Harendra Sarkar v. State of Assam

5) There were two cut injuries over the back, on each side. There was multiple cut injury and got injury on 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 =". The injury is fresh and margins were irregular.

2. Simple cut injury by sharp pointed object.

12. The injured, Taheruddin and his other sons were taken to Daboka Guest House. They were also taken to the police station. No statement, however, was made by them.

13. The investigating officer, PW-7, B.N. Kalita, however, stated that he had received a message from one Biresh Dutta in regard to a fire. He made a G.D. Entry and sent a police team there. It was numbered as G.D.E. 532 dated 14.12.1992. He came to the place of occurrence. He did not say when he came there. However, according to Taheruddin, a statement was made by him on the next date. Investigating Officers stated that he took up the investigation and drew a sketch map. He allegedly held an inquest of the three dead bodies. Inquest reports, however, are not on record.

14. Post mortem of the three dead bodies were performed at about 12 o’ clock on 15th December, 1992.

15. On the dead body of Sahera Khatoon, two incised wounds were found, one at the right side of upper neck and another at the right shoulder.

16. On the dead body of Bimala Khatoon, also two injuries, being incised wounds, were notice; one at the left parietal bone of the neck and the other at the left upper neck.

17. On the dead body of Hajeera Khatoon also two injuries, being incised wounds, were found, one on the right upper neck and another at the right parietal region of scalp.

18. According to Dr. Madhusudhan Dev Goswami, PW-1 (who conducted the post mortem examination), their stomachs were found to be empty. The death in each case was found to have taken place 48 to 72 hours from the time of post-mortem 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 had come back to the village with another police officer. He did 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 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 at the police station at about 11.00 p.m. on 15th 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.

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. 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 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 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 contradictions in the statements of the witnesses vis-‘-vis their statements under Section 161 of the Code of Criminal Procedure were noticed, the learned trial judge did not discuss the same stating that they were only minor in nature. They were not.

27. Nirmal Dutta, Nandu Dutta and Shyam Sunder Gour were found to be innocent by the learned trial judge as even PW-3 and PW-4 did not specifically name them as regards their participation in the commission of offence on the night of occurrence. They were acquitted.

28. The High Court disbelieved PW-2 in view of the glaring contradictions noticed in his statements made before the police vis.-a-vis the statement made in his deposition before the Court. According to the High Court the omission on his part to name Gopal who took leading part and Rahna who had allegedly shot an arrow, rendered his evidence highly suspicious. The High Court noticed that PW-3, Mustafa Ahmed, accepted that he had discussions with the witnesses about the names of probable assailants. The High Court, therefore, disbelieved the first informant. It, however, did not consider the entire prosecution case from the angle that thereby, to a large extent, the culpability of the accused and their participation in the incident became doubtful.

29. The High 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 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 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 by the High Court. He was found to have contradicted himself 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 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 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.

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 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 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.

34. PW-3, admittedly was taken to the police station. PW-4 had also been taken to the police station. PWs, as noticed hereinbefore alongwith the injured were given shelter in the ’dak bungalow’at Dabaka. Even then no attempt was made to record their statements.

35. It is difficult to appreciate that because of the law and order situation the investigating authorities could not take such statements. Surprisingly, the investigation had already started. All essential actions, namely - making of inquest, getting the postmortem of the dead bodies conducted, obtaining injury reports of the injured persons, preparation of the site map etc. had been undertaken.

36. PW-1 states that he came back with another police officer, but even to him he did not make any disclosure.

37. PW-5 is the scribe of the First Information Report. His house is almost 2 kms. away from that of Taheruddin. When he went to Taheruddin’s house, about 100-200 people had gathered there. Taheruddin discussed first "on the things to be mentioned in the "ejahar" and, thereafter only he wrote the same.

38. The abovementioned delay in lodging the First Information Report has not been explained. Lodging of prompt F.I.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.I.R. should be viewed with suspicion.

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.I.R. Ordinarily, the same is impermissible. [See Ramesh Baburao Devaskar & Ors. v. State of Maharashtra 2007 (12) SCALE 272]

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 place later. Nandu has been acquitted of the charges.

41. From the discussions made hereinbefore, and particularly in view of the conduct of the prosecution witnesses, in our opinion, it is difficult to rely upon the statements of the prosecution witnesses. Medical evidence also does not support the prosecution case. Deaths, according to the doctor occurred 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 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 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 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 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 done strictly in accordance with law; wherefor the provisions of the Code of Criminal Procedure and Evidence Act must be followed. It, in my opinion, would not be proper to contend that only because an offence is said to have been committed during a communal riot, the provisions of the Code of Criminal Procedure and Evidence Act would not be applied differently vis-‘-vis a so-called ordinary case. They are meant to be applied in all situations. Appreciation of evidence must be on the basis of materials on record and not on the basis of some reports which have nothing to do with the occurrence in question. Only because in some parts of the country police investigations attracted severe criticism, the same in no manner should be applied in all the cases across the country. Each accused person; even a terrorist, has his human right. He be tried in accordance with law.

44. Article 12 of the Universal Declaration of Human Rights provides for the Right to a Fair Trail. Such rights are enshrined in our 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 land. It is one thing to say that even applying the well-known principles of law, they are guilty of commission of offences for 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 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 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 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. 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 W.B. 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 or certain pattern of crimes, it did so. In such a case subject to 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 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. 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 than that of a merely permissive inference, by laying down that the application of the maxim shifts or casts, even in the first instance, the burden on the defendant who in order to exculpate himself must rebut the presumption of negligence against him, cannot, as such, be invoked in the trial of criminal cases where the accused stands charged for causing injury or death by negligent or rash act. The primary reasons for nonapplication of this abstract doctrine of res ipsa loquitur to criminal trials are: Firstly, in a criminal trial, the burden of proving everything essential to the establishment of the charge against the accused always rests on the prosecution, as every man is presumed to be innocent until the contrary is proved, and criminality is never to be presumed subject to statutory exception. No such statutory exception has been made by requiring the drawing of a mandatory presumption of negligence against the accused where the accident "tells its own story" of negligence of somebody. Secondly, there 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 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 essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. As pointed out by Lord Atkin in Andrews v. Director of Public Prosecutions919, "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 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:

Presumption of innocence is a human right. Such a legal 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 of Maharashtra and Another: (2005) 5 SCC 294]

45. Independence of judiciary must be upheld. The superior courts should not do something that would lead to impairment 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 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.

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. \005\005\005\005\005\005\005\005\005\005\005J. ( S.B. SINHA ) New Delhi May 2, 2008 CRIMINAL APPEAL NO. 907 OF 2006 Harendra Sarkar \005\005.Appellant

VERSUS

State of Assam \005..Respondent With Criminal Appeal No. 1068 of 2006

JUDGMENT

HARJIT SINGH BEDI, J

1. I have perused the judgment 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 multiple murders during and arising out of communal riots has to be assessed. They arise out of the following facts: 2A. At about 10.00 P.M. on December 14, 1992, Mohd. Taheruddin PW 2, was guarding his paddy crop in his field close to his house in Village Changmazi Pathar, Police Station Daboka, District Nagaon in the State of Assam. His sons, PW 3 Mohd. Mustafa Ahmed and PW 4 Mohd. Hanif Ahmed and one Jakir Ahmed a young boy statedly a close relative, were sleeping in one of the rooms in the house whereas his wife Sahera Khatoon and six daughters including Hazera Khatoon, Jahanara Begum and Bimla Khatoon were sleeping in another room. As it was a moonlit night, Mohd. Taheruddin saw a group of 10 to 12 persons coming from the north and another group from the south approaching his home stead. The intruders entered through the front door of the house and the accused Gopal called out for Taheruddin. Taheruddin moved forward and heard a commotion side and enquired from Mohd. Mustafa Ahmed as to what had happened on which he shouted to his father not to come close as people were being killed. Mustafa Ahmad also ran away whereas Taheruddin hid himself in the 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 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 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 being Gopal Ghose, Harendra Sarkar, Raton, Krishna, Shyam Gour, Niramal Dutta, Kailash Gour, Nandu Gour, Dhirendra Gour, 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 that Sahera Khatoon, wife of Taheruddin aged about 35 years had three incised 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 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 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 PW[3] Mohd. Mustafa (injured) and PW[4] Mohd. Hanif in addition to the medical evidence of PW[1] Dr. Madhusudan Dev 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 they denied their involvement and pleaded false implication due to enmity.

5. The trial Court in its judgment dated June 18, 2005 relying on the evidence of PW 3 and PW 4, Mustafa Ahmad and Hanif Ahmad respectively, in particular, as corroborated by the medical evidence, held accused Kailash, Hari Singh, Gundul Ratan Das, Krishna Das, Harendra Sarkar, Rahna Gour and Budhu Gour guilty and convicted them under several sections with which they had been charged, viz., under Sections 302/34, 448/34 of the I.P.C and sentenced them to imprisonment for life and fine of Rs.2000/- and in default of payment of fine, to rigorous imprisonment for six months. An appeal was thereafter taken by the accused to the High Court. The High Court observed as under:

17. P.W 7, the Investigating Officer, proved the contradictions with regard to PW 4 to the effect that he did not tell him that Kailash and Ratan dragged him out and inflicted injuries on him or that he has been able to recognize the accused persons by moon light. These contradictions proved by P.W 7 in respect of PWs 3 and 4 have been cross-checked by us with the statement recorded under Section 161 Cr.P.C. 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 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 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 Baduram 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 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 and Rahna. Therefore, his evidence against Gopal (dead) Kailash, Krishna and Haren is also reliable. He had 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. 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 Ratan Das, Gundulu 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.

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 of the category of a usual set of murders and which need to be 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 Masjid in Ayodhya. As is well known, the fall out of the destruction of the Masjid was felt all over India and caused great consternation amongst the Muslim community. Widespread riots broke out throughout the country and the present multiple murders are also a consequence of the happenings in Ayodhya. The genesis of a communal riot, its development as it goes along and the consequences have been identified/underlined by dozens of commissions of inquiry both judicial and administrative for more than four decades now and there appears to be near unanimity that a deliberate attempt is made by the police and the investigating agencies to forestall fair investigation in attacks on the minority communities and on the contrary to connive with the perpetrators. It is indeed tragic that though reams of paper have been used and dozens of suggestions made as to the methods to prevent or to control communal riots, yet the cancer continues to metastasize on account of several factors, one of the predominant being the feeling amongst the assailants, emboldened yet further by the 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 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 these attacks on religious places could not be punished, did not impress the Commission. It has made this observation because not a single case of damage to a Hindu place of worship near a police station was reported to the Commission. - 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 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 Mandal (an extension of the local branch of the Jana Sangh) were wrongly classified as ’A’ category and investigations closed 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 of police S.P. Saraf held private conferences and discussions with several leaders of Hindu organizations 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. 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 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 there was any justification for this action\005..So far as the minorities are concerned, it is the feeling among them that they are nor getting justice, that they are discriminated against in the matter of appointments in the Public Services, that they do not get equal protection of the law and that their religion is in danger, that prompts them to rally around religious organizations of their own. It is of the greatest importance that appropriate steps are taken by the government to remove the cause fr such feelings in the minorities. There is much truth in saying that if you want peace you must work justice. -Report of the Justice Josepth Vithyathil Commission on the Tellicherry riots, 1971. The riots occurred broadly on account of the total passivity, callousness and indifference of the police in the matter of controlling the situation and protecting the people of the Sikh community\005..Several instances have come to be narrated where police personnel were found marching behind or mingled in the crowd. Since they did not make any attempt to stop the mob from indulging in criminal acts an inference has been drawn that they were part of the mob and had the common intention and purpose\005.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 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 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. 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 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 was harsh and brutal and, on occasions, bordering on inhuman, hardly doing credit to the police. The bias of 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, 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 unsatisfactorily investigated. The investigations showed 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 general apathy appears to be the outcome of the built-in 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 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: "The Vishwa Hindu Parishad (VHP) gave a call for "Bandh" on the 28th Feb. pursuant to the Godha incident of burning alive of Karsewaks which wa supported by the Stte BJP. The police did not take effective steps to make proper security arrangements in several areas known for their communal sensitivity. Many felt that the police should have learnt from the past experience that Bandhs supported by the ruling party are never peaceful and should have therefore made full preparations. Whereas the VHP leaders could mobilize their supports for the ’Bandh’, the police did not take any effective measures to control the unlawful crowds, while they were building up. The police, by and large, chose to act as silent spectators allowing the crowds to swell in size and become uncontrollable. While in the previous riots also political elements did play a major part and the police and administration failed to control violence, they were not accused of direct involvement in the carnage. The failure of police and administration in the current riots is attributed not to their professional incompetence but to their attitude of apathy and callousness in general and the accusation of connivance and complicity was made in some cases.