TMI Blog1998 (4) TMI 579X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the city in the suburban Jogeswari, an area known as Bandra plots was predominantly occupied by the Muslims and Hindus were in minority. A number of Hindu families were staying in chawls known as Gandhi Chawl, Rajbhai Chawl, Nail Chawl etc. The accommodation usually consists of one-room-tenements having one entrance door and the tenements are situated adjacent to each other. The tragic incident occurred in the house of deceased Rajaram Bane who was residing in room no. 2 of Gandhi Chawl. As stated earlier the Hindu community being in minority, while a group of residents had taken shelter in room no. 2 of Gandhi Chawl, it is alleged that the Muslim accused persons put petrol on the roof of said room no. 2 of Gandhi Chawl and set it on fire and in course of occurrence Rajaram Bane, his wife Sulochana, his neighbours Laxmi Bai Batalu and her daughter Kamla, one crippled girl by name Meenakshi Narkar and one Vandana Todkar died out of burn injuries. It may be stated, out of these deceased persons Sulochana and Vandana were removed to the hospital and they died in me hospital on 10th of January, 1993 and 16th of January, 1993, respectively, while the rest died at the spot itself. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hed to the spot and seeing the police the accused persons ran away. After the police arrived at the spot the other Hindus who were living in their respective tenements and some of whom are the prosecution witnesses mustered courage and came out and tried their best to extinguish fire. By the time the fire could be extinguished and the people were able to get into the room, Rajaram Bane, his neighbour Laxmi Bai Batalu and her daughter Kamla and another crippled girl by name Meenakshi Narkar were found dead. Rajaram Bane's wife Sulochana and another lady Vandana Todkar were alive but had suffered serious burn injuries, and therefore, they were removed to the hospital. Sulochana died in the hospital on 10.1.1993 and Vandana died on 16.1.1993 in the hospital. The police then shifted the Hindu population of the locality to a nearby Municipal School and accommodated them in a room under strict police vigilance. Vandana who was alive and had been removed to the Cooper Hospital gave her statement on the basis of which CR No. 15 of 1993 in Jogeshwari Police Station was registered and police took up investigation of the said case. After the police officers of Jogeshwari Police Station ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d persons used force with the common object to kill the Hindus and committed riot and while committing riot used deadly weapons like choppers and knives. The designated court further held that the aforesaid 11 accused persons being members of an unlawful assembly and in furtherance of their common intention to kill the deceased knowingly burnt the house of Rajaram Bane with intention and knowledge that thereby they will cause the death of the deceased and in the process committed murders of Rajaram Bane, Sulochana, Laxmi Bai, Kamla, Meenakshi and Vandana. The learned designated court also came to hold that the aforesaid 11 accused persons being members of an unlawful assembly committed terror in the minds of the Hindu public possessing swords, choppers, petrol and kerosene and burnt the house of Rajaram Bane after pouring kerosene and petrol on the house and set the said house on fire. With these conclusions the aforesaid 11 accused persons having been convicted and sentenced to different terms as hereinafter. The accused appellants were convicted for the offences under Section 120B read with Section 3(2)(I) of TADA, under Section 149 IPC read with Section 3(2)(i) of TADA, under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the occurrence. 4. Mr. Jain the learned Senior counsel appearing for the appellants contended before us that the evidence of the so-called eye-witnesses examined in this case by the prosecution is totally unworthy of credit and no credence can be given to their testimony of account of several infirmities in the same. According to the learned counsel the method adopted by the learned Judge while the witnesses were being examined to get the accused persons identified is a peculiar one and, therefore, no reliance can be placed on such identification in court after so many years of the occurrence. According to Mr. Jain, if the witnesses really knew the accused persons being resident of the same locality nothing stood in their way to name them and in case they did not know the name but could identify them only on seeing them then in the absence of any earlier test identification parade and merely pointing out one or two persons from amongst the 17 accused persons who stood tried it is not possible to hold that in fact the accused persons were duly identified by the witnesses in court. 5. Mr. Jain also further urged that Vandana, the deceased, had categorically stated that some unkn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hand reveals a problem relating to ordinary criminal law and alleged violence on the house of Rajaram Bane at Gandhi Chawl on the relevant date cannot be held to be a 'terrorist act' within the meaning of Section 3(h) of the TADA and, therefore, the provisions of TADA would be wholly inapplicable. On the basis of the evidence of the Police Commissioner and the sanction granted by the Commissioner the learned counsel urged that there had been no application of mind by the Commissioner of Police to the relevant materials and on the other hand the said Commissioner has mechanically signed the order of sanction and as such the cognizance of the offence itself becomes vitiated as the provisions of Section 20A(2) must be held not to have been complied with. 6. Mr. Nargolkar, learned senior counsel appearing for the respondent on the other hand contended that a ghastly occurrence took place on the fateful night where several people were burnt alive and such a ghastly crime should not go unpunished. According to the learned counsel, taking into account the situation then prevalent arising out of demolition of Babri mosque at Ayodya, the delay caused in examining the witnesses by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ambit of TADA and as such the provisions of TADA have rightly been applied. Mr. Nargolkar, lastly submitted that undoubtedly there are some embellishments and omissions in the statements of the eye-witnesses made in court from their statements made to the police during investigation but such omissions and embellishments are not in respect of the substratum of the prosecution case and, therefore, the evidence of such witnesses cannot be discarded as a whole. According to the learned counsel, court must in such case separate the chaff from the grain and then on the grains available would examine whether the conviction of the accused persons can be sustained or not. In this view of the matter, it is contended by the learned counsel for the respondent that the appeal deserves to be dismissed. 7. In view of the rival submissions at the bar, the first question that arises for our consideration in whether the activities can be held to be 'terrorist activities so as to bring it within the purview of TADA. The expression terrorist act' has not been defined and, on the other hand, Section 2(h) stipulates that it would have the same meaning as has been assigned to it in sub-sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration is whether there has been an infraction of sub-section (1) of Section 20(a) inasmuch as the competent authority prescribed under the statute have not exercised jurisdiction vested in him and, on the other hand, an authority who was not competent, has accorded approval for application of the provisions, and as such entire proceeding starting from investigation and culminating in conviction gets vitiated. This contention of Mr. Jain is mainly based upon the fact that though under the provisions of TADA only the district Superintendent of Police could accord approval but in fact it is the State Government who accorded approval and the State Government being not the prescribed authority under the statute, investigation made must be held to be without jurisdiction and consequently the ultimate conviction cannot be sustained. Reliance has been placed on the decision of this Court in the case of Anirudhsinhji Karanshinhji Jadeja and Anr. v. State of Gujarat, 1995CriLJ4154 . In the said case, what has been held by this Court is that for invocation of the Act, the District Superintendent of Police is the authority whose prior approval is condition precedent, and since the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has accorded the impugned sanction, exhibit total non-application of mind, and therefore, the sanction accorded is vitiated. We are unable to accept this contention raised by the learned counsel. The law is well settled that when a statute requires a sanction of the competent authority as a pre-condition for taking cognizance by the Court and the relevant sanction Order is produced which itself indicated the materials considered and then after applying mind, the sanctioning authority accorded sanction, the same would be sufficient to hold that there is a valid sanction. Besides, when the sanction order itself is not sufficient to indicate that the sanctioning authority applied his mind then the prosecution is entitled to adduce evidence aliunde of the person who accorded sanction and that would be a sufficient compliance. After going through the said evidence, the Court can come to the conclusion that relevant materials were considered by the sanctioning authority whereafter he accorded the sanction in question. In the case in hand if the Order passed by the Commissioner of Police sanctioning prosecution of the accused persons under TADA is examined, it would be apparent that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dibility and assessing the intrinsic worth of such witnesses the delay in their examination by the police has to be borne in mind and their evidence would require a stricter scrutiny before being accepted. We would, therefore, apply the test of stricter scrutiny and consider the value of their evidence. It may be stated at this stage that even though the statement of Vandana Todkar which was treated as FIR did not reveal the name of any accused person and PW 4 - Mohinder Eknath was the first eye-witness to be examined by the police on 17.1.1993 but much prior to that date accused No. 1, accused No. 2 and accused No. 3 were arrested by the police. PW 1 - Nitin Pandurang, in his evidence-in-chief has stated that he could see through the window of his house that four persons were sprinkling kerosene and petrol on the doors and the roof of the house of Rajaram Bane and those persons are: Sallo, Iqbal, Kalya Kasam and Langda Bachchan. According to the witness he knew these four persons from his childhood and he could identify them in court. On being asked to identify them he correctly identified accused Sallo and Iqbal. Thus, it appears that a witness who was acquainted with the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olice had come to the hospital but the police never examined him or asked him anything about the occurrence. It is really amazing to note that a witness who happens to be a resident of the locality where the incident occurred and took active part in rescuing the injured persons from the burnt house in the presence of the police and then accompanied them to the hospital and was also available at the hospital when police had come but for some mysterious reasons police did not choose to ask him anything about the occurrence. This conduct on the part of the investigation is highly reprehensible and indicates the callousness on the part of the investigating agency in carrying out the investigation in the case. It is also revealed from the evidence of this witness that even though all the accused persons were present while the witness was being examined but he stated that accused Lengda Bachchan was not present in the court. In his former statement made to the police he had omitted to state several aspects and those omissions have been confronted to the witness to which he denied and the investigating officer also had brought out as to what the witness stated in his examination under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the accused persons would make such a wrong identification and such wrong identification totally makes the witness unbelievable. Such erroneous identification can be the result of the fact that he does not know the accused persons at all or that he was not present when the occurrence took place. The witness, of course, correctly identified accused No. 4 Mohd. Yusuf Gul. He also stated that accused Baba Rickshawala was armed with Saliva (Iron Rod) and on being asked to identify the said accused he pointed out to one person who told his name as Mohammed Jafar. There is no evidence to indicate that Mohammed Jafar was also commonly called as Baba Rickshawala. Similarly, he stated that accused Tubelight Baba was holding a sword and when he pointed out the person to whom he knew as Tubelight Baba that person concerned revealed his name as Mustaque Yasin Khan. Prosecution has not been able to establish any evidence to indicate that Mustaque Yasin Khan was also being called as Tubelight Baba. This witness correctly identified accused Iqbal Hussain and accused Musa. But the question for consideration would be whether any credence can be given to such identification. According to the witn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red kerosene on the house of Rajaram Bane as stated by the witness in court there cannot be any possible explanation why that did not find place in his earlier statement made to the police. The said statement made to the police had been duly confronted and the witness merely admits the fact. Such a glaring omission in the earlier statement of the witness in respect of the most important aspect of Gullu's conduct unhesitatingly points out to the unreliability of the witness. In the court the witness had stated that he could see the incident from the window of the house where he was staying but he did not state so while being examined by the Police under Section 161 Cr.P.C. It is also interesting to note that while the witness in his statement under 161 had stated that Sulochana, Vandana, Naina had several burn injuries and Sandeep and Sailesh had minor burn injuries but in that court he stated that he saw only one injured person - name - Sulochana and on being confronted he stated that he cannot ascribe any reason as to why police had recorded such incorrect statement. While according to this witness accused Sallo (A-9), Gullu (A-4) were the persons who were pouring petrol and k ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e but the redeeming feature is that while this witness has been residing in the locality for fairly long period and was otherwise known to the accused persons and according to him several accused persons were threatening in the locality before the actual incident of setting fire, it is impossible to believe that even by facial identification he could only point out two of them. His evidence in court discloses that while he was there in his house with his wife Vandana and the two sons he heard a chaos and he found that accused persons are dissuading them from sitting outside, and therefore, they all went inside their respective rooms. At the next breath he stated that his wife took his two sons and all three went inside the room of Rajaram Bane whereas the witness himself stayed in the room of Chuahan, another person in the locality. This conduct on the part of the witness is highly improbable inasmuch if he was scared to remain alone with his family members in their own room and wanted to say inside the neighbour's room then it is expected from all of them they would remain together. Further if he was expecting trouble from accused persons as stated in his evidence it is highly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orded. In the cross-examination it has been elicited from this witness that house of Rajaram Bane is not visible from inside his house. It was also elicited that when his wife and children went to the house of Rajaram Bane being afraid of staying alone in their own house, he went to the house of Chauhan as Chauhan had invited him for tea. This explanation offered by the witness is hardly believable. He had indicated in his statement recorded by the police that after he tried to extinguish the fire he learnt that his wife Vandana and two children and wife and daughter of Batalu were found insider the house of Rajaram Bane, whereas in his evidence in court he gave a completely different picture and on being confronted he stated that the statement recorded by the police is not correct. According to the witness while he was in the Municipal School he was called to the Jogeshwari Police Station by a Police Officer and his statement was recorded but infact the 161 statement has been recorded by the Crime Branch. In view of the aforesaid inherent improbabilities in the statement of the witness in the court and the contradictions and omissions witness had made in his statement recorded by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the accused persons whose name he does not remembers. If the witness was called to the police station while the accused persons were in police lock-up and the witness had been given the opportunity of seeing those persons in the police lock-up then the so-called identification made by the witness in court is of no significance. In cross-examination when this witness was confronted with his earlier statement on account of material omissions and variations the witness explained that what has been recorded in the earlier statement is not correct and he does not know why the police has mentioned so. Even in the earlier statement of this witness recorded on 17.1.1993 he had not stated that the accused persons came to the Chawl at 9.30 p.m. and went away and again came at 11.00 p.m. though in court he has stated so and on being confronted he replied that police has not erroneously recorded the same in the earlier statement. While other witnesses had stated that some of the accused persons were sprinkling kerosene and petrol on the roof of Rajaram Bane's house this witness introduced a story that kerosene cloth balls were being thrown on the door and ota of Rajaram Bane's hous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... though she had identified 4 of the accused persons at Borivli Police Station but neither she can tell their names nor can she tell the court as to whether those accused persons are present in the court. In her evidence in court she stated that these accused persons were not threatening the Hindus during one month prior to the incident which is at variance with the evidence of all other witnesses. She also like other eye-witnesses stated that the crime branch police had shown her 3 or 4 accused persons on 22nd of March, 1997 but she was neither in a position to identify them even by face nor could she tell their names. She deposed in court that when the miscreants set fire to the house of Rajaram Bane her daughter Vandana was inside the house and she could hear her voice who was shouting and calling her to save her. This statement can hardly be believed in the scenario in which the room in question is alleged to have been set afire. She also stated in her evidence that her daughter along with her sons climbed up on the roof and jumped on the backside on the ground at the back side of the house of Rajaram Bane. We fail to understand how the witness could state so, when she was in her ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me of that accused person nor in a position to identify him in court. He also stated that he was called to the Police Station at Kandivli on 22.4.1993 where police showed him one accused but he does not know the name of that accused person nor he can identify the same by face. Though in the Court he had stated that between 6th December, 1992 to 7th of January, 1993 the goondas of the locality were threatening them but he had not stated so in his earlier statement made before the police. In the court he had also stated that he had never made any complaint on that score before. On being cross-examined he candidly admitted that he could not insert his head through the grill to see what is happening outside, and therefore, he climbed on a loft and from there he could see the incident through the window. But neither the investigating officer nor any other person has stated about the existence of such a loft. It was elicited in his cross-examination that he was sitting inside the house from the time when the accused started pouring kerosene till the accused went away is not correct. A scrutiny of his evidence clearly indicates that it bristles with inconsistencies and improbabilities and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part of the ocular version of a witness. But if a witness is wholly unreliable as has been assessed by us, the question of corroboration does not arise. It is no doubt true that the incident with which we are concerned in 'the present case was a ghastly one and one account of communal frenzy several people belonging to one community were burnt alive by some others but unless and until the prosecution evidence conclusively establishes those others, as the perpetrators of the crimes, it is not possible for a court of law to record conviction on mere conjectures and hypothesis. 20. As we have discussed earlier the investigating agency merely on suspicion have roped-in the persons belonging to the other community who were residing in the locality and then somehow trying to get them identified through the witnesses who belong to the community from where the people were burnt alive and the learned Designated Court was swayed away by the so-called evidence of identification and based the conviction. We have already discussed as to how unreliable the evidence of these eye-witnesses and no court on the basis of such unreliable evidence can base conviction, howsoever, ghastly the crime ..... X X X X Extracts X X X X X X X X Extracts X X X X
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