TaxTMI 
TaxTMI 
2008 (5) TMI 639
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....eing 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....
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.... 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 o....
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....he 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 C....
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....r 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 w....
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.... 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 Con....
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....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 nonapplication 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....
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....s 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 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 him....
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....kir 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. 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 ....
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....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 assa....
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....e 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....
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.... 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 admi....
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.... 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 Force, Shri M.S.....
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....hould be realized that noninitiation 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 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:-....
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....se 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 th....
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....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 follo....
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.... 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 Mo....