji Ravji and Ranaji Viraji,
of the Samas community. were said to be sitting at the entrance of the
Samas IC!cality when Govan Mandam, an Ahir, objected to it on the
ground that Ahir women folk 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 drag~d Lalmamad towards a dunghill. At that tim~. a number of Ah1rs are said to have collcct~d and
fallen upon Lalmamad, who 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 L'llmamad,
is also alleged to have been injured. Shrimati Jambai, P. W. 8., the
wife ofNandaji, who is alleged to have come to the scene of occurrence
and covered her husband, was also injured. An F.I.R. was lodged
at noon on 29-6-68 by a cousin of Lalmamad who a!Jeged 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
F.I.R. only four accused persons, including the appellant, are men.
tioned, and Lalmarnad, Ranaji and Nandaji. are shown to have been
injun;d. No injuries on the person of the appellant were mentioned.
The High Court, in the course of a fairly elaborate judgm~nt. ·
came to the conclusion that th~ origin of the incident set up, intended
to suggest that the Ahirs picked up p. 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 Ahlr and -Samas comparrmentalised localities. It
pointed out that no ·quarrel over the taking of water from any well or
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AHER BHAGU JET}V. v, GUJAR.AT (Beg,/,)
479
pnnd from the Same.s lrcalhy by Ahir women folk had evr:r b:fore
taken plac~. It also c~ m, to ·th'l conclusion that the story that the
Lalmamad was dragaed SO feet by the Ahin before he was assaulted
and killed was untrue. The pNt-mortem report shows that there
were no marks rf dragging ('n the bcdy of Lalmamad. No clothing
of the deceased was proved to be torn. It pointed out that all the
prcseculion witnesses
~poke cf an !\t'ack upon the dcmased
Lalmamad beg1.1n by a heavy blow on the head given by Megha Bhima
(acquitted accused pencn) 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 bC~dy 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 app:;-llant,
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 courEe of the riot or after it, became
most improbable.
The High Court, while, discarding the case of an unlawful assembly, as set llp by the evidence of the prosecution witnessf.s, had held
the appellant guilty of murd~ring 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 ap.
pellant 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
post-mortem examination :
""(here was only one injury on the neck mentioned
in the column No. 7. The mustoid b:me 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 g• or less, and it depends on injury of the
weapon from the back side of the neck upto the chest.
The wound startt:d frcm the middle of the back of neck.
There was no injury on the teeth but the jaw bone was
exposed. This injury was pp~ible by one blow''.
480
SUPREl--iB COURT REPORTS
[1974] 2 S,f:,R.
· The injury on the body of Lalmamad belies the whole prose
.
case that a body of persons. bad fallen upo!l ~alma mad and do~~~n .\
to death and that a Dhanya blow was mjlicted by the appellant ~
the course of that attack .. :rhe plac.c wher~ I;almamad had fallen
as well as the nature of the IOJllry on Ius nee)<: md1cates that it was most
probable tllat Lalmamad was caught alone tn the dark ncar the Ah· ,
locality by somebody who cut his neck with a weapon like a Dhari~~
Night had fallen then. It could not be asserted, on the evidence on a
record, that the person who cut the r.~ck ofLahnamad, was nece>sarily
the appellant.
It is not uncommon in cases of a communal nature to find witncsltl
coming forward to depose falsely about an attack by a person 11ho is
believed to be guilty. Apparen!ly, this is why the witnesses had
tried to involve the appellant "hose participation in the occurren,'l: C
seemed to them to be establi>t.ed by his h;wing 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 Lal·
mamad. But. a court of justice has to sift and analyse evi<knce v!ry
cardully; sot as to determine w hcther 1 he case against an accused
person is established beyond r.:asonable doubt. This is particularly
necessary in a case with a ccmmunal bnckground in \\hieh parti;Jn
J)
witnesses may depose fabely out of a mi swk~n or misplaced ~cnse of
a group loyalty.
The result is that we allow this appeal and set aside the con\icti~n
and sentence of the appellant. who will be released forthwith uni<!'S
wanted In some other connection.
V.P.S.
/
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