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CASE NO.: Appeal (crl.)  907 of 2006

PETITIONER: Harendra Sarkar

RESPONDENT: State of Assam

DATE OF JUDGMENT: 02/05/2008

BENCH: S.B. SINHA & HARJIT SINGH BEDI

JUDGMENT: JUDGMENT

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE  JURISDICTION

CRIMINAL APPEAL NO. 907 OF 2006

Harendra Sarkar                                                 \005. Appellant

               Versus

State of Assam                                                  \005. Respondent

WITH

CRIMINAL APPEAL NO. 1068 OF 2006  

Kailash Gour and others                                         \005. Appellants

               Versus

State of Assam                                                  \005. Respondent

JUDGMENT

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’.  

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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.

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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.  

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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.  

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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

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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.  

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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". "

The said principles were applied in Jacob Mathew  vs. State of Punjab :  (2005) 6 SCC 1.

       Presumption of innocence is a human right.  Such a legal principle  cannot be thrown aside under any situation. [See Narendra Singh and  another v. State of M.P. : (2004) 10 SCC 699 and Ranjitsing Brahmajeetsing  Sharma v. State of Maharashtra and Another : (2005) 5 SCC 294]

45.     Independence of judiciary must be upheld.  The superior courts should  not do something that would lead to impairment of basic fundamental and  human rights of an accused.  It is of some interest to note the recent decision  of the Privy Council in The State  vs. Abdool Rachid Khoyratty : [2006]  UKPC 13 wherein the statute limiting the jurisdiction of the Court to grant  bail by the Mauritius Government was held to be illegal as infringing the

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doctrine of separation of power which ensures the independence of judiciary.   

46.     Appellants are, thus entitled to benefit of doubt.

47.     These appeals are allowed.  If the appellants are in jail, they are  directed to be released forthwith, unless wanted in connection with any other  case.

               \005\005\005\005\005\005\005\005\005\005\005J. ( S.B. SINHA )

New Delhi May 2, 2008

2

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  907 OF 2006

Harendra Sarkar                                 \005\005.Appellant                                 Versus

State of Assam                                          \005..Respondent With Criminal Appeal No. 1068 of 2006

                                       J U D G M E N T  

HARJIT SINGH BEDI, J

1.      I have perused the judgment rendered by my learned  Brother Sinha, J. I regret I am unable to accept the conclusions  reached. I am accordingly giving my own opinion in the matter.

2.      These appeals by way of special leave raise an interesting  question as to how evidence in cases involving multiple  murders during and arising out of communal riots has to be  assessed.  They arise out of the following facts: 2A. At about 10.00 P.M. on December 14, 1992, Mohd.  Taheruddin PW 2, was guarding his paddy crop in his field  close to his house in Village Changmazi Pathar, Police Station  Daboka, District Nagaon in the State of Assam.  His sons, PW  3 Mohd. Mustafa Ahmed and PW 4 Mohd. Hanif Ahmed and  one Jakir Ahmed a young boy statedly a close relative, were   sleeping in one of the rooms in the house whereas his wife  Sahera Khatoon and six daughters including Hazera Khatoon,  Jahanara Begum and Bimla Khatoon were sleeping in another  room.  As it was a moonlit night, Mohd. Taheruddin saw a  group of 10 to 12 persons coming from the north and another

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group from the south approaching his home stead.  The  intruders entered through the front door of the house and the  accused Gopal called out for Taheruddin. Taheruddin moved  forward and heard a commotion side and enquired from Mohd.  Mustafa Ahmed as to what had happened on which he  shouted to his father not to come close as people were being  killed.  Mustafa Ahmad also ran away whereas Taheruddin hid  himself in the paddy fields and saw the attack on his house.   He also had a narrow escape as an arrow shot at him by  accused Rahna Gore missed his body but hit him on his right  hand.  The accused persons then ran away from the spot.   Taheruddin then came out from his hiding place crying out  aloud on which an army vehicle was attracted.  He also found  that two of his daughters had been killed and his wife Sahera  Khatoon seriously injured.  She was carried into the house but  expired soon thereafter.  On enquiry, it was revealed that  Mohd. Mustafa and Jakir Ahmad had also been seriously hurt.   An army vehicle again returned to the place of incident and  the injured were sent to the Nagaon Civil Hospital and the  dead bodies to police station Daboka.  The First Information  Report was recorded in the police station at about 11.00 P.M.  on December 15, 1992 - the police station being about eight  kilometers away from the place of incident.  In the first  information report Taheruddin named 13 persons in all,  they  being Gopal Ghose, Harendra Sarkar, Raton, Krishna, Shyam  Gour, Niramal Dutta, Kailash Gour, Nandu Gour, Dhirendra  Gour, Budh Ram Bonghand, Barika Timung, Hori Singh Gour  and Gundulu Gour.  3.      The dead bodies were also subjected to post mortem on  December 15, 1992 and it transpired that Sahera Khatoon,  wife of Taheruddin aged about 35 years had three incised  wounds on her person and the daughters Bimala Khatoon and  Hazra Khatoon aged 3 and 7 years respectively had two  incised wounds each. Jakir Hussain was also medically  examined by Dr. Jiauddin Ahmed PW 6 at about 1.20 A.M. on  December 16, 1992 and five injuries, all of them grevious in  nature, were found on his person.  Hanif Ahmed, PW 4 too was  medically examined on the same day and two injuries, one  grievous were found on his person.  On the completion of the  investigation, the accused were charged for offences  punishable under Sections 147/148/149/448/302 and 326 of  the IPC and as they pleaded not guilty they were brought to  trial. 4.      The prosecution in support of its case placed primary  reliance on the evidence of PW 2 Mohd. Taheruddin and his  sons PW3 Mohd. Mustafa (injured) and PW4 Mohd. Hanif in  addition to the medical evidence of PW1 Dr. Madhusudan Dev  Goswami who had conducted the post mortem examination on  the dead bodies on the December 15, 1992 and PW 6 Dr.  Jiauddin Ahmad, who had medically examined Jakir Hussain  and Mohd. Mustafa PWs and the Investigating Officer B.L.  Kalta, PW 7.  The prosecution case was then put to the  accused and they denied their involvement and pleaded false  implication due to enmity.                                               5.        The trial Court in its judgment dated June 18, 2005  relying on the evidence of PW 3 and PW 4, Mustafa Ahmad  and Hanif Ahmad respectively, in particular, as corroborated  by the medical evidence,  held accused Kailash, Hari Singh,  Gundul Ratan Das, Krishna Das, Harendra Sarkar, Rahna  Gour and Budhu Gour guilty and convicted them under  several sections with which they had been charged, viz., under  Sections 302/34, 448/34 of the I.P.C  and sentenced them to  imprisonment for life and fine of Rs.2000/- and in default of  payment of fine, to rigorous imprisonment for six months.  An  appeal was thereafter taken by the accused to the High Court.

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The High Court observed  as under: 17. P.W 7, the Investigating Officer, proved  the contradictions with regard to PW 4 to  the effect that he did not tell him that  Kailash and Ratan dragged him out and  inflicted injuries on him or that he has  been able to recognize the accused persons  by moon light.  These contradictions  proved by P.W 7 in respect of PWs 3 and 4  have been cross-checked by us with the  statement recorded under Section 161  Cr.P.C. PW 4 has named Ratan before the  Court who had allegedly entered his room  and took out Jakir.  But Ratan has not  been named before the Investigating  Officer.  Therefore, from this witness, we  find evidence against accused Kailash,  Ghandul, Krishna, Haren, Badhuram,  Tinu, Hari Singh and Rahna.  There is  nothing said about Ratan by PW’s 2 and 3.   Therefore, there is doubt about his  presence as claimed by the PW 4.  So far  Ghandul and Badhuram are concerned, we  find that it is only PW 4 who had stated  about their presence and participation in  the alleged crime.  He is not supported by  PWs 2 and 3 in this regard.  In our  considered opinion,  there is doubt about  the presence of Ratan, Ghandul and  Baduram at the time of occurrence.  In so  far Krishna Gore, Kailash Gore, Hari  Singh, Haren Sarkar and Rahna are  concerned, we find that PWs 3 and 4 have  have indicted them as their assailants.   PWs 3 and 4 were inside the house and  had the opportunity to see the actual  occurrence.  In the process, they could  recognize Kailash Gore, Krishna, Hari  Singh, Haren Sarkar and Rahna.   PW 3  was reading inside the room and he could  recognize them in the light of a lamp.  After  opening the door, he also saw Gopal (since  deceased), Hari Singh, Krishna, Haren and  Rahna.  Therefore, his evidence against  Gopal (dead) Kailash, Krishna and Haren  is also reliable.  He had identified them in  the moon light from a close proximity.  The  other accused Ghandul, named by P.W 4 is  entitled to benefit of doubt since he has  not been named by PWs 2 and 3.

And having held as above finally included;

From this discussion, it appears that the  prosecution has succeeded in establishing  the charge against Kailash Gour, Krishna  Gour, Harendra Sarkar, Hari Singh Gour  and Rahna Gour.  The other three  appellants, namely Ratan Das, Gundulu  Gour  and Budhu Timang are entitled to  acquittal on benefit of doubt"

6.              It is in this circumstance, that the appeal at the  instance of the convicted accused is before this Court by way

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of special leave. 7.              Before embarking on an appreciation of the  evidence which would determine the fate of the appeal, there  are several factors peculiar to the present case which brings it  out of the category of a usual set of murders and which need  to be highlighted.   As per the evidence on record, the incident  had taken place on the 14th of December 1992 in the  disturbances that followed in the aftermath of the destruction  of the Babri Masjid in Ayodhya.  As is well known, the fall out  of the destruction of the Masjid was felt all over India and  caused great consternation amongst the Muslim community.   Widespread riots broke out throughout the country and the  present multiple murders are also a consequence of the  happenings in Ayodhya.  The genesis of a communal riot, its  development as it goes along and the consequences have been  identified/underlined by dozens of commissions of inquiry  both judicial and administrative for more than four decades  now and there appears to be near unanimity that a deliberate  attempt is made by the police and the investigating agencies to  forestall fair investigation in attacks on the minority  communities and on the contrary to connive with the  perpetrators.  It is indeed tragic that though reams of paper  have been used and dozens of suggestions made as to the  methods to prevent or to control communal riots, yet the  cancer continues to metastasize on account of several factors,  one of the predominant being the feeling amongst the  assailants, emboldened yet further by the anonymity which a  crowd provides, that come what may, no harm will come to  them.  Several reports have been perused and herein below are  a few of the observations made which clearly highlight the  anti-minority bias in the police: "This commission of inquiry has cited   more than half a dozen instances where  Muslim religious places adjoining police  lines or police stations were attacked or  damaged.  The argument advanced by the  police officers that because they were  busy quelling riots at various other  places, these police stations were shorn  of adequate strength and hence these  attacks on religious places could not be  punished, did not impress the  Commission.  It has made this  observation because not a single case of  damage to a Hindu place of worship near  a police station was reported to the  Commission.

-       Report of the Justice Jagmohan  Reddy Commission on the  Ahmedabad riots of 1969.

The working of the Special Investigation  Squad is a study in communal  discrimination.  The officers of the squad  systematically set about implicating as  many Muslims and exculpating a many  Hindus as possible irrespective of  whether they were innocent or guilty.   Cases of many Hindus belonging to the  Shiv Sena, Rashtriya Utsav Mandal (an  extension of the local branch of the Jana  Sangh) were wrongly classified as ’A’  category and investigations closed and no

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proper investigation was undertaken into  several complaints  of murders of  Muslims and arson of their property.  No  investigation was conducted into the  composition and activities of Hindu  communal and allegedly communal  organizations.  Deputy superintendent of  police S.P. Saraf held private conferences  and discussions with several  leaders of  Hindu organizations including many who  were implicated by Muslims in offences of  arson and murder.

- Report of the Justice D.P.Madon  Commission on the Bhiwandi,Jalgaon  and Madad of 1970.

The evidence of the deputy SP says that  while on patrol duty he had to curb many  among his rank and file who could not  restrain themselves when they met  Muslims on the road.  Similar evidence  was given by the sub-collector and other  witnesses who have testified saying that   while chasing away some Muslims many  policemen yelled at them to go to  Pakistan.  At Mattambaram one or two of  them got into the mosque and besides  beating Usmankutty Haji, a very  respectable person, broke the tube-light  and chandeliers in the mosque.  There is  nothing to show that there was any  justification for this action\005..So far as  the minorities are concerned, it is the  feeling among them that they are nor  getting justice, that they are  discriminated against in the matter of  appointments in the Public Services, that  they do not get equal protection of the  law and that their religion is in danger,  that prompts them to rally around  religious organizations of their own.  It is  of the greatest importance that  appropriate steps are taken by the  government to remove the cause fr such  feelings in the minorities.  There is much  truth in saying that if you want peace you  must work justice.

-Report of the Justice Josepth  Vithyathil Commission on the  Tellicherry riots, 1971.

The riots occurred broadly on account of  the total passivity, callousness and  indifference of the police in the matter of  controlling the situation and protecting  the people of the Sikh  community\005..Several instances have  come to be narrated where police  personnel were found marching behind or  mingled in the crowd.  Since they did not  make any attempt to stop the mob from  indulging in criminal acts an inference

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has been drawn that they were part of the  mob and had the common intention and  purpose\005.The Commission was shocked  to find that there were incidents where  the police wanted clear and definite  allegations against the anti-social  elements in different localities to be  dropped out while recording FIRs.

-       Report of the J.Ranganath Misra  Commission on the 1984 anti-Sikh  riots in Delhi.

"1.11 The response of police to appeals  from desperate victims, particularly  Muslims, was cynical and utterly  indifferent.  On occasions, the response  was that they were unable to leave the  appointed post; on others, the attitude  was that one Muslim killed, was one  Muslim less.

1.12 The alertness of police pickets left  much to be desired.  Several arson  incidents, stabbing and violence occurred  within the eye-sight and earshot of the  police pickets without any action by  them.  In one case, a bakery situated  within the very compound in which the  police station (Jogeswari) is located was  attacked, looted and burnt in broad  daylight without the police lifting a finger. 1.13 Police officers and men, particularly  at the junior level, appeared to have an  in-built bias against the Muslims which  was evident in their treatment of the  suspected Muslims and Muslim victims of  riots.  The treatment given was harsh and  brutal and, on occasions, bordering on  inhuman, hardly doing credit to the  police.  The bias of policemen was seen in  the active connivance of police constables  with the rioting Hindu mobs on  occasions, with their adopting the role of  passive on lookers on occasions, and  finally, in their lack of enthusiasm in  registering offences against Hindus even  when the accused were clearly identified  and post haste classifying the cases in  "A" summary.

1.14 Even the registered riot-related  offences were most unsatisfactorily  investigated.  The investigations showed  lack of enthusiasm, lackadaisical  approach and utter cynicism.  Despite  clear clues the miscreants were not  pursued, arrested and interrogated,  particularly when the suspected accused  happened to be Hindus with connections  to Shiv Sena or were Shiv Sainiks.  This  general apathy appears to be the outcome   of the built-in prejudice in the mind of an  average policeman that every Muslim is

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prone to crime."  

Chapter 1 Preliminary  Srikrishna  Report  On Mumbai riots of 1992-1993

The report of the National Human Rights  Commission pertaining to its visit from 19th to 22nd  March 2002 to Gujarat after the Vadodra and Godhra  riots has made some startling observations: "The Vishwa Hindu Parishad (VHP)  gave a call for "Bandh" on the 28th Feb.  pursuant to the Godha incident of  burning alive of Karsewaks which wa  supported by the Stte BJP.  The police  did not take effective steps to make  proper security arrangements in several  areas known for their communal  sensitivity.  Many felt that the police  should have learnt from the past  experience that Bandhs supported by the  ruling party are never peaceful and  should have therefore made full  preparations.  Whereas the VHP leaders  could mobilize their supports for the  ’Bandh’, the police did not take any  effective measures to control the unlawful  crowds, while they were building up.  The  police, by and large, chose to act as silent  spectators allowing the crowds to swell in  size and become uncontrollable.

While in the previous riots also  political elements did play a major part  and the police and administration failed  to control violence, they were not accused  of direct involvement in the carnage.  The  failure of police and administration in the  current riots is attributed not to their  professional incompetence but to their  attitude of apathy and callousness in  general and the accusation of connivance  and complicity was made in some cases.

--------------------------------------------------

The team heard several allegations  of connivance of police in incidents of  arson and looting by the marauding  crowds.  It was alleged that the crowds  involved in the destruction of slums  opposite Ambika Mill No.1 near Khokra  over bridge, Gomtipur, Ahmedabad had  the support of the administration (275  hutments housing approximately 1800  persons with 90% Muslims and the other  Dalits were totally destroyed).  These  hutments have been in existence for over  30 years and the Gujarat High Court had  ordered status quo in 1999 when the  authorities sought to demolish them.  It  is alleged that one PSI Modi from  Gomtipur police station had come to the  site in police jeet (GJ1-AR-5432).  He  parked his jeep near the gate of Ambika

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Mill, spoke to the mob in the presence of  Shri Mohan Bundela, Shri Israil Bhai  Ansari and some other activists of Jan  Sangarsh Manch.  The mob took out 4 to  5 bottles of diesel from the jeep of Shri  Modi, which were subsequently used in  torching the hutments.  Another specific  allegation of connivance of police was  narrated by some victims at the Shah-e- Alam camp.  They charged a senior police  Inspector K.K.Mysorewala with  misdirecting some helpless Muslims  including some young girls into the arms  of a murderous mob.  (These cases were  brought to the notice of the Chief  Secretary by the Chairperson for  immediate action).

Many representatives of the  NGOs/activists accused the police of  outright discriminatory approach in the  matter of arrest.  It was alleged by many  that though it was the minority  community which was under attack at all  the places after the Godhara incident, the  bulk of the arrests made by the police  were from minority community.  Since  the official presentation made before the  team did not give community-wise break- up of arrests which is an important  parameter of police action in the handling  of communal riots, the allegations made  by police holding responsible position and  enjoying high reputation for their  integrity cannot be rejected outright.

It was alleged by many that the  police allowed the crowds to swell and  turn violent by ignoring the calls for help  from the victims of mob attack.   Admitting that the police presence on  such spots was very thin, it was asserted  that their sense of duty demanded that  they should have used firepower to  rescue the persons under attack from  mob fury.  It was said by many that the  police either did not use the weapons or  merely fired a couple of rounds in the air  without producing any deterrence."

8.      This report also indicates a deliberate attempt on the part  of the police force in subverting the Rule of Law not only in  taking preventive measures, or during investigation but at the  time of prosecution as well. 9.     The matter does not end with the reports of the judicial  commissions alone but has been a matter of deep concern for  the administration as well. The First National Police  Commission headed by Shri Dharam Vira   ICS (Retd.)  was set  up during the Janata Party Government of Shri Morarji Desai  and amongst its distinguished members were several doyen’s of  the police force with the most intimate and incisive knowledge  of police functioning - Justice N.K.                                       Reddy a retired Judge of the Madras High Court, Shri K.F.  Rustamji, former Director General of the Border Security Force,  Shri N.S. Saxena, former Director of the Central Reserve Police

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Force, Shri M.S. Gore of the Tata Institute of Social Sciences  and Shri. C.V. Narasimhan, a former Director of the Central  Bureau of Investigation as its Member-Secretary.  The  Commission submitted its report in six volumes between 1979  and 1981 and made far reaching recommendations based on  the experience that had been gained over the years with regard  to the anatomy of a communal riot.  Volume VI, Chapter XLVII,  Page 9 dealing with ’’Communal Riots’ of the report reads thus: "The investigation of crimes recorded is  a matter which calls for professional skill and  expertise of a different variety.  Investigations  of crimes cannot be undertaken in moments of  tension and confusion.   The National  Integration Council has observed that special  investigation squads should be set up to  investigate crimes committed in the course of  serious riots.  We endorse this observation and  recommend that such squads should be set up  under the State Investigating agency [State  CID (Crime) ] to investigate all crimes  committed in the course of a riot.

The Madon Commission which inquired  into the communal riots in Bhiwandi, Jalgaon  and Mahad in the State of Maharashtra in  1969 passed severe strictures against the  special investigation squads set up to  investigate crime committed in the course of  those riots.  The Commission observed that  these special investigation squads had acted in  a partial and biased manner against one  community.  We take note of this finding and  feel that there are many instances where the  special investigation squads were not set up  properly with the result that some of them  acted in an incompetent and biased manner.   We would, therefore, recommend that the  special investigation squads for investigating  into crimes reported in the course of a riot,  should consist of officers of high ability who  could be expected to act without fear or favour,  and without bias or prejudice.  These squads  should function under the supervision of a  fairly senior officer.

We are also aware that once a riot gets  under control several forces come into  prominence and these forces try to interfere in  the registration and investigation of crimes.   There is an alarming tendency on the part of  several local big wigs to prevent the initiation  of action against well-known goondas and  anti-social elements.  We are aware that the  police also is not entirely free from blame in  this regard.  It should be realized that non- initiation of action against those who commit  serious crimes in the course of a riot is a  matter which would destroy the morale and  trust of the local population.  If the big  criminals are left out and only a few small ones  are prosecuted the people will lose faith in the  investigation processes and in the rule of law.   The administration, the police and the  politicians should remember that the people  are generally aware of the real culprits, and if

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the official agencies shield these culprits the  people would not only look up these agencies  as connivers of crime, but as criminals  themselves.  We strongly recommend that the  investigation of reported crimes in serious riot  situations should be done thoroughly,  competently, quickly and impartially by special  teams of competent officers working under the  supervision of senior officers.  Any interference  in this process by any group, however,  powerful it may be and whatever may be the  reasons should be strongly condemned.

We made a study of the prosecution and  disposal of cases registered in the course of  serious communal riots in one State.  The  disposal of the cases examined in this study is  as shown below:-

___________________________________________________                                  Place A  Place B Place C                                                 (1970)    (1970)   (1967)         ________________________________________________

1. Number of cases reported             11      162          38

2.Number of cases charge-     sheeted in the Court of law          6        35          15

3. No. of cases withdrawn     with reasons .   .     .    .            \005        \005       \005 4.No.of cases convicted .                 3         8         5

5. No. of cases convicted  .               3       23       10

6. No. of cases discharged .             ..        4            \005

7’A’ Final (True but not               detected)                                5       125            23

8. ’B’ Final (False case)                  ..         ..          .. 9. ’C’ Final (Mistake of facts)          ..            2        .. 10.’NC’Final (Non-cognizable case)  ..         \005         .. ___________________________________________________    

It will be noticed that a large number of cases  ended in final reports.  An analysis of the  convicted cases showed that these were all simple  cases in which the accused were actually caught  red handed on the scene of the riot.  In the  majority of the complaints lodged by the  individuals with the police and in which the  police carried out investigations, the police were  not successful in apprehending the offenders and  putting them up before courts of law.  It was also  noticed that the courts took up to 18 months for  disposal of these cases."

10.         The table is perhaps illustrative of the malaise that  afflicts the police force in many states, as the various reports  quoted above which pertain to different states, would reveal.  More alarmingly, if things were bad in 1986, what would be  the situation as of today?   11.             India is a signatory to the Universal Declaration of

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Human Rights.  Article 2 thereof provides for rights without  discrimination, without restriction of any kind based on race,  language or religion etc., Article 7 provides for equality before  law and to the equal protection of the law for all, Article 8  postulates the availability of an effective remedy in law for acts  violating the fundamental rights guaranteed to an individual  and Article 12 provides for the right to a fair trial. These rights  are enshrined in Articles 14 and 21 of the Constitution of India  as well.  Can it be said in all honesty that the investigation and  prosecution in matters relating to communal riots which is  really based on protecting human dignity and the right to life,  accord with the above principles?  The question posed must, of  necessity, give cause for introspection.  Such being the  background, can we evaluate a murder committed during a  communal riot as a crime committed in the normal course - a  common place crime as ordinarily understood?  The answer  must be in the negative and for the reasons already quoted  above.  It is in this background that the arguments raised have  to be examined. 12.   The learned counsel for the appellants has first and  foremost argued that there was a delay of 15 hours in the  recording of the FIR and as no explanation was forthcoming,  this delay was fatal to the prosecution story.  This submission  has been supplemented by Mr. Abhijeet Sen Gupta, the learned  counsel for the appellants in Criminal Appeal No.1068/2006 by  highlighting that as the FIR appeared to have been recorded  after the post-mortem and the inquest reports had been  prepared, its sanctity and spontaneity had been compromised.   In this connection the learned counsel have placed reliance on  State of Punjab vs. Ramdev Singh  (2004) 1 SCC 421,  State  of Punjab vs. Daljit Singh & Anr. (2004) 10 SCC 141 and  Ramesh Baburao Devaskar & Anr.  Vs. State of Maharashtra  (2007) 12 SCALE 272.   It has also been pointed out that as  Md. Jakir, one of those who had been hurt had not been  examined as a witness the entire story was shrouded in  suspicion, and due to the fact that there appeared to be some  animosity between the parties based on a land dispute as had  been admitted by PW1 himself, the possibility of false  implication was clearly writ large.  It has finally been pleaded  that as no weapon had been recovered from the accused and  the fact that the prosecution witnesses had sought to improve  on their statements given to the police in their evidence in Court  by attributing individual roles to the accused, required that  their evidence could not be accepted at its face value. 13.  The learned counsel for the respondent - State has,  however, argued that the prosecution evidence had to be  examined in the background of the situation that existed in  those days with the entire area being curfew bound, consequent  upon the total failure of the civil administration with the result  that the Army had been called out.  It has also been submitted   that there was no reason whatsoever to disbelieve that the eye  witnesses,  two of them greviously hurt,  whose presence could  not be doubted and though Md. Jakir had not been examined  as an eye witness, yet the fact that he too had suffered a  grievous injury in the same incident could hardly be  controverted.    It has further been pointed out that though Md.  Taheruddin, the first informant had been disbelieved by the  High Court, there was absolutely no reason for doing so as his  presence in his home during a communal riot for the purpose of  guarding his family of a young wife, six daughters and two sons  and his property was but natural.  It has finally been pleaded  that even assuming that some improvements had been made  during the course of their evidence, this was to be expected as  the witnesses had been under great stress at the time when  their statements had been recorded under Section 161 of the

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Cr.P.C. and by reflection and hindsight they had been able to  gather their wits and to give proper statements in Court.  It has  finally been pointed out that the benefit of doubt had already  been given to the accused inasmuch as several had been  acquitted, some by the trial court and some others by the High  Court. 14.     It would be seen that the arguments raised by the  learned counsel for the appellants are on the premise that the  incident had happened in a normal civil society where the  access to the police is presumed to be easy and where the  investigation suffers from no bias.  These arguments, from their  very nature, cannot be applied to a case where there is a  complete break down of the civil administration, the police has  lost control of the situation, a curfew imposed and the Army  called out and the real possibility (if precedents are to be  applied) that the investigation could be directed against the  complainant who belonged to a minority community.   From the  reports that have been quoted above, several broad principles  are discernible: (1)     that police officers deliberately make no  attempt to prevent the collection of crowds;

(2)     that  half hearted attempts are made to  protect the life and property of the minority  community;

(3)     that in rounding up those people  participating in the riots, the victims rather  than the   assailants are largely picked up;

(4)      that  there is an attempt not to register  cases against the assailants and in some  cases where cases are registered loopholes  are provided with the intention of providing  a means of acquittal to the accused;

(5)     that the investigation is unsatisfactory and  tardy and no attempt is made to follow up  the complaints made against the  assailants;  and finally  

(6)     that the evidence produced in Court is  often deliberately distorted so as to ensure  an acquittal.

15.       In this background and situation some of the  arguments raised by the learned counsel for the appellants can  have absolutely no relevance, and the court must, of necessity,  lean even more heavily on the statements of the eye witnesses. 16.                 It has come in the evidence that the incident had  happened at about 10.00 p.m.  on 14th December 1992 in the  residential house of  Mohd. Taheruddin PW2 - the victims his  wife and two young daughters who were killed, and one son  seriously hurt.   It has also come in the evidence of the three  main witnesses, that Army personnel had reached the place of  incident and had carried the dead bodies to police station  Daboka whereas the injured had been taken to the hospital.   From the evidence of PW7 B.N. Kalita who was the In-charge of  Police Station, Daboka, it is evident that a communal riot had

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erupted on account of the destruction of the Babri Masjid on  December 6, 1992 and that curfew had been clamped in the  entire area of Hojai, Daboka and Jamunamukh after December  6, 1992.  In this background, it cannot be said that the FIR  lodged 15 hours after the incident was belated.  It is also  significant that this police officer had received information  about the incident on December 14, 1992 at about 10 minutes  past mid night and on which he had reached the place of  incident and had made some enquiries and also recorded  Taheruddin’s statement but if he had chosen to record the  formal FIR at 11 a.m. on December 15, 1992, it cannot be said  that the complainant was in any way guilty of delay.  The  statements of the eye witnesses also reveal that the dead bodies  and the injured had been removed from the place of incident by  Army personnel.  It, therefore, appears that the inquest had not  been recorded at the site but it was perhaps elsewhere.  It is  also clear from the evidence of Dr. Jiauddin Ahmed PW6 that he  had medically examined Jakir Hussain and Mustafa Mohd.  shortly after mid night on 14th December, 1992 on a police  requisition with reference to G.D.No.2000 of Police Station,  Daboka.  It is therefore somewhat surprising that though the  aforesaid persons had been removed to the hospital by the  Army and examined on police requisition at about mid night,  yet no formal FIR had registered by the police till 11.00 a.m.    Two explanations can be given for this omission, one  that the  police, as is its wont,  had refused to register a case or in the  alternative and to take a more charitable view,  that it had not  been possible to  do so earlier as the area was under curfew and  aflame in a communal riot.   The submission about the delay in  the lodging of the FIR in the circumstance of the case is without  basis. The judgments cited by the learned counsel on this  aspect,  thus, have no relevance to the facts of the case. 17.     The learned counsel for the appellants has also laid much  emphasis on the fact that Jakir one of the injured and  apparently a close relative of the other eye witnesses, having not  been examined, a doubt had been cast on the prosecution story.   There is absolutely no justification for this argument.  It is clear  from the evidence of Dr. Madhusudhan Dev Goswami PW1 that  Mohd. Jakir had suffered only a simple injury whereas Mohd.  Mustafa had been seriously hurt.  It must also be noted that as  the incident had happened at the dead of night during  communal disturbances which had apparently started on or  soon after 6th December 1992, and for Mohd. Taheruddin to be  present at home to guard his huge family of a wife, two sons  and six daughters was to be accepted. Conversely, his absence  from home during these crucial days would have been most  unnatural and alien to normal human behaviour.   The High  Court has opined that as the statement of Mohd. Taheruddin  given in Court was not substantiated by the medical evidence,  his evidence was "highly suspicious".  This finding is  unacceptable as his presence was absolutely natural and the  story that he was guarding his crop a short distance away   inspires confidence and merely because some persons who had  been named by him were ultimately found by the court to be  not present would not to our mind dislodge the entire case.    Moreover the medical evidence which makes the presence of  Taheruddin "suspicious" as per the High Court, is the absence  of the arrow injury on the hand.  It must, however, be  emphasized that Taheruddin’s statement on this aspect is a  casual one and does not give any indication as to the nature or  extent of the injury, except for the observation that the arrow  shot at his body had missed the target and had hit his hand  instead.  The evidence of Taheruddin when read as a whole  corresponds in material particulars with the statements of the  other two eye witnesses.  Likewise, the statement  of Mohd.

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Mustafa, who was seriously injured and Mohd. Hanif clearly  support the prosecution story.  All three witnesses had  witnessed the incident from close quarters and as most of the  accused were known to them, they being neighbours, they were  in a position to identify them.  It is true, as has been contended,  that the names of some of the accused do not figure in the  statements made to the police, but this omission can be  reasonably attributed to a tainted investigation or to the fact  that the sheer brutality of the crime had stunned the witnesses  into confusion.  The horror which would have faced the  witnesses, can hardly be exaggerated. 18.         It has been argued by the learned counsel for the  appellants that the FIR had been motivated on account of the  land dispute between Taheruddin and accused Gopal (who died  before trial) and Hari Singh and Kailash.   Reliance for this  argument has been placed on the admission made by Mohd.  Taheruddin in his statement that some dispute did exist  between them.  From the facts and background the converse  possibility ( as the Commission’s reports would suggest ) that  the accused had,  in fact, decided to utilize the disturbed  situation to their advantage and to sort out their enemies once  for all, cannot be ruled out.  On the other hand, it is difficult to  accept that a witness who has seen the slaughter of his family  would be so perverted or crass as to leave out the real  assailants and to rope in innocent persons.  The fact that the  victims were a young woman, and two children, and grevious  injuries to two other young boys supports the view that the  murders had not been committed on account of any enmity, but  were a fall out of the communal tension prevailing in that area.   It bears reiteration, that the victims could hardly have been  dealt with on account of any animosity, but the assailants  attempted to do away with anyone who came along.  In any  case, as already mentioned above, the Sessions Judge and the  High Court have already done the sifting that is required and  ultimately maintained   the conviction of only a few of the  accused. 19.     In conclusion, it must be observed that in matters such as  the present one, it is the statements of the eye witnesses which  are of the utmost importance and unless very good reasons can  be given for disbelieving them, they must be accepted, and  the  arguments with regard to the delay in the FIR or some minor  contradictions in the statements under section 161, vis-‘-vis  the statements in Court or a flaw in the recording of the post- mortem or the inquest reports or the non-recovery of murder  weapons etc. are a matter of little concern as these issues would  be relevant and in normal circumstances and to a situation  where the civil administration was functioning    effectively, but   in a case  of  a complete break down  of  the civil  administration, these  broad arguments are wholly inapplicable.                    

There is, thus, no merit in these appeals. They are accordingly  dismissed.

                                               \005\005\005\005\005\005\005\005\005\005\005 \005..J.                                                 (HARJIT SINGH BEDI)

New Delhi Dated: May 2 , 2008

32

              IN THE SUPREME COURT OF INDIA

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CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.907 OF 2006

         Harendra Sarkar        ...Appellant

Versus

         State of Assam        ...Respondent           With           Criminal Appeal No. 1068/2006           (Kailash Gour and others Vs. State of Assam)

O  R  D  E  R

               In view of the difference of opinion, let the matter be  placed before three-Judge Bench. The Registry is directed to place the  records before the Hon’ble the Chief Justice of India for appropriate orders.          

......................J.                                       [S.B. SINHA]

......................J.                                       [HARJIT SINGH BEDI] New Delhi, May 2, 2008.