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TMI Blog2011 (12) TMI 515X X X X Extracts X X X X X X X X Extracts X X X X ..... the appeal. The appeal has, in that backdrop, been listed before us to resolve the conflict. 3. Briefly stated, the prosecution case is that at about 10.00 p.m. on December 14, 1992, Mohd. Taheruddin (PW2) a resident of village, Changmazi Pathar situate within the limits of Police Station Doboka, District Nagaon in the State of Assam was guarding his paddy crop in his field close to his house. Md. Mustafa Ahmed (PW3), one of the two sons of Mohd. Taheruddin was sleeping at home in one of the rooms while Md. Hanif Ahmed (PW4) was together with one Zakir, said to be a close relative, was sleeping in the kitchen. Sahera Khatoon wife of Mohd. Taheruddin and his daughters Hazera Khatoon, Jahanara Begum, Samana Khatoon and Bimala were sleeping in another room. A mob allegedly comprising nearly twenty people entered the house of Mohd. Taheruddin and forcibly opened the door. Around the same time another house belonging to one Nandu situate at some distance from Mohd. Taheruddin's house was on fire. The prosecution case is that Md. Mustafa Ahmed (PW3) heard accused Gopal Ghose calling for `Munshi' which ostensibly is also how Mohd. Taheruddin was known. Md. Mustafa Ahmed (PW3) i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the proximal phalange. 4) There is swelling and tenderness over the right hand. 5) There were two cut injuries over the back, on each side. There was multiple cut injury with blunt injury of the right hand with sharp cutting. Wounds were dangerous in nature. Md. Mustafa Ahmed 1) Penetrating injury of the right leg with sharp pointed weapon. Size 1/3 x = . The injury is fresh and margins were irregular. 2) Simply cut injury by sharp pointed object. 5. The post-mortem examination on the dead bodies was conducted by Dr. Madhusudhan Dev Goswami (PW1) who reported incised wound on the right upper neck of Hazera Khatoon and two incised wounds one on the neck and other on left upper neck of Bimala Khatoon. Similarly, injuries were also noticed by the doctor on the dead body of Sahera Khatoon. After completion of the investigation the police filed a charge sheet against 14 persons out of whom 13 were named in the First Information Report. The accused persons were charged with offences punishable under Sections 302, 326, 324, 323, and 448 read with Section 34, IPC. The accused pleaded not guilty to the charges and claimed a trial. Accused Gopal Ghose, it is notewort ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e view that all the three witnesses were eye witnesses to the incident. 9. Mohd. Taheruddin (PW2) has in his deposition stated that the accused persons were known to him as they live within one mile from his village. On the date of occurrence he was guarding harvested paddy in the field to the West of his house. In his house his sons Md. Mustafa Ahmed and Md. Hanif and Zakir Hussain, a young boy, were sleeping. In another room of the house were his wife Sahera Khatoon and daughters Hazera Khatoon, Jahanara, Bimala and Samana Khatoon. He also used to sleep in that very room but on the date of occurrence he was in the field. He saw a group of 10-12 men coming from the North of his homestead and another group of 10-12 men coming from the South. They assembled in front of his house and entered the premises. Accused Gopal Ghose called out his name and asked if `Munshi' was at home. Hearing this, the witness started moving towards his house as there was a commotion. In the meantime his eldest son Mustafa Ahmed came and advised him not to do so as people were being attacked there. The boy ran towards the West through the paddy fields out of fear. The witness came close to the house ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the middle of a field and there are no houses nearby. The occurrence had taken place one week after the demolition of the mosque. He also had a case concerning a land dispute against accused Hari Singh and Kailash but did not know whether Gopal had got them out on bail in that case. He had also been arrested in connection with a case the year before. He denied having been arrested by the police on a number of other occasions. 13. The witness did not see whether the people who had assembled there were carrying anything in their hands. The rest of the people were in the courtyard when Gopal shouted and asked whether Munshi was at home. Till before hearing Mustafa's shout the witness had not moved. After being cautioned by Mustafa, the witness went back towards West and then stopped. Witness further stated that Nandu's brother's house was burnt when the Army personnel arrived. His house was 40-50 nals (70 ft.) away from that of Nandu. Before the Army vehicle had returned for the second time, Jabbar Bari, Gaji Sahah, Noor Islam, Hamid and others had arrived at his house. 14. None of the 30-35 people had chased the witness. Witness also stated that till before fili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who had come with him then started thrusting daggers, spears etc. into the walls. They opened the bamboo door of his house. Gopal, Hari Singh and Kailash stood in front of the door. Gopal started poking him with a spear which injured him. He pulled the spear out and ran out of the room along with the spear. He recognised two more men Haren Sarkar and Rahna Gour who were armed with dao, dagger, arrows etc. He knew them as they were from the same village. Thereafter the witness ran towards the field. His father was also coming towards the house but the witness stopped him and told him not to go home as he would be killed. The witness stated that he did not recognise the man who had hacked his two sisters Bimala Khatoon and Hazera Khatoon and his mother. He returned after 15 minutes and found his mother lying in a critical condition but had not died till then. He called the villagers and with their help got his mother home. His sisters were lying dead. Their bodies were also taken home. By the time his mother also died. Police also arrived within five minutes and took the witness and Zakir to the Civil Hospital. Both the witness and Zakir had sustained injuries. 17. In cross-exami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al. He also did not know about the lodging of the FIR nor did he know as to who had lodged the same and when. 20. That brings us to the deposition of the only other witness who is said to be a witness to the occurrence. Md. Hanif Ahmed (PW4) was also like Md. Mustafa Ahmed at home when the mob attacked their house. The witness has stated that accused Kailash, Hari Singh and Ratan entered his room and took away Zakir with them. Out of fear the witness ran out of the house and took shelter under the banana trees growing near his house and observed the incident from there. The witness claimed to have seen accused Gopal, Kailash, Gundulu, Krishna and Haren Doctor giving blows on the person of his mother. Similarly, he also claimed to have seen Budhuram Timang, Hari Singh and Rahna hacking his sister Hazera. Bimala who was 4-5 years old was also similarly assaulted by accused Gopal, Ratan and Haren Doctor according to the witness. After the incident accused persons left by which time his father had come to the house from the paddy field. The Army personnel who had come there sent Zakir and Mustafa to the Civil Hospital Nagaon for treatment. 21. The incident, according to the witne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hd. Taheruddin (PW2), Md. Mustafa Ahmed (PW3) and Md. Hanif Ahmed (PW4) recorded under Section 161 Cr.P.C. 26. That being the state of evidence adduced in the case, the question is whether the deposition of Md. Hanif, the solitary eye witness, is reliable, having regard to the attendant circumstances. The prosecution witnesses except the two doctors examined at the trial have all deposed that the communal atmosphere in the area was surcharged as an aftermath of the demolition of the mosque, an event that took place just about a week before the occurrence in this case. Those affected by the disturbances were shifted to camps established by the administration. Deployment of a large police force in the area to which the Investigation Officer has referred in his deposition also was clear indicator of the atmosphere being surcharged and tense. That a house was set afire in the neighbourhood of the place of occurrence is also amply proved by the evidence on record. As a matter of fact, the police arrived on the spot within minutes of the commission of the gruesome murders not because any report was made to it about the said crime but because it had received information about a house h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... involving heinous crimes like murder. We also assume that the incident having taken place in an area which was apparently susceptible to communal violence and widespread disturbances as a result of the dispute over the demolition of the mosque, the same would have been reported to the higher officers in the police administration who would in turn ensure appropriate action being taken with suitable care in the matter. (ii) The least which the Investigating Officer would do was to record the statement of the eye witnesses or send the eye witnesses to the police station for getting the First Information Report recorded. Interestingly, while the alleged witnesses to the occurrence were first sent to the police station, no one ever questioned them about the incident nor did the witnesses volunteer to make a statement. It defies one's imagination how Md. Hanif who was on the spot and who is alleged to have seen the occurrence was not questioned by the Investigating Officer especially when he did not have any injury much less a serious one requiring immediate medical care and attention. Even if the eye witness was injured, there is no reason why his statement could not be recorde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ness got the people from the locality gathered. The officer then interrogated them and after deliberations with the elders of the community got a report scribed by Abdul Jabbar (PW5) naming as many as 13 persons as accused. PW5 has in his deposition clearly admitted that Mohd. Taheruddin had discussed in the gathering of the prominent people of the area the facts to be mentioned in the ejahar. There were nearly 100/200 people who had assembled when the ejahar was written by him. It is difficult to appreciate how a report prepared after such wide consultation and deliberations could carry a semblance of spontaneity to be credible in a criminal trial of such a serious nature. Even the Investigating Officer was contributing to the creation of a report after confabulations with elders of the area. Mohd. Taheruddin has in this regard deposed: While ejahar was being written at his house, he called the village President Abdul Jabbar and other prominent persons of the village and upon being advised by the I.O. Gaji Sahab also came. xxxxx The Daroga had interrogated prominent persons before the writing of ejahar. (iv) According to Mohd. Taheruddin (PW2) he had recognised only four ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... day. The delay in the lodging of the FIR and the circumstances in which the ejahar was written, cast a serious doubt about the whole prosecution case especially when there is no explanation whatsoever for the failure of the Investigating Officer to record the report based on the alleged eye witness account immediately after he reached the spot. (ix) The non-examination of Zakir, injured witness at the trial is also inexplicable. Zakir was allegedly taken out of the house by the accused persons and assaulted. The best person to say who were the persons responsible for the assault was this witness himself. The failure of the prosecution to put him in the witness box, in support of its version is also an important circumstance that cannot be legally brushed aside. The prosecution has failed to examine other inmates who were inside the house and who had escaped unhurt in the occurrence. (x) The medical evidence adduced in the case also does not support the prosecution version. According to Dr. Madhusudhan Dev Goswami (PW1), who conducted the post-mortem examination on the dead bodies of the victims had deposed that the death had occurred 48 to 72 hours prior to the examination. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n India. 29. The above views were reiterated by this Court in State of U.P. v. Naresh and Ors. (2011) 4 SCC 324. 30. In his dissenting judgment our esteemed Brother, Bedi, J. has referred to as many as five different Reports of Commissions of Enquiry set up over the past five decades or so to point out that the findings recorded in the reports submitted by the Commissions indicate an anti-minority bias among the police force in communal riot situations and investigations. Copious extracts from the reports reproduced in the judgment no doubt suggest that in situations when the police ought to protect the citizens against acts of communal violence, it has at times failed to do so giving rise to the perception that the police force as a whole is insensitive to the fears, concerns, safety and security of the minority communities. Whether these reports have been accepted by the governments concerned and if so how far have they contributed to the reform of the force is a matter with which we are not directly concerned in this case. All that we need to say is that sooner such reforms are brought the better it would be for an inclusive society like ours where every citizen regardles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where the investigation is satisfactory vis-`-vis cases in which it is not. The rules of evidence and the standards by which the same has to be evaluated also cannot be different in cases depending upon whether the case has any communal overtones or in an ordinary crime for passion, gain or avarice. The prosecution it is axiomatic, must establish its case against the accused by leading evidence that is accepted by the standards that are known to criminal jurisprudence regardless whether the crime is committed in the course of communal disturbances or otherwise. In short there can only be one set of rules and standards when it comes to trials and judgment in criminal cases unless the statute provides for any thing specially applicable to a particular case or class of cases. Beyond that we do not consider it necessary or proper to say anything. 31. We are conscious of the fact that three innocent persons including two young children have been done to death in the incident in question which needs to be deprecated in the strongest terms but unless proved to be the perpetrators of the crime beyond a reasonable doubt, the appellants cannot be convicted and sentenced for the same. We ..... X X X X Extracts X X X X X X X X Extracts X X X X
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