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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:

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 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 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 between 1979 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 XLVII, Page 9 dealing with ''Communal Riots' of the report reads thus:

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?

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 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 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 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.

(5) that the investigation is unsatisfactory and tardy and no attempt is made to follow up the complaints made 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 background and situation some of the arguments 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 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 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 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 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 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 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 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 in 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 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.