Kailash Gour &
Ors. Vs. State of Assam
[Criminal Appeal No.
1068 of 2006]
J U D G M E N T
T.S. THAKUR, J.
This appeal arises out of a judgment and order dated 29th June, 2006, passed by
the High Court of Judicature at Gauhati whereby Criminal Appeal No.133 of 2005 filed
by the appellants has been dismissed and the conviction and sentence of life
imprisonment awarded to them by the trial 1Court for offences punishable under
Sections 448, 324 and 302 read with Section 34 IPC upheld.
appeal was initially heard by a Division Bench of this Court comprising S.B. Sinha
and H.S. Bedi, JJ., who differed in their conclusions. While S.B. Sinha, J.
acquitted the appellants giving them the benefit of doubt, Bedi, J. upheld their
conviction and sentence and consequently dismissed the appeal. The appeal has, in
that backdrop, been listed before us to resolve the conflict.
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) is said to have replied that
Taheruddin was not at home.
Apprehending danger, Md.
Mustafa Ahmed escaped from the house but not before Gopal Ghose had injured him
with the help of a spear. On his way out Md. Mustafa Ahmed is said to have recognised
two persons standing outside the house allegedly armed with dao, dagger etc. Out
of the house and in the field, he saw his father Mohd. Taheruddin coming homeward.
Md. Mustafa Ahmed told him not to do so for he may be killed by the mob that
had attacked the house. Taheruddin paid heed to the advice and watched the
incident from a distance.
According to his version
Rahna Gour, one of the members of the mob, shot an arrow at him which hit his
right hand. After the crowd had left the place he shouted to attract the
attention of an army vehicle that was passing by and reached the spot only to
find his daughters Bimala and Hazera lying dead and his wife Sahera Khatoon
lying injured in the middle of a paddy field near the house. He carried her
home where she died after some time. Zakir Hussain who was sleeping along with Md.
Hanif Ahmed (PW4) in the kitchen was also injured by the mob.
According to the version
of Md. Hanif Ahmed (PW4) three accused persons, namely, Kailash, Hari Singh and
Ratan entered his room and took away Zakir with them. Hanif is said to have stepped
out of his house to take shelter behind the banana trees growing near the house
and witnessed the entire incident from there. According to his version Gopal Ghose,
Kailash Gour, Gundulu Gour, Krishna Gour and Harendra Sarkar assaulted his
mother while his sister Hazera Khatoon was attacked by Budhuram Timang, Hari Singh
and Rahna. Bimala, the other sister, was similarly assaulted by Gopal, Ratan Das
and Harendra Sarkar. The rest of the sisters, however, managed to escape
injured were then taken to Nagaon Civil Hospital by the police who had also arrived
at the place of occurrence on receipt of intimation about a house having been put
on fire in the neighbourhood.
The dead bodies were
removed in the army vehicle, while Zakir Hussain and Md. Mustafa Ahmed were medically
examined by the medical officer who found the following injuries on them: "Zakir
1) There was vertical
cut injury over the lip. Size 2" x =".
2) There are six cut
injuries over the scalp each about 2" x =".
3) Left little 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 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."
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 noteworthy, passed away during the trial.
its judgment and order dated 18th June, 2005, the trial Court convicted 8 out
of 14 persons for the offence of murder and sentenced them to undergo imprisonment
for life and a fine of Rs.2,000/-, and in default of payment to 6suffer rigorous
imprisonment for six months.
The High Court has, as
seen earlier, upheld the conviction of the appellants while acquitting Ratan Das,
Gundulu Gour and Budhu Timang giving them benefit of doubt. Two appeals were filed
against the said judgment and order, out of which viz. Crl. Appeal No.907 of 2006
filed by Harendra Sarkar has since been dismissed as abated upon the death of
the appellant in that appeal. The present criminal appeal is, therefore, relevant
only to appellants Kailash Gour, Krishna Gour, Hari Singh Gour and Rahna Gour.
have heard learned counsel for the parties at considerable length. The prosecution
has examined 7 witnesses in all. These are Dr. Madhusudhan Dev Goswami (PW1), Mohd.
Taheruddin (PW2), Md. Mustafa Ahmed (PW3), Md. Hanif Ahmed (PW4), Abdul Jabbar (PW5),
Dr. Jiauddin Ahmed (PW6) and B.N. Kalita (PW7).
deposition of Dr. Madhusudhan Dev Goswami (PW1) who conducted the post-mortem
on the dead bodies of the three unfortunate victims leaves no manner of doubt that
they suffered a homicidal death. The nature of the injuries found on the dead body
of the deceased Smt. Sahera Khatoon and her two minor daughters Hazera Khatoon aged
7 years and Bimala Khatoon aged 3 years manifestly show that they suffered a homicidal
To that extent we see
no reason to interfere with the findings recorded by the trial Court and the
High Court in appeal.
It is noteworthy that
even in the dissenting judgments delivered by S.B. Sinha and H.S. Bedi, JJ.,
their Lordships are unanimous on the cause of death of the three victims. The question,
however, is whether the prosecution has established beyond a reasonable doubt
that the appellants were the perpetrators of the crime.
The prosecution has,
in that regard, placed reliance upon the deposition of Mohd. Taheruddin (PW2) and
his two sons named Md. Mustafa Ahmed (PW3) and Md. Hanif Ahmed (PW4). We shall
refer in some detail to the depositions of these three witnesses especially because
while Sinha J. has held that only Md. Hanif Ahmed (PW4) claims to be an eye witness
to the occurrence, Bedi J. has taken the view that all the three witnesses were
eye witnesses to the incident.
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
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 to have a look and saw the mob striking the
walls of his house with dao and lathi. A couple of youth were running away
towards the West. Rahna Gour shot an arrow at the witness which hit the witness
on his right hand. The accused came out from the house on the road, blew whistles
and went away. The witness then reached his house and raised an alarm. An army vehicle
He saw the injured Bimala
who had died. He also saw Hazera lying dead besides the road to the house. He
took Bimala on his shoulder and stood on the road. He then found his wife Sahera
Khatoon lying injured in the paddy field near the house and carried her home. She
died immediately after being given water. His son Mustafa and Zakir sustained cut
injuries. The Army personnel saw all this. Police was also with them. The Army
sent the injured to Nagaon Civil hospital and took the dead bodies to Doboka
were disturbances over demolition of a mosque in the year 1992. He got his
statement (ejahar) written by Abdul Jabbar and lodged the same under his signature
in the police station. In cross-examination the witness stated that ejahar was
written at his house on the 3rd day in the evening and that Investigating Officer
Shri Kalita was present at that time. Other police personnel were also with him.
dead bodies were buried before the ejahar was written. Police, Army and the Magistrate
were present there. While ejahar was being written at the house of the witness,
he called the village President Abdul Jabbar and other prominent persons of the
village and upon being advised by the Investigating Officer, Gaji Saheb also
came. At the time of writing the ejahar his injured sons were at Nagaon Civil Hospital.
Witness further stated that before the ejahar had been written, the Daroga had
interrogated the prominent persons.
But the witness did not
discuss anything with the prominent persons. He told them about his recognising
a couple of the accused persons. After Jabbar had written the ejahar, he had read
it out to the witness. Witness further stated that he and his son together named
13 persons in the ejahar out of whom he knew only 4 who had come to his house
and called him.
the ejahar he had written that apart from the people named by him there were 30-35
other people. Rahna Gour's name was also written in the ejahar. The house of the
witness is 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.
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.
of the 30-35 people had chased the witness. Witness also stated that till
before filing the ejahar he had not told the Investigating Officer about the occurrence.
The next day the Daroga asked him to go gather a few people so that he could interrogate
them. When the Investigating Officer came next day, he called the people. They
were all muslims. He did not remember whether he had mentioned the moonlight in
the ejahar. The witness was confronted with certain omissions in the statement recorded
under Section 161 Cr.P.C.
a careful reading of the statement of Md. Taheruddin (PW2) we are of the view that
he is not an eyewitness to the killing of the victims as such. All that the witness
saw from a distance was that 30-40 people had gathered in front of his house
and there was a commotion including the shouts of his son Mustafa, who ran towards
him to tell him not to go home because people were being attacked there.
The witness does not
accuse any particular individual of assaulting or killing of the three victims.
Even regarding identification of those persons he claimed to know only four who
had come to his house and had called him. What is interesting is that an injury
said to have been received by him from an arrow shot by Rahna Gour was not mentioned
in the First Information Report or medico-legally examined by the doctor.
The deposition of the
witness suggests that a mob had entered his house and attacked the inmates.
Besides, who committed what act resulting in what injury to either the
prosecution witnesses or any one out of the dead is not evident from the deposition
of the witness. We shall presently revert back to the deposition of this witness
when we examine credibility of the First Information Report. We may for the present
simply state that we agree with Sinha, J. that this witness is not a witness
for the murder of any one of the three victims.
may for now take up the deposition of Md. Mustafa Ahmed (PW3). In his
deposition this witness stated that his family consisted of 9 persons including
his father Taheruddin, mother Sahera Khatoon. On the fateful day of 14th December,
1992 he was at home while his father was guarding paddy in the field, 50 meters
away. Accused Gopal came to the house calling for his father.
The witness could recognise
him by his voice and responded that he was not at home. He then asked where he
had gone, the witness said that he had been guarding paddy in the field. Gopal and
12-14 people 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
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 15his 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
cross-examination the witness said that Zakir was not his consanguine brother
but is distantly related to him. Within five minutes of the occurrence, officer
in charge of Doboka P.S. arrived there with five policemen. But the witness did
not know who had informed them about the incident. The witness did not tell the
officer in charge about the occurrence.
The officer in charge
stayed back and the policemen and the driver took the witness to the police station
from where they were taken to the hospital. The witness and Zakir stayed at the
police station for half an hour. Police did not ask the witness about the
occurrence. 16He was interrogated in the hospital two or three days after the incident.
It is not known who lodged the ejahar and when.
Disturbance over the
demolition of the mosque were going on. People whose houses had been burnt or
whose family members had died had taken shelter in the camp out of fear. He was
terribly afraid when spears were being thrust into his room. While coming out
he saw 15-20 men outside. But while inside he recognised three men and two more
when coming out. Witness deposed : "I had not seen who had killed my two
sisters and where. A lot of people were there when I came out of the house. I did
not notice who had been assaulting whom and where."
his father and he had been discussing the names of the assailants or the
probable assailants, the men whom he had called were also with them.
the above it is clear that the witness does not claim to have seen the act of
violence against the victims. The witness simply says that Gopal and three others
had entered the house and injured him with a spear whereupon he made good his
escape, recognising two intruders on his way out. As to when and where and by whom
were his mother and sisters hacked to death is something on which the witness pleads
In that view we respectfully
agree with the opinion expressed by Sinha, J. that Md. Mustafa Ahmed (PW3) is
not an eye-witness to the occurrence although he may have observed certain incidents
that preceded the actual act of killing of the victims.
It was also relevant
that the witness did not make any disclosure to the police, who was on the spot
within five minutes of the occurrence, about the assailants nor did he do so till
2-3 days after the incident when the Investigating Officer interrogated him in the
hospital. He also did not know about the lodging of the FIR nor did he know as
to who had lodged the same and when.
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 18witness 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.
incident, according to the witness, happened on a moonlit night which enabled
him to identify the assailants. The witness claimed that the police arrived at
the place of occurrence in the meantime. The witness and his father searched
for his mother and sisters with the help of a torch in the field and discovered
their bodies within 3-4 minutes.
While both the
sisters had died, his mother died 10 minutes later. Police, according to the witness,
came on the following day and interrogated them. FIR was written at the police station
on the dictation of the witness and was signed by him. Witness further stated
that he did not know whether his father had lodged any FIR to the police. Finally
the police took a written report from him and his father. The witness was confronted
with certain significant omissions in the statement made under Section 161
Jabbar (PW5) is a witness who had scribed Ext.1. According to the witness ejahar
was written at the house of Taher Ali whose house is 2 Kms. from that of this witness.
He went to Taher's house where 100-200 people had gathered. Taher had discussed
the things that should be mentioned in the ejahar and had given the names of
the accused persons himself.
Ziauddin Ahmed (PW6) is a witness to the medical examination of the injured witnesses
Mustafa Ahmed and Zakir and has proved the injury report.
B.N. Kalita (PW7) is the Investigating Officer. In his statement this witness
deposed that he was attached to the Doboka Police Station and received message from
Biresh Dutta that a fire had occurred at the place of occurrence which
information was entered in General Diary under Entry No.532 dated 14th
December, 1992. He led the police staff to Mikir Gaon. Taheruddin lodged a formal
ejahar there. The case was registered and investigation taken up. He drew sketch
of the place and conducted inquest and post-mortem on the dead-bodies and
arrested the accused persons. The charge sheet was finally submitted by S.I.
Dharma Kanta Talukdar.
In cross-examination this witness has stated that a large number of police had been
deployed in the area for maintenance of law and order on account of disturbances
arising out of the dispute over the demolition of the mosque. He received a
written ejahar at the police station on 15th December, 1992 from Taheruddin at
12.10 p.m. He proved the omissions in the very statements of Mohd. Taheruddin (PW2),
Md. Mustafa Ahmed (PW3) and Md. Hanif Ahmed (PW4) recorded under Section 161
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 having been set on fire.
Once on the spot the
police and the Army realised that there was much more at their hands than just
an incident of fire. A mob comprising 35-40 people had intruded in the
homestead of Taheruddin and committed cold blooded murder of three innocent
persons, two of whom were female children of tender age. If the prosecution
version were to be believed, the Investigating Officer had the opportunity of getting
an eye witness and first hand account of the incident within minutes of the commission
of the crime.
In the ordinary course,
the Investigating Officer would have immediately recorded the First Information
Report based on the eye witness account of the occurrence given by Md. Hanif and
started his investigation in the right earnest. That is not, however, what
happened. No effort was made by the Investigating Officer nor is there any explanation
for his failure to ascertain from the alleged eye witness the sequence of events
and the names and particulars of those who were responsible for the same.
Instead, without the
registration of the First Information Report, the Investigating Officer completes
the inquest, prepares a site plan and gets the post mortem of the dead conducted
on 15th December, 1992, long before the First Information Report was registered
at 11.00 p.m. late in the evening on that date.
There can be only two explanations for this kind of a situation. One could be,
that the Investigating Officer was so stupid, ill-trained, ignorant of the law
and procedure that he did not realise the importance of getting a crime registered
in the police station concerned before undertaking any investigation including conduct
of an inquest, post mortem etc.
The other explanation
could be that since neither the Investigating Officer had any clue as to who the
perpetrators of the crime were nor did the witnesses now shown as witnesses of the
occurrence had any idea, the investigations started without any First Information
Report being recorded till late at night on 15th December, 1992. We are
inclined to believe that the second explanation is more probable of the two. We
say so for reasons that may be summarised as under:
(i) The Investigating
Officer was a Sub Inspector of Police and the Station House Officer of Police
Station Doboka. It follows that he had sufficient experience in conducting investigations
especially in cases 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
25seen 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 recorded
in the hospital to ensure that an FIR is registered without undue delay and those
responsible for committing the crime brought to book. Failure of the
prosecution to provide any explanation much less a plausible one shows that the
investigating agency had no clue about the perpetrators of the crime at the
time when it reached the spot or soon thereafter nor did anyone claim to have
seen the assailants, for otherwise there was no reason why they could not be
named and an FIR registered immediately.
This Court in State
of H.P. v. Gian Chand (2001) 6 SCC 71 dealt with the effect of failure of prosecution
to satisfactorily explain the delay in the lodging of the FIR and declared that
if the delay is not satisfactorily explained the same is fatal to the
prosecution. This Court observed: 26 "If the prosecution fails to satisfactorily
explain the delay and there is a possibility of embellishment in the prosecution
version on account of such delay, the delay would be fatal to the prosecution.
However, if the delay
is explained to the satisfaction of the court, the delay cannot by itself be a ground
for disbelieving and discarding the entire prosecution case." To the said effect
is the decision of this Court in Dilawar Singh v. State of Delhi (2007) 12 SCC 641,
where this Court observed: "In criminal trial one of the cardinal principles
for the Court is to look for plausible explanation for the delay in lodging the
report. Delay sometimes affords opportunity to the complainant to make deliberation
upon the complaint and to make embellishment or even make fabrications.
Delay defeats the chance
of the unsoiled and untarnished version of the case to be presented before the court
at the earliest instance. That is why if there is delay in either coming before
the police or before the court, the courts always view the allegations with suspicion
and look for satisfactory explanation. If no such satisfaction is formed, the
delay is treated as fatal to the prosecution case." Reference may also be
made to the decisions of this Court in State of Punjab v. Daljit Singh (2004)
10 SCC 141 and State of Punjab v. Ramdev Singh (2004) 1 SCC 421 which also reiterated
the legal position stated in the earlier mentioned decisions. 27
(iii) From the deposition
of Mohd. Taheruddin (PW2), it is clear that the FIR was drawn only after the Investigating
Officer had through this witness 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:
28 "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 of the accused who had come looking
for him. There is no explanation as to how were the remaining accused named when
he had not identified them at the time of the occurrence and at whose instance especially
when according to the witness his sons were in the hospital when the ejahar was
(v) The Investigating
Officer having prepared a site plan of the place of occurrence before the registration
of the case and even before the statements of the witnesses were recorded under
Section 161 Cr.P.C., did not make any mention about the banana trees behind
which Md. Hanif (PW4) is said to have hidden himself. If the story regarding PW4
having had observed the occurrence from behind the banana trees was correct, the
trees ought to appear in the site plan which is not the case.
Absence of any banana
trees in the area around the house is an indication of the fact that no implicit
reliance can be placed upon the version of Md. Hanif (PW4).(vi)According to PW3
and PW4, after they emerged from their hideouts and after their father returned
to the spot they started looking for the dead bodies with the help of a torch. If
PW4 was right in his version, then the victims were hacked in front of the door
of the house, there was no question of searching for the dead bodies with the
help of torch light.(vii)The use of torch light to look for bodies shows that there
was no source of light.
The night was a
foggy, cold December night. The presence of fog is admitted by PW4 in his deposition.
Assuming that there was moonlight, the presence of fog was a disabling factor that
made visibility poor for any one to observe the occurrence from a distance when
a huge mob of 30-40 people was on the rampage. 30(viii)According to Shri B.N. Kalita
(PW7) the Investigating Officer in the case a written ejahar was presented to him
by Taheruddin when the former reached the spot on 14th December, 1992. If that were
so, the least which the officer would have done was to take that ejahar as the first
information report regarding the occurrence and register a case of murder
against those named in it.
This admittedly was
not done. In cross- examination the witness said that a written ejahar was presented
to him by Taheruddin on 15th December, 1992 at 12.10 p.m. Now, even if that
were true, there is no explanation why the officer delayed registration of the FIR
till 11.00 p.m. on that 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. If the prosecution version as given by alleged
eye witnesses is accepted the victims had died within 12 hours of the post- mortem
This inconsistency in
the medical evidence and the ocular evidence assumes importance rendering the version
given by the prosecution witnesses suspicious. (xi) According to Mohd.
Taheruddin (PW2) the appellant had shot an arrow towards him which missed the
target but hurt the witness in his hand. There is no corroborative medical evidence
to suggest that Taheruddin has sustained any injury on the hand or any other
part of his body.
(xii) Even regarding
the motive for commission of the crime the prosecution case is that the
incident had its genesis in the demolition of the mosque and the large scale disturbances
that followed. While it is evident that large scale disturbances had indeed
taken place in the area including an incident of a house being set on fire in the
neighbourhood of the place of occurrence, the previous enmity between some of the
appellants and Taheruddin on account of a land dispute between them could be a possible
reason for Taheruddin naming appellants and others close to him as assailants.
Enmity between complainant
party and the accused being a double-edged weapon there could be motive on
either side for the commission of offence as also for false implication.
is one of the fundamental principles of criminal jurisprudence that an accused is
presumed to be innocent till he is proved to be guilty. It is equally well
settled that suspicion howsoever strong can never take the place of proof. There
is indeed a long distance between accused `may have committed the offence' and `must
have committed the offence' which must be traversed by the prosecution by adducing
reliable and cogent evidence.
innocence has been recognised as a human right which cannot be wished away. See
Narendra Singh and Anr. v. State of M.P. (2004) 10 SCC 699 and Ranjitsingh Brahmajeetsingh
Sharma v. State of Mahsrashtra and Ors. (2005) 5 SCC 294. To the same effect is
the decision of this Court in Ganesan v. Rama SRaghuraman and Ors. (2011) 2 SCC
83 where this Court observed: "Every accused is presumed to be innocent unless
his guilt is proved. The Presumption of innocence is human right. Subject to the
statutory exceptions, the said principle forms the basis of criminal jurisprudence
above views were reiterated by this Court in State of U.P. v. Naresh and Ors.
(2011) 4 SCC 324.
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
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 regardless of his caste or creed is entitled to protection of his
life, limb and property.
It will indeed be a sad
day for the secular credentials of this country if the perception of the
minority communities about the fairness and impartiality of the police force
were to be what the reports are suggestive of. And yet it may not be wholly
correct to say that the police deliberately make no attempt to prevent incidents
of communal violence or those efforts to protect the life and property of the
minorities is invariably half hearted or that instead of assailants the victims
themselves are picked up by the police.
So also there is no
reason for us to generalise and say that there is an attempt not to register cases
against assailants and when such cases are registered loopholes are
intentionally left to facilitate acquittals or that the evidence led in the
Courts is deliberately distorted. No one can perhaps dispute that in certain cases
such aberrations may have taken place.
But we do not think that
such instances are enough to denounce or condemn the entire force for ought we
know that for every life lost in a violent incident the force may have saved
ten, who may have but for timely intervention been similarly lost to mindless violence.
Suffice it to say that while the police force may have much to be sorry about
and while there is always room for improvement in terms of infusing spirit of commitment,
sincerity and selfless service towards the citizens it cannot be said that the entire
force stands discredited.
At any rate the legal
proposition formulated by Bedi J. based on the past failures do not appear to
us to be the solution to the problem. We say with utmost respect to the
erudition of our Brother that we do not share his view that the reports of the
Commissions of Enquiry set up in the past can justify a departure from the
rules of evidence or the fundamental tenets of the criminal justice system.
That an accused is presumed to be innocent till he is proved guilty beyond a
reasonable doubt is a principle that cannot be sacrificed on the altar of inefficiency,
inadequacy or inept handling of the investigation by the police.
The benefit arsing from
any such faulty investigation ought to go to the accused and not to the
prosecution. So also, the 37quality and creditability of the evidence required to
bring home the guilt of the accused cannot be different in cases 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.
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 accordingly allow this appeal and acquit the appellants giving them the
benefit of doubt. They shall be set free forthwith unless required in connection
with any other case.