TMI Blog2008 (5) TMI 639X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 hue and cry. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered 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. Inquest re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon the evidence 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lants before us. 33. The G.D. 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 undert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ities was not proper or fair. Ordinarily, 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 qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ine of reverse burden has been applied. Save and 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n jail, they are directed 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 g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ught to trial. 4. The prosecution in 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is in this circumstance, that the appeal 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 agenci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he had to curb many among his rank and file who could 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sued, arrested and interrogated, particularly 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ameter of police action in the handling 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 Morarj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... several forces come into prominence 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is perhaps illustrative of the malaise that afflicts the police force in many states, as the various reports quoted above which pertain to different states, would reveal. More alarmingly, if things were bad in 1986, what would be the situation as of today? 11. India is a signatory to the Universal Declaration of Human Rights. Article 2 thereof provides for rights without discrimination, without restriction of any kind based on race, language or religion etc., Article 7 provides for equality before law and to the equal protection of the law for all, Article 8 postulates the availability of an effective remedy in law for acts violating the fundamental rights guaranteed to an individual and Article 12 provides for the right to a fair trial. These rights are enshrined in Articles 14 and 21 of the Constitution of India as well. Can it be said in all honesty that the investigation and prosecution in matters relating to communal riots which is really based on protecting human 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... troverted. It has further been pointed out that though Md. Taheruddin, the first informant had been disbelieved by the High Court, there was absolutely no reason for doing so as his presence in his home during a communal riot for the purpose of guarding his family of a young wife, six daughters and two sons and his property was but natural. It has finally been pleaded that even assuming that some improvements had been made during the course of their evidence, this was to be expected as the witnesses had been under great stress at the time when their statements had been recorded under Section 161 of the Cr.P.C. and by reflection and hindsight they had been able to gather their wits and to give proper statements in Court. It has finally been pointed out that the benefit of doubt had already been given to the accused inasmuch as several had been acquitted, some by the trial court and some others by the High Court. 14. It would be seen that the arguments raised by the learned counsel 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. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o significant that this police officer had received information about the incident on December 14, 1992 at about 10 minutes past mid night and on which he had reached the place of incident and had made some enquiries and also recorded Taheruddin s statement but if he had chosen to record the formal FIR at 11 a.m. on December 15, 1992, it cannot be said that the complainant was in any way guilty of delay. The statements of the eye witnesses also reveal that the dead bodies and the injured had been removed from the place of incident by Army personnel. It, therefore, appears that the inquest had not been recorded at the site but it was perhaps elsewhere. It is also clear from the evidence of Dr. Jiauddin Ahmed PW6 that he had medically examined Jakir Hussain and Mustafa Mohd. shortly after mid night on 14th December, 1992 on a police requisition with reference to G.D.No.2000 of Police Station, Daboka. It is therefore somewhat surprising that though the aforesaid persons had been removed to the hospital 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se, the statement of Mohd. Mustafa, who was seriously injured and Mohd. Hanif clearly support the prosecution story. All three witnesses had witnessed the incident from close quarters and as most of the accused were known to them, they being neighbours, they were in a position to identify them. It is true, as has been contended, that the names of some of the accused do not figure in the statements made to the police, but this omission can be reasonably attributed to a tainted investigation or to the fact that the sheer brutality of the crime had stunned the witnesses into confusion. The horror which would have faced the witnesses, can hardly be exaggerated. 18. It has been argued by the learned counsel for the appellants that the FIR had been motivated on account of the land dispute between Taheruddin and accused Gopal (who died before trial) and Hari Singh and Kailash. Reliance for this argument has been placed on the admission made by Mohd. Taheruddin in his statement that some 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 situa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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