Mohd. Iqbal
M. Shaikh & Ors Vs. The State of Maharashtra [1998] INSC 217 (15 April 1998)
G.B.
Ray, G.B. Pattanaik Pattanaik, J.
ACT:
HEAD NOTE:
These
appeals by the 11 accused persons under Section 19 of the Terrorist and
Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as ` the
TADA) are directed against the judgment dated 16.10.1996 passed by the
Additional Judge, Designated Court for Greater Bombay in TADA Special Case Nos,
35/93 @ `/94 and 17/95. These appellants and six other stood charged under
Sections 120(B), 147, 148, 149, 302, 326, 436, 506 I.P.C. and Section 3(2)(1)
and (ii) of the TADA for the ghastly occurrence dated 7th of January, 1993,
wherein six persons died our of burn injuries being locked in a room and the
room having been put to fire by putting petrol on it. The occurrence is a
sequel to the demolition of Babri Masjid at Ayodya.
Shortly
after the demolition of the mosque at Ayodya communal riots erupted all over
the country including the city of Mumbai. When communal riots erupted 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 the hospital on 10th of January, 1993 and 16th of January, 1993,
respectively, while the rest died at the spot itself. While the occurrence is
undoubtedly a ghastly one and exhibits the brutality with which the members of
one community attacked the members of another community at a points of time
when people had been depraved of their sense of judgment and decency and when
people had behaved like animals, the still more painful is the manner in which
the prosecuting agency picked up indiscriminately people from one community as
they were residing in the locality and booked them under different sections of
the Penal Code and the TADA and ultimately the learned Designated Court
convicted these 11 appellants and acquitted six other co- accused persons. This
case exhibits not only callousness on the part of the investigating agency and
the cavalier fashion with which the investigation proceeded but also the extent
to which the trial judge has been swayed away to record conviction without any
legally admissible trustworthy evidence. It would, therefore, be necessary for
this Court to scrutinise the evidence with care and caution and to find out as
to whether notwithstanding the infirmities in the evidence of the prosecution
witnesses whether conviction of any of the accused appellants can at all be
sustained.
The
prosecution case in brief is that on 7th of January, 1993 the accused persons
along with some other Muslims terrorised the minority Hindus of the locality in
consequence of which the Hindus remained inside their respective rooms in the Chawl.
The prosecution further alleged that these accused persons came with deadly
weapons in their hands at 9.30 p.m. and warned the Hindus of the locality not
to come out of their respective tenements as otherwise they would be killed.
The Hindus got frightened, and therefore, preferred to remain inside their
respective houses. At 11.30
p.m. while the Hindus
had taken shelter in their respective tenements they could hear some noise
outside and then through the windows they could see that some of these accused
persons had sprinkled petrol/kerosene on the ota and door of the room of Rajaram
Bane and then set the said room to fire. As the room had been closed from
outside, the persons who were inside the room of Rajaram Bane shouted for help
but none of the Hindu community could come out, because of fear for their lives
from the unruly Muslim accused persons who had been armed with lethal weapons.
Seeing the flames, however, the police rushed 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 had
proceeded with the investigation to some extent, the investigation was
entrusted to D.C.P (CID) who registered CR No. 14 of 1993. The approval of the
Police Commissioner was taken under Section 20A. (1), for investigation of the
case, under TADA and after completion of the investigation sanction of the Commissioner
under Section 20A.(2) was obtained and charge sheet was submitted against 14
accused persons in TADA Special Case No. 35 of 1993. Subsequent to the filling
of the aforesaid charge sheet when accused No. 15 was arrested a fresh charge
sheet was filed against him in TADA Special Case No. 1 to 1994 and similarly
Special Case No. 37 of 1994 was filed against accused No. 16 and Special Case
No. 17 of 19965 was filed against accused No. 17. The learned Designated Court
framed charges against all the 17 accused persons under Sections 120 (P), 147,
143, 149, 302, 326, 436, 506 I.P.C. and under Section 3(2)(1) and (ii) of the
TADA. The accused persons denied their complicity in the crime and took the
stand that as the investigating agency failed to arrest the real culprit and a
communal riot had erupted in the area and some Hindus were burnt and ultimately
died, the accused persons who belonged to the Muslim community were residing in
the locality were arrested and were arrayed as accused persons.
The defence
also challenged the validity of the sanction given by the Commissioner of
Police.
The
learned designated court formulated 12 points for being answered and then after
analysis of the oral and documentary evidence on record as well as the material
produced came to hold that prosecution has proved valid permission of the
competent authority for applying the provisions of TADA and valid sanction to
prosecute the accused as required under Section 20A of the Act. The learned
court also came to hold that the accused persons Nos. 1,2,4,7,8,9,10,11,14,15,
and 17 struck terror in the minds of Hindus public to adversely affect the
disharmony amongst Hindus an d Muslims and for that purpose used explosives
like petrol and kerosene and entered into a conspiracy to commit the terrorist
act. It further came to hold that the said 11 accused persons were the members
of an unlawful assembly whose common object was to threat the Hindus to kill
and further to strike terror in the minds of Hindu persons with lethal weapons.
It also came to hold that the 11 accused persons used force with the common
object to kill the Hindus and committed riot and while committing not 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 120 B read with Section (3(2) (I) of
TADA, under Section 149 IPC read with Section 3(2)(i) of TADA, under Section
302 IPC read with Section 149 IPC, under Section 436 read with Section 149 IPC
and under Section 147 and 148 of the Indian Penal Code. For such conviction
they are sentenced to imprisonment for life and to pay a fine of Rs. 500/-, in
default to suffer R.I. for six months. The Designated Court did not, however, award separate sentence for each of the
offence. The present appeal has been preferred against the aforesaid conviction
and sentence passed by the designated court. Be it be stated that out of 17
accused persons, who stood tried, 6 of them have been acquitted of all the
charges against them. The prosecution in support of its case examined several
witnesses of whom PWs 1, 2, 3, 4, 9 and 10 are stated to be the eye-witnesses
to the crime. In coming to the conclusion that the prosecution case has been
established beyond reasonable doubt and it is these accused appellants who are
the perpetrators of the crime the learned designated court examined the
evidence of the aforesaid 6 eye-witnesses and held them to be reliable and on
the basis of their identification of the accused persons in court convicted
those accused persons who could be identified by two or more witnesses. In
assessing the testimony of the aforesaid eye- witnesses and in deciding the
question of the reliability of these witnesses the learned designated court has
examined whether it was at all possible for the witnesses to see the occurrence
from the place where they alleged to have been seen, the inordinate delay in
their examination by the investigating officer under Section 161 Cr. P.C.,
their non- disclosure of the incident to anybody else, and the fact that they
were admittedly residing in t he locality where the occurrence took place.
Having examined the impugned judgment of the learned designated court, we find
that what persuaded the learned Judge to believe the testimony of these
witnesses is the fact that they are the residents of the locality and the
accused persons also belonged to the said locality and they know each other
well and as such there could not have been any mistaken identity of the accused
persons. The learned designated court, however, took the precaution, since
large number of accused persons were involved, to hold that the prosecution
case has been proved beyond reasonable doubt against those accused persons who
have been identified by more than tow eye witnesses of the occurrence.
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 t he 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 prade 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.
Mr.
Jain also further urged that Vandana, the deceased, h ad categorically stated
that some unknown Muslim people threw petrol on the house and set fire to the
house. While in the hospital, she made a statement on 14.1.1993 that she could
see petrol being sprinkled on the roof and then the house being set to fire but
yet did not name any of the accused persons and on the other hand stated that
the faces of the accused persons were covered with napkins. Sulochana, the
other deceased, was specifically asked as to whether she could recognise any of
the persons who set fire to the house, she replied in the negative as the faces
of the accused persons had been covered with napkins. Naina as well as Sandeep
and Sailesh who survived in t he incident were not examined by the prosecution
and practically no explanation has been offered. The eye-witnesses, who were
examined, though stated in court that they knew the accused persons from the
childhood or at least for 25 years yet they did not know the names of the
accused persons. Mr. Jain also severely commented upon the fact that the time
of the incident has been shifted from 12.30 in night to 11.30, which was
necessary because PW-7 in his evidence had indicated that he had learnt about
the burning of the room in the Chawl at 11.00 p.m. So far as PW1 and PW 9 are concerned, according to Mr. Jain, it would
be difficult for any person to see the incident from where they alleged to have
seen in view of the existence of the cement frill in their front. The learned
counsel also contended that after the arrest of t he accused persons and before
they were put to trial and the witnesses were called upon to identify those
accused persons on several occasions and as such the witnesses had the
opportunity of seeing them and in fact they so deposed in their evidence in
court. Mr. Jain also submitted that though several other independent witnesses
from the adjacent locality were examined by the prosecution in course of
investigation but during trial those witnesses were not produced. Even Smt. Sukesha
Banne occupying room just opposite to Rajaram Bane whose room was set to fire,
though had been examined by the police during investigation but was not
examined during trial. This being the nature of evidence of the eye-witnesses,
Mr. Jain urged that conviction of the appellants on the basis of such infirm
evidence is wholly unsustainable and as such the appellants are entitled to be
acquitted. Mr. Jain also urged that the case in 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.
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 the investigating agency cannot be held to be a
ground for impeaching the testimony of the witnesses in court. The learned
counsel also urged that the so-called contradictions or variance inter se
between the witnesses have to be viewed from the stand point that they were
utterly stunned by the ferocity and ghastly act of the accused persons and when
near and dear ones were found to have been burnt in their front, it is just
possible that they have not been able to remember the incident with minute
detail and on that score some variance is reasonable but the witnesses can't be
held to be untrustworthy on that score.
Mr. Nargolkar
further contended that the witnesses being sufficiently familiar with the
accused persons who were residing in the same locality, there cannot be any doubt
about their capacity to identify nor the identification made by them in the
court can be said to be infirm and, therefore, the learned designated court
rightly took the precaution and convicted only those persons who could b e
identified by two or more eye-witnesses to the occurrence.
Mr. Nargolkar
also urged that the presence of the witnesses at the scene of occurrence cannot
be disputed as they were admittedly the residents of the locality, opportunity
on their part to see the accused persons was sufficient as the activities
continued for a fairly long period and, therefore, it was quite natural for the
witnesses to remember the role played by the accused persons and there is no
justification to discard such trustworthy evidence.
Judged
from this stand point the conviction recorded by the learned designated court
is unassailable. Mr. Nargolkar also submitted that the order of sanction prima
facie indicates clear application of mind of the sanctioning authority who
accorded the sanction after perusing all the relevant material. That apart, the
sanctioning authority also deposed in court and indicated the materials
considered by him before according sanction and in this view of the matter the
challenge of the appellants to the validity of the order of sanction cannot be
sustained. According to the learned counsel, Mr. Nargokar, the atrocities and
activities perpetrated by the accused persons at a point of time when the
communal riots had broken in this city of Bombay had such impact on the society
that such activities cannot but be held to be `terrorist activity' within 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.
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-section (1) of
Section 3.
The expression
`terrorism' has not been defined under the Act and as has been held by this
Court, in the case of HITENDRA VISHNU THAKUR AND ORS. v. STATE OF MAHARASHTRA. 1994(4) SCC 602, it is not
possible to give a precise definition of terrorism or to lay down what
constituted terrorism. But the Court had indicated in the aforesaid decision
that it may be possible to describe it as use of violence when its most
important result is not merely the physical and mental damage of the victim but
the prolonged psychological effect it produces or has the potential of
producing on the society as a whole. It has also been stated in t he aforesaid
decision that if the object of the activity is to disturb harmony of the
society or to terrorise people and the society with a view to disturb even the
tempo, tranquillity of the society, and a sense of fear and insecurity is
created in the minds of a section of the society or society at large, then it
will, undoubtedly, be held to be a terrorist act. The question, therefore, does
not really boil down to an examination as to whether for the activities, under
the normal criminal law, the accused persons can be punished but to examine the
real impact of such gruesome and atrocious activities on the society at large
or at least on the section of the society. If the case in hand is examined from
the aforesaid stand point, on the facts that shortly after the demolition of Babri
Masjid at Ayodhya, a communal riot erupted in Mumbai and during that period in
the locality in question which was predominantly occupied by Muslims, a Chawl
occupied by Hindus who were in minority was set to fire by the people belonging
to the rival community and on account of such fire, several people were burnt
alive, it is difficult to accept the contention of Mr. Jain that the activities
do not fall within the ambit to TADA. In our considered opinion, judging from
the atrocity of the activities and judging from the sensitive and tense
atmosphere prevailing in the town under which the acts were perpetrated resulting
ultimately in the death of several persons, the conclusion becomes irresistible
that such activities has far reaching consequences and it affects the society
at large and the even tempo had been greatly disturbed and as such the
provisions of the Act get attracted to such activities.
The
next question that arises for 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 ANIRUDSHINHJI KARANSINHJI JADEJA AND ANOTHER
v. STATE OF GUJARAJ, 1995 (5) SCC 302. In the said case, what h as 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 statutory authority, who has been vested with jurisdiction, did not
exercise his discretion and, on the other hand, orders were based at the behest
of the higher authority, then in the eye of law, it is to beheld that the
prescribed authority has not exercised discretion at all. On examining the
facts of the present case, we are of the considered opinion that the ratio of
the aforesaid case has no application at all.
Firstly,
Section 20A(1) was brought on the statute book by Central Act 43 of 1993 w.e.f.
22nd May, 1993 and said provision was not in existence on the date of the
occurrence on 7th of January, 1993 and consequently, the question of obtaining
the prior approval of the District Superintendent of Police before proceeding
with the investigation into the offence under TADA does not arise. Even
otherwise, the Commissioner of Police, Greater Bombay, by his Order dated the
27th of January, 1993, on the basis of the report of the Senior Police
Inspector, Jogeshwari Police Station dated 13th of January, 1993, accorded
approval to apply the provisions of TADA, in Jogeshwari Police Station CR No.
15 of 1993 and we find no infirmity with the said Order. In this view of the
matter, we do not find any infirmity with the investigation being proceeded
under TADA, charges being framed therein an d trial being held by the
designated Court, Mr. Jain's contention on this score, therefore, must be
rejected.
The
next question that arises for consideration is whether the sanction accorded
under Section 20A(2) is invalid. Undoubtedly, without the previous sanction of
the Commissioner of Police no Court can take cognizance of any offence under
the Act. Mr. Jain does not dispute that factually their exists and Order of the
Commissioner of Police sanctioning the prosecution of the accused persons under
TADA but according to the learned Sr, Counsel, Mr. Jain, the said sanction is
the outcome of total non- application of mind to the relevant materials and,
therefore, cannot be held to be a valid sanction in the eye of the law. It is,
in this connection, Mr. Jain, the learned Senior Counsel, took us through the
order passed by the Commissioner of Police, Greater Bombay, Shri A.S.Samra as
well as his evidence in Court and from the fact that the day on which he
received all t he papers in course of investigation together with the proposal
for filling of the charges, he 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 sanctioning authority clearly perused the records of investigation and
then on being satisfied passed the impugned order of the sanction. The
sanctioning authority was examined as witness in the Court and his evidence
clearly establishes that it is only after thoroughly applying his mind to the
relevant materials and the proposals, he accorded sanction on being satisfied
that a prima facie case exists as against the accused persons to proceed
against them under TADA. We are, therefore, unable to accept the submission of
Mr. Jain, the learned Senior Counsel appearing for the appellants that there
has been no valid sanction as required under Section 20A(2) of the Act and we
see no infirmity with the sanction accorded in the case and as such there was
no illegality in taking cognizance and trying the accused persons under TADA.
Let use
now examine the reliability of the prosecution witnesses through whom the
prosecution has to establish that the case against the appellants has been
proved beyond reasonable doubt. As has been stated earlier the six witnesses
who were supposed to be the eye-witnesses to the occurrence are PWs 1, 2, 3, 4,
9 and 10. It is to be noticed that while PW 4 was examined by the police on
17.1.1993 and PW 3 was examined by the police on 18.1.1993 but PW 2 Surya Kant
was examined on 25.1.1993 and the three other eye- witnesses were examined on
29.1.1993 while the occurrence was on 7.1.1993. It is established from t he
prosecution evidence itself that these witnesses were the inhabitants of Gandhi
Chawl where the ghastly incident occurred and immediately on the next day of
the occurrence they were shifted to a local school for safety and were staying
there.
Normally,
therefore, there was no justification on the part of the investigating agency in
not examining them for this length of time. The only explanation offered by the
investigating officer is that on account of riot the Police was busy with law
and order problem but that problem did not continue for this length of time and
in fact the investigating officer has failed to indicate as to why the
eye-witnesses though available had not been examined till 29.1.1993. We are
conscious of the fact that merely because a witness was examined after a
considerable period from the date of occurrence his evidence need not be
discarded on that ground alone but at the same time while testing the
credibility 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 persons right from his childhood
though named four of them in the chief but could identify only two of them,
namely, accused 9 and accused 1. This itself throws considerable doubt on the
reliability of the witness. The witness had further stated that when he saw the
room occupied by his sister Vandana Todkar has been set to fire he came out of
his room and at that point of time he could see a person called Tubelight Baba
who was holding a chopper in his hand and Baba Rickshawala who was also holding
a chopper in his hand and Musa was holding a Sword and several other persons
had gathered there. In the court, the witness pointed out accused No. 8 as
accused Hayatu and accused No. 7 as Musa.
The
witness also identified accused Tubelight Baba. The witness pointed out another
accused and told his name as Salim Istriwala but he was actually Shaikh Salim Babamiyan.
The
witness further stated that the person by named Tubelight Baba was shown to him
in the Crime Branch. If the accused has been shown to him in the course of
investigation then the so-called identification in court is of no consequence
and cannot form the basis of conviction. It is, of course, true that accused
Nos. 7 and 8 have been correctly named and identified by the witness in court
but not the accused Shaikh Salim Babamiyan as the name indicated by the accused
was Salim Istriwala and there is no material on record to indicate that Shaikh Salim
Babamiyan was also being called as Salim Istriwala. It further appears that
witness told in his evidence that even he did not know the names, but t he
persons who were present at the time of incident are also present in the court
and then could point out two persons who are accused Nos. 17 and 13. It may be
stated that the witness having not known these persons by name and there having
not been any test identification prade earlier by mere pointing in court after
so many days, the said alleged identification cannot be pressed into service by
the prosecution. From the evidence of this witness it further transpires that
after the fire was extinguished he entered into the house of Rajaram Bane and
took out the injured persons at a point of time when the police was also
present and the injured persons were carried to the hospital through the
Ambulance and he had accompanied the injured to the hospital and then he
remained in the hospital till next morning and police 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 Section 161 Cr. P.C. and those material omissions amount to
contradiction and such contradiction makes the witness untrustworthy.
According
to PW1 he saw the occurrence from the cement grill of the window of his house
but PW6, the draftsman, who has been examined by the prosecution categorically
stated in his evidence that if a person stands inside the house of Nitin Gardi
and tries to see through window of the house then the house of Rajaram Bane
will not be visible as the cement grill in the house of Nitin Gardi has
sufficient thickness and thereby obstruction is caused. This statement of PW 6
makes it impossible for PW 1 to see the occurrence from inside his house as
narrated by him in Court. PW 1 stated in Court that police had recorded his
statement immediately after the incident but the said statement has not been
produced by the prosecution. He categorically stated in Court that he had
stated to the police when examined on 29th January, 1993, that he saw Rajaram
Bane, Sulochna, Vandana, Meenakshi and Laxmibai when they were burning with
fire, but infact, he had not stated so in his earlier statement to the police
and on being confronted he states that the had not stated so. In Court the
witness had stated that he found Rajaram Bane dead when he entered the burnt
house. Curiously enough he had bot stated so in his statement recorded by the
police on 29th January, 1993. Even in his earlier statement to the police he
had not even stated about accused persons pouring kerosene on the house of Rajaram
Bane and on being confronted he states that he does not know as to why it has
not been mentioned in his earlier statement. In view of the aforesaid glaring
infirmities it would be unwise to rely on this witness and, therefore, his evidence
cannot be pressed into service by the prosecution for bringing home the charge
against t he accused persons.
PW 2 -
Suryakant, was a resident in the room No. 5 of Gandhi Chawl. According to his
evidence he was from inside his house that accused Sallo was holding a plastic
cane containing Kerosene. But in the court when he was asked to identify the
said accused Sallo he went and pointed out one of the accused persons in court
who on enquiry revealed that his name is Khwaja Sattar Shaikh. It is really amazing
that a person who claims to be an inhabitant of the locality for long years and
claims to have closed association with 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 Sallya
(Iron Rod) and on being asked to identify the said accused he pointed out to
one person who tole 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 witness he
has been in the locality since 1972 and, therefore, he knew the accused persons
personally. If that is the correct state of affairs it is not expected as to
how he could commit mistake in identifying the accused Sallo who was supposed
to have played the key role of holding a plastic cane containing kerosene and
sprinkling kerosene. Evidence of this witness also indicates that he had been
called to the Police Station on several occasions and had been shown the
accused persons.
If the
witness knew the accused persons either by name or by face, question of police
showing him the accused persons becomes irrelevant. It the witness did not know
the accused persons by name but can only identify from their appearance then a
test identification prade was necessary, so that, the substantive evidence in
court about the identification, which is held after fairly a long period, could
get corroboration from the identification prade. But unfortunately the
prosecution did not take any steps in that regard and no test identification prade
had been held. Then again if the police shows the accused persons in the police
lock-up to the identifying witness then the so-called identification loses its
value, inasmuch as, it is only because of the police showing the persons, the
witness is being able to identify the alleged accused. It is further revealed
from the evidence of this witness that when the accused persons were pouring
kerosene on the house of Rajaram Bane the door was open and Rajaram Bane later
closed the door when the witness also closed the door of his house, obviously,
referring to the period when the accused came.
This
on the face of it is improbable inasmuch as if accused persons are seen to be
pouring petrol and kerosene on the roof of the house, where people has taken
shelter nobody would close the door so as to give opportunity to the accused
persons to achieve their goal of burning the persons inside alive. On the other
hand the normal human conduct is that the persons would come out of the house
irrespective of the danger which they may face even coming out. If his
statement to the police recorded under Section 161 Cr.P.C. is compared with the
statement in court it appears that there has been material contradictions and
omissions which would make his statement wholly unbelievable and unreliable.
If, Gullu
was holding a cane containing kerosene and poured 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 kerosene on the
roof of Rajaram Bane's room but according to PW 1 accused No. 1, accused No. 17
and Langda Bachchan were pouring petrol and kerosene. According to this witness
he had seen accused Baba Tubelight, Musa, Baba Rickshawala sometimes in
February 1993 in the Police Station while these people were in the police
lock-up but eh case reveals that accused No. 15 Baba Tubelight was arrested
only on 23rd of July, 1993 five months after the witness saw him in the police
lock-up. Similarly, accused No. 11 was arrested on 20th April, 1993. No
explanation is forthcoming as to why the accused persons had not been arrested
even though they had been shown to the witness at the police station much
earlier. Then again Kasim Badshah, accused No. 17 was shown to the witness on
20th of March, 1993 at the Police Station and the said accused was arrested on 21st April, 1995 and when the witness was asked to
identify in court he even could not tell the said person was present in the
court. The witness in his evidence has stated that he did not see who actually
lit match stick and put on fire the house of Banne but later he could only see
the fire.
According
top the witness on the very night of the incident at Jogeshwari Police Station
he had narrated the entire incident and the police also reduced the same in
writing but the said statement has not seen the light in course of the criminal
proceeding. In this state of affair, it is difficult to rely on any part of the
statement of PW 2, who in our opinion is a wholly unreliable witness.
PW 3, Shivaji
Shankar Todkar, is the husband of Vandana and his two sons are Sandip and Sailesh.
Vandana died on account of burn injury bin course of the incident.
Admittedly,
he was a resident of the locality. PW 1 is the brother of his wife Vandana. He
has deposed in court that on the night of 7th January, 1993 the atmosphere was tense and the
Muslim people were threatening the Hindus. He categorically stated that he
would not be in a position to tell the names of the persons who were
threatening but he can only identify them by faces and when the witness was
asked to identify the persons who were threatening from amongst the persons in
the dock he pointed out at two accused persons who told their names as Mohammed
Iqbal, accused No. 1, and Moosa Yakub, accused No. 7. The value of such
identification will be discussed at a later stage but he 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 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 improbable that he would leave his wife and children in one place and
he himself would stay in some other room. The place from where the witness has
state to have seen the occurrence is from inside Chuahan's room though open
place at upper portion of the door and he is supposed to have stood over a
stool and witnessed the occurrence. The witness in his evidence has stated that
he does not know the names of the persons who were holding the petrol cane and
on being asked to identify them in court he stated that he would not be in a
position to identify anybody as all the persons were having similar appearance.
According to this witness after the fire was set in when police people arrived
at the place occurrence the accused persons ran away and at that point of time
his wife Vandana and two sons Sandip and Sailesh as well as Naina Bane came from
the back side of the house of Rajaram Bane.
He
then entered inside the house of Rajaram Bane and saw Sulochana Bane lying with
burn injuries on the cot and he also saw Rajaram Bane with flames all over the
body. He further saw Kamala Batalu and Laxmi Batalu were lying on the ground
with burn injuries and Minakshi was lying in the bathroom with burn injury.
This part of the evidence of this witness is totally at variance with the
evidence of Nitin, PW 1, since according to Nitin it is he who accompanied the
injured persons to the Cooper Hospital by an Ambulance and no police man travelled in the
Ambulance along with the injured persons. He also stated in his evidence that
Inspector Mahadik showed him all the accused persons in the office of Crime
Branch at Boribandar but he does not remember the name of any of these five
persons. Even on being asked by the court to identify those five persons he
candidly stated that he cannot identify anybody else excepting one person and
that person told his name to be Mohammed Iqbal. Thus, neither he know t he name
of those five accused persons who were shown to him by the Inspector Mahadik
nor even was able to identify them in the court. It is interesting to note that
he had deposed in his evidence that when the police was recording the statement
of the five accused persons shown to him but his statement was not recorded at
all and it is again two or two and a half month thereafter he was called by the
police to the office of Crime Branch at Andheri and then his statement was
recorded.
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 the police no part of his evidence can be relied upon and it must be held
that he is thoroughly and unreliable witness.
PW 4,
another eye-witness to the occurrence was residing in room No. 3 of Gandhi Chawl
at the relevant point of time and he was there since 25 years. He deposed in
court that on 7th of January, 1993 while he was sitting on the ota in front of
his house at 9.30 p.m. 15 persons came and threatened them
as to why they are sitting outside.
According
to the witness the persons were armed with swords, iron rods and choppers. He
stated that the names of those persons were Iqbal Madar, Shaikh, Kaliya Kasam, Langda
Bachchan, Sallo Sattar, Irfan Roshan Barafwala, Baba Tubelight, Baba Rickshawala,
Salim Istriwala, Gullu, Hayatu, Moosa and Salim Sagir Khan. But on being asked
to identify them in court, though he could correctly point out some but could
not correctly point out some others. The person whom he pointed put as Baba Tubelight
told his name as Mushtaque Yasin Khan; the person whom he pointed out as Salim Istriwala
told his name as Salim Babumiyan Shaikh; the person whom he pointed out as Hayatu
told his name as Hayat Waris; and there is no material to co-relate that these
accused persons had nick name by which the witness knew them. According to the
witness the accused Noor Mohammad Khan was spreading petrol on the door of Rajaram
Bane but said Noor Mohammad Khan has already been acquitted. He also stated in
his evidence that he had been called to the office of the crime branch at
Crawford Market where Inspector Mahadik showed him four accused persons and
they were accused Iqbal Madar Shaikh and accused Gullu (accused No. 1 and 4
respectively). When he was asked to point out and identify the other accused
persons he could only point out two of them and not others. It is his statement
on court, he stated that he was called to the office of crime branch at
Crawford Market after one month where police showed him accused No. 14 - Tubelight
Baba and again about one or one and a half month after he was called to the
office of crime branch at Kandivali where police showed him accused Mohammad Irfan
Roshan Barafwala, who has been acquitted by the learned trial judge. The
witness further states that he was called tot he office of crime branch at Andheri
where police showed him accused Salim Istriwala and again 15 days thereafter he
was shown someone 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 h e 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
house. In his statement to the police recorded on 17.1.1993 he had categorically
stated that when injured persons were brought outside the house of Rajaram Bane
for the first time he came know that his sister Minakshi was also inside the
house of Rajaram Bane whereas in his evidence in court he categorically stated
that he had not learnt about the presence of his sister earlier and while
extinguishing the fire he knew the same and on being confronted with the
earlier statement recorded by the police he merely replied that the statement
recorded by the police is incorrect. On being cross-examined as to why he has
not stated to anybody else that he saw the accused persons while putting the
house to fire, he answered that he was mentally confused and therefore did not
approach anybody and even did not tell the police even though police reached
the spot of occurrence soonafter. This witness in court had wrongly identified
accused No. 2 by saying his name as Salim Khan Shabir. He was not able to
identify accused No. 1 and pointed out towards accused No. 5 on being asked to
identify accused No.1. According to him accused Noor Mohammad Khan was
spreading petrol from cane and said Noor Mohammad Khan has been acquitted. In
view of the aforesaid inherent inconsistency and improbability in his evidence
in court and in view of the fact that even those accused persons who could be
correctly identified by the witness have been shown to him by the police on
different occasions while the accused persons were in the police lock-up and in
view of the fact that he has not been able to identify many of the accused
persons even though he claims to be residing in the locality for 25 years and
for other improbability in his evidence as discussed above it would be highly
unsafe to rely on his evidence and in our considered opinion the witness must
be held to be a wholly unreliable witness.
The
next eye-witness is PW -9 , Laxmibai Gardi, who happens to be the mother of Nitin
as well as deceased Vandana. She frankly stated in court that she would not be
able to identify any of the persons who were threatening in the locality much
prior to the incident. She stated in court that she had been called tot he Andheri
Police Station where she could identify tow of the accused persons and one of
them was Jada Karim but she was not able to identify him in the court.
According to her evidence 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 house. Coming to
the identity of the accused persons the witness candidly stated in court
"I cannot identify the persons who are present or were present at the time
of incident in the gang of 20 to 22 persons. Today I cannot identify the
persons who were threatening for about one month prior to the incident."
According to the witness though she had identified earlier accused Jada Karim
in the office of the police at Andheri but in court she will not be in a
position to identify the said Jada Karim in. This statement itself makes her
wholly unreliable witness inasmuch as if she knew Jada Karim and could identify
on earlier occasion there was nor reason why she was not in a position to
identify the accused in court. Then again the hole thorough which she stated to
have seen the occurrence was a cement grill window and the electric meter board
had been installed right on the front adjacent to the window and it would be
difficult for a person to see the occurrence in the house of Rajaram Bane
through that window. She had been confronted with her statement recorded on
different occasions wherein there had been material omissions and she only
states that the earlier statement is not correct and she has not stated so
before the police. She admitted that she learnt for the first time when Vandana
and her tow sons cam before her after the fire took place that Vandana was
inside the house of Rajaram Bane even though earlier she had stated that she
could hear her cries from inside the house of Rajaram Bane. On the aforesaid
premises the evidence of this witness does not inspire any confidence and we do
not think it is safe to rely on her testimony for convicting any of the accused
persons.
The
only other witness on which the prosecution relied upon to bring home the
charge against the accused persons is Krishna Harishchandra Kate, PW -10, who
was also residing in Gandhi Chawl. He is brother of PW 2 and his statement was
recorded by the police for the first time on 29th of January, 1993. He had
stated in his evidence that he was called to the office of the crime branch
where police showed him 3 to 4 accused persons but he neither known their names
nor would be in a position to identify them in the court even by face. It is
his further evidence that he was called upon by the police 15 days thereafter
and he was shown another accused person but he does not remember the name 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 the witness has
contradicted from his statement made to the police which makes him thoroughly
unreliable and it is difficult for us to place any reliance on the testimony of
such witness.
Mr. Nargolkar
the learned senior counsel appearing for the State of Maharashtra, however,
contended that no doubt, there has been several omissions on the part of the
witnesses in their statement under 161 but those omissions would not impeach
their evidence, in any manner, so far as, the basic prosecution case is
concerned and the case being one under TADA and the circumstances under which
the witnesses have given their evidence, the court would be justified in
separating the chaff from the grain and on accepting the grain can base
conviction in view of the corroboration it gets from other evidence. This submission
of the learned counsel for the respondent suffers from a misgiving as law does
not make any distinction in the matter of appreciation of evidence in a case
under TADA or under normal criminal law. This question had been answered by
this Court in a case in somewhat similar circumstances in DILAWAR HUSSAIN v.
THE STATE OF GUJARAT & ANR. [JT 1990 (4) S.C. 282], wherein it has been
observed :
Misgiving,
also, prevailed about appreciation of evidence. Without adverting to
submissions suffice it to mention that credibility of witnesses has to be
measured with same yardstick, whether , it i s an ordinary crime or a crime
emanating due to communal frenzy. Law does not make any distinction either in
leading of evidence or in its assessment. Rule is one and only one, namely, if
depositions are honest and true. Whether the witnesses, who claim to have seen
the incident in this case, withstand this test is the issue.
We are
quite aware of the principle that in a country like India where it is difficult
to find witness who has not made any embellishment or exaggeration, and
therefore, in such case Court would be justified in separating the chaff from
the grain an d then act upon the grain. But where the evidence consists of only
chaff as in the present case, question of separating chaff from the grain would
not arise.
Then
again when all the eye-witnesses suffer from the same infirmities as has been
discussed by us, question of one corroborating the other would not arise,. If a
witness is partly reliable and partly unreliable then one may look for
corroboration to the reliable 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.
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 not court on the basis of
such unreliable evidence can base conviction, howsoever, ghastly the crime may
be. In the aforesaid premises we set aside the conviction and sentence passed
by the learned Designated
Court under the
provisions of TADA as well as under different Sections of the Indian Penal Code
and direct that the appellants be set at liberty forthwith unless they are
required in any other case.
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