LexHARENDRA SARKAR versus STATE OF ASSAM
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
{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.
G
According to the prosecution case, soon thereafter, on
I-
14.12.1992 at around 10.00 am, an incident took place in
-I
which armed mob of 14-20 people entered the house of
PW-2, belonging to a minority community, allegedly from
two sides. G and several others killed PW-2's two
589
H
590
SUPREME COURT REPORTS
(2008) 7 S.C.R.
A daughters aged 3years and 7 years, caused grievous
injuries to his wife, his sons-PW 3-M, PW 4-HA, and ZH
and his close relative-JA. Near about that time house of
one N was burning. PW-2 was in his fields close to his
house. He saw mob entering his house. Accused G called
B out for PW-2. PW-2 tried to come towards the house but
his so~ M prevented him. Accused GR shot arrow at PW-
"i·
2 and 1t hit his right hand. PW-2 saw the accused and
shouted. The accused fled away. PW-2 came to the place
of occurrence. His wife succu!Jlbed to her injuries. Army
c vehicle as also police team came to the place of
occurrence. The police took the injured to the hospital
and the army vehicle took the dead bodies. Medical
Officer-PW-6 examined the injured HA, ZH and MA. PW-2
and his other sons were taken to the Guest House and
then to the Police Station but no statement was recorded.
D Investigating Officer-PW-7 came to the place of
io
occurrence. He took up the investigation and drew sketch
>-
map. He held inquest of the dead bodies. FIR was
recorded at the Police Station at about 11.00 pm on
15.12.1992. 12 accused were named. At 12.00, PW-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,
G acquitted the others on benefit of doubt. Hence the
present appeal.
Refering the matter to a 3 Judge Bench, the Court
...
;-
Per S.B. Sinha, J:
H
HELD: 1.1 In the instant case, the investigation had
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y
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HARENDRA SARKAR V STATE OF ASSAM
591
started even prior to lodging of the FIR. Post morten A
examinations had been conducted, site map had been
drawn before 12.00 p.m. on 15th December ,1999 and as
per PW-7, inquests were held but he did not say where.
the inquests reports were. PWs 2 and 3 concededly did
not see the entire incident. They did not witness the actual B
assault on the deceased. The trail judge, however, relied
upon the evidence of these witnesses. They were treated
as eye-witnesses. The witnesses were asked as to
whether they had named the accused as persons
allegedly assaulting the deceased before the police c
authorities. They had nExcerpt shown. Read the full judgment & AI analysis in Lexace.