33 years after a sedition case was registered in the aftermath of the Babri Masjid demolition, a Special NIA Court at Lucknow last week acquitted a 78-year-old man (Mohammed Naeem), who was accused of displaying black flags and raising anti-national slogans, including "Pakistan Zindabad" and "Ganatantra Diwas Murdabad".

The Special Court found that the prosecution failed to prove the essential ingredients of the offences under Sections 295A (outraging religious feelings), 124A (Sedition) and 153B (Imputations against national integration) IPC or establish the allegations beyond a reasonable doubt.

Additional District and Sessions Judge/Special Judge (NIA) Umakant Jindal observed that the prosecution had failed to prove that accused-Naeem had gathered at the spot, displayed black flags or raised "Pakistan Zindabad", "Ganatantra Diwas Murdabad" or other anti-national slogans allegedly threatening India's sovereignty and integrity.

The Court therefore acquitted Naeem of all charges.

As per the prosecution's case, the incident occurred on January 26, 1993, when police personnel were on Republic Day bandobast duty. They allegedly saw Accused-Naeem and others displaying black flags from houses in Gorakhpur's Ismailpur locality.

It was claimed that they were shouting slogans including "Pakistan Zindabad", "Ganatantra Diwas Murdabad" and demanding "another Pakistan" in India following the demolition of the Babri Masjid.

However, the Special Court, after examining the evidence against the accused, found multiple deficiencies in the prosecution's case.

The Court noted that, according to the prosecution witnesses themselves, all the alleged slogan-shouters had fled before the police party reached the spot. In these circumstances, the Court opined that the prosecution failed to explain who informed the police that the accused were the persons involved.

One of the primary reasons for the acquittal was that the investigating officer had initially submitted a final report in 2003, stating that, owing to the passage of time, the case had become stale and there was no evidence sufficient to send the matter for trial.

Although that final report was subsequently not accepted and a chargesheet came to be filed in 2005, the IO who subsequently handled the case admitted in cross-examination:

"मैं इस विवेचना में कभी भी घटनास्थल पर नहीं गया, न ही मैंने विवेचना के दौरान घटनास्थल पर जाकर किसी का बयान लिया। मैंने अपनी विवेचना के दौरान पूर्व विवेचक द्वारा एकत्रित किये गये साक्ष्य के आधार पर ही आरोप पत्र प्रेषित कर दिया।" [Translation : I never visited the place of occurrence during the investigation, nor did I record the statement of any person at the spot. I filed the chargesheet solely on the basis of the evidence collected by the previous investigating officer.]

The Court observed that this itself demonstrated that no fresh evidence had been collected before filing the chargesheet, thereby rendering the prosecution's story doubtful.

The Court also noted that while the prosecution's entire case rested on the allegation that black flags had been recovered from the accused, neither the alleged black flags nor any recovery memo was produced before the Court.

Referring to the evidence of a prosecution witness, the Court noted that even the constable who had allegedly participated in the recovery admitted:

"मेरी मुख्यपरीक्षा के समय और प्रतिपरीक्षा के समय बरामदशुदा काला झण्डा अदालत में पेश नहीं हुआ है। कहां है, मैं नहीं बता सकता।" [Translation : At the time of my examination-in-chief as well as cross-examination, the recovered black flag was not produced before the Court. I do not know where it is.]

According to the Court, failure to prepare a recovery memo and to produce the allegedly recovered black flags, which was the most important piece of evidence, made the prosecution's case doubtful; hence, the Court said that the benefit of the same had to go to the accused.

The Court further found that the prosecution had failed to establish how the accused came to be named in the FIR. During cross-examination, one of the police witnesses admitted:

"इस मुकदमे में अभियुक्तगण का नाम इंस्पेक्टर साहब ने ही दर्ज कराये थे। इंस्पेक्टर साहब ही बता सकते हैं कि वह उन लोगों को कैसे पहचानते थे। मेरी इस संबंध में कोई व्यक्तिगत जानकारी नहीं है।" [Translation : The names of the accused were entered in the case by the Inspector. Only the Inspector can explain how he identified them. I have no personal knowledge in this regard.]

The same witness stated that by the time the police arrived, everyone had already fled, leaving no one at the scene.

The Court observed that the prosecution failed to disclose the identity of any person who had informed the police that the houses allegedly belonged to the accused or that they were the persons who had raised the slogans.

Consequently, the accused's involvement itself remained unproved beyond reasonable doubt, the Court said.

Another circumstance which weighed in favour of the accused was that the complainant, who appeared as PW-2, was examined only in chief and was never made available for cross-examination despite repeated opportunities.

The Court held that in such circumstances, the defence was deprived of the opportunity to test the witness's testimony, and therefore his examination-in-chief ceased to have any legal significance for recording a finding of guilt.

Recording its final conclusion, the Court held that:

"अभियोजन पक्ष धारा-295A, 124A, 153B भा०दं०सं० के अपराध के घटित होने के लिये आवश्यक तत्व के तथ्य को साबित नहीं कर पाया है।" [Translation : The prosecution has failed to prove the facts constituting the essential ingredients required for the offences under Sections 295A, 124A and 153B IPC.]

It further found that the prosecution had also failed to establish beyond reasonable doubt that the accused had assembled at the spot, displayed black flags or raised "Pakistan Zindabad", "Ganatantra Diwas Murdabad" or other slogans allegedly threatening the sovereignty and integrity of India. Accordingly, Naeem was acquitted of all charges.

Case title - State of UP vs Naeem

Click Here To Read/Download Order