Harendra Sarkar Vs. State of
INSC 784 (2 May 2008)
S.B. SINHA & HARJIT SINGH BEDI
REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 907 OF 2006 Harendra Sarkar . Appellant Versus State of Assam
. Respondent WITH
CRIMINAL APPEAL NO. 1068 OF 2006 Kailash Gour and others . Appellants Versus
State of Assam . Respondent
S.B. SINHA, J.
1. Mauza Sangamari Pathar is a small village. It is situated within P.S.
Dobaka in the District of Nagaon in the State of Assam. The residents are
principally agriculturists. Madhabtoli is a neighbouring village. Appellants
are the residents thereof.
2. Taheruddin PW-2 was a resident of Changmazi Patghar. The distance between
two villages is about one mile. He had 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
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. Inside the house his mother and two sisters were
being backed. He did not recognize any one of the assailants. He returned to
the house sometimes later to find that his mother was lying in a critical
condition and two sisters lying dead.
6. Taheruddin who, allegedly was prevented from coming to his house by his
son and had run away, came there and found a group of people striking the wall
of his house with 'dao', 'lathi' etc. One of them, Rahna Gour had shot an arrow
at him. It hit his right hand. He saw the accused from a distance of about 2 =
nals away (1 nal = about 27-28 feet) ie. About 70 ft. in total. He shouted. An
army vehicle arrived there. He found his daughter Bimala in an injured
condition. She had died. He also found his other daughter Hajeera lying dead.
Taking Bimala on his shoulder, he stood on the road. After the departure of the
army personnel, he found his wife Sahera Khatoon lying injured in middle of the
paddy field near the house.
He carried her home, whereafter she died.
7. Hanif, PW-4, another son of Taheruddin allegedly alongwith Zakir Hussain
was in the kitchen. He is said to be a labourer and allegedly also sustained
injuries. He has not been examined.
8. Three accused, Kalyash, Hari Singh and Ratan, according to him, entered
his room. He was not assaulted but allegedly Zakir was taken away by them. He
allegedly took shelter under a banana tree and observed the entire incident.
According to him when his mother came out, Gopal, Kalyash,.Ghandul, Krishna and
Haren Doctor assaulted his mother who died there. When Hajeera came out from
the room, she was assaulted by Badhuram Timu, Hari Singh and Rahna. Other three
sisters escaped but Bimala was assaulted by Gopal, Ratan and Haren Doctor. They
also caused hurt to Zakir.
9. Although, according to PW-2 the army vehicle came and went away, as per
the version of others, both army and police team came to the place of
10. Whereas the injured were taken to the District Hospital for treatment by
the Police, the dead bodies were taken in the army vehicle.
11. The injured were examined by the Medical Officer at about 1.00 a.m.
and were said to have suffered the following injuries :- Zakir Hussain
There was vertical cut injury over the
lip. Size 2" x =".
There are six cut injuries over the
scalp each about 2" x1/2" in size.
Left little finger was severed at the
bone of the proximal phalange.
There is swelling and tenderness over
the right hand.
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 reports, however, are not on record.
14. Post mortem of the three dead bodies were performed at about 12 o' clock
on 15th December, 1992.
15. On the dead body of Sahera Khatoon, two incised wounds were found, one
at the right side of upper neck and another at the right shoulder.
16. On the dead body of Bimala Khatoon, also two injuries, being incised
wounds, were notice; one at the left parietal bone of the neck and the other at
the left upper neck.
17. On the dead body of Hajeera Khatoon also two injuries, being incised
wounds, were found, one on the right upper neck and another at the right
parietal region of scalp.
18. According to Dr. Madhusudhan Dev Goswami, PW-1 (who conducted the post
mortem examination), their stomachs were found to be empty. The death in each
case was found to have taken place 48 to 72 hours from the time of post-mortem
examination. It was opined that in all the three cases the injuries might have
been caused by the same weapon.
19. The prosecution is silent as to when the dead bodies were returned to
their family. Taheruddin (PW-2) stated that he had come back to the village
with another police officer. He did not inform him about the incident. He did
not name any accused. The dead bodies were buried.
20. PW-2 made a statement before the Investigating Officer. There is a
discrepancy as to when he made this statement.
21. Learned counsel for the State submits that such a statement was made at 12.10 p.m. From the First Information Report it appears that the statement of Taheruddin
was received at the police station at about 11.00 p.m. on 15th December, 1992. PW-2 allegedly had made two different statements, one that he made the ejahar
(statement) one day after the incident, but at another place, he stated that he
had made the statement three days after the incident.
22. PW-4 stated that he had lodged the First Information Report.
23. Be that as it may, admittedly, the investigation had started even prior
to lodging of the First Information Report. Post-mortem examinations had been
conducted, site map had been drawn before 12.00 p.m. on 15th December, 1999 and
as per PW-7, inquest were held but he did not say where the inquest reports
24. PWs. 2 and 3 concededly did not see the entire incident. They did not
witness the actual assault on the deceased.
25. The learned trial Judge, however, relied upon 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. The High Court noticed that
PW-3, Mustafa Ahmed, accepted that he had discussions with the witnesses about
the names of probable assailants. The High Court, therefore, disbelieved the
first informant. It, however, did not consider the entire prosecution case from
the angle that thereby, to a large extent, the culpability of the accused and
their participation in the incident became doubtful.
29. The High Court noticed serious contradictions made by PW-3 that he had
not told about burning of any lamp or Gopal calling his father by name.
Whereas, before the police in his statement under Section 161 of the Code of
Criminal Procedure he had stated that he was in his bed, in his deposition in
the Court he stated that he was reading in the room with the help of the lamp.
He also did not inform the investigating officer that after opening the door.
Gopal, Hari Singh and Kailash stood in front of the door and Gopal started
poking him with a spear.
30. PW-4, according to the prosecution, is a star witness. The
contradictions found in his statement before the Court compared to the
statements made to the police under Section 161 of the Code of Criminal
Procedure had been taken note of by the High Court. He was found to have
contradicted himself so far as taking the name of Ratan is concerned. He had
also not disclosed that Kalyash and Ratan dragged him out and inflicted
injuries on him, or he had been able to recognize the accused by moonlight.
The High Court opined that benefit of doubt should be given to Ratan Das,
Gundulu Gour and Budhu Timang. The High Court held that as PWs 3 and 4 were
inside the room, they had the opportunity to see the actual occurrence, whereas
according to the said witnesses themselves, they had gone out of the house. The
High Court, therefore, committed a serious error in opining so.
31. If the banana trees where PW-4 could hide himself were within the
precincts of house, it is doubtful whether he could see the occurrence after
his mother and two sisters came out of the house and in fact who had assaulted
32. Two of the dead bodies were found on the road, and one in the field.
Out of the twelve accused, named in the First Information Report, six have
been acquitted. Involvement of the leader of the mob, namely, Gopal (since
deceased) has seriously been doubted. Only five persons have been convicted,
who are appellants 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 undertaken.
36. PW-1 states that he came back with another police officer, but even to
him he did not make any disclosure.
37. PW-5 is the scribe of the First Information Report. His house is almost
2 kms. away from that of Taheruddin. When he went to Taheruddin's house, about
100-200 people had gathered there. Taheruddin discussed first "on the
things to be mentioned in the "ejahar" and, thereafter only he wrote
38. The abovementioned delay in lodging the First Information Report has not
been explained. Lodging of prompt F.I.R. is necessary for providing checks and
balances. In a case of this nature, where enmity arising out of land dispute is
admitted, in absence of any explanation, delay in lodging the F.I.R. should be
viewed with suspicion.
39. First Information Report was lodged after the deliberations. Land
dispute between the parties is admitted. Inquest was held even before the
recording of F.I.R. Ordinarily, the same is impermissible. [See Ramesh Baburao
Devaskar & Ors. v. State of Maharashtra 2007 (12) SCALE 272]
40. Genesis of the occurrence has not been proved. It is likely that burning
of the house of Nandu started first wherefor only information about the burning
was given by Ritish Dutta to the Police. The incident in question might have
taken place later. Nandu has been acquitted of the charges.
41. From the discussions made hereinbefore, and particularly in view of the
conduct of the prosecution witnesses, in our opinion, it is difficult to rely
upon the statements of the prosecution witnesses. Medical evidence also does
not support the prosecution case. Deaths, according to the doctor occurred 48
to 72 hours prior to the examination of the dead bodies. But, if the
prosecution case is to be believed, the same took place within twelve hours
from the death thereto.
42. On having a broad conspectus of events, I am of the opinion it is
difficult to place implicit reliance on the prosecution case.
43. We are not oblivious of the fact that several Commissions and Committees
set up to inquire into the effect of communal riots in different parts of the
country severely criticized the role of the investigating officer.
Tardy and partial investigation has been held to be not uncommon.
In this case, no such question was raised. At no stage any such complaint
was made that the investigation carried by the investigating authorities 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
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 the country police investigations attracted
severe criticism, the same in no manner should be applied in all the cases
across the country. Each accused person; even a terrorist, has his human right.
He be tried in accordance with law.
44. Article 12 of the Universal Declaration of Human Rights provides for the
Right to a Fair Trail. Such rights are enshrined in our Constitutional Scheme
being Article 21 of the Constitution of India. If an accused has a right of
fair trial, his case must also be examined keeping in view the ordinary law of
It is one thing to say that even applying the well-known principles of law,
they are guilty of commission of offences for which they are charged but it is
another thing to say that although they cannot be held guilty on the basis of
the materials on record, they must suffer punishment in view of the past
Even then chances of the false implication cannot be ruled out altogether
and particularly in a case like the present one when those who have been named
in First Information Report and said to have taken a leading role in the matter
have been acquitted, the correctness whereof is not in any question. We do not
know how a different standard can be applied in case of others. I am,
therefore, unable to subscribe to the view that in a case of this nature, the norms
of appreciation of evidence should be applied differently.
It is not a case where an unfair trial like Zahira Habibulla H. Sheikh vs.
State of Gujarat (2004) 4 SCC 158 had taken place which was apparent on the
face of the record. The question of adopting and applying different norms in a
case of this nature, therefore, would not arise. Even in Zahira Habibulla H.
Sheikh (supra) the case was transferred to another State, evidences were taken
afresh. Such a case has not been made out here.
Zahira Habibulla H. Sheikh (supra) must be held to have been decided in a
different fact situation. [See Satyajit Banerjee and Others v. State of W.B.
and Others : 2005 (1) SCC 115] It must be borne in mind that wherever
Parliament intended to lay a different standard of proof in relation to certain
offences or certain pattern of crimes, it did so. In such a case subject to
establishing some primary fact, the burden of proof has been cast on the
respondents. There are a large number of statutes where the doctrine 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 non- application 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 prosecution, as every man is presumed to be innocent until
the contrary is proved, and criminality is never to be presumed subject to
statutory exception. No such statutory exception has been made by requiring the
drawing of a mandatory presumption of negligence against the accused where the
accident "tells its own story" of negligence of somebody. Secondly,
there is a marked difference as to the effect of evidence viz. the proof, in
civil and criminal proceedings. In civil proceedings, a mere preponderance of
probability is sufficient, and the defendant is not necessarily entitled to the
benefit of every reasonable doubt; but in criminal proceedings, the persuasion
of guilt must amount to such a moral certainty as convinces the mind of the
Court, as a reasonable man beyond all reasonable doubt. Where negligence is an
essential ingredient of the offence, the negligence to be established by the
prosecution must be culpable or gross and not the negligence merely based upon
an error of judgment. As pointed out by Lord Atkin in Andrews v. Director of
Public Prosecutions919, "simple lack of care such as will constitute civil
liability, is not enough"; for liability under the criminal law "a
very high degree of negligence is required to be proved.
Probably, of all the epithets that can be applied 'reckless' most nearly
covers the case". "