यह हाशिमपुरा मुक़दमे में हुए फैसले का अंतिम भाग है , अभाव में सत्र न्यायालय ने बरी कर दिया है। 22 मई 1987 को पी ए सी के जवानों ने हाशिम पूरा , मेरठ के एक मोहल्ले से 42 लोगों का अपहरण कर के उन्हें गंग नहर में मुराद नगर के पास फेंक , दिया। इसका मुक़दमा जिला ग़ाज़ियाबाद में कायम हुआ , और सी आई दी द्वारा तफ्तीश की गयी। मुकदमें की सुनवाई, सुप्रीम कोर्ट के निर्देश पर दिल्ली के सत्र न्यायालय को स्थानांतरित की गयी। फैसले का आख़िरी अंश शेयर कर रहा हूँ।
अगर आप पूरा फैसला पढ़ने के इच्छुक हैं तो इस लिंक judis.nic.in . पर जा कर इसे खोलें और Delhi पर जा कर उसके दाहिने तरफ के शीर्ष District Courts. पर जाएँ। जज का नाम पूछे जाने पर , Judge name, के नीचे Sanjay Jindal टाइप करें और तिथि 21 March 2015 to 21 March 2015. लिखें। पूरा फैसला इस लिंक पर मिल जायेगा।
‘’
Since there is lack of direct evidence against the accused persons, the case in
hand has virtually converted into a case of circumstantial evidence against the
accused persons facing trial despite the fact that there are several eye
witnesses to the whole incident. Most of the basic facts except the identity of
the culprits have been duly proved and
established
on record as discussed above but the evidence required to
connect
the accused persons with the crime is actually missing.
In
Sharad Birdhichand Sarda vs. State of Maharastra,
AIR
1984 SC 1622, while dealing with a case relating
to circumstantial
evidence,
the Hon'ble Supreme Court has laid down following conditions
precedent
before conviction could be based on circumstantial evidence:
Firstly,
the circumstances from which the conclusion of guilt is
to be drawn should be fully established. The circumstances concerned must
or should and not may be established;
Secondly,
the facts so established should be consistent only with
the hypothesis of the guilt of the accused, that is to say, they should not be
explainable on any other hypothesis except that the
accused is guilty;
Thirdly,
the circumstances should be of a conclusive nature and
tendency;
Fourthly,
they should exclude every possible hypothesis except
the one to be proved;
and lastly,
there must be a chain of evidence so complete as not to
leave any reasonable ground for the conclusion consistent with the innocence
of the accused and must show that in all human probabilities
the act must have been done by the accused.
It
has been argued on behalf of the state as well as victims
that
the victims were subjected to brutal, unconscionable and unprovoked violence by
the accused persons who belonged to C Company of 41st Battalion PAC
posted in Meerut and therefore it is a case for custodial torture and deaths.
Further that the rules pertaining to appreciation of evidence in such like
cases is different from the rules of appreciation of evidence in other criminal
cases. In this regard, reference has been made to the judgments of Hon'ble
Supreme Court Ors vs. State of M.P, 2005 (9) SCC 631
wherein it has been observed
that
in cases of police torture or custodial death direct ocular evidence of
the
complicity of the police personnels is rarely available and that this
realty
must be taken into accounts by the court when appreciating the
evidence
and that the courts are required to have a change in their out look, approach,
appreciation and attitude, particularly in cases involving
custodial
crimes and they should exhibit more sensitivity and adopt a
realistic
rather than a narrow technical approach while dealing with the
cases
of custodial crime so that as far as possible within their powers, the truth is
found and guilty should not escape so that the victim of the crime has the
satisfaction that ultimately the majesty of law has prevailed”.
The
ld. Counsel has also relied upon the judgments of Hon'ble
Supreme
Court in State of M.P vs. Shyam Sunder Trivedi
(1995) 4 SCC
262
wherein it has been observed that
generally speaking it would be
police
officials alone who can only explain the circumstances in which a
person
in their custody had died. Further that bound as they are by the ties of
brotherhood, it is not unknown that the police personnels prefer to
remain
silent and more often than not even pervert the truth to save their
colleagues.
Further that the exaggerated adherence to and insistence upon
the establishment of proof beyond
every reasonable doubts, by the
prosecution,
ignoring the ground realties the fact situations and the
peculiar
circumstances of a given case often result in miscarriage of
justice
and make the justice delivery system a suspect.
The
ld. Counsel has also relied upon Raghubir Singh vs. State
of
Haryana (1980) 3 SCC 80, Dalip Singh vs. State of Haryana (1993) 3
Suppl.
SCC 336 and State of U.P vs. Ram Sagar Yadav (1986) 1 SCC 552 on this aspect. On
the other hand, ld. Defense counsels have rebutted the arguments of the ld.
Spl. PP and ld. Counsel for victims and it is submitted that the judgments
relied upon by ld. Spl. PP and ld. Counsel for victims are not applicable in
the facts of the present case as it is a case of actually no evidence against
the accused persons.
If
the facts of the present case are analyzed in light of the
judgments
relating to appreciation of evidence in custodial torture and
death
cases, relied upon by Ld. Spl. PP and ld. Counsel for victims it
becomes
clear that the said judgments are practically applicable qua some of the facts
and circumstances and not qua the remaining. The benefit of the principal of
liberal interpretation as laid down in the above mentioned judgments has been
given to prosecution on the issue of the alleged contradictions/improvements in
the statement of the eyewitnesses in respect of facts no. 1 to 6 mentioned
above relating to search, arrest, abduction and killing of the persons
belonging to Mohalla Hashimpura by the officials of PAC. Benefit of liberal
interpretation has also been given to some extent on the issue of identity of
injured/dead persons/victims and cause of death under fact in issue no. 7 as
mentioned above. But in my opinion, such liberal interpretation cannot be
extended on remaining facts i.e facts relating to identity of weapon of offence
(issue no 7), identity of truck by its registration number and identity of the
accused persons(issues no. 8 to 11). Infact, the said judgments, without
disputing the importance of the rule laid down therein, are found to be
distinguishable on facts on some material aspects. In those cases the identity
of the accused/culprit/responsible officials was not in dispute and only the
facts and the evidence regarding ingredients of offence were in question. On the
other hand, in the case in hand, the basic facts and ingredients of offences
are established but the identity of culprits is in question. It cannot be
forgotten that the case in hand is not a small case having minor punishment.
The punishment prescribed for the alleged offence is not less than life
imprisonment or death penalty and in that eventuality the conviction cannot be
based on weak evidence by ignoring the basic principals of appreciation of
evidence simply because the case is of custodial deaths.
It
is also argued on behalf of the victims that once it is
established
that the accused persons had abducted the victims from
Mohalla
Hashimpura, the burden of proving as to what happened to those abducted men,
shifts to accused persons by virtue of statutory requirement u/s 106 of the
Indian Evidence Act as the said facts are within special knowledge of accused
alone but they have not led any evidence to disprove the allegations against
them. In this regard, a reference is made to the judgments of Hon'ble Supreme
in State of West Bengal vs. Mir Mohd. Omar & Ors. (2000) 8 SCC 382
and State
of Rajasthan vs. Kansi
Ram (2006) 12 SCC 254. The above contention made on
behalf of victims is not found to be forceful as there is no evidence to show
that the abducted persons were in custody/control of the accused persons facing
trial and therefore there does not arise any question of shifting of burden of
proof on the accused persons.
Similarly,
it is also argued that this is a case where police officers investigated the
culpable act of violence of fellow police officers
and
it comes as no surprise that linked as they are by virtue of their
professional
and personal ties, the investigating agency conducted a
shoddy
investigation. Further that such shoddy investigation cannot be
used
to benefit the accused, particularly, since the crime in question was
committed
by those entrusted with the task of protecting citizens. In this
regard,
reliance is placed upon the judgments of Hon'ble Supreme Court
in
Gajoo vs. State of Uttrakhand (2012) 9 SCC 532 and Dayal Singh &
Ors.
vs. State of Uttranchal (2012) 8 SCC 263. After
careful perusal of
record,
the present contention is found to be not of much help to the
victims
as the defects in the investigation are of such a nature which go to the very
root of the prosecution case and if ignored the same can cause a serious
prejudice to the accused persons and such ignorance may result into miscarriage
of justice.
It
is well settled law that fouler the crime is, the clearer and
plainer
ought the proof to be. In a case based on circumstantial
evidence,
the court has to be on its guard to avoid the danger of allowing
suspicion
to take the place of legal proof and has to be watchful to avoid
the
danger of being swayed by emotional considerations, howsoever
strong
they may be, to take the place of proof. (ref.
Balwinder Singh vs.
State
of Punjab in AIR 1996 SC 607). Similarly in Hanumant vs. State of M.P 1953 CrLJ 129 the Hon'ble Supreme Court has observed that in dealing
with circumstantial evidence, rules specially applicable to such evidence must
be kept in mind. In such cases, there is always the danger that conjecture or suspicion
may take the place of legal proof. It is also observed in the same judgment
that there must be a chain of evidence so complete as not to leave any
reasonable grounds for a conclusion consistent with the innocence of the accused
and it must be such as to show that within all human probabilities the act must
have been done by the accused.
On
the basis of discussions under different facts in issue from serial no. 1 to 11
mentioned above, it has to be concluded that it has been duly proved and
established on record that several hundred persons
belonging
to different Mohallas of Meerut city were apprehended or
arrested
by PAC and other forces from Mohalla Hashimpura on
22.05.1987
out of which about 4045 persons belonging to Mohalla
Hashimpura
were abducted in a yellow colour PAC truck by the PAC
officials.
It is also proved that those abducted persons were subsequently shot at and
thrown into the waters of Gang Nahar Murad Nagar and Hindon River Ghaziabad. It
is further established that some of them survived, some expired and some are
still missing. But it has not been proved beyond reasonable doubts that the
accused persons facing trial are the PAC officials who abducted and killed the
people from Mohalla Hashimpura or that the registration number of the truck was
URU1493 belonging to 41st Battalion PAC. All the circumstances relied upon by
the prosecution to connect the truck no. URU1493 and the accused persons are
capable of raising some suspicion but the same have not been proved
conclusively beyond reasonable doubts. The statements of the witnesses relating
to identity of the truck being with registration no. URU1493 and identity of the
accused persons are non conclusive and do not inspire confidence. Virtually,
there is no clinching evidence on record without infirmities on the
circumstance relating to identity of the truck and accused persons. The accused
persons can not be convicted on the basis of scanty, unreliable and faulty
investigation which has gaps and holes. Not a single circumstance relied upon
by the prosecution inspire confidence to establish the guilt of the accused
persons. In view of above discussion, I am of the view that the
evidence
adduced by the prosecution is not sufficient to record the guilt
for
the offences the accused persons have been charged with. Various
incriminating
circumstances relied upon by the prosecution are not
sufficient
to draw an inference of guilt of accused persons and the chain of circumstances
has not been cogently or firmly established and the
circumstances
have no definite tendency to unerringly point toward the
guilt
of the accused.
It
is very painful to observe that several innocent persons have been traumatized
and their lives have been taken by the State agency but the investigating
agency as well as the prosecution have failed to bring on record the reliable
material to establish the identity of culprits. The accused persons facing
trial are entitled to benefit of doubts existing in the case of prosecution. Hence,
in these circumstances, all the accused persons namely Suresh Chand Sharma,
Niranjan Lal, Kamal Singh, Rambir Singh, Sami Ullah, Mahesh Prasad, Jaipal Singh,
Ram Dhyam, Sarwan Kumar, Leela Dhar, Hambir Singh, Kunwar Pal Singh, Budha
Singh, Budhi Singh, Mohkam Singh and Basant Vallabh are acquitted of all the
charges framed against them. All accused persons are on bail in this case,
their bail bonds will remain in force for a period of six months in terms of
section 437A Cr.P.C. Case property if any be released to its rightful owners.
Original documents, if any be released in favour of rightful owner after cancellation
of endorsement, if any. ‘’
File
be consigned to Record Room.
ANNOUNCED
IN THE OPEN COURT (SANJAY JINDAL)
TODAY
i.e.ON 21st March 2015 ASJ:04:WEST:THC:DELHI
21.03.2015
State vs. Surenderpal
& Ors. Page No. 216/216
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