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TMI Blog2008 (5) TMI 639X X X X Extracts X X X X X X X X Extracts X X X X ..... been living in a house consisting of four rooms; each situated in different corners abutting a big court yard measuring 20' x 40'. 3. The incident occurred soon after the demolition of Babri Masjid. A communal riot had taken place. Curfew was imposed. 4. On or about 14th December, 1992 Taheruddin was in his fields. A mob came to his house. In one of the rooms, his wife and six daughters were sleeping. Another room was being occupied by his sons. The mob broke open the door. They allegedly came armed. Near about that time, another house belonging to one Nandu was burning. Allegedly, from two sides, 14-20 people came to the house of Taheruddin. 5. One of his sons, Md. Mustafa PW-3 was in his bed. He was all alone. He allegedly heard the voice of Gopal calling, 'Munshi', Munshi', to which he replied that he was not at home. Gopal and several other people opened the bamboo door. Gopal 'poked' him with a spear which struck at his leg. He took it out and ran outside the house. Two persons standing outside were allegedly recognized by him. They were allegedly armed with 'dao', 'dagger', 'arrows' etc. He saw his father coming towards the home. He asked him not to go home. He raised a h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finger was severed at the bone of 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 and got injury on 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. Simple cut injury by sharp pointed object. 12. The injured, Taheruddin and his other sons were taken to Daboka Guest House. They were also taken to the police station. No statement, however, was made by them. 13. The investigating officer, PW-7, B.N. Kalita, however, stated that he had received a message from one Biresh Dutta in regard to a fire. He made a G.D. Entry and sent a police team there. It was numbered as G.D.E. 532 dated 14.12.1992. He came to the place of occurrence. He did not say when he came there. However, according to Taheruddin, a statement was made by him on the next date. Investigating Officers stated that he took up the investigation and drew a sketch map. He allegedly held an inquest of the three dead bodies. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of these witnesses. They were treated as eye witnesses. 26. Attention of the witnesses were drawn to the statements made by them before the police authorities. It was pointedly asked as to whether they had named the accused as persons allegedly assaulting the deceased. They had not. Although contradictions in the statements of the witnesses vis-'-vis their statements under Section 161 of the Code of Criminal Procedure were noticed, the learned trial judge did not discuss the same stating that they were only minor in nature. They were not. 27. Nirmal Dutta, Nandu Dutta and Shyam Sunder Gour were found to be innocent by the learned trial judge as even PW-3 and PW-4 did not specifically name them as regards their participation in the commission of offence on the night of occurrence. They were acquitted. 28. The High Court disbelieved PW-2 in view of the glaring contradictions noticed in his statements made before the police vis.-a-vis the statement made in his deposition before the Court. According to the High Court the omission on his part to name Gopal who took leading part and Rahna who had allegedly shot an arrow, rendered his evidence highly suspicious. The High Court notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Entry, on the basis whereof, the investigating officer and other police officials came to the place of occurrence has not been filed. Contents thereof, thus, have not been disclosed. Biresh Dutta, who had informed the police, has also not been examined. G.D. Entry, admittedly, as disclosed by the Inspecting Officer, PW.7, did not contain the names of the accused. Zakir, another injured witness, whose relationship with Taheruddin has been stated differently by PWs. 2 and 3 has also not been examined. 34. PW-3, admittedly was taken to the police station. PW-4 had also been taken to the police station. PWs, as noticed hereinbefore alongwith the injured were given shelter in the 'dak bungalow'at Dabaka. Even then no attempt was made to record their statements. 35. It is difficult to appreciate that because of the law and order situation the investigating authorities could not take such statements. Surprisingly, the investigation had already started. All essential actions, namely - making of inquest, getting the postmortem of the dead bodies conducted, obtaining injury reports of the injured persons, preparation of the site map etc. had been undertaken. 36. PW-1 states that he came ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ily, the court shall not raise such a presumption unless appropriate materials are brought on record. The court may or may not raise a presumption that an official act having been done was not in due course of its business, but in a criminal case, no presumption should be raised which does not have any origin in any statute but would cause great prejudice to an accused. The courts, in order to do justice between the parties, must examine the materials brought on record in each case or its own merits. Marshalling and appreciation of evidence must be done strictly in accordance with law; wherefor the provisions of the Code of Criminal Procedure and Evidence Act must be followed. It, in my opinion, would not be proper to contend that only because an offence is said to have been committed during a communal riot, the provisions of the Code of Criminal Procedure and Evidence Act would not be applied differently vis-'-vis a so-called ordinary case. They are meant to be applied in all situations. Appreciation of evidence must be on the basis of materials on record and not on the basis of some reports which have nothing to do with the occurrence in question. Only because in some parts of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd except those cases where the Parliamentary statutes apply the doctrine of reverse burden, the courts, in my opinion, should not employ the same which per se would not only be violative of Universal Declaration of Human Rights but also the fundamental right of an accused as envisaged under Article 21 of the Constitution of India. In Syed Akbar vs. State of Karnataka : AIR 1979 SC 1848 this Court held :- "28. In our opinion, for reasons that follow, the first line of approach which tends to give the maxim a larger effect than that of a merely permissive inference, by laying down that the application of the maxim shifts or casts, even in the first instance, the burden on the defendant who in order to exculpate himself must rebut the presumption of negligence against him, cannot, as such, be invoked in the trial of criminal cases where the accused stands charged for causing injury or death by negligent or rash act. The primary reasons for nonapplication of this abstract doctrine of res ipsa loquitur to criminal trials are: Firstly, in a criminal trial, the burden of proving everything essential to the establishment of the charge against the accused always rests on the prosecu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted to be released forthwith, unless wanted in connection with any other case. ( S.B. SINHA ) HARJIT SINGH BEDI, J 1. I have perused the judgment rendered by my learned Brother Sinha, J. I regret I am unable to accept the conclusions reached. I am accordingly giving my own opinion in the matter. 2. These appeals by way of special leave raise an interesting question as to how evidence in cases involving multiple murders during and arising out of communal riots has to be assessed. They arise out of the following facts: 2A. At about 10.00 P.M. on December 14, 1992, Mohd. Taheruddin PW 2, was guarding his paddy crop in his field close to his house in Village Changmazi Pathar, Police Station Daboka, District Nagaon in the State of Assam. His sons, PW 3 Mohd. Mustafa Ahmed and PW 4 Mohd. Hanif Ahmed and one Jakir Ahmed a young boy statedly a close relative, were sleeping in one of the rooms in the house whereas his wife Sahera Khatoon and six daughters including Hazera Khatoon, Jahanara Begum and Bimla Khatoon were sleeping in another room. As it was a moonlit night, Mohd. Taheruddin saw a group of 10 to 12 persons coming from the north and another group from the south approaching h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... support of its case placed primary reliance on the evidence of PW 2 Mohd. Taheruddin and his sons PW3 Mohd. Mustafa (injured) and PW4 Mohd. Hanif in addition to the medical evidence of PW1 Dr. Madhusudan Dev Goswami who had conducted the post mortem examination on the dead bodies on the December 15, 1992 and PW 6 Dr. Jiauddin Ahmad, who had medically examined Jakir Hussain and Mohd. Mustafa PWs and the Investigating Officer B.L. Kalta, PW 7. The prosecution case was then put to the accused and they denied their involvement and pleaded false implication due to enmity. 5. The trial Court in its judgment dated June 18, 2005 relying on the evidence of PW 3 and PW 4, Mustafa Ahmad and Hanif Ahmad respectively, in particular, as corroborated by the medical evidence, held accused Kailash, Hari Singh, Gundul Ratan Das, Krishna Das, Harendra Sarkar, Rahna Gour and Budhu Gour guilty and convicted them under several sections with which they had been charged, viz., under Sections 302/34, 448/34 of the I.P.C and sentenced them to imprisonment for life and fine of ₹ 2000/- and in default of payment of fine, to rigorous imprisonment for six months. An appeal was thereafter taken by the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the instance of the convicted accused is before this Court by way of special leave. 7. Before embarking on an appreciation of the evidence which would determine the fate of the appeal, there are several factors peculiar to the present case which brings it out of the category of a usual set of murders and which need to be highlighted. As per the evidence on record, the incident had taken place on the 14th of December 1992 in the disturbances that followed in the aftermath of the destruction of the Babri Masjid in Ayodhya. As is well known, the fall out of the destruction of the Masjid was felt all over India and caused great consternation amongst the Muslim community. Widespread riots broke out throughout the country and the present multiple murders are also a consequence of the happenings in Ayodhya. The genesis of a communal riot, its development as it goes along and the consequences have been identified/underlined by dozens of commissions of inquiry both judicial and administrative for more than four decades now and there appears to be near unanimity that a deliberate attempt is made by the police and the investigating agencies to forestall fair investigation in attacks on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not restrain themselves when they met Muslims on the road. Similar evidence was given by the sub-collector and other witnesses who have testified saying that while chasing away some Muslims many policemen yelled at them to go to Pakistan. At Mattambaram one or two of them got into the mosque and besides beating Usmankutty Haji, a very respectable person, broke the tube-light and chandeliers in the mosque. There is nothing to show that there was any justification for this action\005..So far as the minorities are concerned, it is the feeling among them that they are nor getting justice, that they are discriminated against in the matter of appointments in the Public Services, that they do not get equal protection of the law and that their religion is in danger, that prompts them to rally around religious organizations of their own. It is of the greatest importance that appropriate steps are taken by the government to remove the cause fr such feelings in the minorities. There is much truth in saying that if you want peace you must work justice. -Report of the Justice Josepth Vithyathil Commission on the Tellicherry riots, 1971. The riots occurred broadly on account of the total passi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when the suspected accused happened to be Hindus with connections to Shiv Sena or were Shiv Sainiks. This general apathy appears to be the outcome of the built-in prejudice in the mind of an average policeman that every Muslim is prone to crime." Chapter 1 Preliminary Srikrishna Report On Mumbai riots of 1992-1993 The report of the National Human Rights Commission pertaining to its visit from 19th to 22nd March 2002 to Gujarat after the Vadodra and Godhra riots has made some startling observations: "The Vishwa Hindu Parishad (VHP) gave a call for "Bandh" on the 28th Feb. pursuant to the Godha incident of burning alive of Karsewaks which wa supported by the Stte BJP. The police did not take effective steps to make proper security arrangements in several areas known for their communal sensitivity. Many felt that the police should have learnt from the past experience that Bandhs supported by the ruling party are never peaceful and should have therefore made full preparations. Whereas the VHP leaders could mobilize their supports for the 'Bandh', the police did not take any effective measures to control the unlawful crowds, while they were building up. The polic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of communal riots, the allegations made by police holding responsible position and enjoying high reputation for their integrity cannot be rejected outright. It was alleged by many that the police allowed the crowds to swell and turn violent by ignoring the calls for help from the victims of mob attack. Admitting that the police presence on such spots was very thin, it was asserted that their sense of duty demanded that they should have used firepower to rescue the persons under attack from mob fury. It was said by many that the police either did not use the weapons or merely fired a couple of rounds in the air without producing any deterrence." 8. This report also indicates a deliberate attempt on the part of the police force in subverting the Rule of Law not only in taking preventive measures, or during investigation but at the time of prosecution as well. 9. The matter does not end with the reports of the judicial commissions alone but has been a matter of deep concern for the administration as well. The First National Police Commission headed by Shri Dharam Vira ICS (Retd.) was set up during the Janata Party Government of Shri Morarji Desai and amongst its distinguish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and these forces try to interfere in the registration and investigation of crimes. There is an alarming tendency on the part of several local big wigs to prevent the initiation of action against well-known goondas and anti-social elements. We are aware that the police also is not entirely free from blame in this regard. It should be realized that noninitiation of action against those who commit serious crimes in the course of a riot is a matter which would destroy the morale and trust of the local population. If the big criminals are left out and only a few small ones are prosecuted the people will lose faith in the investigation processes and in the rule of law. The administration, the police and the politicians should remember that the people are generally aware of the real culprits, and if the official agencies shield these culprits the people would not only look up these agencies as connivers of crime, but as criminals themselves. We strongly recommend that the investigation of reported crimes in serious riot situations should be done thoroughly, competently, quickly and impartially by special teams of competent officers working under the supervision of senior officers. Any i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n dignity and the right to life, accord with the above principles? The question posed must, of necessity, give cause for introspection. Such being the background, can we evaluate a murder committed during a communal riot as a crime committed in the normal course - a common place crime as ordinarily understood? The answer must be in the negative and for the reasons already quoted above. It is in this background that the arguments raised have to be examined. 12. The learned counsel for the appellants has first and foremost argued that there was a delay of 15 hours in the recording of the FIR and as no explanation was forthcoming, this delay was fatal to the prosecution story. This submission has been supplemented by Mr. Abhijeet Sen Gupta, the learned counsel for the appellants in Criminal Appeal No.1068/2006 by highlighting that as the FIR appeared to have been recorded after the post-mortem and the inquest reports had been prepared, its sanctity and spontaneity had been compromised. In this connection the learned counsel have placed reliance on State of Punjab vs. Ramdev Singh (2004) 1 SCC 421, State of Punjab vs. Daljit Singh & Anr. (2004) 10 SCC 141 and Ramesh Baburao Devaskar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel for the appellants are on the premise that the incident had happened in a normal civil society where the access to the police is presumed to be easy and where the investigation suffers from no bias. These arguments, from their very nature, cannot be applied to a case where there is a complete break down of the civil administration, the police has lost control of the situation, a curfew imposed and the Army called out and the real possibility (if precedents are to be applied) that the investigation could be directed against the complainant who belonged to a minority community. From the reports that have been quoted above, several broad principles are discernible: (1) that police officers deliberately make no attempt to prevent the collection of crowds; (2) that half hearted attempts are made to protect the life and property of the minority community; (3) that in rounding up those people participating in the riots, the victims rather than the assailants are largely picked up; (4) that there is an attempt not to register cases against the assailants and in some cases where cases are registered loopholes are provided with the intention of providing a means of acquittal to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pital by the Army and examined on police requisition at about mid night, yet no formal FIR had registered by the police till 11.00 a.m. Two explanations can be given for this omission, one that the police, as is its wont, had refused to register a case or in the alternative and to take a more charitable view, that it had not been possible to do so earlier as the area was under curfew and aflame in a communal riot. The submission about the delay in the lodging of the FIR in the circumstance of the case is without basis. The judgments cited by the learned counsel on this aspect, thus, have no relevance to the facts of the case. 17. The learned counsel for the appellants has also laid much emphasis on the fact that Jakir one of the injured and apparently a close relative of the other eye witnesses, having not been examined, a doubt had been cast on the prosecution story. There is absolutely no justification for this argument. It is clear from the evidence of Dr. Madhusudhan Dev Goswami PW1 that Mohd. Jakir had suffered only a simple injury whereas Mohd. Mustafa had been seriously hurt. It must also be noted that as the incident had happened at the dead of night during communal dist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dispute did exist between them. From the facts and background the converse possibility ( as the Commission's reports would suggest ) that the accused had, in fact, decided to utilize the disturbed situation to their advantage and to sort out their enemies once for all, cannot be ruled out. On the other hand, it is difficult to accept that a witness who has seen the slaughter of his family would be so perverted or crass as to leave out the real assailants and to rope in innocent persons. The fact that the victims were a young woman, and two children, and grevious injuries to two other young boys supports the view that the murders had not been committed on account of any enmity, but were a fall out of the communal tension prevailing in that area. It bears reiteration, that the victims could hardly have been dealt with on account of any animosity, but the assailants attempted to do away with anyone who came along. In any case, as already mentioned above, the Sessions Judge and the High Court have already done the sifting that is required and ultimately maintained the conviction of only a few of the accused. 19. In conclusion, it must be observed that in matters such as the present ..... X X X X Extracts X X X X X X X X Extracts X X X X
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