The Bombay High Court set aside conviction of one Abdul Gani Mulla, a man sentenced to seven years in prison for allegedly ransacking the house, assaulting the wife and children of another man Balkrishna during the Bombay riots of 1992.
The incident allegedly took place on December 7, 1992 after riots had broken out all over Mumbai post the demolition of Babri masjid at Ayodhya by Kar Sevaks.
Justice SS Jadhav heard the criminal appeal filed by Mulla, who was lodged at Yerwada jail in Pune at the time of the judgement which was pronounced in June but was uploaded recently.
According to the prosecution, communal riots had erupted all over India in the midnight of December 6, 1992 and incidents of pelting stones and burning of vehicles, public and private, were being reported. The riots had spread across the limits of Deonar Police Station and the rest of Bombay. It is alleged at about 7 pm on December 7, 1992, complainant Balkrishana saw a mob of 'Muslim people' approaching his house and he had seen one person by name Ramzan Dadhivala collecting people to form an unlawful assembly.
As per the complainant, movements of the said unlawful assembly were suspicious as they were armed with sword, chopper and other deadly weapons. Complainant then instructed his wife to remain indoors and shut the door to take care of herself and their children as he left for the police station to lodge a report. When he reached the police station, the officer In-charge was not present and by about 8 pm, Balkrishana informed the police officer about the said apprehension. Police Inspector Patil who later became prosecution's witness in the case, then accompanied Balkrishna to his house at Baiganwadi, Govandi. When they reached the house, they saw that Balkrishna's wife Prabhavati Patil and their children were on the loft, injured.
According to Balkrishna, they entered the house from the rear door. Upon enquiry, Balkrishna was informed that the house was ransacked, his wife was unconscious. Prosecution's witness number-3 Prabhakar had informed Balkrishana that 10 to 15 persons had entered into house, ransacked the house, damaged the property and had caused injuries to them by dangerous weapons.
Police had arrested 14 people on the basis of Balakrishana's statement, appellant accused was one of them. He was arrested on February 21, 1993. The Sessions Court convicted him under Sections 326 (Voluntarily causing grievous hurt by dangerous weapons or means) and 452 (House-trespass after preparation for hurt, assault or wrongful restraint) of the Indian Penal Code.
Court noted that although, as per the complainant's statement, Ramzan was the person who was in fact collecting people to form an unlawful assembly, but he is not an accused in the present case. Moreover, Balkrishna was an active member of Shiv Sena Party and the party office (Shakha) is at a distance of hardly 500 feet from the house of the complainant. He was not on good terms with accused number 13, Court observed.
"The area where incident has occurred was occupied by Hindus and Muslim. Communal riots were unknown to the said area prior to 07/12/1992 except some quarrel between complainant and the accused no. 13. That, all the 13 accused named by PW-1 Balkrishna are acquitted of all the charges levelled against them. There was no charge framed against the present appellant for an offence under sections 452 or 326 of the Indian Penal Code."
Complainant Balakrishana admitted in his cross examination that there were quarrels between himself and the accused no. 13 and a criminal case was also registered. Accused no. 13 was acquitted in the said case.
Justice Jadhav then referred to the statement given by complainant's wife, a fortnight after the incident and observed-
"PW-2 Prabhavati has admitted that she does not know how her son PW-3 Prabhakar got injured. There are inherent omissions. According to her she has stated before the police that the accused persons had snatched her Mangalsutra. The said version does not find place in the F.I.R. She has attributed act of assault upon her only by accused no. 14. According to her she was assaulted with a chopper and not a knife. However, she maintained that she was also assaulted by a hockey-stick. It is a matter of record that the appellant herein was not armed with a hockey-stick and therefore it can be said that some other members of the unlawful assembly had assaulted her with a hocky-stick."
Court highlighted that there was a delay of 10 days in registration of the offence, although police had admitted the injured in hospital on the same day. Also, there is nothing on record to show that the house was set on fire or it was ransacked or there was damage to the property.
"Even if, the police have not actually registered the offence forthwith, the fact that there is no station diary to that effect also causes grave prejudice.
There is no medical record, no scene of offence panchanama, no station diary entry. No case diary to show that there was a riot or a house was ransacked on plot no. 10 in Bhivandi area. Hence, it can be said that the prosecution has not satisfactorily explained the delay for registration of F.I.R" Court said.
Finally, referring to Supreme Court's decision in Darbara Singh V/s. State of Punjab, Court allowed the appeal and noted-
"The prosecution has only taken the shelter of circumstances prevalent at that time and at the trial also there are several lacunas and the same has caused prejudice to the accused.
In the present case accused nos. 1 to 13 have been granted clear acquittal and not with the aid of benefit of doubt. The appellant alone could not have been held liable for the act of causing assault upon PW-2 and PW-3."
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