MEHBUB SAMSUDDIN MALEK Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellants, who are original Accused 1, 7 and 10, have filed this appeal under Section 19 (1 of the Terrorist and 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.

(2.) 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 Mehta 'pole' (Street) which is on the northern side of Mandavi Gate and in between Champaner Gate and Mandavi Gate two Muslim boys were attacked with sharpweapons. 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 (Public Witness 47 who was proceeding on his moped from Pani Gate side towards Mandavi Gate. While he was a 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 along with his wife and son. His wife and son were able to escape without being injured but Shridhar received injuries before he could run 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 and Sayaji Park left the railway station at about 11 p. m. with about 50 passengers including Harish (deceased) , Pravinbhai (Public Witness 3, Agam Kumar (Public Witness 20, Nand Kishore (Public Witness 21 and Shambhubhai (Public Witness 22. Appellant 1 was driving the said bus and Gulamnabi (Public Witness 6 was the conductor. Up to Nyaymandir Appellant 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 2 to 11 came near the bus and surrounded it. They attacked the bus and were also shouting "kill Hindus", "cut Hindus" and "set fire to the bus". Pravinbhai (Public Witness 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 could get down he was also attacked and given a 'gupti' blow by Appellant 2 (Accused 7 He received serious injuries and after walking a few steps fell down on the road. Some members of that unlawful assembly including Appellants 2 and 3 entered the bus and started attacking others. Because of the shouts raised by the passengers and also because 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 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 1 had also conspired with the said unlawful assembly andwas, therefore, responsible for the acts committed thereafter by the members of the said unlawful assembly. On these allegations the appellants along with 8 other accused were charged and tried for the offences punishable under S. 147, 148, 307, 302, 336 and 451 all read with Section 149 and Section 201 Indian Penal Code. They were also tried for the offence punishable under Section 135 of the Bombay Police Act, 1951 (22 of 1951, for committing breach of the notification dated 15/4/1991 issued under Section 37 of the said Act.

(3.) The prosecution led the evidence of eyewitnesses, evidence relating to identification of the accused and evidence regarding recovery of incriminating articles and also other supporting evidence.