# {2008} 7 S.C:~. 589 't HARENDRA SARKAR v. STATE OF ASSAM

- **Citation:** [2008] 7 S.C.R. 589
- **Court:** Supreme Court of India
- **Decided:** 2008-05-02
- **Case number:** Criminal Appeal No. 907 of 2006
- **Bench:** S.B. Sinha, Harjit Singh Bedi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/2008-7-s-c-589-t-harendra-sarkar-v-state-of-assam-24566
- **Pages:** 42

## Headnote

Penal Code, 1860 - ss. 302134 and 448134 - Mob of 1420 entered house and killed three and caused injuries to four
- Incident occurred after communal riots broke out and curfew c
imposed, on account of demolition of Babri Masjid - Evidence
- Appreciation of - Conviction by trial court- However, High
Court convicted five and acquitted others giving benefit of
doubt- On appeal, held: Per Sinha, J-Appreciation of evidence
must be done strictly as per law and on basis of materials on D
)
--(
record -
Ohly because offence was committed during
communal riots, provisions of CrP C. and Evidence Act would
not be applied differently vis-a-vis so-called ordinary case -
Accused person, even terrorist, has his human right and is to
be tried as per law .;_ On facts, prosecution case cannot be
relied, thus, accused entitled to benefit of doubt - Per Bedi, JE
Murder committeid during communal riots when there is a
complete break down of civil administration, arguments
.. •'
regarding contradictions in statements of eye witnesses, delay
in FIR or flaw in recording of post-mortem or inquest reports or
'
non-recovery of murder weapons not applicable, thus no merit
F
}"
in appeals by accused - Per Court: In view of difference of
opinion, matter referred to larger bench.
The Babri Masjid in Ayodha was demolished.
Communal riots broke out and curfew was imposed.
G
According to the prosecution case, soon thereafter, on
I14.12.1992 at around 10.00 am, an incident took place in
-I
which armed mob of 14-20 people entered the house of
PW-2, belonging to a minority community, allegedly from
two sides. G and several others killed PW-2's two
589
H
590
SUPREME COURT REPORTS
(2008) 7 S.C.R.
A daughters aged 3years and 7 years, caused grievous
injuries to his wife, his sons-PW 3-M, PW 4-HA, and ZH
and his close relative-JA. Near about that time house of
one N was burning. PW-2 was in his fields close to his
house. He saw mob entering his house. Accused G called
B out for PW-2. PW-2 tried to come towards the house but
his so~ M prevented him. Accused GR shot arrow at PW-
"i·
2 and 1t hit his right hand. PW-2 saw the accused and
shouted. The accused fled away. PW-2 came to the place
of occurrence. His wife succu!Jlbed to her injuries. Army
c vehicle as also police team came to the place of
occurrence. The police took the injured to the hospital
and the army vehicle took the dead bodies. Medical
Officer-PW-6 examined the injured HA, ZH and MA. PW-2
and his other sons were taken to the Guest House and
then to the Police Station but no statement was recorded.
D Investigating Officer-PW-7 came to the place of
io
occurrence. He took up the investigation and drew sketch
>-
map. He held inquest of the dead bodies. FIR was
recorded at the Police Station at about 11.00 pm on
15.12.1992. 12 accused were named. At 12.00, PW-1E doctor performed post mortem of the three dead bodies.
Accused were charged u/s 147, 148, 149, 448, 302 and 326
IPC. The prosecution relied on the evidence of the
prosecution witnesses. The accused denied their
involvement and pleaded false- implication due to enmity.
F Trial court relying on the evidence of PW-3 and 4 as
corroborated by medical evidence, convicted and
,\
sentenced accused K, HS, G, RD, KD, HRS, RG and BG u/
s 302/34 and 448/34 of IPC. In appeal, High Court upheld
the conviction of K, HS, KD, HRS and RG, however,
G acquitted the others on benefit of doubt. Hence the
present appeal.
Refering the matter to a 3 Judge Bench, the Court
...
;-
Per S.B. Sinha, J:
H
HELD: 1.1 In the instant case, the investigation had
... ,
y
'
HARENDRA SARKAR V STATE OF ASSAM
591
started even prior to lodging of the FIR. Post morten A
examinations had been conducted, site map had been
drawn before 12.00 p.m. on 15th December ,1999 and as
per PW-7, inquests were held but he did not say where.
the inquests reports were. PWs 2 and 3 concededly did
not see the entire incident. They did not witness the actual B
assault on the deceased. The trail judge, however,

## Text

_Characters 0–39,949 of 84,280. This is a partial read: ask again with offset=39949 for what follows._

{2008} 7 S.C:~. 589
't
HARENDRA SARKAR
A
v.
STATE OF ASSAM
(Criminal Appeal No. 907 of 2006)
MAY 2, 2008
B
_..,
[S.B. SINHA AND HARJIT SINGH BEDI, JJ.]
Penal Code, 1860 - ss. 302134 and 448134 - Mob of 1420 entered house and killed three and caused injuries to four
- Incident occurred after communal riots broke out and curfew c
imposed, on account of demolition of Babri Masjid - Evidence
- Appreciation of - Conviction by trial court- However, High
Court convicted five and acquitted others giving benefit of
doubt- On appeal, held: Per Sinha, J-Appreciation of evidence
must be done strictly as per law and on basis of materials on D
)
--(
record -
Ohly because offence was committed during
communal riots, provisions of CrP C. and Evidence Act would
not be applied differently vis-a-vis so-called ordinary case -
Accused person, even terrorist, has his human right and is to
be tried as per law .;_ On facts, prosecution case cannot be
relied, thus, accused entitled to benefit of doubt - Per Bedi, JE
Murder committeid during communal riots when there is a
complete break down of civil administration, arguments
.. •'
regarding contradictions in statements of eye witnesses, delay
in FIR or flaw in recording of post-mortem or inquest reports or
'
non-recovery of murder weapons not applicable, thus no merit
F
}"
in appeals by accused - Per Court: In view of difference of
opinion, matter referred to larger bench.
The Babri Masjid in Ayodha was demolished.
Communal riots broke out and curfew was imposed.
G
According to the prosecution case, soon thereafter, on
I14.12.1992 at around 10.00 am, an incident took place in
-I
which armed mob of 14-20 people entered the house of
PW-2, belonging to a minority community, allegedly from
two sides. G and several others killed PW-2's two
589
H
590
SUPREME COURT REPORTS
(2008) 7 S.C.R.
A daughters aged 3years and 7 years, caused grievous
injuries to his wife, his sons-PW 3-M, PW 4-HA, and ZH
and his close relative-JA. Near about that time house of
one N was burning. PW-2 was in his fields close to his
house. He saw mob entering his house. Accused G called
B out for PW-2. PW-2 tried to come towards the house but
his so~ M prevented him. Accused GR shot arrow at PW-
"i·
2 and 1t hit his right hand. PW-2 saw the accused and
shouted. The accused fled away. PW-2 came to the place
of occurrence. His wife succu!Jlbed to her injuries. Army
c vehicle as also police team came to the place of
occurrence. The police took the injured to the hospital
and the army vehicle took the dead bodies. Medical
Officer-PW-6 examined the injured HA, ZH and MA. PW-2
and his other sons were taken to the Guest House and
then to the Police Station but no statement was recorded.
D Investigating Officer-PW-7 came to the place of
io
occurrence. He took up the investigation and drew sketch
>-
map. He held inquest of the dead bodies. FIR was
recorded at the Police Station at about 11.00 pm on
15.12.1992. 12 accused were named. At 12.00, PW-1E doctor performed post mortem of the three dead bodies.
Accused were charged u/s 147, 148, 149, 448, 302 and 326
IPC. The prosecution relied on the evidence of the
prosecution witnesses. The accused denied their
involvement and pleaded false- implication due to enmity.
F Trial court relying on the evidence of PW-3 and 4 as
corroborated by medical evidence, convicted and
,\
sentenced accused K, HS, G, RD, KD, HRS, RG and BG u/
s 302/34 and 448/34 of IPC. In appeal, High Court upheld
the conviction of K, HS, KD, HRS and RG, however,
G acquitted the others on benefit of doubt. Hence the
present appeal.
Refering the matter to a 3 Judge Bench, the Court
...
;-
Per S.B. Sinha, J:
H
HELD: 1.1 In the instant case, the investigation had
... ,
y
'
HARENDRA SARKAR V STATE OF ASSAM
591
started even prior to lodging of the FIR. Post morten A
examinations had been conducted, site map had been
drawn before 12.00 p.m. on 15th December ,1999 and as
per PW-7, inquests were held but he did not say where.
the inquests reports were. PWs 2 and 3 concededly did
not see the entire incident. They did not witness the actual B
assault on the deceased. The trail judge, however, relied
upon the evidence of these witnesses. They were treated
as eye-witnesses. The witnesses were asked as to
whether they had named the accused as persons
allegedly assaulting the deceased before the police c
authorities. They had not. Although contradiction in the
st~tements of the witnesses vis-a-vis their statements u/
s 161 Cr.P. C. were noticed, the trail judge did not discuss
the same stating that they were only minor in nature. They
were not. Furthermore, if the banana trees where PW-4 0
could hide himself were within the precincts of the house, ·
it is doubtful whether he could see the occurrence after
his mother and two sisters came out of the house and in
fact had assaulted the deceased. [Para 23, 24, 25, 26 and
31) [604-C-H; 606-B]
E
1.2 The High Court disbelieved PW-2 in view of the
glaring contradiction noticed in his statements made
before the police vis-a-vis the statement made in his
deposition before the Court. The omission on his part to
name G who took leading part and GR who had allegedly
F
shot an arrow, rendered his evidence highly suspicious.
The High Court noticed that PW-3 accepted that he had
discussions with the witnesses about the names of
probable assailants. The High Court disbelieved the first
informant. It, however did not consider the entire G
prosecution case from the angle that thereby, to a large
extent, the culpability of the accused and their
participation in the incident became doubtful. The High
Court noticed serious contradiction made by PW-3 and
PW-4. It opined that benefit of doubt should be given to
H
592
SUPREME COUR'T REPORTS
{2008] 7 S.C.R.
A RD, GG, and BT. High Court committed a serious error
in opining so. [Paras 28, 29 and 30] [605-B-D; 605-H; ·
606-A-B]
1.3 It is difficult to appreciate that because of law and
order situation the investigating Authorities could not take
B such statements of the prosecution witnesses.
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
C site map etc. had been undertaken. [Para 35] [606-G-H;
607-A]
1.4 The delay in lodging the FIR has not been
explained. Lodging of prompt FIR is necessary for
providing checks and balances. In a case of this nature,
D where enmity arising out of land dispute is admitted, in
absence of any explanation, delay in lodging the FIR
should be viewed with suspicion. First Information Report
was lodged after the deliberations. Land dispute between
the parties is admitted. Inquest was held even before the
E recording of F.1.R. Ordinarily, the same is impermissible.
[Paras 38 and 39] [607 -C-D]
Ramesh Baburao Devaskar & Ors. v. State of
Maharashtra 2007 (12) SCALE 272 - relied on.
F
1.5 Genesis of the occurrence was not proved. It was
likely that burning of the house of N started first wherefor
only information about the burning was given by RD to
the Police. The incident in· question might have taken
place later. N was acquitted of the charges. [Para 40]
G [607-E-F]
1.6 In view of the conduct of the prosecution
witnesses, 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
H doctor occurred 48 to 72 hours prior to the examination
HARENDRA SARKAR v. STATE OF ASSAM
593
'(
of the dead bodies. But, if the prosecution case is to be A
believed, the same took place within 12 hours from the
death thereto. On having a broad conspectus of events,
it is difficult to place implicit reliance on the prosecution
case. [Paras 41 and 42] [607-F-H; 608-A]
1.7 Several Commissions and Committees set up to
B
-Y
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 c
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 D
f _ _.
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, [Para 43] [608-B-D]
1.8 The courts in order to do justice between the E
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 would not be proper F
,
f
to contend that only because an offence is said to have
been committed during a communal riot, the provisions
of the Cr. P.C. and Evidence Act would be applied
differently vis-a-vis a so-called ordinary case. They are
meant to be applied in all situations. Appreciation of G
evidence must be on the basis of materials on record and
I'
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 seve~e
criticism, the same in no manner should be applied in all H
594
SUPREME COURT REPORTS
[2008] 7 S.C.R.
A the cases across the country. Each accused person; even
a terrorist, has his human right. He be tried in accordance
with law. [Para 43] (608-E-G]
1.9 Article 12 of the Universal Declaration of Human
Rights provides for the Right to a Fair Trail. Such rights
8 are enshrined in 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.
[Para 44] [608-H; 609-A]
c
1.10 It is one thing to say that even applying the wellknown principles of law, they are guilty of commission of
offences for which t:iey 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
0 punishment in view of the past experience. [Para 44]
[609-B]
1.11 Even then chances of the false implication
cannot be ruled out altogether and particularly in a case
like the instant one when those who have been named in
E First Information Report and said to have taken a leading
role in the matt6r have been acquitted, the correctness
whereof is not in any question. It is not know how a
different standard can be applied in case of others.
Therefore, the view that in a case of this nature, the norms
F of appreciation of evidence should be applied differently
cannot be subscribed. [Para 44] [609-C, D]
Zahira Habibul/a H. Sheikh vs. State of Gujarat (2004) 4
sec 158 -distinguished.
G
Satyajit Banerjee and Others v. State of WB. and Others
- referred to.
1.12 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
H did so. In such a case subject to establishing some
y
HARENDRA SARKAR v. STATE OF ASSAM
595
1
primary fact, the burden of proof has been cast on the A
respondents. There are a large number of statutes where
the doctrine of 'reverse burden' has been applied. Save
and except those cases where the Parliamentary statutes
apply the doctrine of reverse burden, the courts, should
not employ the same which per se would not only be · B
-r
violative of Universal Declaration of Human Rights bat
also the fundamental right of an accused as envisaged
under Article 21 of the Constitution of India. [Para 44]
(609-G, H; 610-A]
1.13 Presumption of innocence is a human right. c
Such a legal principle cannot be thrown aside under any
~
situation. [Para 44] (611-C]
Syed Akbar vs. State of Karnataka AIR 1979 SC 1848;
Jacob Mathew vs. State of Punjab (2005) 6 SCC 1; Narendra D
Singh and another v. State of M.P. (2004) 10 sec 699 and
j. _.(
Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra
and Another (2005) 5 sec 294 - relied on.
'-'
1.14 Independence of judiciary must be upheld. The
superior courts should not do something that would lead
E
to impairment of basic fundamental and human rights of
an accused. Thus, the appellants are entitled to benefit of
doubt. [Paras 45 and 46] [611-D-F]
The State vs. Abdool Rachid Khoyratty [2006] UKPC 13
F
- referred to.
~
Per H.S. Bedi, J, (dissenting):
1.1 The arguments raised by the appellants are on
the premise that the incident had happened in a normal
civil society where the access to the police is presumed G
to be easy and where the investigation suffers from no
f
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 H
596
SUPREME COURT REPORTS
[2008] 7 S.C.R.
A 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 quoted in the instant case, several broad
principles are discernible: (1) that police officers
B 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;
c (4) that there is an a~empt 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
0 attempt is made to follow up the complaints made against
the assailants; and (6) that the evidence produced in Court
is often deliberately distorted so as to ensure an acquittal.
[Para 14] [626-D-H; 627-A, B]
1.2 In the background and situation some of the
E arguments raised by the appellants can have absolutely
no relevance, and the court must, of necessity, lean even
more heavily on the statements of the eye witnesses.
[Para 15) [627-C]
1.3 It has come in the evidence that the incident had
F happened at about 10.00 p.m. on 14.12.1992 in the
residential house of 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
G 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-ln-charge of Police
Station, Daboka, it is evident that a communal riot had
erupted on account of the destruction of the Babri Masjid
H on 6.12.1992 and that curfew had been clamped in the
y
HARENDRA SARKAR v. STATE OF ASSAM
597
y
.. __.:
entire area of Hojai, Daboka and Jamunamukh after A
6.12.1992. It is also significant that the police officer had
received information about the incident on 14.12.1992 at
about 10 minutes past mid night and on which he had
reached the place of incident and had made some
~Y
enquiries and also recorded PW-2's . statement but if he
B
had chosen to record the formal FIR at 11 a.m. on
15.12.1992, it cannot be said that the complainant was in
any way guilty of delay. Therefore, it appears that the
inquest had not been recorded at the site but it was
-II.
perhaps elsewhere. It is also clear from the evidence of c
PW6-Doctor that he had medically examined JH and MM
shortly after mid night on 14.12.1992 on a police
requisition. Therefore, it is somewhat surprising that
though the aforesaid persons had been removed to the
hospital by the Army and examined on police requisition D
I _;
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, refused
to register a case or in the alternative and to take a more
charitable view, that it was not possible to do so earlier as
E
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.
[Para 16] [627-D-H; 628·A·D]
State of Punjab vs. Ramdev Singh (2004) 1 SCC 421;
F
...
State of Punjab vs. Daljit Singh & Anr. (2004) 10 SCC 141
and Ramesh Baburao Devaskar & Anr. Vs. State of
Maharashtra (2007) 12 SCALE 272. - referred to.
1.4 There is absolutely no justification on the fact that
JH one of the injured and apparently a close relative of G
the other eye witnesses, having not been examined, a
fdoubt had been cast on the prosecutiol) story. It is clear
-\
from the evidence of Doctor PW1 that JH had suffered
only a simple injury whereas MM had been seriously hurt.
As the incident had happened at the dead of night during H
598
SUPREME COURT REPORTS
[2008] 7 S.C.R
y
A communal disturbances which had apparently started on
or soon after 6.12.1992, and for PW-2 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
B most unnatural and alien to normal human behaviour. The
'L
finding of High Court that as the statement of PW-2 given
in Court was not substantiated by the medical evidence,
his evidence was "highly suspicious" is unacceptable as
his presence was absolutely natural and the story that he
c 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 dislodge the entire case.
Moreover the medical evidence which makes the
D presence of PW-2 "suspicious" as per the High Court, was
the absence of the arrow injury on the hand. However, it
must be emphasized that PW-2'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
E
that the arrow shot at his body had missed the target and
had hit his hand instead. The evidence of PW-2 when read
as a whole corresponds in material particulars with the
statements of the other two eye witnesses. Likewise, the
f
statement of MM, who was seriously injured and MH
clearly support the prosecution story. All three witnesses
F 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, that the names of some of the accused do not figure
in the statements made to the police, but this omission
G can be reasonably attributed to a tainted investigation or
to the fact that the sheer brutality of the crime had stunned
I
the witnesses into confusion. The horror which would
,._
have faced the witnesses, can hardly be exaggerated.
[Para 17] [628-F-H; 629-A-E]
H
HARENDRA SARKAR v. STATE OF ASSAM
599
1.5 With regard to the submission of the appellants A
that the FIR had been motivated on account of the land
dispute between PW-2 and accused G (who died before
trial) and HS and K, reliance was placed on the admission
made by PW-2 in his statement that some dispute did exist
between them. From the facts and background the B
_.,,,
converse possibility 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 c
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
D
enmity, but were a fall out of the communal tension
f
-'..
prevailing in that area. 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, the Sessions Judge and the High Court have
already done the sifting that is required and ultimately E
maintained the conviction of only a few of the accused.
[Para 18) [629-F-H; 630-A-C)
1.6 In the instant matters, it is the statements of the
eye witnesses which are of the utmost importance and .F
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-a-vis the
statements in Court or a flaw in the recording of the postmortem or the inquest reports or the non-recovery of G
murder weapons etc. are a matter of little concern as these
Iissues 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 H
600
SUPREME COURT REPORTS
[2008] 7 S.C.R.
A
are wholly inapplicable. Thus, there is no merit in these
1
appeals. [Para 19) [630-D-F]
B
CRIMiNALAPPELLATE JURISDICTION: Criminal Appeal
No. 907 of 2006.
WITH
Criminal Appeal No. 1068 of 2006 .
. '
Sumita Hazarika, U. Hazarika, Satya Mitra, Anand, Aznn
H. Laskar and Abhijit Sen Gupta for the Appellant.
C
Ng. J.R. Luwang, {for Mis. Corporate Law Group) for the
·Respondent.
·
The Judgments of the Court were delivered by
S.B. SINHA, J. 1. Mauza Sangamari Pathar is a small
D 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.
·
·
E
2. Taheruddin PW-2 was a resident of Changmazi Patghar.
The distance between two villages is about one mile. He had
been living in a house consisting of four rooms; each situated in
different corners abutting a big court yard measuring 20' x 40'.
3. The incident occurred soon after the demolition of Babri
F
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
--4:
wife and six daughters were sleeping. Another room was being
• · · occupied by his sons. The mob broke open the door. They
G 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 ofTaheruddin.
5. One of his sons, Md. Mustafa PW-3 was irt his bed. He
!>:;:
H was all alone. He allegedly heard the voice of Gopal calling,
. _,.
;
HARENDRA SARKAR v. STATE CF ASSA.M
601
[S.8. SINHA, J.)
'Murshi', M•mshi', !o which he rep!led that he w:l3 not at hon;,:, . ·A
Gopal and several other people opened ihe bamboo dor;r.
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 al!egedly armed
with 'dao', 'dagger', 'arrows' etc. He saw his father coming
B
towards the home. He asked him not to go home. He raised a
. nue and cry. Inside the house his mother and two sisters were
be;:ig backed. He did net recognize any one of the ac;saiiants:
He returned to.the house sometimes later to find that his mot~cr
was lying in a critical condition and two sisters lying dead.
6. Taheruddin who, allegedly was prevented from coming
to his hou!;;e by his son and had run away, came there and found
a group of people striking the wail of his house with 'dao', 'lathi'
etc. One of them, Rahna Gour had shot an arrow at him. It hit his
c
. 11ght hand. He saw the accused from a distance of about 2 % · o
nals away (1 nal =about 27-28 feet) ie. About 70 ft. in totai. He
shouted. An army vehicle arrived there. He found his daugMer
Bimala in an injured condition. She had died. He also found his
other daughter Hajeera lying dead. Taking Bim;:ila on his
shoulder, he stood on the road. After the departure '}f the army E
personnel, he found his wife Sahera Khatoon lying inju;2d in
middle of the paddy field near the house. He carried her home,
wrere:Jfter she died.
7'. Hanif, PW-4. another son of Taheruddin allegedly
aiongwith Zakir Hussain was in the kitchen. He is said to be a
F
:..;oourer and allegedly also sustained injuries. He has not been
t:lxamined.
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 G
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.
H
602
SUPREME COURT REPORTS
[2008] 7 S.C.R.
A Otherthree sisters escaped but Bimala was assaulted by Gopal,
Ratan and Haren Doctor. They also caused hurt to Zakir.
B
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
C about 1.00 a.m. and were said to have suffered the following
D
E
injuries:-
Zakir Hussain
1)
There was vertical cut injury over the lip. Size 2" x %".
2)
There are six cut injuries over the scalp each about
2" x1/2" in size.
3)
Left little finger was severed at the bone of the
proximal phalange.
4)
There is swelling and tenderness over the right hand.
5)
There were two cut injuries over the back, on each
side.
There was multiple cut injury and got injury on the right hand
F 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 Yi". The injury is fresh and margins were
G 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
H station. No statement, however, was made by them.
HARENDRA SARKAR v. STATE OF ASSAM
603
[S.B. SINHA, J.]
13. The investigating officer, PW-7, B.N. Kalita, however,
A
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
B
-1'
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 c
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.
D
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,
E
being incised wounds, were found, one on the rigllt upper neck
and another at the right parietal region of scalp.
18. According to Dr. Madhusudhan Dev Gosw.ami, PW-1
(who conducted the post mortem examination), their stomachs
were found to be empty. The death in each case was found to
F
have taken place 48 to 72 hours from the time of post-mortem
r
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 G
had come back to the village with another police officer. He did
·, f
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
H
604
SUPREME COURT REPORTS
[2008] 7 S.C R
A
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
8 at the police station at about 11.00 p.m. on 151h 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
c
three days after the incident. •
22. PW-4 stated that he had lodged the First Information
Report.
23. Be. that as it may, admittedly, the investigation had
started even prior to lodging of the First Information Report.
D 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
E 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 .
F
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·
G contradictions in the statements of the witnesses vis-a-vis their
statements under Section, 161 of the Code of Criminal'
Procedure were noticed, the learned trial judge did not drscuss
the same stating that they were only minor in nature. They were
not.
H
y
-\ j
HARENDRA SARKAR v. STATE OF ASSAM
605
[S.B. SINHA, J.)
'T
27. Nirmal Dutta, Nandu Dutta and Shyam Sunder Gour A
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
B
--~
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 c
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 D
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
E'.
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
F
)--
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 G
by the High Court. He was found to have contradicted himself
, f
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 H
606
SUPREME COURT REPORTS
[2008] 7 S.C.R.
A 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
B 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.
c
32. Two of the dead bodies were found on the road, and
one in the field. Out of the twelve accused, named in the First
Information Report, six have been acquitted. Involvement of the
leader of the mob, namely, Gopal (since deceased) has seriously
been doubted. Only five persons have been convicted, who are
D 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
E . 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.
F
34. PW-3, admittedly was taken to the police station. PW4 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
G 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
H postmortem of the dead bodies conducted, obtaining injury
HARENDRA SARKAR v. STATE OF ASSAM
607
[S.8. SINHA, J.]
.,..,-
reports of the injured persons, preparation of the site map etc.
A
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
8
~·'T
house is almost 2 kms. away from that ofTaheruddin. 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 c
Information Report has not been explained. Lodging of prompt
F.l.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.l.R. should be viewed with suspicion.
D
......
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.1.R. Ordinarily,
the same is impermissible. [See Ramesh Baburao Devaskar
& Ors. v. State of Maharashtra 2007 (12) SCALE 272]
E
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 p[ace later.
F
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 G
the prosecution case. Deaths, according to the doctor occurred
f
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 H
'
608
SUPREME COURT REPORTS
[2008] 7 S.C.R.
A opinion it is difficult to place implicit reliance on the prosecution
case.
43. We are not oblivious of the fact that several
Commissions and Committees set up to inquire into the effect
B
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
c 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
D 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
E 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
F Procedure and Evidence Act would not be applied differently
~
vis-a-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
G 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.
H
44. Article 12 of the Universal Declaration of Human Rights
HARENDRA SARKAR v. STATE OF ASSAM
609
[S.S. SINHA, J.]
"'(
provides for the Right to a Fair Trail. Such rights are enshrined A
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 fand.
It is one thing to say that even applying the well-known
B
principles of law, they are guilty of commission of offences for
~-y··
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 c
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 D
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.