# MEHBUB SAMSUDDIN MALEK AND ORS v. ST A'fE OF GUJARAT

- **Citation:** [1996] Supp. 5 S.C.R. 136
- **Court:** Supreme Court of India
- **Decided:** 1996-08-23
- **Case number:** Criminal Appeal No. 276 of 1992
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mehbub-samsuddin-malek-and-ors-v-st-a-fe-of-gujarat-14510
- **Pages:** 25

## Headnote

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 cirD 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 identification 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-Production 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 accused who had produced knife-Held : In the circumstances of the case, the D
mistake could not be regarded as non-application of mind-Mistake committed 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 appea

## Text

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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 cirD 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 identification 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-Production 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 accused who had produced knife-Held : In the circumstances of the case, the D
mistake could not be regarded as non-application of mind-Mistake committed 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 weapons
by them and production of their blood stained clothes were reliable; that
B
c
there was some discrepancy i:n the evidence of the identifying witness; that
there was a delay of 12 days in recording the statement of the identifying
witness; and hence the conviction of Appellant No. 1 under Section 120-B
IPC and that of Appellants Nos. 2 and 3 was neither legal nor proper.
Dismissing the appeal, this Court
HELD : 1. Appellant No. 1 stopped the bus near a mob of armed
Muslim boys standing at the entrance of a street. In spite of the request of
the passengers Appellant No. 1 did not start the bus before the mob could
approach it but instead he 1~ot down from it, went upto the mob and had
·some discussion with the pt~rsons of that mob. Thereafter, the mob came
D near the bus and assaulted the passengers. If really the bus had stopped
because of the mob coming in front of it then it was not necessary for him
to get down from the bus. He could have disclosed his identity even by
remaining in the bus. In view of the evidence of the eye witnesses, the
explanation given by him has to be regarded as false. His conduct is also
E
inconsistent with his innocence. The stopping of bus at a place where there
was no necessity to stop it, his getting down from the bus and going across
the road right upto the entrance of the street and talking to the persons in
the said mob leads to an irresistible inference that he not only facilitated
the attack on passengers by stopping the bus just opposite the entrance of
the street but also induced the members of the said unlawful assembly to
F
attack the passengers. Thus an agreement between him and the said unlawful assembly is satisfactorilly established by the prosecution and therefore
his conviction under Section 120-B l.P.C. deserves to be upheld. [160·B·C]
2.1. Failure by a witness to identify all the accused whom he had seen
at the time of the incident cannot be regarded as a good ground for
G rejecting his evidence reg~trding identification of some of those accused.
His ability to remember tb.e faces of the accused and identify them at the
identification parade woulil depend upon many factors. If his attention was
focussed only on some of them it is quite likely that he may be able to
identity them only and fail to identify the other accused even though he
H had seen them. (155-E-F]
MEHBUB SAMSUDDIN MALEK v. STATE
139
2.2. It is true that there is some discrepancy in the evidence of the A
identifying witness as regards the height of the accused whom he identified.
Before the police he had stated that the person who had given the gupti blow
was thin and short. While giving evidence in the court he admitted that
. though Appellant No. 2 was thin he was not short. Appellant No. 2 was seen
by this witness while getting into the bus. The blow to the deceased was given
at about that time. As Appellant No. 2 was seen giving a blow with a
dangerous weapon it is quite probable that his attention was focussed on
his face. Therefore, this discrepancy regarding the height cannot be given
any importance. This being a case of communal riot the witness might have
been reluctant to go to the police and give his statement. Hence, a delay of
12 days in recording his statement was immaterial. [156-B-C; 157-E]
Habal Shaikh v. 171e State, (1991) Crl. LJ. 1258; Pramod Kumar v.
171e State, (1990) Crl. LJ. 68; Mahendra Singh v. State of U.P., (1991) Crl.
LJ.1381; Bollavaram Pedda Narsi Reddy v. State of Andhra Pradesh,. [1991]
B
c
3 SCC 434; Chaman v. State of U.P., [1993] Supp. 1 SCC 403 and Tahir D
Mohammad v. State of M.P., .[1993] Supp. 2 SCC 697, referred to.
3.1. A 'gupti' was discovered pursuant to the statement of Appellant
No. 2 from a dilapidated building concealed below a heap of earth and
broken bricks which on examination was found to be stained with human
blood of 'B' Group. The clothes of the deceased also showed that they were E
stained with blood of 'B' Group. Because the house was in a dilapidated
condition and could be approached by any one it cannot be urged that the
gupti was found from and open place accessible to all. It was not found
from a public place nor was it found inside a house which belonged to
someone though the same was in a dilapidated condition and the gupti was
F
found concealed below a heap of earth and broken bricks. The find of
human blood of 'B' Group· on the gupti which was discovered at the
instance of Appellant No. 2 provides independent corroboration to the
evidence of the eye-witnesses that Appellant No. 2 had given a gupti blow
to the deceased. Appellant No. 2 denied in his statement under Section 313
of the Code of Criminal Procedure, 1973 that he had discovered the G
'muddamal' gupti or that it belonged to him. This false denial is also a
circumstance against Appellant No. 2. [157-F-H; 158-A-C]
3.2. The Panch witness had stated that he had gone to the house of
Appellant No. 3 and on search one muddamal razor was found from a H
140
SUPREME COURT REPORTS [1996) SUPP. 5 S.C.R.
A
hollow place below a safe. The Panch witness did not say that it was stained
with blood. Moreover, origin of the blood also could not be ascertained.
Therefore, it is not safe to place reliance upon this circumstance for
convicting Appellant No. 3. [158-F -G]
B
4. The trial court had stated that the evidence of the witness proved
that Accused No. 10 (Appellant No. 3) took out a knife and produced it
before the Panch witness and the police and, therefore, this circumstance
proved the case of the prosecution against accused No. 10. But the evidence
of the witness is that Accused No. 6 had produced the knife which he had
hidden in a loft. The trial court has obviously committed a mistake while
C
naming the accused who had produced the knife. Appellant No. 3 has not
been convicted by the trial court relying upon the evidence of this witness
but on the basis of the evidence of other prosecution witnesses. This
mistake cannot be regarded as misreading of evidence or non-application
of mind. The mistakes either taken individually or cumulatively, do not
D have the effect of vitiating the conviction of Appellant Nos. 2 and 3
(Accused Nos. 7 and 10.) [144··C-E; 145-E]
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
276 of 1992.
E
From the Judgment and Order dated 10.4.92 of the Designated Court
at Vadodara in TADA Case No. 64 of 1991.
Sushi! Kumar, M.V. Goswami and S.A. Syed for the Appellants.
F
S.C. Patel for the Respondent.
The Judgment of the Court was delivered by
NANAVATI, J. The appellants, who are original accused Nos. 1, 7
and 10, have filed this appeal under Section 19(1) of the Terrorist and
G
Disruptive Activities (Prevention) Act, 1987 against the judgment and
order passed by the Designated Judge and Additional Sessions Judge,
Baroda in TADA case No. 64 of 1991.
On 23.4.1991 at about 10 P.M. there was a communal disturbance in
the city of Baroda. In an incident which took place around 10.15 P.M. near
H Mehta 'Pole' (Street) which is on the northern side of Mandavi Gate and
MEHBUBSAMSUDDIN MALEKv. STATE(NANAVATI,J.)
141
in between Champaner Gate and Mandavi Gate two Muslim boys were A
attacked with sharp weapons. They were taken in an injured condition by
other Muslim boys to Rajpura 'Pole' which is on the eastern side of
Mandavi Gate and in between Mandavi Gate and Pani Gate. It was the
prosecution case that because of the attack on these two Muslim boys the
residents of Rajpura 'Pole', which is inhabited by Muslims, got excited and
soon a mob of 25 to 30 boys of that street collected near its entrance and
started shouting words like 'beat', 'kill', 'kill Hindus'. Some of them were
armed with weapons. They first attacked Rajaram (P.W. 47) who was
proceeding on his moped from Pani Gate side towards Mandavi Gate.
While he was little away from Rajpura 'Pole' a stone hurled by someone
from the mob hit him on his head. They then attacked Shridhar at about
10.45 P.M. when he was passing by that place on a scooter alongwith his
wife and son. His wife and son were able to escape without being injured
B
c
but Shridhar received injuries before he could rqn away to the nearby
Police Control Room set up under the Mandavi Gate. It was also the
prosecution case that one city bus running between Baroda railway station D
and Sayaji Park left the railway station at about 11 P.M. with about 50
passengers including Harish (deceased), Pravinbhai (PW 3), Agamkumar
(PW 20), Nand Kishore (PW 21) and Shambhubahi (PW 22). Appellant
No. 1 was driving the said bus and Gulamnabi (PW 6) was the conductor.
Upto Nyaymandir the appellant No. 1 had stopped the bus at regular bus
stops. When the bus started from Nyaymandir there were about 25 to 30
passengers in it. The next stop was near Mandavi gate. Even though one
passenger had to get down at Mandavi bus stop and even though one S.R.P.
Constable posted at the Mandavi Control Room, sensing some trouble
ahead, tried to stop the bus the appellant did not stop it and proceeded
further. He stopped it opposite Rajpura 'Pole' 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 that street. He got down from the
bus, crossed the road, went near the mob, and had some talk with it. Soon
thereafter the said mob which, included accused Nos. 2 to 11 came near
E
F
the bus and surrounded it. They attacked the bus and were also shouting G
'kill Hindus', 'cut Hindus' and 'set fire to the bus'. Pravinbhai (PW 3) got
frightened, opened the door of the bus and tried to run away. He was
caught and given blows with a sharp edged weapon and because of the
injuries thus received he fell down on the road. Harish (deceased) who was
in the bus also tried to get down from the bus and run away but before he H
142
SUPREME COURT REPORTS (1996] SUPP. 5 S.C.R.
A could get down he was also attacked and given a 'Gupti' blow by Appellant
No. 2 (accused No. 7). He received serious injuries and after walking few
steps fell down on the road. Some members of that unlawful assembly
including appellants Nos. 2 and 3 entered the bus and started attacking
others. Because of the shouts raised by the passengers and also because
B Police Inspector, Solanki, who was on 'Bandobast' duty near the Mandavi
Gate control room himself saw that a person was being dragged towards
Rajpura Pole, he along with other policemen rushed towards the bus.
Seeing the police coming the assailants ran away into the Rajpura Pole. It
is the prosecution case that as a result of the injuries caused by the
members of the said unlawful assembly, Harish and Deepak died. It is also
C
the prosecution case that all these acts were committed by the members of
the said unlawful assembly in prosecution of their common object to cause
injuries to Hindus and kill them. Appellant No. 1 had also conspired with
the said unlawful assembly and was, therefore, responsible for the acts
committed thereafter by the members of the said unlawful assembly. On
D
these allegations the appellants along with 8 other accused were charged
and tried for the offences punishable under Sections 147, 148, 307, 302, 336
and 451 all read witli Section 149 and Section 201 I.P.C. They were also
tried for the: offence punishable under Section 135 of the Bombay Police
Act, for committing breach of the notification dated 15.4.1991 issued under
E Section 37 of the said Act.
The prosecution led the evidence of eye witnesses, evidence relating
to identification of the accused and evidence regarding recovery of incriminating articles and also other supporting evidence.
F
The trial court accepted the prosecution evidence against the appellants. It held that the mob which had gathered near the entrance of the
Rajpura Pole was an unlawful assembly, the object of which was to attack
and kill Hindus. It also held that Rajaram and Sridhar were injured and
Deepak and Harish were killed by that unlawful assembly in prosecution
of their common object. It further held that appellant No. 1 deliberately
G did not stop the bus at the Mandavi bus stop and stopped it opposite
Rajpura pole, seeing a crowd of armed Muslim boys standing near the
entrance of that Pole. The trial court held Appellant No. 1 guilty for the
offence of criminal conspiracy as he after getting down from the bus had
gone near that unlawful assembly, had a talk with it and thereafter the
H members of that unlawful assembly had attacked the bus and passengers
-
MEHBUBSAMSUDDINMALEKv. STA1E[NANAVATI,J.]
143
sitting therein and all this was done by him with a view to facilitate an A
attack on the passengers. With respect to Appellant Nos. 2 and 3 the trial
court held that the prosecution evidence was reliable and sufficient to
establish their identity as members of the said unlawful assembly and also
as the persons who had attacked the passengers, including deceased
Harish. Therefore, the trial court convicted them for the offences punishable under Sections 147, 148, 302 and 451 read with Section 149 I.P.C. and
also under Section 3 of the TADA Act. Appellant Nos. 2 and 3 have been
acquitted of the other charges for which they were tried. The trial court
did not find the prosecution evidence sufficient and reliable as regards the
remaining accused and, therefore, acquitted them by giving benefit of
doubt.
Aggrieved by their conviction, the appellants have filed this appeal.
B
c
The learned counsel for the appellants first drew our attention to certain
mistakes in the judgment and submitted that the learned trial judge either
misrea.d the evidence or did not properly apply his mind to the evidence D
on record with the result that the findings recorded by him stand vitiated.
In view of this submission we have carefully gone through the entire record
even though certain facts are not in dispute.
He first drew our attention to paragraph 18 of the judgment where
after appreciating the evidence of P.W. 13 Prahladsinh Badansing ShekE
havat, the learned trial judge has observed that "so he proved that the
persons caused injuries to the passengers and caused death of two passengers. Culprits were the persons of Rajpura Pole and it was standing in
front of Rajpura Pole." It is true as submitted by the learned counsel that
this witness has not stated that he had seen the assailants causing death of F
two passengers and injuries to others. What he has stated in his evidence
is that the bus stopped near Rajpura Pole and soon thereafter shrieks of
the passengers were heard. Therefore, he and P.l. Solanki rushed towards
the bus. By the time he and P.1. Solanki reached that place the assailants
ran away by jumping out of the bus. They ran away towards Rajpura Pole.
They had weapons with them. The learned trial judge after considering this G
evidence has observed :
"So he proved that the persons caused injuries to the passengers
and caused death of two passengers. Culprits were the persons of
Rajpura Pole and it was standing in front of Rajpura Pole. So he H
144
A
SUPREME COURT REPORTS [1996] SUPP. 5 S.C.R.
. established the facts that mob came from the Rajpura Pole and
assaulted passengers and caused them injuries."
.The last two sentence~: set out the conclusion reached after appreciating the evidence of this witness. In the previous sentence the learned
judge has stated what can be said to have been proved on the basis of the
B evidence of this witness and other evidence on record. It is, therefore, not
possible to agree with the learned counsel that the said observation discloses non-application of mind or misreading of the evidence having the
effect of_ vitiating his ultimate conclusion regarding guilt of the appellants.
In paragraph 35 of the judgment after considering the evidence of
C P.W. 27 Rameshbhai the learned trial Judge has stated that his evidence
. proves that Acc'used No. 10 took out a knife and produced it before the
Panch witness and the police and, therefore, this circumstance proves the
case of the prosecution against accused No. 10. Evidence of P.W. 27
Rameshbhai is that Mohammed Rafiq, Accused No. 6 had produced the
D knife which he had hidden in a loft. The learned Judge has obviously
committed a mistake while naming the accused who had produced the
Muddamal knife under Panchnama, Exh. 79. The evidence is that Accused
No. 10 had caused injuries with a razor and the razor was recovered from
his residence in presence of P.W. 31 Mukhesh, who had acted as a Panch
witness. Accused No. 10 has not been convicted by the learned Judge
E relying upon the evidence of P.W. 27 Rameshbhai but on the basis of the
evidence of P;W. 31 Mukheshbhai and other prosecution evidence. This
mistake cannot be regarded as misreading of evidence or non-application
of mind.
F
G
In paragraph 42 of the judgment the learned trial judge has described
P.W. 34 Rajubhai as a Panch witness. That is a mis-description of the
witness and that becomes clear from the fact that his evidence has been
correctly stated in that paragraph. Moreover, no reliance has been placed
on the evidence of this witness as he had turned hostile. Therefore, this
mistake also does not support the appellant's contention.
The learned counsel lastly drew our attention to Paragraph 66 of the
judgment. After referring to the evidence regarding identification of the
accused, the learned Judge has further stated that the evidence of the
eye-witnesses who identified them "are supported by the other circumstances and evidence that accused voluntoritly produced the Muddamal
H weapons which were used by them in the said crime and particularly
MEHBUBSAMSUDDIN MALEKv. STA1E(NANAVATI,J.]
145
accused No.7 at the time of incident was possession Gupti and stabbed the A
said Gupti to Harish and Deepak ....... " The learned Judge has further
stated that "this accused produced Muddamal clothes having blood stains
which were put on by them". It is true that none of the eye-witnesses has
stated that he had seen Accused No. 7 giving Gupti blows to Deepak. Their
evidence is that they had seen Accused No. 7 giving a Gupti blow to Harish.
When the learned trial Judge stated that Accused No. 7 had stabbed B
Harish and Deepak he was really stating the cumulative effect of all the
evidence against him and not that of the eye-witnesses alone. As regards
the production of Muddamal clothes we find that the statement made by
the learned trial Judge is not wholly correct qua accused No. 7. He had
not produced the clothes alleged to be his and stained with blooci,. It C
appears from the evidence that Accused No. 7 had given his blood stained
bushirt to Mohammed Salim and his blood stained pant to Sajid Hussain
and they had produced those clothes before Panch witnesses P.W. 40
Parasram and P.W. 41 Govind and they were taken into custody by the
police under Panchnamas, Exhs. 18 and 120. Their evidence has been dealt
with by the learned trial Judge in paragraphs 48 and 49 of the judgment. D
What is the worth of that evidence will have to be considered independently but it cannot be said that the learned Judge has recorded the
finding with respect to Accused No. 7 without application of mind.
In our opinion, the mistakes pointed out by the learned counsel,
either taken individually or cumulatively, do not have the effect of vitiating E
the conviction of Appellant Nos. 2 and 3 (Accused Nos. 7 and 10).
We will now refer briefly to the evidence which establishes certain
facts regarding which there is really no dispute. Evidence of P.W. 5 Police
Inspector Govindsingh Solanki and P.W. 51 Police Inspector Shantilal
clearly establishes that on 23.4.1991 at about 10.45 P.M. because of riots in
different areas falling within the limits of the City Police Station, they had
returned to Mandavi sub-control room for Bandobast duty. Evidence of
P.W. 4 Imammiya establishes that by about 10.15 P.M. a mob of about 25
F
to 30 Muslim boys had collected near the entrance of the Rajpura Pole G
and that some time before that two Muslim boys, Liyakat and Akbar, were
brought to that Pole in an injured condition. Evidence of P.W. 34 Rajubhai
(Exh. 92) further discloses that at about 10.00 P.M. on 23.4.1991 he had
gone to the 'lari' (a four wheel hand cart) of one 'Chacha' near Mandavi
Gate for eating and after some time while he was eating accused No. 2 who
resides in Rajpura Pole had come there and told him to go away as riots H
146
SUPREME COURT REPORTS (1996] SUPP. 5 S.C.R.
A were likely to take place there.
Evidence of P.W. 47 Rajaram has also remained almost unchallenged. His evidence is that at about 10.30 P.M. while he was returning
from his relative's house and had passed by Pani Gate and was proceeding
towards Mandavi Gate on his Luna, he was hit by a stone thrown by one
of the persons out of the mob standing near the entrance of Rajpura Pole.
An attempt was made in his cross-examination to show that he was hit by
a stone not when he was in front of Rajpura Pole but when he was near
the entrance of Ladvada. This witness has denied that he had stated like
that to the police and no such contradiction has been proved. Moreover,
the map (Exh. 38) shows that a man coming from Pani Gate side has to
C first pass by the entrance of Ladvada and then cross the· entrance of
Rajpura Pole in order to reach Mandavi Gate. Moreover, the distance
between the entrance of Rajpura Pole and Ladvada is about 30 feet only.
Therefore, the learned Judge was right in not attaching any importance to
this discrepancy and accepting his evidence.
D
The next man to be assaulted was P.W. 2 Shridhar. His evidence is
that some time after 10.30 P.M. while he was returning to his house on a
scooter along with his wife and son, and after crossing Pani Gate when he
came near Rajpura Pole, he was assaulted by a mob and as a result thereof
he received two injuries on his hand and left leg, before he could escape.
E
His evidence has remained unshak1en. Only thing that could be elicited by
the defence in his cross-examination was that because of darkness he could
not identify whether the said mob was of Hindus or Muslims. In his
cross-examination, an attempt was made.by the defence to prove that city
bus stand is opposite Rajpura Pole and that city police station is also
p
nearby. But his evidence on this point is not of much significance because
he has given rough estimates and as against that there is definite evidence
of P.W. 10 Rameshbhai, (Exh. 36) a revenue Circle Inspector, who had
taken exact measurements and prepared a map of scene of offence (Exh.
38). That evidence, apart from other evidence on record, clearly shows that
the Bus stand is not opposite Rajpura Pole, but is towards Mandavi Gate
G and at a distance of more than 110 ft. from Rajpura Pole. This witness,
may be because he was afraid, did not tell in his evidence who were in the
mob and the reason why they were attacked. However, his wife P.W. 46
Arunaben has stated that the said mob of Muslim boys and that they were
attacked by it after seeing a 'Chandla' on her forehead and at that ti~e
H they were shouting 'beat', 'kill'. When questioned as to how she could say
}
s
'
,..
MEHBUBSAMSUDDINMALEKv.STAIB[NANAVATI,J.)
147
that the mob was of Muslim boys, she stated that she believed so as Rajpura A
Pole is a Muslim locality. The learned counsel for the appellant could not
point out any major infirmity in the evidence of these two witnesses and in
the appreciation of their evidence by the learned trial Judge.
The evidence of all these witnesses clearly supports the finding
recorded by the learned trial Judge that a mob of excited Muslim boys had B
collected near the entrance of Rajpura Pole after two Muslim boys were
brought there in an injured condition and that the persons in that mob were
armed with weapons and were uttering words like 'beat', 'kill' and thus it
had constituted an unlawful assembly. It also supports the finding that the
members of the said unlawful assembly had attacked Rajaram and Shridhar C
in prosecution of their common object to beat and kill Hindus.
The learned counsel for the appellant has, however, seriously questioned the findings recorded by the learned trial Judge regarding the
involvement of the appellants in the attack on the passengers of the bus.
He submitted that neither the evidence of the eye-witnesses nor the D
evidence relating to identification of Appellants Nos. 2 and 3 nor the
evidence relating to discovery of Muddamal weapons by them and production of their blood stained clothes can be said to be reliable and sufficient
to sustain their conviction. He also submitted that the conviction of Appellant No. 1 for the offence punishable under Section 120-B is neither legal E
nor proper.
That a city passenger bus left Baroda Railway Station at about 11.00
P.M. for going to Sayaji Park and that the said bus had to pass through the
localities known as Kothi, Raopura, Nyaymandir, Mandavi, Pani Gate and
Vaghodia Road is not in dispute. Though Appellant No. 1 has not admitted
in his statement recorded under Section 313 of the Criminal Procedure
Code that he was the driver of that bus, that fact is established beyond
doubt by the evidence of the conductor of that bus P.W. 6 Gulamnabi. He
has in clear terms stated that the driver of that bus was Mehbub Khan, that
is, Appellant No. 1.
In cross-examination of this witness by Appellant No. 1 a question
was put to him as to whether Appellant No. 1 was on that day on
permanent duty or temporary duty and this witness stated that he was on
temporary duty. No other question was put to him to suggest that Appellant
F
G
No. 1 was not the driver of the said bus or that he had any reason to falsely H
148
SUPREME COURT REPORTS [1996] SUPP. 5 S.C.R.
A
depose against Appellant No. 1. It was contended by the learned counsel
for the appellant that the pros1~cution should have in all fairness put up
this witness as an accused along with Appellant No. 1 as the statement
made by P.W. 21 Nand Kishore before the police had disclosed that he
had also got down from the bus and started talking with the mob. Nand
B
c
Kishore has not admitted that he had made such a statement before the
police. What he had stated before the police was that the driver and
conductor had got down from the bus and had stood near Rajpura Street.
Though a suggestion was made to P.W. 20 Agam Kumar that he had also
stated like that before the police that was denied by the witness and it has
not been proved that he had made such a statement.' It was not put to the
investigating officer that the investigation made by him disclosed that P.W.
6 Gulamnabi was also involved in the offence. For this reason it is not
possible to say that the prosecution has acted in an unfair manner in not
arraining Gulamnabi as an accused and examining him as a witness. As
pointed out above the only attempt that was made by the defence in the
D cross-examination of this witness was to show that Appellant No. 1 was not
the permanent driver of that bus but was on temporary duty on that day.
P.W. 54 P.I. Parmar who was the investigating officer has stated in his
evidence that he had 0btained T.K. charge from the S.T. Controller which
disclosed as to who was incharge of the bus on that day and had produced
the said charge statement on the record of the case. Having carefully
E
scrutinised the evidence of witness Gulamnabi we are of the opinion that
his evidence has been rightly relied upon by the learned trial judge and the
finding recorded on the basis of his evidence that Appellant No. 1 was the
driver of the bus is also correct.
F
The fact that the bus stopped opposite Rajpura Pole and that the
passengers travelling in that bus were attacked at that place is not in
dispute as there is sufficient evidence on record to prove those facts.
Therefore, we need not refer to the said evidence. The prosecution in order
to prove how and under what circumstances the passengers were attacked
by the members of the said unlawful assembly examined four eye-witG nesses, P.W. 3 Pravinbhai, P.W. 20 Agam Kumar, P.W. 21 Nand Kishore
and P.W. 22 Shambhubhai.
P.W. 3 Pravinbhai is an injured eye-witness. He does not involve any
of the appellants as he was not able to identify any of his assailants or other
H persons who were in the mob which had attacked the bus and the pas-
MEHBUBSAMSUDDINMALEKv.STAIB[NANAVATI,J.]
149
sengers sitting therein. He had returned as usual from Surat to Vadodara A
and had boarded the bus for going to his house situated in S~eth Sheri near
Mandvi Gate. He has stated in his evidence that the driver of the bus did not
stop the bus at the Mandvi bus stop, went ahead and stopped it at a place
which was opposite Rajpura Pole. He has also stated that as soon as he got
down from the bus a mob of about 25 to 30 persons which was standing on
the other side of the road near the entrance of Rajpura Pole came running B
towards the bus. As soon as he got down from the bus he was caught by one
person who tried to forcibly take him towards Rajpura Pole. At that time he
was given a blow with a sharp-edged weapon on his left thigh and so he had
fallen down on the road. The learned counsel for the appellants submitted
that no reliance should have been placed upon the evidence of this witness C
as he had changed his version on two material points. It was submitted that
this witness in his police statement had stated that "on coming near Mandvi, ·
there was one mob of people at the Naka of Rajpura Street near Najarbaug
and so the passengers who were sitting into the bus had asked the conductor not to stop the bus and had shouted". The witness denied this suggestion and we find from the evidence of the investigating officer that no such D
statement was made before him. It was also submitted that the witness had
stated before the police that "at this time a mob of about 25 to 30 persons
was standing and it came in front of the bus and so the bus had stopped
just ahead of Rajpura Pole". This suggestion was also denied by the witness.
According to the investigating officer the statement which was made by the E
witness was that "a mob of about 25 to 30 persons was standing which came
just in front of the bus and the bus had stopped just ahead from Rajpura
street". The English version is not accurate. If the original statement in
Gujarati is read carefully it does not indicate that the bus had stopped
opposite Rajpura Pole because a mob of 25 to 30 persons had come in
front of it. What the witness really meant was that the bus had stopped just F
ahead of Rajpura street and that a mob of 25 to 30 persons which was
standing near that street then came in front of the bus. The learned counsel
was not able to point out· any other infirmity in his evidence. The witness
was at the relevant time working as an Office Superintendent in a Medical
. College at Surat and he had no reason to falsely state something which had G
not happened. The evidence of this independent witness supports the
version of P.W. 20 Agam Kumar and P.W. 22 Shambhubhai as regards the
circumstances under which the bus stopped on the opposite side of Rajpura street and how the mob which was stan'ding near the entrance of
Rajpura Pole came to the other side of the road, surrounded the bus and
attacked the passengers.
H
A
B
150
SUPREME COURT REPORTS [1996) SUPP. 5 S.C.R.
P.W. 21 Nand Kishore did not fully support the prosecution. Therefore we will deal with his evidenc,e first before dealing with the evidence
of the remaining two eye-witnesses. He is the brother of Harish who was
killed by the mob. He has stated how on return from Surat to Vadodara
as usual he and his brother had boarded the bus. He did say in his
examination-in .. chief that the driver of the bus stopped it in front of
Rajpura Pole, then the mob whic:h was standing near the entrance of
Rajpura Pole came near the bus and surrounded it and when his brother
was trying to get down from it he was attacked with a 'gupti' and injured.
He has also stated that as soon as the police came the assailants ran away.
When he got down from the bus he found his brother lying at a short
C
distance from the bus. As he felt giddiness on seeing his brother in such a
condition P.W. 20 Agam Kumar volunteered to take him to hospital and
told him to go home. He had seen some of the assailants and had identified
them also. On 4.5.91 in the identification parade he had identified Accused
No. 2 Iqbal and Accused No. 3 Mustaf as the members of the said unlawful
assembly. On 8.5.91 he had identified Appellant No. 2 (Accused No. 7).
D Not only he refused to identify them in the court but went to the extent of
denying that he had identified any of them in the identification parade. He
was, therefore, declared hostile and was permitted to be cross-examined
by the Public Prosecutor. In his cross-examination by the Public Prosecutor
he did say that the driver of the bus had not stopped it at the Mandvi bus
stop and that he had identified Accused Nos. 2 and 3 on 4.5.91 and
E Appellant No. 2 on 8.5.91. Again, in his cross-examination by the learned
advocate for the accused he turned round and stated that the driver had
stopped the bus as the mob had come in front of it. He also obliged the
defence by stating that as soon as the bus stopped its light went off
suggesting thereby that it was not possible thereafter to identify the asF
sailants. His readily agreeing to whatever was put to him by the defence
clearly indicates that he was still afraid of the accused and was, therefore,
not prepared to tell the truth. The learned judge was, therefore, right in
not placing any reliance upon this witness. The learned counsel for the
appellants, however, tried to derive support from the evidence of this
witness for the defence of Appellant No. 1 that he did not voluntarily stop
G the bus opposite Rajpura Pole but was forced to stop it because a mob
came in front of it As the witness was not prepared to tell the truth his
evidence cannot be relied upon even for that purpose also.
P.W. 20 Agam Kumar was a Salesman in Krishnavir Marketing at
H Surat. Like Nand Kishore and Harish he was also going to Surat everyday
•
MEHBUBSAMSUDDINMALEKv.STATE[NANAVATI,J.]
151
and returning to Vadodara at night by Sayaji Nagri train. On the day of A
the incident he had boarded the bus leaving for Sayaji Park at 11.00 P.M.
He has fully supported the prosecution version as regards what happened
thereafter. He had identified Appellant No. 2 Lalu (Accused No. 7) on
8.5.91 and Appellant No. 3 Faruk, (Accused No. 10) on 14.5.91 in the
identification parade. The contention of the learned counsel for the appelB
lant was that his evidence should not have been believed as his presence
in the bus was doubtful and also because his version suffers from grave
infirmities. It was submitted that his statement was recorded at 3.00 P.M.
on the next day and that indicates that he was a got up witness. It was
submitted that this witness had made material improvements in his C
evidence when he stated that : (1) when the bus came near the Mandvi bus
stop one old man who wanted to go to Ladwada started shouting that he
should be allowed to get down, (2) that the mob had come in front of the
bus after the bus had stopped and (3) one S.R.P. Constable had asked the
bus driver to stop the bus, but the driver had not stopped it and had driven
it away.