Kailash Gour & Ors vs State Of Assam

Kailash Gour & Ors. ...Appellants

Versus

State of Assam ...Respondent

J U D G M E N T

T.S. THAKUR, J.

1. 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

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Court for offences punishable under Sections 448, 324 and

302 read with Section 34 IPC upheld.

2. The 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.

3. Briefly 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

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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

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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 unhurt.

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4. The 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 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" 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.

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2) Simply cut injury by sharp pointed object."

5. The 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.

6. By 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

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suffer 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.

7. We 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).

8. The 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

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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 death. 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.

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9. Mohd. 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

commotion. 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

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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 also arrived.

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 Police Station.

10. There 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

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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. The 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.

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12. In the ejahar he had written that apart from the 13

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.

13. The 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

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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.

14. None 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.

15. On 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

13

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.

16. We may for now take up the deposition of Md. Mustafa

Ahmed (PW3). In his deposition this witness stated that his

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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 injured him. 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

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his 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 injuries.

17. In 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.

16

He 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."

18. When 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.

19. From 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

17

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 complete ignorance. 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.

20. That 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

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witness 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.

21. The 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

19

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 Cr.P.C.

22. Abdul 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.

23. Dr. Ziauddin Ahmed (PW6) is a witness to the medical

examination of the injured witnesses Mustafa Ahmed and

Zakir and has proved the injury report.

20

24. Shri 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.

25. 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.

21

Taheruddin (PW2), Md. Mustafa Ahmed (PW3) and Md.

Hanif Ahmed (PW4) recorded under Section 161 Cr.P.C.

26. That 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

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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

23

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.

27. 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:

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(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

25

seen 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 scribed.

(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.

29

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.

31

(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 examination. This inconsistency in the medical

evidence and the ocular evidence assumes importance

32

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

33

side for the commission of offence as also for false

implication.

28. It 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.

Presumption of 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

34

principle forms the basis of criminal jurisprudence in

India."

29. The above views were reiterated by this Court in

State of U.P. v. Naresh and Ors. (2011) 4 SCC 324.

30. In 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 minority communities. 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

35

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 that 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

36

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

37

quality 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.

31. We are conscious of the fact that three innocent

persons including two young children have been done to

38

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.

...........................................J.

(DALVEER BHANDARI)

...........................................J.

(T.S. THAKUR)

...........................................J.

(DIPAK MISRA)

New Delhi

December 15, 2011

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