REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1068 OF 2006

Kailash Gour & Ors. …Appellants

Versus

State of Assam …Respondent

J U D G M E N T

T.S. THAKUR, J.

1. This appeal arises out of a judgment and order dated  

29th June, 2006, passed by the High Court of Judicature at  

Gauhati whereby Criminal Appeal No.133 of 2005 filed by  

the appellants has been dismissed and the conviction and  

sentence of life imprisonment awarded to them by the trial  

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Court for offences punishable under Sections 448, 324 and  

302 read with Section 34 IPC upheld.  

2. The appeal was initially heard by a Division Bench of  

this Court comprising S.B. Sinha and H.S. Bedi, JJ.,  who  

differed in their conclusions. While S.B. Sinha, J. acquitted  

the appellants giving them the benefit  of  doubt,  Bedi,  J.  

upheld  their  conviction  and  sentence  and  consequently  

dismissed the appeal.  The appeal  has,  in  that  backdrop,  

been listed before us to resolve the conflict.             

3. Briefly  stated,  the prosecution case is that  at  about  

10.00  p.m.  on  December  14,  1992,  Mohd.  Taheruddin  

(PW2)  a  resident  of  village,  Changmazi  Pathar  situate  

within the limits of Police Station Doboka, District Nagaon  

in the State of Assam was guarding his paddy crop in his  

field close to his house. Md. Mustafa Ahmed (PW3), one of  

the two sons of Mohd. Taheruddin was sleeping at home in  

one  of  the  rooms  while  Md.  Hanif  Ahmed  (PW4)  was  

together with one Zakir,  said to be a close relative,  was  

sleeping  in  the  kitchen.   Sahera  Khatoon  wife  of  Mohd.  

Taheruddin  and  his  daughters  Hazera  Khatoon,  Jahanara  

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Begum,  Samana  Khatoon  and  Bimala  were  sleeping  in  

another room.  A mob allegedly comprising nearly twenty  

people entered the house of Mohd. Taheruddin and forcibly  

opened the door.   Around the same time another  house  

belonging  to  one  Nandu  situate  at  some  distance  from  

Mohd.  Taheruddin’s  house  was  on  fire.  The  prosecution  

case  is  that  Md.  Mustafa  Ahmed  (PW3)  heard  accused  

Gopal  Ghose  calling  for  ‘Munshi’  which  ostensibly  is  also  

how  Mohd.  Taheruddin  was  known.  Md.  Mustafa  Ahmed  

(PW3) is said to have replied that Taheruddin was not at  

home. Apprehending danger, Md. Mustafa Ahmed escaped  

from the house but not before Gopal Ghose had injured him  

with  the  help  of  a  spear.  On  his  way  out  Md.  Mustafa  

Ahmed  is  said  to  have  recognised  two  persons  standing  

outside the house allegedly  armed with  dao, dagger etc.  

Out of the house and in the field, he saw his father Mohd.  

Taheruddin  coming  homeward.  Md.  Mustafa  Ahmed  told  

him not to do so for he may be killed by the mob that had  

attacked the house.  Taheruddin  paid  heed to  the advice  

and watched the incident from a distance. According to his  

version Rahna Gour, one of the members of the mob, shot  

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an arrow at him which hit his right hand. After the crowd  

had left the place he shouted to attract the attention of an  

army vehicle that was passing by and reached the spot only  

to find his daughters Bimala and Hazera lying dead and his  

wife Sahera Khatoon lying injured in the middle of a paddy  

field near the house.  He carried her home where she died  

after some time. Zakir Hussain who was sleeping along with  

Md. Hanif Ahmed (PW4) in the kitchen was also injured by  

the mob.   According to the version of  Md.  Hanif  Ahmed  

(PW4) three accused persons, namely, Kailash, Hari Singh  

and  Ratan  entered  his  room  and  took  away  Zakir  with  

them.  Hanif is said to have stepped out of his house to  

take  shelter  behind  the  banana  trees  growing  near  the  

house  and  witnessed  the  entire  incident  from  there.  

According  to  his  version  Gopal  Ghose,  Kailash  Gour,  

Gundulu Gour, Krishna Gour and Harendra Sarkar assaulted  

his mother while his sister Hazera Khatoon was attacked by  

Budhuram  Timang,  Hari  Singh  and  Rahna.  Bimala,  the  

other sister, was similarly assaulted by Gopal, Ratan Das  

and  Harendra  Sarkar.  The  rest  of  the  sisters,  however,  

managed to escape unhurt.    

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4. The injured were then taken to Nagaon Civil Hospital  

by  the  police  who  had  also  arrived  at  the  place  of  

occurrence on receipt of intimation about a house having  

been put  on fire  in  the neighbourhood.  The dead bodies  

were removed in the army vehicle, while Zakir Hussain and  

Md.  Mustafa  Ahmed  were  medically  examined  by  the  

medical officer who found the following injuries on them:

“Zakir Hussain

1) There was vertical cut injury over the lip. Size 2” x ½”.

2) There are six cut injuries over the scalp each about 2” x  

½”.  

3) Left little finger was severed at the bone of the proximal  

phalange.

4) There is swelling and tenderness over the right hand.

5) There were two cut injuries over the back, on each side.

There was multiple cut injury with blunt injury of the  

right hand with sharp cutting. Wounds were dangerous in nature.

Md. Mustafa Ahmed

1) Penetrating  injury  of  the  right  leg  with  sharp  pointed  

weapon. Size 1/3” x ½”.

The injury is fresh and margins were irregular.

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2) Simply cut injury by sharp pointed object.”

5. The post-mortem examination on the dead bodies was  

conducted by Dr. Madhusudhan Dev Goswami (PW1) who  

reported incised wound on the right upper neck of Hazera  

Khatoon and two incised wounds one on the neck and other  

on left  upper  neck of  Bimala  Khatoon.  Similarly,  injuries  

were also noticed by the doctor on the dead body of Sahera  

Khatoon.  After  completion  of  the  investigation  the  police  

filed a charge sheet against  14 persons out of whom 13  

were named in the First Information Report. The accused  

persons  were  charged  with  offences  punishable  under  

Sections 302, 326, 324, 323, and 448 read with Section 34,  

IPC.  The accused pleaded not  guilty  to  the  charges  and  

claimed  a  trial.  Accused  Gopal  Ghose,  it  is  noteworthy,  

passed away during the trial.

   6. By its judgment and order dated 18th June, 2005, the  

trial Court convicted 8 out of 14 persons for the offence of  

murder and sentenced them to undergo imprisonment for  

life and a fine of Rs.2,000/-, and in default of payment to  

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suffer  rigorous  imprisonment  for  six  months.  The  High  

Court  has,  as  seen  earlier,  upheld  the  conviction  of  the  

appellants while acquitting Ratan Das, Gundulu Gour and  

Budhu Timang giving them benefit of doubt. Two appeals  

were  filed  against  the  said  judgment  and  order,  out  of  

which viz. Crl. Appeal No.907 of 2006  filed by Harendra  

Sarkar has since been dismissed as abated upon the death  

of the appellant in that appeal.  The present criminal appeal  

is,  therefore,  relevant  only  to  appellants  Kailash  Gour,  

Krishna Gour, Hari Singh Gour and Rahna Gour.

 7. We  have  heard  learned  counsel  for  the  parties  at  

considerable  length.  The  prosecution  has  examined  7  

witnesses in all.  These are Dr. Madhusudhan Dev Goswami  

(PW1),  Mohd.  Taheruddin  (PW2),  Md.  Mustafa  Ahmed  

(PW3), Md. Hanif Ahmed (PW4), Abdul Jabbar (PW5), Dr.  

Jiauddin Ahmed (PW6) and B.N. Kalita (PW7).   

8. The  deposition  of  Dr.  Madhusudhan  Dev  Goswami  

(PW1) who conducted the post-mortem on the dead bodies  

of the three unfortunate victims leaves no manner of doubt  

that  they  suffered  a  homicidal  death.  The  nature  of  the  

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injuries  found  on  the  dead  body  of  the  deceased  Smt.  

Sahera  Khatoon  and  her  two  minor  daughters  Hazera  

Khatoon aged 7 years and Bimala Khatoon aged 3 years  

manifestly show that they suffered a homicidal death. To  

that extent we see no reason to interfere with the findings  

recorded by the trial Court and the High Court in appeal.  It  

is  noteworthy  that  even  in  the  dissenting  judgments  

delivered by S.B. Sinha and H.S. Bedi, JJ., their Lordships  

are unanimous on the cause of death of the three victims.  

The  question,  however,  is  whether  the  prosecution  has  

established beyond a reasonable doubt that the appellants  

were the perpetrators of the crime.  The prosecution has, in  

that regard, placed reliance upon the deposition of Mohd.  

Taheruddin  (PW2) and his  two sons  named Md.  Mustafa  

Ahmed (PW3) and Md. Hanif Ahmed (PW4). We shall refer  

in some detail to the depositions of these three witnesses  

especially  because while Sinha J.  has held that only Md.  

Hanif  Ahmed (PW4)  claims  to  be  an eye  witness  to  the  

occurrence, Bedi J. has taken the view that all  the three  

witnesses were eye witnesses to the incident.

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9. Mohd. Taheruddin (PW2) has in his deposition stated  

that the accused persons were known to him as they live  

within one mile from his village.  On the date of occurrence  

he was guarding harvested paddy in the field to the West of  

his house. In his house his sons Md. Mustafa Ahmed and  

Md. Hanif and Zakir Hussain, a young boy, were sleeping.  

In another room of the house were his wife Sahera Khatoon  

and  daughters  Hazera  Khatoon,  Jahanara,  Bimala  and  

Samana Khatoon. He also used to sleep in that very room  

but on the date of occurrence he was in the field.  He saw a  

group  of  10-12  men  coming  from  the  North  of  his  

homestead and another group of 10-12 men coming from  

the  South.  They  assembled  in  front  of  his  house  and  

entered the premises.  Accused Gopal Ghose called out his  

name and asked if ‘Munshi’ was at home. Hearing this, the  

witness started moving towards his house as there was a  

commotion. In the meantime his eldest son Mustafa Ahmed  

came and advised him not to do so as people were being  

attacked there. The boy ran towards the West through the  

paddy fields  out  of  fear.  The  witness  came close  to  the  

house to have a look and saw the mob striking the walls of  

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his  house  with  dao and  lathi.  A  couple  of  youth  were  

running away towards the West. Rahna Gour shot an arrow  

at the witness which hit the witness on his right hand. The  

accused  came  out  from  the  house  on  the  road,  blew  

whistles  and  went  away.  The  witness  then  reached  his  

house and raised an alarm. An army vehicle also arrived.  

He  saw  the  injured  Bimala  who  had  died.  He  also  saw  

Hazera lying dead besides the road to the house. He took  

Bimala on his shoulder and stood on the road.  He then  

found his wife Sahera Khatoon lying injured in the paddy  

field  near  the  house  and  carried  her  home.  She  died  

immediately after being given water. His son Mustafa and  

Zakir  sustained cut  injuries.  The Army personnel  saw all  

this.  Police was also with them.  The Army sent the injured  

to  Nagaon  Civil  hospital  and  took  the  dead  bodies  to  

Doboka Police Station.  

10. There were disturbances over demolition of a mosque  

in the year 1992. He got his statement (ejahar) written by  

Abdul Jabbar and lodged the same under his signature in  

the police station. In cross-examination the witness stated  

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that  ejahar was written at his house on the 3rd day in the  

evening  and  that  Investigating  Officer  Shri  Kalita  was  

present at that time.  Other police personnel were also with  

him. The dead bodies were buried before the  ejahar was  

written.  Police,  Army  and  the  Magistrate  were  present  

there. While  ejahar was being written at the house of the  

witness, he called the village President Abdul Jabbar and  

other  prominent  persons  of  the  village  and  upon  being  

advised by the Investigating Officer, Gaji Saheb also came.  

At the time of writing the  ejahar his injured sons were at  

Nagaon Civil  Hospital.  Witness  further  stated that  before  

the  ejahar had been written, the Daroga had interrogated  

the prominent  persons.   But  the witness did  not  discuss  

anything with the prominent persons. He told them about  

his  recognising  a  couple  of  the  accused  persons.  After  

Jabbar had written the  ejahar,  he had read it out to the  

witness. Witness further stated that he and his son together  

named 13 persons in the ejahar out of whom he knew only  

4 who had come to his house and called him.  

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

people  named  by  him  there  were  30-35  other  people.  

Rahna  Gour’s  name was  also  written  in  the  ejahar.  The  

house of the witness is in the middle of a field and there  

are no houses nearby. The occurrence had taken place one  

week after the demolition of the mosque. He also had a  

case concerning a land dispute against accused Hari Singh  

and Kailash but did not know whether Gopal had got them  

out  on  bail  in  that  case.  He  had  also  been  arrested  in  

connection with a case the year before. He denied having  

been  arrested  by  the  police  on  a  number  of  other  

occasions.  

13. The witness did not see whether the people who had  

assembled  there  were  carrying  anything  in  their  hands.  

The rest of the people were in the courtyard when Gopal  

shouted and asked whether Munshi was at home. Till before  

hearing Mustafa’s shout the witness had not moved.  After  

being cautioned by Mustafa, the witness went back towards  

West and then stopped. Witness further stated that Nandu’s  

brother’s  house  was  burnt  when  the  Army  personnel  

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arrived. His house was 40-50 nals (70 ft.) away from that  

of  Nandu.  Before  the Army vehicle  had returned for  the  

second time, Jabbar Bari, Gaji Sahah, Noor Islam, Hamid  

and others had arrived at his house.   

14. None  of  the  30-35  people  had  chased  the  witness.  

Witness also stated that till before filing the ejahar he had  

not  told  the  Investigating  Officer  about  the  occurrence.  

The next day the  Daroga asked him to go gather a few  

people  so  that  he  could  interrogate  them.   When  the  

Investigating Officer came next day, he called the people.  

They were all muslims.  He did not remember whether he  

had mentioned the moonlight  in the  ejahar.  The witness  

was  confronted  with  certain  omissions  in  the  statement  

recorded under Section 161 Cr.P.C.

15. On  a  careful  reading  of  the  statement  of  Md.  

Taheruddin (PW2) we are of  the  view that  he is  not  an  

eyewitness to the killing of the victims as such. All that the  

witness saw from a distance was that 30-40 people had  

gathered in front of his house and there was a commotion  

including the shouts of his son Mustafa, who ran towards  

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him to tell him not to go home because people were being  

attacked there.  The witness does not accuse any particular  

individual of assaulting or killing of the three victims.  Even  

regarding  identification  of  those  persons  he  claimed  to  

know only four who had come to his house and had called  

him.  What is interesting is that an injury said to have been  

received by him from an arrow shot by Rahna Gour was not  

mentioned in the First Information Report or medico-legally  

examined  by  the  doctor.  The  deposition  of  the  witness  

suggests that a mob had entered his house and attacked  

the inmates. Besides, who committed what act resulting in  

what injury to either the prosecution witnesses or any one  

out of the dead is not evident from the deposition of the  

witness. We shall presently revert back to the deposition of  

this  witness  when  we  examine  credibility  of  the  First  

Information Report. We may for the present simply state  

that  we  agree  with  Sinha,  J.  that  this  witness  is  not  a  

witness for the murder of any one of the three victims.    

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

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

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family  consisted  of  9  persons  including  his  father  

Taheruddin, mother Sahera Khatoon. On the fateful day of  

14th December, 1992 he was at home while his father was  

guarding  paddy  in  the  field,  50  meters  away.  Accused  

Gopal came to the house calling for his father. The witness  

could recognise him by his  voice  and responded that  he  

was not at home.  He then asked where he had gone, the  

witness said that he had been guarding paddy in the field.  

Gopal  and  12-14  people  who  had  come  with  him  then  

started thrusting daggers, spears etc. into the walls.  They  

opened the bamboo door of his house.  Gopal, Hari Singh  

and Kailash stood in front of the door. Gopal started poking  

him with a spear which injured him. He pulled the spear out  

and  ran  out  of  the  room  along  with  the  spear.  He  

recognised two more men Haren Sarkar and Rahna Gour  

who were armed with  dao,  dagger,  arrows etc.  He knew  

them as they were from the same village.  Thereafter the  

witness ran towards the field.  His father was also coming  

towards the house but the witness stopped him and told  

him not  to go home as he would be killed.  The witness  

stated that he did not recognise the man who had hacked  

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his two sisters Bimala Khatoon and Hazera Khatoon and his  

mother. He returned after 15 minutes and found his mother  

lying in a critical condition but had not died till then.  He  

called  the  villagers  and  with  their  help  got  his  mother  

home.  His sisters were lying dead. Their bodies were also  

taken home.  By the time his mother also died.  Police also  

arrived within five minutes and took the witness and Zakir  

to  the  Civil  Hospital.  Both  the  witness  and  Zakir  had  

sustained injuries.   

17. In cross-examination the witness said that Zakir was  

not his consanguine brother but is distantly related to him.  

Within five minutes of the occurrence, officer in charge of  

Doboka P.S.  arrived  there  with  five  policemen.   But  the  

witness did not know who had informed them about the  

incident. The witness did not tell the officer in charge about  

the occurrence.  The officer in charge stayed back and the  

policemen  and  the  driver  took  the  witness  to  the  police  

station from where they were taken to the hospital.  The  

witness and Zakir stayed at the police station for half an  

hour.  Police did not ask the witness about the occurrence.  

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He was interrogated in the hospital two or three days after  

the incident.  It is not known who lodged the  ejahar and  

when.  Disturbance over the demolition of the mosque were  

going on.  People whose houses had been burnt or whose  

family members had died had taken shelter in the camp out  

of  fear.  He  was  terribly  afraid  when  spears  were  being  

thrust into his room.  While coming out he saw 15-20 men  

outside. But while inside he recognised three men and two  

more when coming out.  Witness deposed :

“I had not seen who had killed my two sisters and  where.  A lot of people were there when I came out of  the house.  I did not notice who had been assaulting  whom and where.”   

18. When  his  father  and  he  had  been  discussing  the  

names of the assailants or the probable assailants, the men  

whom he had called were also with them.   

19. From the above it is clear that the witness does not  

claim to have seen the act of violence against the victims.  

The witness simply says that Gopal and three others had  

entered the house and injured him with a spear whereupon  

he made good his escape, recognising two intruders on his  

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way out.  As to when and where and by whom were his  

mother and sisters hacked to death is something on which  

the witness pleads complete ignorance.  In that view we  

respectfully agree with the opinion expressed by Sinha, J.  

that Md. Mustafa Ahmed (PW3) is not an eye-witness to the  

occurrence  although  he  may  have  observed  certain  

incidents  that  preceded  the  actual  act  of  killing  of  the  

victims.  It was also relevant that the witness did not make  

any disclosure to the police, who was on the spot within  

five minutes of the occurrence, about the assailants nor did  

he  do  so  till  2-3  days  after  the  incident  when  the  

Investigating Officer  interrogated him in the hospital.  He  

also did not know about the lodging of the FIR nor did he  

know as to who had lodged the same and when.

20. That  brings  us  to  the  deposition  of  the  only  other  

witness who is said to be a witness to the occurrence.  Md.  

Hanif  Ahmed (PW4) was also like Md. Mustafa Ahmed at  

home when the mob attacked their house.  The witness has  

stated that accused Kailash, Hari Singh and Ratan entered  

his room and took away Zakir with them.  Out of fear the  

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witness ran out of the house and took shelter under the  

banana  trees  growing  near  his  house  and  observed  the  

incident  from there.   The  witness  claimed  to  have  seen  

accused Gopal, Kailash, Gundulu, Krishna and Haren Doctor  

giving blows on the person of his mother. Similarly, he also  

claimed to have seen Budhuram Timang,  Hari  Singh and  

Rahna hacking his sister Hazera. Bimala who was 4-5 years  

old was also similarly assaulted by accused Gopal, Ratan  

and  Haren  Doctor  according  to  the  witness.  After  the  

incident accused persons left by which time his father had  

come  to  the  house  from  the  paddy  field.  The  Army  

personnel who had come there sent Zakir and Mustafa to  

the Civil Hospital Nagaon for treatment.

21. The incident, according to the witness, happened on a  

moonlit night which enabled him to identify the assailants.  

The witness claimed that the police arrived at the place of  

occurrence  in  the  meantime.  The  witness  and  his  father  

searched for his mother and sisters with the help of a torch  

in the field and discovered their bodies within 3-4 minutes.  

While both the sisters had died, his mother died 10 minutes  

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later.  Police,  according  to  the  witness,  came  on  the  

following day and interrogated them.  FIR was written at  

the police station on the dictation of the witness and was  

signed by him.  Witness further stated that he did not know  

whether his father had lodged any FIR to the police.  Finally  

the police took a written report from him and his father.  

The  witness  was  confronted  with  certain  significant  

omissions in the statement made under Section 161 Cr.P.C.  

22. Abdul  Jabbar  (PW5)  is  a  witness  who  had  scribed  

Ext.1. According to the witness  ejahar was written at the  

house of Taher Ali whose house is 2 Kms. from that of this  

witness. He went to Taher’s house where 100-200 people  

had gathered. Taher had discussed the things that should  

be mentioned in the ejahar and had given the names of the  

accused persons himself.  

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

examination of the injured witnesses Mustafa Ahmed and  

Zakir and has proved the injury report.

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24. Shri B.N. Kalita (PW7) is the Investigating Officer. In  

his statement this witness deposed that he was attached to  

the  Doboka  Police  Station  and  received  message  from  

Biresh  Dutta  that  a  fire  had  occurred  at  the  place  of  

occurrence which information was entered in General Diary  

under Entry No.532 dated 14th December, 1992. He led the  

police  staff  to  Mikir  Gaon.   Taheruddin  lodged  a  formal  

ejahar there.   The case was registered and investigation  

taken  up.   He  drew  sketch  of  the  place  and  conducted  

inquest and post-mortem on the dead-bodies and arrested  

the  accused  persons.  The  charge  sheet  was  finally  

submitted by S.I. Dharma Kanta Talukdar.

25. In  cross-examination  this  witness  has  stated  that  a  

large number of police had been deployed in the area for  

maintenance of law and order on account of disturbances  

arising  out  of  the  dispute  over  the  demolition  of  the  

mosque. He received a written ejahar at the police station  

on 15th December, 1992 from Taheruddin at 12.10 p.m. He  

proved  the  omissions  in  the  very  statements  of  Mohd.  

21

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

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

   26. That being the state of evidence adduced in the case,  

the question  is  whether  the deposition of  Md.  Hanif,  the  

solitary  eye  witness,  is  reliable,  having  regard  to  the  

attendant circumstances.  The prosecution witnesses except  

the two doctors examined at the trial have all deposed that  

the communal atmosphere in the area was surcharged as  

an aftermath of  the demolition of  the mosque,  an event  

that took place just about a week before the occurrence in  

this case.  Those affected by the disturbances were shifted  

to camps established by the administration.  Deployment of  

a large police force in the area to which the Investigation  

Officer  has  referred  in  his  deposition  also  was  clear  

indicator of the atmosphere being surcharged and tense.  

That  a  house was set  afire  in  the neighbourhood of  the  

place of occurrence is also amply proved by the evidence  

on record.  As a matter of fact, the police arrived on the  

spot  within  minutes  of  the  commission  of  the  gruesome  

murders not because any report was made to it about the  

22

said crime but because it had received information about a  

house having been set on fire.  Once on the spot the police  

and the Army realised that there was much more at their  

hands than just an incident of fire.  A mob comprising 35-

40 people had intruded in the homestead of Taheruddin and  

committed cold blooded murder of three innocent persons,  

two of whom were female children of tender age.  If the  

prosecution version were to be believed, the Investigating  

Officer had the opportunity of getting an eye witness and  

first  hand  account  of  the  incident  within  minutes  of  the  

commission  of  the  crime.   In  the  ordinary  course,  the  

Investigating Officer would have immediately recorded the  

First Information Report based on the eye witness account  

of  the  occurrence  given  by  Md.  Hanif  and  started  his  

investigation in the right earnest.   That is  not, however,  

what happened.  No effort was made by the Investigating  

Officer  nor  is  there  any  explanation  for  his  failure  to  

ascertain  from  the  alleged  eye  witness  the  sequence  of  

events and the names and particulars of those who were  

responsible for the same.  Instead, without the registration  

of  the  First  Information  Report,  the  Investigating  Officer  

23

completes the inquest, prepares a site plan and gets the  

post  mortem  of  the  dead  conducted  on  15th December,  

1992,  long  before  the  First  Information  Report  was  

registered at 11.00 p.m. late in the evening on that date.   

27. There can be only two explanations for this kind of a  

situation.  One could be, that the Investigating Officer was  

so stupid, ill-trained, ignorant of the law and procedure that  

he  did  not  realise  the  importance  of  getting  a  crime  

registered  in  the  police  station  concerned  before  

undertaking  any  investigation  including  conduct  of  an  

inquest, post mortem etc.  The other explanation could be  

that since neither the Investigating Officer had any clue as  

to  who  the  perpetrators  of  the  crime  were  nor  did  the  

witnesses now shown as witnesses of the occurrence had  

any  idea,  the  investigations  started  without  any  First  

Information Report being recorded till late at night on 15th  

December, 1992. We are inclined to believe that the second  

explanation is more probable of the two.  We say so for  

reasons that may be summarised as under:

24

(i) The Investigating Officer was a Sub Inspector of Police  

and the Station House Officer of Police Station Doboka.  

It  follows  that  he  had  sufficient  experience  in  

conducting investigations especially in cases involving  

heinous crimes like murder.  We also assume that the  

incident  having  taken  place  in  an  area  which  was  

apparently  susceptible  to  communal  violence  and  

widespread disturbances as a result of the dispute over  

the demolition  of  the mosque,  the  same would  have  

been  reported  to  the  higher  officers  in  the  police  

administration  who  would  in  turn  ensure  appropriate  

action being taken with suitable care in the matter.  

(ii) The least which the Investigating Officer would do was  

to record the statement of the eye witnesses or send  

the eye witnesses to the police station for getting the  

First Information Report recorded.  Interestingly, while  

the alleged witnesses to the occurrence were first sent  

to  the  police  station,  no  one  ever  questioned  them  

about the incident nor did the witnesses volunteer to  

make a statement. It defies one’s imagination how Md.  

Hanif who was on the spot and who is alleged to have  

25

seen  the  occurrence  was  not  questioned  by  the  

Investigating Officer especially  when he did not have  

any injury much less a serious one requiring immediate  

medical care and attention. Even if the eye witness was  

injured, there is no reason why his statement could not  

be recorded in  the hospital  to  ensure  that  an FIR is  

registered without undue delay and those responsible  

for committing the crime brought to book.  Failure of  

the prosecution to provide any explanation much less a  

plausible one shows that the investigating agency had  

no clue about the perpetrators of the crime at the time  

when it  reached the  spot  or  soon thereafter  nor  did  

anyone claim to have seen the assailants, for otherwise  

there was no reason why they could not be named and  

an FIR registered immediately. This Court in  State of  

H.P. v. Gian Chand (2001) 6 SCC 71 dealt with the  

effect of failure of prosecution to satisfactorily explain  

the delay in the lodging of the FIR and declared that if  

the  delay  is  not  satisfactorily  explained  the  same  is  

fatal to the prosecution. This Court observed:

26

“If  the  prosecution  fails  to  satisfactorily  explain  the  delay and there is a possibility of embellishment in the  prosecution version on account of such delay, the delay  would be fatal to the prosecution. However, if the delay  is explained to the satisfaction of the court, the delay  cannot  by  itself  be  a  ground  for  disbelieving  and  discarding the entire prosecution case.”

To  the  said  effect  is  the  decision  of  this  Court  in  

Dilawar  Singh  v.  State  of  Delhi  (2007)  12  SCC  

641, where this Court observed:

“In criminal trial one of the cardinal principles for the  Court is to look for plausible explanation for the delay  in  lodging  the  report.  Delay  sometimes  affords  opportunity  to  the  complainant  to  make  deliberation  upon  the  complaint  and  to  make  embellishment  or   even make fabrications.  Delay defeats  the chance of   the unsoiled and untarnished version of the case to be  presented  before  the  court  at  the  earliest  instance.  That is why if there is delay in either coming before the  police or before the court, the courts always view the  allegations  with  suspicion  and  look  for  satisfactory  explanation. If no such satisfaction is formed, the delay  is treated as fatal to the prosecution case.”

  Reference may also be made to the decisions  

of  this  Court  in  State  of  Punjab  v.  Daljit  Singh  

(2004) 10 SCC 141 and State of Punjab v. Ramdev  

Singh (2004) 1 SCC 421 which also reiterated the  

legal position stated in the earlier mentioned decisions.

27

  (iii) From the deposition of Mohd. Taheruddin (PW2), it is  

clear  that  the  FIR  was  drawn  only  after  the  

Investigating Officer had through this witness got the  

people  from  the  locality  gathered.   The  officer  then  

interrogated  them  and  after  deliberations  with  the  

elders of the community got a report scribed by Abdul  

Jabbar  (PW5)  naming  as  many  as  13  persons  as  

accused.  PW5 has in his deposition clearly  admitted  

that Mohd. Taheruddin had discussed in the gathering  

of  the  prominent  people  of  the  area  the facts  to  be  

mentioned in  the  ejahar. There were nearly  100/200  

people  who  had  assembled  when  the  ejahar was  

written by him.  It is difficult to appreciate how a report  

prepared after such wide consultation and deliberations  

could carry a semblance of spontaneity to be credible in  

a  criminal  trial  of  such  a  serious  nature.  Even  the  

Investigating Officer was contributing to the creation of  

a report  after confabulations with elders of the area.  

Mohd. Taheruddin has in this regard deposed:

28

“While ejahar was being written at his house, he called  the village President Abdul Jabbar and other prominent   persons of the village and upon being advised by the  I.O.  Gaji  Sahab  also  came.  xxxxx  The  Daroga  had  interrogated prominent  persons  before  the  writing  of  ejahar.”   

(iv) According  to  Mohd.  Taheruddin  (PW2)  he  had  

recognised  only  four  of  the  accused  who  had  come  

looking for him.  There is no explanation as to  how  

were the remaining accused named when he had not  

identified them at the time of  the occurrence and at  

whose  instance  especially  when  according  to  the  

witness his sons were in the hospital when the  ejahar  

was scribed.

(v)  The Investigating Officer having prepared a site plan of  

the place of occurrence before the registration of the  

case and even before the statements of the witnesses  

were recorded under Section 161 Cr.P.C., did not make  

any mention about the banana trees behind which Md.  

Hanif (PW4) is said to have hidden himself.  If the story  

regarding  PW4  having  had  observed  the  occurrence  

from behind the banana trees was correct,  the trees  

ought to appear in the site plan which is not the case.  

29

Absence of any banana trees in the area around the  

house  is  an  indication  of  the  fact  that  no  implicit  

reliance can be placed upon the version of Md. Hanif  

(PW4).

(vi)According to PW3 and PW4, after they emerged from  

their  hideouts  and  after  their  father  returned  to  the  

spot they started looking for the dead bodies with the  

help of a torch. If PW4 was right in his version, then  

the  victims  were  hacked  in  front  of  the  door  of  the  

house, there was no question of searching for the dead  

bodies with the help of torch light.

(vii)The use of  torch light  to  look for  bodies  shows that  

there was no source of light.  The night was a foggy,  

cold December night. The presence of fog is admitted  

by  PW4  in  his  deposition.  Assuming  that  there  was  

moonlight, the presence of fog was a disabling factor  

that  made visibility  poor  for  any one to  observe  the  

occurrence from a distance when a huge mob of 30-40  

people was on the rampage.   

30

(viii)According to Shri B.N. Kalita (PW7) the Investigating  

Officer in the case a written  ejahar was presented to  

him by Taheruddin when the former reached the spot  

on 14th December,  1992.   If  that  were so,  the  least  

which  the  officer  would  have  done  was  to  take  that  

ejahar as  the  first  information  report  regarding  the  

occurrence and register a case of murder against those  

named in it.  This admittedly was not done.  In cross-

examination the witness said that a written ejahar was  

presented  to  him  by  Taheruddin  on  15th December,  

1992 at 12.10 p.m. Now, even if that were true, there  

is no explanation why the officer delayed registration of  

the FIR till  11.00 p.m. on that day. The delay in the  

lodging of the FIR and the circumstances in which the  

ejahar was  written,  cast  a  serious  doubt  about  the  

whole  prosecution  case  especially  when  there  is  no  

explanation  whatsoever  for  the  failure  of  the  

Investigating Officer to record the report based on the  

alleged  eye  witness  account  immediately  after  he  

reached the spot.

31

(ix) The non-examination of  Zakir,  injured witness  at  the  

trial is also inexplicable. Zakir was allegedly taken out  

of the house by the accused persons and assaulted. The  

best person to say who were the persons responsible  

for the assault was this witness himself. The failure of  

the  prosecution  to  put  him  in  the  witness  box,  in  

support of its version is also an important circumstance  

that cannot be legally brushed aside.  The prosecution  

has failed to examine other inmates who were inside  

the  house  and  who  had  escaped  unhurt  in  the  

occurrence.

(x) The medical evidence adduced in the case also does not  

support  the  prosecution  version.   According  to  Dr.  

Madhusudhan Dev Goswami (PW1), who conducted the  

post-mortem examination  on  the  dead  bodies  of  the  

victims had deposed that the death had occurred 48 to  

72 hours prior to the examination. If the prosecution  

version as given by alleged eye witnesses is accepted  

the  victims  had  died  within  12  hours  of  the  post-

mortem examination.  This inconsistency in the medical  

evidence and the ocular evidence assumes importance  

32

rendering  the  version  given  by  the  prosecution  

witnesses suspicious.  

(xi) According to Mohd. Taheruddin (PW2) the appellant had  

shot an arrow towards him which missed the target but  

hurt the witness in his hand.  There is no corroborative  

medical  evidence  to  suggest  that  Taheruddin  has  

sustained any injury on the hand or any other part of  

his body.

(xii) Even regarding the motive for commission of the crime  

the prosecution case is that the incident had its genesis  

in  the  demolition of  the mosque and the large scale  

disturbances  that  followed.   While  it  is  evident  that  

large scale disturbances had indeed taken place in the  

area including an incident of a house being set on fire  

in the neighbourhood of the place of occurrence, the  

previous enmity between some of the appellants and  

Taheruddin on account of a land dispute between them  

could  be  a  possible  reason  for  Taheruddin  naming  

appellants and others close to him as assailants. Enmity  

between  complainant  party  and  the  accused  being  a  

double-edged weapon there could be motive on either  

33

side  for  the  commission  of  offence  as  also  for  false  

implication.

28. It  is  one  of  the  fundamental  principles  of  criminal  

jurisprudence that an accused is presumed to be innocent  

till he is proved to be guilty. It is equally well settled that  

suspicion  howsoever  strong  can  never  take  the  place  of  

proof.  There  is  indeed  a  long  distance  between  accused  

‘may  have  committed  the  offence’  and  ‘must  have  

committed  the  offence’  which  must  be  traversed  by  the  

prosecution  by  adducing  reliable  and  cogent  evidence.  

Presumption of innocence has been recognised as a human  

right which cannot be wished away. See Narendra Singh  

and  Anr.  v.  State  of  M.P.  (2004)  10  SCC  699 and  

Ranjitsingh  Brahmajeetsingh  Sharma  v.  State  of  

Mahsrashtra and Ors. (2005) 5 SCC 294.  To the same  

effect is the decision of this Court in  Ganesan v. Rama  

SRaghuraman and Ors.  (2011)  2 SCC 83  where  this  

Court observed:

“Every accused is presumed to be innocent unless his   guilt is proved. The Presumption of innocence is human  right.  Subject  to  the  statutory  exceptions,  the  said  

34

principle  forms the basis  of  criminal  jurisprudence in  India.”

29. The  above  views  were  reiterated  by  this  Court  in  

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

  30. In  his  dissenting  judgment  our  esteemed  Brother,  

Bedi, J. has referred to as many as five different Reports of  

Commissions of Enquiry set up over the past five decades  

or so to point out that the findings recorded in the reports  

submitted  by  the  Commissions  indicate  an  anti-minority  

bias among the police force in communal riot situations and  

investigations.  Copious  extracts  from  the  reports  

reproduced  in  the  judgment  no  doubt  suggest  that  in  

situations  when  the  police  ought  to  protect  the  citizens  

against acts of communal violence, it has at times failed to  

do so giving rise to the perception that the police force as a  

whole  is  insensitive  to  the  fears,  concerns,  safety  and  

security  of  the  minority  communities.  Whether  these  

reports have been accepted by the governments concerned  

and if so how far have they contributed to the reform of the  

force is a matter with which we are not directly concerned  

35

in this case. All that we need to say is that sooner such  

reforms are brought the better it would be for an inclusive  

society like ours where every citizen regardless of his caste  

or  creed  is  entitled  to  protection  of  his  life,  limb  and  

property.  It  will  indeed  be  a  sad  day  for  the  secular  

credentials of this country if the perception of the minority  

communities  about  the  fairness  and  impartiality  of  the  

police force were to be what the reports are suggestive of.  

And yet it may not be wholly correct to say that the police  

deliberately  make  no  attempt  to  prevent  incidents  of  

communal violence or that efforts to protect the life and  

property of the minorities is invariably half hearted or that  

instead of assailants the victims themselves are picked up  

by the police. So also there is no reason for us to generalise  

and  say  that  there  is  an  attempt  not  to  register  cases  

against  assailants  and  when  such  cases  are  registered  

loopholes are intentionally left to facilitate acquittals or that  

the evidence led in the Courts is deliberately distorted.  No  

one  can  perhaps  dispute  that  in  certain  cases  such  

aberrations may have taken place.  But we do not think  

that such instances are enough to denounce or condemn  

36

the entire force for ought  we know that for every life lost in  

a violent incident the force may have saved ten, who may  

have  but  for  timely  intervention  been  similarly  lost  to  

mindless  violence.  Suffice  it  to  say that  while  the police  

force may have much to be sorry about and while there is  

always room for improvement in terms of infusing spirit of  

commitment,  sincerity  and  selfless  service  towards  the  

citizens  it  cannot  be  said  that  the  entire  force  stands  

discredited. At any rate the legal proposition formulated by  

Bedi J. based on the past failures do not appear to us to be  

the solution to the problem. We say with utmost respect to  

the erudition of our Brother that we do not share his view  

that the reports of the Commissions of Enquiry set up in the  

past can justify a departure from the rules of evidence or  

the fundamental tenets of the criminal justice system. That  

an accused is  presumed to be innocent  till  he is  proved  

guilty beyond a reasonable doubt is a principle that cannot  

be  sacrificed  on  the  altar  of  inefficiency,  inadequacy  or  

inept  handling  of  the  investigation  by  the  police.  The  

benefit arsing from any such faulty investigation ought to  

go to the accused and not to the prosecution. So also, the  

37

quality and creditability of the evidence required to bring  

home the guilt of the accused cannot be different in cases  

where  the  investigation  is  satisfactory  vis-à-vis  cases  in  

which it is not. The rules of evidence and the standards by  

which  the  same  has  to  be  evaluated  also  cannot  be  

different in cases depending upon whether the case has any  

communal overtones or in an ordinary crime for passion,  

gain  or  avarice.  The  prosecution  it  is  axiomatic,  must  

establish its case against the accused by leading evidence  

that  is  accepted  by  the  standards  that  are  known  to  

criminal  jurisprudence  regardless  whether  the  crime  is  

committed  in  the  course  of  communal  disturbances  or  

otherwise.  In short there can only be one set of rules and  

standards when it comes to trials and judgment in criminal  

cases  unless  the statute  provides  for  any thing specially  

applicable  to a particular  case or  class  of  cases.  Beyond  

that  we  do  not  consider  it  necessary  or  proper  to  say  

anything.

   31. We  are  conscious  of  the  fact  that  three  innocent  

persons including two young children have been done to  

38

death  in  the  incident  in  question  which  needs  to  be  

deprecated in the strongest terms but unless proved to be  

the perpetrators of the crime beyond a reasonable doubt,  

the appellants cannot be convicted and sentenced for the  

same.  We  accordingly  allow  this  appeal  and  acquit  the  

appellants giving them the benefit of doubt. They shall be  

set free forthwith unless required in connection with any  

other case.                                                                      

……………………..…………..…J. (DALVEER BHANDARI)

……………………..…………..…J. (T.S. THAKUR)

……………………..…………..…J. (DIPAK MISRA)

New Delhi December 15, 2011

39