AHER BHAGU JETHA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant, Ahir Bhagu Jetha, is one of the 18 persons charged with the offence of rioting, armed with deadly weapons, on 28th of June 1968, at about 7.30 p.m. at the village Kumbharia in the State of Gujarat. This riot, which was alleged to have a communal background, was said to have resulted in simple injuries to several persons, grievous injuries to others, and the death of Lalmamand Murvaji.

(2.) The Sessions Judge of Kutch, who tried the case, acquitted 9 accused persons and convicted the rest of various offences said to have been committed in the course of the riot. Out of those, six accused persons, including the appellant, were convicted under Section. 302, I.P.C. read with Section 149, I.P.C. and sentenced to imprisonment for life. On an appeal to the High Court of Gujarat, the whole story of riot, as set up, was disbelieved. Seven convicted persons were acquitted. The appellant alone was convicted under Section 302, I.P.C. and sentenced to life imprisonment. Another accused, who did not appeal, and who was convicted under Section 324, I.P.C. only and sentenced to 9 months rigorous imprisonment and to pay a fine of Rupees 300/- is not before us. We are, therefore, concerned only with the case against Bhagu Jetha who has been convicted by the High Court for an offence punishable under S. 302, I.P.C. although he was charged and convicted of an offence 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. 149 I.P.C. No separate charge was framed under S. 302 I.P.C. simpliciter. We need not consider the effect of the omission in this case as we are satisfied, for reasons given below, that the appeal must be allowed on a bare examination of allegations and evidence in the case.

(3.) The two groups, between which tension existed, prior to the occurrence, consisted of Ahirs, who are Hindus, and Samas 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 locality when Govan Mandam, an Ahir, objected to it on the ground that Ahir womenfolk had to pass that way for fetching water. Bhuraji and Ranaji were alleged to have expostulated and said that they were doing no wrong in sitting outside in their own locality and that the Ahir ladies are like their own sisters and daughters to them. It is said that the deceased Lalmamad then appeared at the scene and took the side of Bhuraji and Ranaji. Thereupon, Govan Mandan (acquitted) is alleged to have dragged Lalmamad towards a dung-hill. At that time, a number of Ahirs are said to have collected 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 Lalmamad, is also alleged to have been injured. Shrimati Jambai, P.W. 8, the wife of Nandaji, 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 alleged having seen the attack on Lalmamad and to have been near Lalmamad (decreased) when he was actually struck by the appellant by a Dharia. In this F.I.R. only four accused person, including the appellant, are mentioned, and Lalmamad, Ranaji and Nandaji, are shown to have been injured. No injuries on the person of the appellant were mentioned.