MOHAMMAD IQBAL M SHAIKH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) These appeals by the 11accused persons under Section 19 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as 'the TADA') are directed against the judgment dated 16-10-1996 passed by the Additional Judge, Designated Court for Greater Bombay in TADA Special Case Nos. 35/93 @ 1/94, 37/94 and 17/95. These appellants and six other stood charged under Sections 120(B), 147, 148, 149, 326, 302, 436, 506 I.P.C. and Section 3(2)(i) and (ii) of the TADA for the ghastly occurrence dated 7th of January, 1993, wherein six persons died out of burn injuries being locked in a room and the room having been put to fire by putting petrol on it. The occurrence is a sequel to the demolition of Babri Masjid at Ayodya. Shortly after the demolition of the mosque at Ayodya communal riots erupted all over the country including the city of Mumbai. When communal riots erupted in the city in the suburban Jogeswari, an area known as Bandra plots was predominantly occupied by the Muslims and Hindus were in minority. A number of Hindu families were staying in chawls known as Gandhi Chawl, Rajbhai Chawl, Nail Chawl etc. The accommodation usually consists of one-roomtenements having one entrance door and the tenements are situated adjacent to each other. The tragic incident occurred in the house of deceased Rajaram Bane who was residing in room No. 2 of Gandhi Chawl. As stated earlier the Hindu community being in minority, while a group of residents had taken shelter in room No. 2 of Gandhi Chawl, it is alleged that the Muslim accused persons put petrol on the roof of said room No. 2 of Gandhi Chawl and set it on fire and in course of occurrence Rajaram Bane, his wife Sulochana, his neighbours Laxmi Bai Batalu and her daughter Kamla, one crippled girl by name Meenakshi Narkar and one Vandana Todkar died out of burn injuries. It maybe stated, out of these deceased persons Sulochana and Vandana were removed to the hospital and they died in the hospital on 10th of January, 1993 and 16th of January, 1993, respectively, while the rest died at the spot itself. While the occurrence is undoubteldy a ghastly one and exhibits the brutality with which the members of one community attacked the members of another community at a point of time when people had been depraved of their sense of judgment and decency and when people had behaved like animals, the still more painful is the manner in which the prosecuting agency picked up indiscriminately people from one community as they were residing in the locality and booked them under different sections of the Penal Code and the TADA and ultimately the learned Designated Court convicted these 11 appellants and acquitted six other co-accused persons. This case exhibits not only callousness on the part of the investigating agency and the cavalier fashion with which the investigation proceeded but also the extent to which the trial Judge has been swayed away to record conviction without any legally admissible trustworthy evidence. It would, therefore, be necessary for this Court to scrutinise the evidence with care and caution and to find out as to whether notwithstanding the infirmities in the evidence of the prosecution witnesses whether conviction of any of the accused appellants can at all be sustained.

(2.) The prosecution case in brief is that on 7th of January, 1993 the accused persons along with some other Muslims terrorised the minority Hindus of the locality in consequence of which the Hindus remained inside their respective rooms in the Chawl. The prosecution further alleged that these accused persons came with deadly weapons in their hands at 9.30 p.m. and warned the Hindus of the locality not to come out of their respective tenements as otherwise they would be killed. The Hindus got frightened, and therefore, preferred to remain inside their respective houses. At 11.30 p.m. while the Hindus had taken shelter in their respective tenements they could hear some noise outside and then through the windows they could see that some of these accused person had sprinkled petrol/kerosene on the ota and door of the room of Rajaram Bane and then set the said room to fire. As the room had been closed from outside, the persons who were inside the room of Rajaram Bane shouted for help but none of the Hindu community could come out, because of fear for their lives from the unruly Muslim accused persons who had been armed with lethal weapons. Seeing the flames, however, the police rushed to the spot and seeing the police the accused persons ran away. After the police arrived at the spot the other Hindus who were living in their respective tenements and some of whom are the prosecution witnesses mustered courage and came out and tried their best to extinguish fire. By the time the fire could be extinguished and the people were able to get into the room, Rajaram Bane, his neighbor Laxmi Bai Batalu and her daughter Kamla and another crippled girl by name Meenakshi Narkar were found dead. Rajaram Bane's Wife Sulochana and another lady Vandana Todkar were alive but had suffered serious burn injuries, and therefore, they were removed to the hospital. Sulochana died in the hospital on 10-1-1993 and Vandana died on 16-1-1993 in the hospital. The police then shifted the Hindu population of the locality to a nearby Municipal School and accommodated them in a room under strict police vigilance. Vandana who was alive and had been removed to the Cooper Hospital gave her statement on the basis of which C.R.No. 15 of 1993 in Jogeshwari Police Station was registered and police took up investigation of the said case. After the police officers of Jogeshwari Police Station had proceeded with the investigation to some extent, the investigation was entrusted to D.C.P. (CID) who registered C.R.No. 14 of 1993. The approval of the Police Commissioner was taken under Section 20A(1). for investigation of the case, under TADA and after completion of the investigation sanction of the Commissioner under Section 20A(2) was obtained and charge sheet was submitted against 14 accused persons in TADA Special Case No. 35 of 1993. Subsequent to the filing of the aforesaid charge sheet when accused No. 15 was arrested a fresh charge sheet was filed against him in TADA Special Case No. 1 of 1994 and similarly Special Case No. 37 of 1994 was filed against accused No. 16 and Special Case No. 17 of 1995 was filed against accused No. 17. The learned Designated Court framed charges against all the 17 accused persons under Sections 120(b), 147, 148, 149, 302, 326, 436, 506 I.P.C. and under Section 3(2))i) and (ii) of the TADA. The accused persons denied their complicity in the crime and took the stand that as the investigating agency failed to arrest the real culprit and a communal riot had erupted in the area and some Hindus were burnt and ultimately died, the accused persons who belonged to the Muslim community were residing in the locality were arrested and were arrayed as accused persons. The defence also challenged the validity of the sanction given by the Commissioner of Police.

(3.) The learned designated Court formulated 12 points for being answered and then after analysis of the oral and documentary evidence on record as well as the material produced came to hold that prosecution has proved valid permission of the competent authority for applying the provisions of TADA and valid sanction to prosecute the accused as required under Section 20A of the Act. The learned Court also came to hold that the accused persons Nos. 1, 2, 4, 7, 8, 9, 10, 11, 14, 15, and 17 struck terror in the minds of Hindu public to adversely affect the disharmoney amongst Hindus and Muslims and for that purpose used explosives like petrol and kerosene and entered into a conspiracy to commit the terrorist act. It further came to hold that the said 11 accused persons were the members of an unlawful assembly whose common object was to threat the Hindus to kill and further to strike terror in the minds of Hindu persons with lethal weapons. It also came to hold that the 11 accused persons used force with the common object to kill the Hindus and committed riot and while committing riot used deadly weapons like choppers and knives. The designated Court further held that the aforesaid 11 accused persons being members of an unlawful assembly and in furtherance of their common intention to kill the deceased knowingly burnt the house of Rajaram Bane with intention and knowledge that thereby they will cause the death of the deceased and in the process committed murders of Rajaram Bane, Sulochana, Laxmi Bai, Kamla, Meenakshi and Vandana. The learned designated Court also came to hold that the aforesaid 11 accused persons being members of an unlawful assembly committed terror in the minds of the Hindu public possessing swords choppers, petrol and kerosene and burnt the house of Rajaram Bane after pouring kerosene and petrol on the house and set the said house on fire. With these conclusions the aforesaid 11 accused persons having been convicted and sentenced to different terms as hereinafter. The accused appellants were convicted for the offences under Section 120B read with Section 3(2)(1) of TADA, under Section 149 IPC read with Section 3(2)(i) of TADA, under Section 302 IPC read with Section 149 IPC, under Section 436 read with Section 149 IPC and under Sections 147 and 148 of the Indian Penal Code. For such conviction they are sentenced to imprisonment for life and to pay a fine of Rs. 500/-, in default to suffer R. I. for six months. The Designated Court did not, however, award separate sentence for each of the offence. The present appeal has been preferred against the aforesaid conviction and sentence passed by the designated Court. Be it be stated that out of 17 accused persons, who stood tried, 6 of them have been acquitted of all the charges against them. The prosecution in support of its case examined several witnesses of whom PWs 1, 2, 3, 4, 9 and 10 are stated to be the eyewitnesses to the crime. In coming to the conclusion that the prosecution case has been established beyond reasonable doubt and it is these accused appellants who are perpetrators of the crime the learned designated Court examined the evidence of the aforesaid 6 eye-witnesses and held them to be reliable and on the basis of their identification of the accused persons in court convicted those accused persons who could be identified by two or more witnesses. In assessing the testimony of the aforesaid eye-witnesses and in deciding the question of the reliability of these witnesses the learned designated Court has examined whether it was at all possible for the witnesses to see the occurrence from the place where they alleged to have been seen, the inordinate delay in their examination by the investigating officer under Section 161 Cr. P.C. their non-disclosure of the incident to anybody else, and the fact that they were admittedly residing in the locality where the occurrence took place. Having examined the impugned judgment of the learned designated Court, we find that what persuaded the learned Judge to believe the testimony of these witnesses is the fact that they are the residents of the locality and the accused persons also belonged to the said locality and they know each other well and as such there could not have been any mistaken identity of the accused persons. The learned designated Court, however, took the precaution, since large number of accused persons were involved, to hold that the prosecution case has been proved beyond reasonable doubt against those accused persons who have been identified by more than two eye-witnesses of the occurrence.