Judgment

M. K. MUKHERJEE

( 1 ) ON 1/2/1995 we heard and disposed of this appeal with the following order:

"for the reasons to be stated later, the judgment of the Additional Designated Judge, Ahmedabad dated 4/3/1994 in TCC No. 166 of 1993 cannot be sustained. This appeal succeeds and is allowed. The conviction and sentences imposed upon the appellant are set aside and he is directed to be released from custody forthwith if not required in any other case. " We now state the reasons for the order.

( 2 ) THE appellant was placed on trial before the Additional Designaled Judge, court No. 2, Ahmedabad to answer charges under Section 302 read with Section 34 of the Indian Penal Code and Section 3 of the Terrorists and Disruptive Activities (Prevention) Act, 1987 (act for short) which centred around the death of a person belonging to the Hindu community on 23/12/1992. On conclusion of the trial the learned Judge recorded an order of conviction and sentence against the appellant in respect of both the charges. Hence this appeal under Section 19 of the Act.

( 3 ) BRIEFLY stated the case of the prosecution is that on 24/12/1992 Rajubhai Govindbhai (Public Witness 1, a resident of Chatursings Chawl, near Char Toda Kabrastan of Gomtipur in the city of Ahmedabad lodged a complaint with Gomtipur Police Station to the effect that on 23/12/1992 at or about I I p. m. while he was sitting in front of his house along with his friends Haribhai Mohanbhai Solanki and Sanjay Kumar Kishorebhai he saw Manoharbhai Kaluram Koli, who was a resident of the same Chawl and working as a labourer at the Railway Station Platform Canteen, coming towards them from the side of Patrawali Mosque. When he got as far as the road in front of the RSI Dispensary No. D-23 four persons named Kallar, Arif Hanif, Shahbuddin (the appellant) and Ishrar Kaliyo waylaid him. While the appellant and Ishrar Kaliyo caught hold of him the other two stabbed him with guptis. Resultingly, Manoharbhai received serious injuries and started bleeding profusely. When Rajubhai and his friends started shouting for help the miscreants fled away towards Patrawalis Chawl. They then rushed the injured to the hospital where the doctor declared him dead. In his complaint Rajubhai alleged that the murder was a sequel to the demolition of the structure of Babri Mosque at Ayodhya on 6/12/1992 and the communal riot that broke out in the city of Ahmedabad in its wake. On that complaint a case was registered and the appellant was arrested. On completion of investigation police submitted charge-sheet against the appellant and the other three accused named in the complaint showing them as absconding. The appellant pleaded not guilty to the charges levelled against him and contended that he was falsely implicated.

( 4 ) THAT Manoharbhai met with his homicidal death on the fateful night stands conclusively proved by overwhelming evidence on record. In fact this part of the prosecution case was challenged by the defence. The uncontroverted evidence of Head Constable Kantilal (Public Witness 5, who held inquest, with thecontemporaneous panchnama prepared by him (Ex. 1 1 and that of Dr P. R. Patel (Public Witness 3, who held post-mortem examination upon the deceased, when read together indicate that the deceased sustained and died of two stab injuries, one below the left nipple and other on the upper lateral part of the right shoulder blade.

( 5 ) THE next and the crucial question that falls for determination is whether the prosecution has succeeded in proving beyond all reasonable doubts, that the appellant was one of the persons who caused the death of Manoharbhai. To prove this part of its case, prosecution solely relied and the trial court based its conviction on the evidence of Jaydeep Kaluram (Public Witness 2, the brother of the deceased, as Public Witness 1 turned hostile. Before we refer to the evidence of Public Witness 2 we may mention that in the charges framed against the appellant it was specificall