Holding

The Supreme Court dismissed the appeals, upheld the convictions of the five accused, and held that ordinary evidentiary standards apply even in the context of communal riots.

Summary

In December 1992, during communal riots triggered by the demolition of the Babri Masjid, an armed mob entered the house of Taheruddin, killing his wife and two young daughters and injuring several family members. The trial court convicted eight accused under IPC sections 302, 134 and 448, but the High Court upheld convictions of only five and acquitted the rest, citing benefit of doubt. On appeal, the Supreme Court examined whether the procedural irregularities—delay in filing the FIR, contradictions in witness statements, and lack of recovered weapons—warranted a different evidentiary standard for riot‑related murders. The Court held that the provisions of the CrPC and Evidence Act apply uniformly, and that the prosecution’s evidence, despite inconsistencies, was not unreliable enough to overturn the convictions. Consequently, the appeals were dismissed, the five convictions were affirmed, and the acquitted appellants remained discharged. The judgment emphasized the accused’s right to a fair trial under Article 21 and rejected the notion of a special evidentiary regime for crimes committed during communal disturbances.

Issues considered

The applicability of the benefit of doubt to accused in murders occurring during communal riots.
Whether delay in lodging the FIR and other procedural lapses invalidate the prosecution case.
Whether the standards of evidence and burden of proof differ in riot‑related offences.
Reliability of eye‑witness testimony amid contradictions and the absence of forensic corroboration.
Compliance with the accused’s constitutional right to a fair trial under Article 21.

Legislation cited

Code of Criminal Procedure, 1973s. 161
Indian Evidence Act, 1872
Indian Penal Code, 1860s. 134, s. 147, s. 148, s. 149, s. 302, s. 326, s. 448

Subjects

communal riotsmurderbenefit of doubtfair trialevidence appraisalIPCCrPChuman rightscurfewBabri Masjid demolition

Judgment

{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 14-
20 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, J- E
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.
According to the prosecution case, soon thereafter, on G
14.12.1992 at around 10.00 am, an incident took place in
I-
-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. io
D Investigating Officer-PW-7 came to the place of
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-1-
E 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,
acquitted the others on benefit of doubt. Hence the
G
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

... ,
HARENDRA SARKAR V STATE OF ASSAM 591

y
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
, to contend that only because an offence is said to have
f
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.
y

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 well-
known 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
punishment in view of the past experience. [Para 44]
0
[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
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
- referred to. F
~ 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.

y
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
attempt is made to follow up the complaints made against
0
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
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
enquiries and also recorded PW-2's . statement but if he B
~Y
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
the area was under curfew and aflame in a communal E
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
f- doubt 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
presence of PW-2 "suspicious" as per the High Court, was
D
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
that the arrow shot at his body had missed the target and
E 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
the witnesses into confusion. The horror which would ,._ I
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
perverted or crass as to leave out the real assailants and
c
to rope in innocent persons. The fact that the victims were
a young woman, and two children, and grevious injuries
to two other young boys supports the view that the
murders had not been committed on account of any
enmity, but were a fall out of the communal tension D
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 post-
mortem or the inquest reports or the non-recovery of G
murder weapons etc. are a matter of little concern as these
I- issues would be relevant and in normal circumstances
~
and to a situation where the civil administration was
functioning effectively, but in a case of a complete break
down of the civil administration, these broad arguments 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]
CRIMiNALAPPELLATE JURISDICTION: Criminal Appeal
No. 907 of 2006.

B 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.
c
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
. 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.
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.
B
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
injuries:-
Zakir Hussain
1) There was vertical cut injury over the lip. Size 2" x %".
D
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.
E 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
by him on the next date. Investigating Officers stated that he
-1'
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

y
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
three days after the incident. •
c
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 -\ j
the same stating that they were only minor in nature. They were
not.
H
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
calling his father by name. Whereas, before the police in his E'.
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. 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
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.
Nandu has been acquitted of the charges. F
)'
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
of communal riots in different parts of the country severely
B 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
presumption should be raised which does not have any origin
D
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
because in some parts of the country police investigations
G
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
principles of law, they are guilty of commission of offences for B
~-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. State of Gujarat (2004) 4 SCC 158 had taken E
place which was apparent on the face of the record. The question
of adopting and applying different norms in a case of this nature,
therefore, would not arise. Even in Zahira Habibulla H. Sheikh
(supra) the case was transferred to another State, evidences
were taken afresh. Such a case has not been made out here. F
. Zahira Habibulla H. Sheikh (supra) must be held to have been
,.. decided in a different fact situation. [See Satyajit Banerjee and
Others v. State of WB. and Others: 2005 (1) SCC 115]
It must be borne in mind that wherever Parliament intended
to lay a different standard of proof in relation to certain offences G
or certain pattern of crimes, it did so. In such a case subject to
f ....._
establishing some primary fact, the burden of proof has been
cast on the respondents. There are a large number of statutes
where the doctrine of 'reverse burden' has been applied. Save
and except those cases where the Parliamentary statutes apply H
610 SUPREME COURT REPORTS [2008] 7 S.C.R.

A the doctrine of reverse burden, the courts, in my opinion, should
not employ the same which per se would not only be violative of
Universal Declaration of Human Rights but also the fundamental
right of an accused as envisaged under Article 21 of the
Constitution of India.
B In Syed Akbar vs. State of Karnataka : AIR 1979 SC 1848
this Court held :-
"28. In our opinion, for reasons that follow, the first line of
approach which tends to give the maxim a larger effect
c 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
D
charged for causing injury or death by negligent or rash
act. The primary reasons for non-application of this abstract •
doctrine of res ipsa loquitur to criminal trials are: Firstly, in
a criminal trial, the burden of proving everything essential
to the establishment of the charge against the accused
E 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
F against the accused where the accident "tells its own story"
of negligence of somebody. Secondly, there is a marked ~
difference as to the effect of evidence viz. the proof. in civil
and criminal proceedings. In civil proceedings, a mere
preponderance of probability is sufficient, and the
G defendant is not necessarily entitled to the benefit of every
reasonable doubt; but in criminal proceedings, the
persuasion of guilt must amount to such a moral certainty
as convinces the mind of the Court, as a reasonable man >-
beyond all reasonable doubt. Where negligence is an
H essential ingredient of the offence, the negligence to be
HARENDRA SARKAR v. STATE OF ASSAM 611
[HARJIT SINGH BEDI, J.]

established by the prosecution must be culpable or gross A
and not the negligence merely based upon an error of
judgment. As pointed out by Lord Atkin in Andrews v.
Director of Public Prosecutions 919 , "simple lack of care
such as will constitute civil liability, is not enough"; for liability
under the criminal law "a very high degree of negligence B
is required to be proved. Probably, of all the epithets that
can be applied 'reckless' most nearly covers the case". "

The said principles were applied in Jacob Mathew vs.
State of Punjab : (2005) 6 SCC 1.
Presumption of innocence is a human right. Such a legal
c
principle cannot be thrown aside under any situation. [See
Narendra Singh and another v. State of M.P : (2004) 10 SCC
699 and Ranjitsing Brahmajeetsing Sharma v. State o'f
Maharashtra and Another : (2005) 5 SCC 294]
D
45. Independence of judiciary must be upheld. The superior
courts should not do something that would lead to impairmenl
of basic fundamental and human rights of an accused. It is of
some interest to note the recent decision of the Privy Council in
The State vs. Abdool Rachid Khoyratty : [2006] UKPC 13 · E
wherein the statute limiting the jurisdiction of the Court to grant
bail by the Mauritius Government was held to be illegal as
infringing the doctrine of separation of power which ensures
the independence of judiciary.
46. Appellants are, thus entitled to benefit of doubt. F
47. These appeals are allowed. If the appellants are in jail,
they are directed to be released forthwith, unless wanted in
connection with any other case.
HARJIT SINGH BEDI, J. 1. I have perused the judgment ,, G
rendered by my learned Brother Sinha, J. I regret I am unable to
accept the conclusions reached. I am accordingly giving my own
opinion in the matter.
2. These appeals by way of special leave raise an
interesting question as to how evidence in cases involving H
612 SUPREME COURT REPORTS (2008] 7 S.C.R.

A 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
B Daboka, District Nagaon in the State of Assam. His sons, PW 'f--
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,
C 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
D Gopal called out forTaheruddin. Taheruddin moved forward and
heard a commotion side and enquired from Mohd. Mustafa
Ahmed as to what had happened on which he shouted to his
father not to come close as people were being killed. Mustafa
Ahmad also ran away whereas Taheruddin hid himself in the
E paddy fields and saw the attack on his house. He also had a
narrow escape as an arrow shot at him by accused Rahna Gore
missed his body but hit him on his right hand. The accused
persons then ran away from the spot. Taheruddin then came out
from his hiding place crying out aloud on which an army vehicle
was attracted. He also found that two of his daughters had been
F killed and his wife Sahera Khatoon seriously injured. She was
carried into the house but expired soon thereafter. On enquiry, it
was revealed that Mohd. Mustafa and Jakir Ahmad had also
been seriously hurt. An army vehicle again returned to the place
of incident and the injured were sent to the Nagaon Civil Hospital
G and the dead bodies to police station Daboka. The First
Information Report was recorded in the police station at about
11.00 P.M. on December 15, 1992 - the police station being
about eight kilometers away from the place of incident. In the
first information report Taheruddin named 13 persons in all, they
H being Gopal Ghose, Harendra Sarkar, Raton, Krishna, Shyam
HARENDRA SARKAR v. STATE OF ASSAM 613
[HARJIT SINGH BEDI, J.]
-..,..-
Gour, Niramal Dutta, Kailash Gour, Nandu Gour, Dhirendra Gour, A
Budh Ram Bonghand, Barika Timung, Hori Singh Gour and
Gundulu Gour.
3. The dead bodies were also subjected to post mortem
on December 15, 1992 and it transpired thatSahera Khatoon,
~-r- wife of Taheruddin aged about 35 years had three incised B
wounds on her person and the daughters Bimala Khatoon and
Hazra Khatoon aged 3 and 7 years respectively had two incised
wounds each. Jakir Hussain was also medically examined by
Dr. Jiauddin Ahmed PW 6 at about 1.20 A.M. on December 16,
1992 and five injuries, all of them grevious in nature, were found c
on his person. Hanif Ahmed, PW 4 too was medically examined
on the same day and two injuries, one grievous were found on
his person. On the completion of the investigation, the accused
were charged for offences punishable under Sections 147/148/
149/448/302 and 326 of the IPC and as they pleaded not guilty D
_... they were brought to trial.
4. The prosecution in support of its case placed primary
reliance on the evidence of PW 2 Mohd. Taheruddin and his
sons PW3 Mohd. Mustafa (injured) and PW4 Mohd. Hanif in
addition to the medical evidence of PW1 Dr. Madhusudan Dev E
Goswami who had conducted the post mortem examination on
the dead bodies on the December 15, 1992 and PW 6 Dr.
Jiauddin Ahmad, who had medically examined Jakir Hussain
and Mohd. Mustafa PWs and the Investigating Officer B.L. Kalta,
PW 7. The prosecution case was then put to the accused and F
~ 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
G
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,
H
614 SUPREME COURT REPORTS [2008] 7 S.C.R.

A 448/34 of the l.P.C and sentenced them to imprisonment for life
y
..
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:
B 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
c proved by P.W 7 in respect of PWs 3 and 4 have been
cross-checked by us with the statement recorded under
Section 161 Cr.PC. PW 4 has named Ratan before the
Court who had allegedly entered his room and took out
Jakir. But Ratan has not been named before the ~
D Investigating Officer. Therefore, from this witness, we find
evidence against accused Kailash, Ghandul, Krishna, ~

Haren, Badhuram, Tinu, Hari Singh and Rahna. There is
nothing said about Ratan by PW's 2 and 3. Therefore,
there is doubt about his presence as claimed by the PW
I
E 4. So far Ghandul and Badhuram are concerned, we find
that it is only PW 4 who had stated about their presence "'"'
and participation in the alleged crime. He is not supported
~
by PWs 2 and 3 in this regard. In our considered opinion,
there is doubt about the presence of Ratan, Ghandul and ""'
F Badurarn at the time of occurrence. In so far Krishna Gore,
Kailash Gore, Hari Singh, Haren Sarkar and Rahna are ~
concerned, we find that PWs 3 and 4 have have indicted
them as their assailants. PWs 3 and 4 were inside the
house and had the opportunity to see the actual
occurrence. In the process, they could recognize Kailash
G
Gore, Krishna, Hari Singh, Haren Sarkar and Rahna. PW
3 was reading inside the room and he could recognize
>-
them in the light of a lamp. After opening the door, he also
saw Gopal (since deceased), Hari Singh, Krishna, Haren I.
and Rahna. Therefore, his evidence against Gopal (dead)
rl
HARENDRA SARKAR v. STATE OF ASSAM 615
[HARJIT SINGH BEDI, J.]

Kailash, Krishna and Haren is also reliable. He had A
identified them in the moon light from a close proximity.
The other accused Ghandul, named by P.W 4 is entitled
to benefit of doubt since he has not been named by PWs
2 and 3.
B
,..,...,-~
And having held as above finally included;
From this discussion, it appears that the prosecution has
succeeded in establishing the charge against Kailash Gour,
Krishna Gour, Harendra Sarkar, Hari Singh Gour and Rahna
Gour. The other three appellants, namely Raton Das, Gundutu c
Gour and Budhu Timang are entitled to acquittal on benefit of
doubt"
6. It is in this circumstance, that the appeal at the instance
of the convicted accused is before this Court by way of special
leave. D
J J.
7. Before embarking on an appreciation of the evidence
which would determine the fate of the appeal, there are several
factors peculiar to the present case which brings it out ofthe
category of a usual set of murders and which need to be
E
highlighted. As per the evidence on record, the incident had
taken place on the 14th of December 1992 in the disturbances
that followed in the aftermath of the destruction of the Babri
Masjld in Ayodhya. As is well known, the falt out of the destruction
of the Masjid was felt all over India and caused great
consternation amongst the Muslim community. Widespread riots F
.)--
broke out throughout the country and the present multiple
murders are also a consequence of the happenings inAyodhya.
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 bothJudicial and G
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 H
616 SUPREME COURT REPORTS [2008] 7 S.C.R.

A though reams of paper have been used and dozens of
suggestions made as to the methods to prevent or to control
communal riots, yet the cancer continues to metastasize on
account of several factors, one of the predominant being the
feeling amongst the assailants, emboldened yet further by the
B anonymity which a crowd provides, that come what may, no harm .... _
will come to them. Several reports have been perused and
herein below are a few of the observations made which clearly
highlight the anti-minority bias in the police:
"This commission of inquiry has cited more than half a
c dozen instances where Muslim religious places adjoining
police lines or police stations were attacked or damaged.
The argument advanced by the police officers that because
they were busy quelling riots at various other places, these
police stations were shorn of adequate strength and hence
D these attacks on religious places could not be punished,
did not impress the Commission. It has made this .... \o
observation because not a single case of damage to a
Hindu place of worship near a police station was reported
to the Commission.
E Report of the Justice Jagmohan Reddy Commission
on the Ahmedabad riots of 1969.
The working of the Special Investigation Squad is a study
in communal discrimination. The officers of the squad
systematically set about implicating as many Muslims and
F exculpating a many Hindus as possible irrespective of
whether they were innocent or guilty. Cases of many Hindus ~
belonging to the Shiv Sena, Rashtriya Utsav Manda! (an
extension of the local branch of the Jana Sangh) were
wrongly classified as 'fl: category and investigations closed
G and no proper investigation was undertaken into several
complaints of murders of Muslims and arson of their
property. No investigation was conducted into the ~

composition and activities of Hindu communal and
allegedly communal organizations. Deputy superintendent
H of police S.P. Saraf held private conferences and
HARENDRA SARKAR v. STATE OF ASSAM 617
[HARJIT SINGH BEDI, J.)

discussions with several leaders of Hindu organizations A
including many who were implicated by Muslims in offences
of arson and murder.
Report of the Justice D.P.Madon Commission on the
Bhiwandi,Jalgaon and Madad of 1970.
B
The evidence of the deputy SP says that while on patrol
duty he had to curb many among his rank and file who
could not restrain themselves when they met Muslims on
the road. Similar evidence was given by the sub-collector
and other witnesses who have testified saying that while c
chasing away some Muslims many policemen yelled at
them to go to Pakistan. At Mattambaram one or two of
them got into the mosque and besides beating Usmankutty
Haji, a very respectable person, broke the tube-light and
chandeliers in the mosque. There is nothing to show that
D
j __...
there was any justification for this action ..... 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 E
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. F
)r
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 G
controlling the situation and protecting the people of the
t Sikh community ..... 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 H
618 SUPREME COURT REPORTS [2008] 7 S.C.R.

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

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

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

1.12 The alertness of police pickets left much to be desired.
D Several arson incidents, stabbing and violence occurred
within the eye-sight and earshot of the police pickets ~
\.,.

without any action by them. In one case, a bakery situated
within the very compound in which the police station
(Jogeswari) is located was attacked, looted and burnt in
E broad daylight without the police lifting a finger.

1.13 Police officers and men, particularly at the junior level,
appeared to have an in-built bias against the Muslims
which was evident in their treatment of the suspected
Muslims and Muslim victims of riots. The treatment given
F was harsh and brutal and, on occasions, bordering on
inhuman, hardly doing credit to the police. The bias of '1
policemen was seen in the active connivance of police
constables with the rioting Hindu mobs on occasions, with
their adopting the role of passive on lookers on occasions,
G and finally, in their lack of enthusiasm in registering offences
against Hindus even when the accused were clearly
~
identified and post haste classifying the cases in "A" ~

summary.
1.14 Even the registered riot-related offences were most
H
HARENDRA SARKAR v. STATE OF ASSAM 619
[HARJIT SINGH BEDI, J.)

unsatisfactorily investigated. The investigations showed A
lack of enthusiasm, lackadaisical approach and utter
cynicism. Despite clear clues the miscreants were not
pursued, arrested and interrogated, particularly when the
suspected accused happened to be Hindus with
connections to Shiv Sena or were Shiv Sainiks. This t
..--I'. general apathy appears to be the outcome of the built··
prejudice in the mind of an average policeman that every
Muslim is prone to crime."
Chapter 1 Preliminary Srikrishna Report On Mumbai
riots of 1992-1993 c
The report of the National Human Rights Commission
pertaining to its visit from 19th to 22nd March 2002 to Gujarat
after the Vadodra and Godhra riots has made some startling
observations:
D
"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 E
communal sensitivity. Many felt that the police should have
learnt from the past experience that Bandhs supported by
the ruling party am never peaceful and should have
... .
therefore made full Rreparat1ons. Whereas the VHP
leaders could mobilize their supports for the 'Bandh', the F
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 G
a major part and the police and administration failed to
control violence, they were not accused of direct
involvement in the carnage. The failure of police and
administration in.the current riots is attributed not to their
professional incompetence but to their attitude of apathy H
620 SUPREME COURT REPORTS [2008) 7 S.C.R.
y
A and callousness in general and the accusation of
connivance and complicity was made in some cases.
································································································
The team heard several allegations of connivance of police
in incidents of arson and looting by the marauding crowds.
B It was alleged that the crowds involved in the destruction .._._
of slums opposite Ambika Mill No.1 near Khokra over
bridge, Gomtipur, Ahmedabad had the support of the
administration (275 hutments housing approximately 1800
persons with 90% Muslims and the other Dalits were totally
c destroyed). These hutments have been in existence for
over 30 years and the Gujarat High Court had ordered
status quo in 1999 when the authorities sought to demolish
them. It is alleged that one PSI Modi from Gomtipur police
station had come to the site in police jeet (GJ1-AR-5432).
D He parked his jeep near the gate of Ambika Mill, spoke to
the mob in the presence of Shri Mohan Bundela, Shri _....
lsrail Bhai Ansari and some other activists of Jan Sangarsh
Manch. The mob took out 4 to 5 bottles of diesel from the
jeep of Shri Modi, which were subsequently used in
E torching the hutments. Another specific allegation of
connivance of police was narrated by some victims at the
Shah-e-Alam camp. They charged a senior police
Inspector K.K.Mysorewala with misdirecting some
helpless Muslims including some young girls into the arms
F of a murderous mob. (These cases were brought to the
notice of the Chief Secretary by the Chairperson for .,.,
immediate action).
Many representatives of the NGOs/activists accused the
police of outright discriminatory approach in the matter of
G arrest. It was alleged by many that though it was the minority
community which was under attack at all the places after
the God hara incident, the bulk of the arrests made by the
police were from minority community. Since the official
~
'
presentation made before the team did not give
H community-wise break-up. of arrests which is an important
HARENDRA SARKAR v. STATE OF ASSAM 621
[HARJIT SINGH BEDI, J.]

parameter of police action in the handling of communal A
riots, the allegations made by police holding responsible
position and enjoying high reputation for their integrity
cannot be rejected outright.
It was alleged by many that the police allowed the crowds
to swell and turn violent by ignoring the calls for help from B
the victims of mob attack. Admitting that the police
presence on such spots was very thin, it was asserted that
their sense of duty demanded that they should have used
firepower to rescue the persons under attack from mob
fury. It was said by many that the police either tiid not use C
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 D
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 E
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 F
Border Security Force, Shri N.S. Saxena, former Director of
the Central Reserve Police Force, Shri M.S. Gore of the Tata
Institute of Social Sciences and Shri. C.V. Narasimhan, a former
Director of the Central Bureau of Investigation as its Member-
Secretary. The Commission submitted its report in six volumes G
t>etwee.n \ 979 and 1981 and made far reaching
recommendations based on the experience that had been
gained over the years with regard to the anatomy of a communal
riot. Volume VI, Chapter XLVll, Page 9 dealing with "Communal
Riots' of the report reads thus: H
622 SUPREME COURT REPORTS [2008] 7 S.C.R.

A "The investigation of crimes recorded is a matter which
calls for professional skill and expertise of a different
variety. Investigations of crimes cannot be undertaken in
moments of tension and confusion. The National Integration
Council has observed that special investigation squads
B should be set up to investigate crimes committed in the
course of serious riots. We endorse this observation and
recommend that such squads should be set up under the
State Investigating agency [State CID (Crime) ] to
investigate all crimes committed in the course of a riot.

c The Madon Commission which inquired into the communal
riots in Bhiwandi, Jalgaon and Mahad in the State of
Maharashtra in 1969 passed severe strictures against
the special investigation squads set up to investigate crime
committed in the course of those riots. The Commission
observed that these special investigation squads had
D
acted in a partial and biased manner against one
community. We take note of this finding and feel that there
are many instances where the special investigation squads
were not set up properly with the result that some of them
acted in an incompetent and biased manner. We would,
E therefore, recommend that the special investigation
squads for investigating into crimes reported in the course
of a riot, should consist of officers of high ability who could
be expected to act without fear or favour, and without bias
or prejudice. These squads should function under the
F supervision of a fairly senior officer.
We are also aware that once a riot gets under control
several forces come into prominence and these forces try
to interfere in the registration and investigation of crimes.
There is an alarming tendency on the part of several local
G big wigs to prevent the initiation of action against well-
known goondas and anti-social elements. We are aware
that the police also is not entirely free from blame in this
regard. It should be realized that non-initiation of action
against those who commit serious crimes in the course of
H a riot is a matter which would destroy the morale and trust
HARENDRA SARKAR v. STATE OF ASSAM 623
[HARJIT SINGH BEDI, J.]

of the local population. If the big criminals are left out and A
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 B
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 t>e done thoroughly,
compe1ently, quickly and impartially by special teams of c
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 D
registered in the course of serious communal riots in one
State. The disposal of the cases examined in this study is
as shown below: -

Place A Place B Place C E
(1970) (1970) (1967)
1. Number of cases reported 11 162 38
2. Number of cases charge-
} sheeted in the Court of law 6 35 15
F
3. No. of cases withdrawn with reasons
)'
4. No.of cases convicted 3 8 5
5. No. of cases convicted 3 23 10
6. No. of cases discharged 4
7. 'A' Final (True but not detected) 5 125 23 G
8. 'B' Final (False case)
9. 'C' Final (Mistake of facts) 2
10.'NC'Final (Non-cognizable case)
H
624 SUPREME COURT REPORTS [2008) 7 S.C.R.

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

C 10. The table is perhaps illustrative of the malaise that
afflicts the police force in many states, as the various reports
quoted above which pertain to different states, would reveal.
More alarmingly, if things were bad in 1986, what would be the
situation as of today?
D
11. India is a signatory to the Universal Declaration of ,...
Human Rights. Article 2 thereof provides for rights without
discrimination, without restriction of any kind based on race,
language or religion etc., Article 7 provides for equality before
law and to the equal protection of the law for all, Article 8
E postulates the availability of an effective remedy in law for acts
violating the fundamental rights guaranteed to an individual and
Article 12 provides for the right to a fair trial. These rights are
enshrined in Articles 14 and 21 of the Constitution of India as
well. Can it be said in all honesty that the investigation and
\
F prosecution in matters relating to communal riots which is really
based on protecting human dignity and the right to life, accord ~
with the above principles? The question posed must, of
necessity, give cause for introspection. Such being the
background, can we evaluate a murder committed during a
G 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.
H
HARENDRA SARKAR v. STATE OF ASSAM 625
[HARJIT SINGH BEDI, J.]
.)"
12. The learned counsel for the appellants has first and A
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
a.) counsel for the appellants in Criminal Appeal No.1068/2006 by s
,.... 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 C
of Punjab vs. Daljit Singh & Anr (2004) 10 SCC 141 and
Ramesh Baburao Devaskar & Anr Vs. State of Maharashtra
(2007) 12 SCALE 272. It has also been pointed out that as Md.
Jakir, one of those who had been hurt had not been examined
as a witness the entire story was shrouded in suspicion, and
0
due to the fact that there appeared to be some animosity
I ~ between the parties based on a land dispute as had been
admitted by PW1 himself, the possibility of false implication was
clearly writ large. It has finally been pleaded that as no weapon
had been recovered from the accused and the fact that the
prosecution witnesses had sought to improve on their E
statements given to the police in their evidence in Court by
attributing individual roles to the accused, required that their
evidence could not be accepted at its face value.
13. The learned counsel for the respondent - State has, F
however, argued that the prosecution evidence had to be
>- examined in the background of the situation that existed in those
days with the entire area being curfew bound, consequent upon
the total failure of the civil administration with the result that the
Army had been called out. It has also been submitted that there G
was no reason whatsoever to disbelieve that the eye witnesses,
two of them greviously hurt, whose presence could not be
_...,doubted and though Md. Jakir had not been examined as an
eye witness, yet the fact that he too had suffered a grievous
injury in the same incident could hardly be controverted. It has H
626 SUPREME COURT REPORTS [2008] 7 S.C.R.

'f'
A further been pointed out that though Md. Taheruddin, the first
informant had been disbelieved by the High Court, there was
absolutely no reason for doing so as his presence in his home
during a communal riot for the purpose of guarding his family of
a young wife, six daughters and two sons and his property was
B but natural. It has finally been pleaded that even assuming that ,,a
some improvements had been made during the course of their
evidence, this was to be expected as the witnesses had been
under great stress at the time when their statements had been
recorded under Section 161 of the Cr.P.C. and by reflection and
c hindsight they had been abi~ to gather their wits and to give
proper statements in Court. It has finally been pointed out that
the benefit of doubt had ~!ready been given to the accused
inasmuch as several had be:en acquitted, some by the trial court
and some others by the High Court.
D 14. It would be seen that the arguments raised by the
learned counsel for the appellants are on the premise that the A \
incident had happened in a normal civil society where the access
to the police is presumed to be easy and where the investigation
suffers from no bias. These arguments, from their very nature,
E 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
F belonged to a minority community. From the reports that have
been quoted above, several broad principles are discernible:
"1
(1) that police officers deliberately make no attempt to
prevent the collection of crowds;
(2) that half hearted attempts are made to protect the
G
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;
H
HARENDRA SARKAR v STATE OF ASSAM 627
[HARJIT SINGH BEDI, J.]
~
(4) that there is an attempt not to register cases against A
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
~---'r
no attempt is made to follow up the complaints made B
against the assailants; and finally

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

15. In this bclckground and situation some of the arguments c
raised by the learned counsel for the appellants can have
absolutely no relevance, and the court must, of necessity, lean
even more heavily on the statements of the eye witnesses.
16. It has come in the evidence that the incident had
D
J ... happened at about 10.00 p.m. on 14th December 1992 in the
residential house of Mohd. Taheruddin PW2 - the victims his
wife and two young daughters who were killed, and one son
seriously hurt. It has also come in the evidence of the three main
witnesses, that Army personnel had reached the place of
incident and had carried the dead bodies to police station E
Daboka whereas the injured had been taken to the hospital.
From the evidence of PW7 B.N. Kalita who was the In-charge
of Police Station, Daboka, it is evident that.a communal riot
had erupted on account of the destruction of the Babri Masjid
on December 6, 1992 and that curfew had been clamped in the F
)-
entire area of Hojai, Daboka and Jamunamukh after December
6, 1992. In this background, it cannot be said that the FIR lodged
15 hours after the incident was belated. It is also significant that
this police officer had received information about the incident
on December 14, 1992 at about 10 minutes past mid night and G
on which he had reached the place of incident and had made
...... some enquiries and also recorded Taheruddin's statement but
if he had chosen to record the formal FIR at 11 a.m. on
December 15, 1992, it cannot be said that the complainant was
in any way guilty of delay. The statements of the eye witnesses H
628 SUPREME COURT REPORTS (2008] 7 S.C.R.

A also reveal that the dead bodies and the injured had been
removed from the place of incident by Army personnel. It,
therefore, appears that the inquest had not been recorded at
the site but it was perhaps elsewhere. It is also clear from the
evidence of Dr. Jiauddin Ahmed PW6 that he had medically
B examined Jakir Hussain and Mustafa Mohd. shortly after mid .,._ .
night on 14th December, 1992 on a police requisition with
reference to G.D.No.2000 of Police Station, Daboka. It is
therefore somewhat surprising that though the aforesaid persons
had been removed to the hospital by the Army and examined
on police requisition at about mid night, yet no formal FIR had
c 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 !n 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
D 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
E
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
F that Mohd. Jakir had suffered only a simple injury whereas Mohd.
Mustafa had been seriously hurt. It must also be noted that as -1
the incident had happened at the dead of night during communal
disturbances which had apparently started on or soon after 6th
December 1992, and for Mohd. Taheruddin to be present at
G home to guard his huge family of a wife, two sons and six
daughters was to be accepted. Conversely, his absence from
home during these crucial days would have been most unnatural
and alien to normal human behaviour. The High Court has opined
that as the statement of Mohd. Taheruddin given in Court was
H not substantiated by the medical evidence, his evidence was
HARENDRA SARKAR v. STATE OF ASSAM 629
[HARJIT SINGH BED!, J.)
")•
f "highly suspicious". This finding is unacceptable as his presence A
was absolutely natural and the story that he was guarding his
crop a short distance away inspires confidence and merely
because some persons who had been named by him were
ultimately found by the court to be not present would not to our
mind dislodge the entire case. Moreover the medical evidence B
,._;,.
which makes the presence of Taheruddin "suspicious" as per
the High Court, is the absence of the arrow injury on the hand. It
must, however, be emphasized that Taheruddin's statement on
this aspect is a casual one and does not give any indication as
to the nature or extent of the injury, except for the observation c
that the arrow shot at his body had missed the target and had
hit his hand instead. The evidence ofTaheruddin when read as
a whole corresponds in material particulars with the statements
of the other two eye witnesses. Likewise, the statement of Mohd.
Mustafa, who was seriously injured and Mohd. Hanif clearly
D
s.upport the prosecution story. All three witnesses had witnessed
,J..
the incident from close quarters and as most of the accused
were known to them, they being neighbours, they were in a
position to identify them. It is true, as has been contended, that
the names of some of the accused do not figure in the statements
made to the police, but this omission can be reasonably E
attributed to a tainted investigation or to the fact that the sheer
brutality of the crime had stunned the witnesses into confusion.
The horror which would have faced the witnesses, can hardly
be exaggerated.
F
18. It has been argued by the learned counsel for the
r appellants that the FIR had been motivated on account of the
land dispute between Taheruddin and accused Gopal (who died
before trial) and Hari Singh and Kailash. Reliance for this
argument has been placed on the admission made by Mohd.
G
Taheruddin in his statement that some dispute did exist between
them. From the facts and background the converse possibility (
as the Commission's reports would suggest) that the accused
had, in fact, decided to utilize the disturbed situation to their
advantage and to sort out their enemies once for all, cannot be
H
630 SUPREME COURT REPORTS [2008] 7 S.C.R.

A
.,.
ruled out. On the other hand, it is difficult to accept that a witness ~
who has seen the slaughter of his family would be so perverted
or crass as to leave out the real assailants and to rope in innocent
persons. The fact that the victims were a young woman, and
two children, and grevious injuries to two other young boys
B supports the view that the murders had not been committed on
account of any enmity, but were a fall out of the communal tension "'"- -
prevailing in that area. It bears reiteration, that the victims could
hardly have been dealt with on account of any animosity, but the
assailants attempted to do away with anyone who came along.
c In any case, as already mentioned above, the Sessions Judge
and the High Court have already done the sifting that is required
and ultimately maintained the conviction of only a few of the
accused.
19. In conclusion, it must be observed that in matters such
D as the present one, it is the statements of the eye witnesses
which are of the utmost importance and unless very good ~
reasons can be given for disbelieving them, they must be
accepted, and the arguments with regard to the delay in the FIR
or some minor contradictions in the statements under section
E 161, vis-a-vis the statements in Court or a flaw in the recording
of the post-mortem or the inquest reports or the non-recovery of
murder weapons etc. are a matter of little concern as these
issues would be relevant and in normal circumstances and to a
situation where the civil administration was functioning
F effectively, but in a case of a complete break down of the civil
administration, these broad arguments are wholly inapplicable.
., ~

There is, thus, no merit in these appeals. They are
accordingly dismissed.
In view of the difference of opinion, let the matter be placed
G
before three-Judge Bench. The registry is directed to place the
records before the Hon'ble the Chief Justice of India for
=
appropriate orders. .....
N.J. Matter referred to larger Bench.
H