Apex Court’s Split Verdict on An Ayodhya Case – An Eye Opener

May 8, 2008 by  


By Nilofar Suhrawardy, MMNS

NEW DELHI- Fifteen years have passed since demolition of Babari Masjid in Ayodhya (Uttar Pradesh), a dark page in Indian politics which was accompanied by nation-wide riots targeting Indian Muslims. Yet, to this day all those responsible for the demolition and riots have not been punished and the surviving victims are still waiting for fair trial. One such case reached the Supreme Court last week (May 3). It involved murder of Sahera Khatoon and her two minor daughters Bimala Khatoon (3) and Hazra Khatoon (7) at Changmazi Pathar village in Assam’s Daboka district on December 14, 1992, a week after the Babari Masjid demolition. A trial court had earlier convicted the five persons accused of having committed the crime. The Supreme Court, however, gave a split verdict in confirming convictions against the accused Harendra Sarkar and four others. Justices S.B. Sinha and H.S. Bedi held different views against the five accused. While Sinha ordered their acquittal, Bedi confirmed life imprisonment imposed on them. Due to split verdict, the case has now been placed before the Chief Justice of India for being referred to a larger bench.

Nevertheless, the case serves as an eye-opener to deliberate attempts being made to stall imposition of punishment on those responsible for targeting Muslims during communal riots. “There appears to be near unanimity that a deliberate attempt is made by the police and the investigating agencies to forestall fair investigation into attacks on the minority communities and, on the contrary, to connive with the perpetrators,” the Supreme Court held.

In his dissenting opinion, Bedi accused the police machinery of adopting an “anti-minority bias.” “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 as the cancer continues to metastasize on account of several factors,” Bedi said.

Bedi drew attention to conclusion reached by numerous commissions of inquiry on communal incidents, which invariably pointed to failure of police machinery in taking proper steps to combat the menace.

“There is an alarming tendency on the part of several local big wigs to prevent the initiation of action against well-known goondas and anti-social elements. We are also aware that the police is also not entirely free from blame in this regard,” Bedi said.

Bedi rejected the appellants’ argument that they had been falsely implicated as the two families had been involved in a land dispute in the village.

The accused had been convicted by the trial court mainly on the basis of eyewitness account of the victim Sahera Khatoon’s husband, Mohd Taheruddin and his sons Zakir Hussain and Hanif Ahmed. The sons had also sustained knife injuries in the attacks allegedly carried by accused.

The accused pleaded that there was a delay of 15 hours in recording of FIR (First Information Report) and there were inconsistencies in statements made by witnesses vis-à-vis name of the accused.

“In such matters 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, even if there are contradictions,” Bedi said. “As is well known, the fallout 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,” he observed.

“Arguments with regard to the delay in the FIR or some minor contradictions in the statements under section 161, vis-à-vis the statements in the court or a flaw in the recording of the post mortem or inquest reports or non-recovery of murder weapons, etc, are a matter of little concern,” Bedi emphasized. Upholding life imprisonment, he pointed out: “In a case of a complete breakdown of the civil administration, these broad arguments are wholly inapplicable.”

Disagreeing with Bedi’s conclusion, Sinha, who headed the bench, said: “The courts, in order to do justice to the parties, must examine the material brought on record in each case on its own merits. Marshalling and appreciation of evidence must be done strictly in accordance with the law.”

“In my opinion, it 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 the Evidence Act would not be applied differently vis-à-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. Each accused person, even a terrorist, has his human right. He must be tried in accordance with the law,” Sinha said favoring acquittal of the accused.

Giving importance to delay in filing of FIR and the land dispute between the families, Sinha said: “In a case of this nature, where enmity arising out of land dispute is admitted, in absence of any explanation, delay in lodging the FIR should be viewed with suspicion.” Besides, Sinha held that as the main accused Gopal named in FIR by prosecution witness had been acquitted along with few other accused, the conviction against the remaining five was not sustainable.

There is nothing surprising about judgment being delayed at the apex court. It may be pointed out that Liberhan Commission- set up by P.V. Narsimha Rao government to probe into circumstances leading to demolition of Babari Masjid- has yet to complete its inquiry. It has taken 15 years and incurred an expenditure of more than Rs 700 million. Its term was to end on April 30. It has been accorded extension for two more months, till June 30. This is the 45th extension of the commission headed by Justice (retired) M.S. Liberhan. Announcing the extension, a home ministry official said: “The commission was given its 44th extension on February 29 for two months but since its task is not yet over, the fresh extension was given on Wednesday to enable it to complete the report by June 30.”

The Srikrishna Commission formed to probe into Mumbai communal riots that rocked the city in 1992-93 took only five years to complete investigation into the causes of riots. Disbanded by Shiv Sena-led Maharashtra government in January 1996, the commission was reconstituted because of public pressure in May 1996. The commission accused Shiv Sena and its cadres for having targeted the Muslims. The commission’s report has to this day not been implemented.

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