Harendra Sarkar Vs. State of Assam [2008] INSC 784 (2 May 2008)

S.B. SINHA & HARJIT SINGH BEDI

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 907 OF 2006 Harendra Sarkar . Appellant Versus State of Assam . Respondent WITH
CRIMINAL APPEAL NO. 1068 OF 2006 Kailash Gour and others . Appellants Versus State of Assam . Respondent

S.B. SINHA, J.

1. Mauza Sangamari Pathar is a small village. It is situated within P.S.

Dobaka in the District of Nagaon in the State of Assam. The residents are principally agriculturists. Madhabtoli is a neighbouring village. Appellants are the residents thereof.

2. Taheruddin PW-2 was a resident of Changmazi Patghar. The distance between two villages is about one mile. He had been living in a house consisting of four rooms; each situated in different corners abutting a big court yard measuring 20' x 40'.

3. The incident occurred soon after the demolition of Babri Masjid. A communal riot had taken place. Curfew was imposed.

4. On or about 14th December, 1992 Taheruddin was in his fields. A mob came to his house. In one of the rooms, his wife and six daughters were sleeping. Another room was being occupied by his sons. The mob broke open the door. They allegedly came armed. Near about that time, another house belonging to one Nandu was burning. Allegedly, from two sides, 14-20 people came to the house of Taheruddin.

5. One of his sons, Md. Mustafa PW-3 was in his bed. He was all alone.

He allegedly heard the voice of Gopal calling, 'Munshi', Munshi', to which he replied that he was not at home. Gopal and several other people opened the bamboo door. Gopal 'poked' him with a spear which struck at his leg.

He took it out and ran outside the house. Two persons standing outside were allegedly recognized by him. They were allegedly armed with 'dao', 'dagger', 'arrows' etc. He saw his father coming towards the home. He asked him not to go home. He raised a hue and cry. Inside the house his mother and two sisters were being backed. He did not recognize any one of the assailants. He returned to the house sometimes later to find that his mother was lying in a critical condition and two sisters lying dead.

6. Taheruddin who, allegedly was prevented from coming to his house by his son and had run away, came there and found a group of people striking the wall of his house with 'dao', 'lathi' etc. One of them, Rahna Gour had shot an arrow at him. It hit his right hand. He saw the accused from a distance of about 2 = nals away (1 nal = about 27-28 feet) ie. About 70 ft. in total. He shouted. An army vehicle arrived there. He found his daughter Bimala in an injured condition. She had died. He also found his other daughter Hajeera lying dead. Taking Bimala on his shoulder, he stood on the road. After the departure of the army personnel, he found his wife Sahera Khatoon lying injured in middle of the paddy field near the house.

He carried her home, whereafter she died.

7. Hanif, PW-4, another son of Taheruddin allegedly alongwith Zakir Hussain was in the kitchen. He is said to be a labourer and allegedly also sustained injuries. He has not been examined.

8. Three accused, Kalyash, Hari Singh and Ratan, according to him, entered his room. He was not assaulted but allegedly Zakir was taken away by them. He allegedly took shelter under a banana tree and observed the entire incident. According to him when his mother came out, Gopal, Kalyash,.Ghandul, Krishna and Haren Doctor assaulted his mother who died there. When Hajeera came out from the room, she was assaulted by Badhuram Timu, Hari Singh and Rahna. Other three sisters escaped but Bimala was assaulted by Gopal, Ratan and Haren Doctor. They also caused hurt to Zakir.

9. Although, according to PW-2 the army vehicle came and went away, as per the version of others, both army and police team came to the place of occurrence.

10. Whereas the injured were taken to the District Hospital for treatment by the Police, the dead bodies were taken in the army vehicle.

11. The injured were examined by the Medical Officer at about 1.00 a.m.

and were said to have suffered the following injuries :- Zakir Hussain

1. There was vertical cut injury over the lip. Size 2" x =".

2. There are six cut injuries over the scalp each about 2" x1/2" in size.

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 and got injury on the right hand with sharp cutting. Wounds were dangerous in nature.

Md. Mustafa Ahmed:

1. Penetrating injury of the right leg with sharp pointed weapon. Size 1/3" x =". The injury is fresh and margins were irregular.

2. Simple cut injury by sharp pointed object.

12. The injured, Taheruddin and his other sons were taken to Daboka Guest House. They were also taken to the police station. No statement, however, was made by them.

13. The investigating officer, PW-7, B.N. Kalita, however, stated that he had received a message from one Biresh Dutta in regard to a fire. He made a G.D. Entry and sent a police team there. It was numbered as G.D.E. 532 dated 14.12.1992. He came to the place of occurrence. He did not say when he came there. However, according to Taheruddin, a statement was made by him on the next date. Investigating Officers stated that he took up the investigation and drew a sketch map. He allegedly held an inquest of the three dead bodies. Inquest reports, however, are not on record.

14. Post mortem of the three dead bodies were performed at about 12 o' clock on 15th December, 1992.

15. On the dead body of Sahera Khatoon, two incised wounds were found, one at the right side of upper neck and another at the right shoulder.

16. On the dead body of Bimala Khatoon, also two injuries, being incised wounds, were notice; one at the left parietal bone of the neck and the other at the left upper neck.

17. On the dead body of Hajeera Khatoon also two injuries, being incised wounds, were found, one on the right upper neck and another at the right parietal region of scalp.

18. According to Dr. Madhusudhan Dev Goswami, PW-1 (who conducted the post mortem examination), their stomachs were found to be empty. The death in each case was found to have taken place 48 to 72 hours from the time of post-mortem examination. It was opined that in all the three cases the injuries might have been caused by the same weapon.

19. The prosecution is silent as to when the dead bodies were returned to their family. Taheruddin (PW-2) stated that he had come back to the village with another police officer. He did not inform him about the incident. He did not name any accused. The dead bodies were buried.

20. PW-2 made a statement before the Investigating Officer. There is a discrepancy as to when he made this statement.

21. Learned counsel for the State submits that such a statement was made at 12.10 p.m. From the First Information Report it appears that the statement of Taheruddin was received at the police station at about 11.00 p.m. on 15th December, 1992. PW-2 allegedly had made two different statements, one that he made the ejahar (statement) one day after the incident, but at another place, he stated that he had made the statement three days after the incident.

22. PW-4 stated that he had lodged the First Information Report.

23. Be that as it may, admittedly, the investigation had started even prior to lodging of the First Information Report. Post-mortem examinations had been conducted, site map had been drawn before 12.00 p.m. on 15th December, 1999 and as per PW-7, inquest were held but he did not say where the inquest reports are.

24. PWs. 2 and 3 concededly did not see the entire incident. They did not witness the actual assault on the deceased.

25. The learned trial Judge, however, relied upon the evidence of these witnesses. They were treated as eye witnesses.

26. Attention of the witnesses were drawn to the statements made by them before the police authorities. It was pointedly asked as to whether they had named the accused as persons allegedly assaulting the deceased. They had not. Although contradictions in the statements of the witnesses vis-`-vis their statements under Section 161 of the Code of Criminal Procedure were noticed, the learned trial judge did not discuss the same stating that they were only minor in nature. They were not.

27. Nirmal Dutta, Nandu Dutta and Shyam Sunder Gour were found to be innocent by the learned trial judge as even PW-3 and PW-4 did not specifically name them as regards their participation in the commission of offence on the night of occurrence. They were acquitted.

28. The High Court disbelieved PW-2 in view of the glaring contradictions noticed in his statements made before the police vis.-a-vis the statement made in his deposition before the Court. According to the High Court the omission on his part to name Gopal who took leading part and Rahna who had allegedly shot an arrow, rendered his evidence highly suspicious. The High Court noticed that PW-3, Mustafa Ahmed, accepted that he had discussions with the witnesses about the names of probable assailants. The High Court, therefore, disbelieved the first informant. It, however, did not consider the entire prosecution case from the angle that thereby, to a large extent, the culpability of the accused and their participation in the incident became doubtful.

29. The High Court noticed serious contradictions made by PW-3 that he had not told about burning of any lamp or Gopal calling his father by name.

Whereas, before the police in his statement under Section 161 of the Code of Criminal Procedure he had stated that he was in his bed, in his deposition in the Court he stated that he was reading in the room with the help of the lamp. He also did not inform the investigating officer that after opening the door. Gopal, Hari Singh and Kailash stood in front of the door and Gopal started poking him with a spear.

30. PW-4, according to the prosecution, is a star witness. The contradictions found in his statement before the Court compared to the statements made to the police under Section 161 of the Code of Criminal Procedure had been taken note of by the High Court. He was found to have contradicted himself so far as taking the name of Ratan is concerned. He had also not disclosed that Kalyash and Ratan dragged him out and inflicted injuries on him, or he had been able to recognize the accused by moonlight.

The High Court opined that benefit of doubt should be given to Ratan Das, Gundulu Gour and Budhu Timang. The High Court held that as PWs 3 and 4 were inside the room, they had the opportunity to see the actual occurrence, whereas according to the said witnesses themselves, they had gone out of the house. The High Court, therefore, committed a serious error in opining so.

31. If the banana trees where PW-4 could hide himself were within the precincts of house, it is doubtful whether he could see the occurrence after his mother and two sisters came out of the house and in fact who had assaulted the deceased.

32. Two of the dead bodies were found on the road, and one in the field.

Out of the twelve accused, named in the First Information Report, six have been acquitted. Involvement of the leader of the mob, namely, Gopal (since deceased) has seriously been doubted. Only five persons have been convicted, who are appellants before us.

33. The G.D. Entry, on the basis whereof, the investigating officer and other police officials came to the place of occurrence has not been filed.

Contents thereof, thus, have not been disclosed. Biresh Dutta, who had informed the police, has also not been examined. G.D. Entry, admittedly, as disclosed by the Inspecting Officer, PW.7, did not contain the names of the accused. Zakir, another injured witness, whose relationship with Taheruddin has been stated differently by PWs. 2 and 3 has also not been examined.

34. PW-3, admittedly was taken to the police station. PW-4 had also been taken to the police station. PWs, as noticed hereinbefore alongwith the injured were given shelter in the 'dak bungalow'at Dabaka. Even then no attempt was made to record their statements.

35. It is difficult to appreciate that because of the law and order situation the investigating authorities could not take such statements. Surprisingly, the investigation had already started. All essential actions, namely - making of inquest, getting the postmortem of the dead bodies conducted, obtaining injury reports of the injured persons, preparation of the site map etc. had been undertaken.

36. PW-1 states that he came back with another police officer, but even to him he did not make any disclosure.

37. PW-5 is the scribe of the First Information Report. His house is almost 2 kms. away from that of Taheruddin. When he went to Taheruddin's house, about 100-200 people had gathered there. Taheruddin discussed first "on the things to be mentioned in the "ejahar" and, thereafter only he wrote the same.

38. The abovementioned delay in lodging the First Information Report has not been explained. Lodging of prompt F.I.R. is necessary for providing checks and balances. In a case of this nature, where enmity arising out of land dispute is admitted, in absence of any explanation, delay in lodging the F.I.R. should be viewed with suspicion.

39. First Information Report was lodged after the deliberations. Land dispute between the parties is admitted. Inquest was held even before the recording of F.I.R. Ordinarily, the same is impermissible. [See Ramesh Baburao Devaskar & Ors. v. State of Maharashtra 2007 (12) SCALE 272]

40. Genesis of the occurrence has not been proved. It is likely that burning of the house of Nandu started first wherefor only information about the burning was given by Ritish Dutta to the Police. The incident in question might have taken place later. Nandu has been acquitted of the charges.

41. From the discussions made hereinbefore, and particularly in view of the conduct of the prosecution witnesses, in our opinion, it is difficult to rely upon the statements of the prosecution witnesses. Medical evidence also does not support the prosecution case. Deaths, according to the doctor occurred 48 to 72 hours prior to the examination of the dead bodies. But, if the prosecution case is to be believed, the same took place within twelve hours from the death thereto.

42. On having a broad conspectus of events, I am of the opinion it is difficult to place implicit reliance on the prosecution case.

43. We are not oblivious of the fact that several Commissions and Committees set up to inquire into the effect of communal riots in different parts of the country severely criticized the role of the investigating officer.

Tardy and partial investigation has been held to be not uncommon.

In this case, no such question was raised. At no stage any such complaint was made that the investigation carried by the investigating authorities was not proper or fair. Ordinarily, the court shall not raise such a presumption unless appropriate materials are brought on record. The court may or may not raise a presumption that an official act having been done was not in due course of its business, but in a criminal case, no presumption should be raised which does not have any origin in any statute but would cause great prejudice to an accused.

The courts, in order to do justice between the parties, must examine the materials brought on record in each case or its own merits. Marshalling and appreciation of evidence must be done strictly in accordance with law;

wherefor the provisions of the Code of Criminal Procedure and Evidence Act must be followed. It, in my opinion, would not be proper to contend that only because an offence is said to have been committed during a communal riot, the provisions of the Code of Criminal Procedure and Evidence Act would not be applied differently vis-`-vis a so-called ordinary case. They are meant to be applied in all situations. Appreciation of evidence must be on the basis of materials on record and not on the basis of some reports which have nothing to do with the occurrence in question.

Only because in some parts of the country police investigations attracted severe criticism, the same in no manner should be applied in all the cases across the country. Each accused person; even a terrorist, has his human right. He be tried in accordance with law.

44. Article 12 of the Universal Declaration of Human Rights provides for the Right to a Fair Trail. Such rights are enshrined in our Constitutional Scheme being Article 21 of the Constitution of India. If an accused has a right of fair trial, his case must also be examined keeping in view the ordinary law of the land.

It is one thing to say that even applying the well-known principles of law, they are guilty of commission of offences for which they are charged but it is another thing to say that although they cannot be held guilty on the basis of the materials on record, they must suffer punishment in view of the past experience.

Even then chances of the false implication cannot be ruled out altogether and particularly in a case like the present one when those who have been named in First Information Report and said to have taken a leading role in the matter have been acquitted, the correctness whereof is not in any question. We do not know how a different standard can be applied in case of others. I am, therefore, unable to subscribe to the view that in a case of this nature, the norms of appreciation of evidence should be applied differently.

It is not a case where an unfair trial like Zahira Habibulla H. Sheikh vs. State of Gujarat (2004) 4 SCC 158 had taken place which was apparent on the face of the record. The question of adopting and applying different norms in a case of this nature, therefore, would not arise. Even in Zahira Habibulla H. Sheikh (supra) the case was transferred to another State, evidences were taken afresh. Such a case has not been made out here.

Zahira Habibulla H. Sheikh (supra) must be held to have been decided in a different fact situation. [See Satyajit Banerjee and Others v. State of W.B.

and Others : 2005 (1) SCC 115] It must be borne in mind that wherever Parliament intended to lay a different standard of proof in relation to certain offences or certain pattern of crimes, it did so. In such a case subject to establishing some primary fact, the burden of proof has been cast on the respondents. There are a large number of statutes where the doctrine of 'reverse burden' has been applied.

Save and except those cases where the Parliamentary statutes apply the doctrine of reverse burden, the courts, in my opinion, should not employ the same which per se would not only be violative of Universal Declaration of Human Rights but also the fundamental right of an accused as envisaged under Article 21 of the Constitution of India.

In Syed Akbar vs. State of Karnataka : AIR 1979 SC 1848 this Court held :- "28. In our opinion, for reasons that follow, the first line of approach which tends to give the maxim a larger effect than that of a merely permissive inference, by laying down that the application of the maxim shifts or casts, even in the first instance, the burden on the defendant who in order to exculpate himself must rebut the presumption of negligence against him, cannot, as such, be invoked in the trial of criminal cases where the accused stands charged for causing injury or death by negligent or rash act. The primary reasons for non- application of this abstract doctrine of res ipsa loquitur to criminal trials are: Firstly, in a criminal trial, the burden of proving everything essential to the establishment of the charge against the accused always rests on the prosecution, as every man is presumed to be innocent until the contrary is proved, and criminality is never to be presumed subject to statutory exception. No such statutory exception has been made by requiring the drawing of a mandatory presumption of negligence against the accused where the accident "tells its own story" of negligence of somebody. Secondly, there is a marked difference as to the effect of evidence viz. the proof, in civil and criminal proceedings. In civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the Court, as a reasonable man beyond all reasonable doubt. Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. As pointed out by Lord Atkin in Andrews v. Director of Public Prosecutions919, "simple lack of care such as will constitute civil liability, is not enough"; for liability under the criminal law "a very high degree of negligence is required to be proved.

Probably, of all the epithets that can be applied 'reckless' most nearly covers the case". "

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