JUDGMENT

S.B. SINHA, J. 1.Mauza Sangamari Pathar is a small village. It is situated within P.S. Dobaka in the District of Nagaon in the State of Assam. The residents are principally agriculturists. Madhabtoli is a neighbouring village. Appellants are the residents thereof.

2. Taheruddin PW-2 was a resident of Changmazi Patghar. The distance between two villages is about one mile. He had been living in a house consisting of four rooms; each situated in different corners abutting a big court yard measuring 20 x 40.

3.The incident occurred soon after the demolition of Babri Masjid. A communal riot had taken place. Curfew was imposed.

4.On or about 14th December, 1992 Taheruddin was in his fields. A mob came to his house. In one of the rooms, his wife and six daughters were sleeping. Another room was being occupied by his sons. The mob broke open the door. They allegedly came armed. Near about that time, another house belonging to one Nandu was burning. Allegedly, from two sides, 14-20 people came to the house of Taheruddin

5. One of his sons, Md. Mustafa PW-3 was in his bed. He was all alone. He allegedly heard the voice of Gopal calling, Munshi, Munshi, to which he replied that he was not at home. Gopal and several other people opened the bamboo door. Gopal poked him with a spear which struck at his leg. He took it out and ran outside the house. Two persons standing outside were allegedly recognized by him. They were allegedly armed with dao, dagger, arrows etc. He saw his father coming towards the home. He asked him not to go home. He raised a hue and cry. Inside the house his mother and two sisters were being backed. He did not recognize any one of the assailants. He returned to the house sometimes later to find that his mother was lying in a critical condition and two sisters lying dead.

6. Taheruddin who, allegedly was prevented from coming to his house by his son and had run away, came there and found a group of people striking the wall of his house with dao, lathi etc. One of them, Rahna Gour had shot an arrow at him. It hit his right hand. He saw the accused from a distance of about 2 = nals away (1 nal = about 27-28 feet) ie. About 70 ft. in total. He shouted. An army vehicle arrived there. He found his daughter Bimala in an injured condition. She had died. He also found his other daughter Hajeera lying dead. Taking Bimala on his shoulder, he stood on the road. After the departure of the army personnel, he found his wife Sahera Khatoon lying injured in middle of the paddy field near the house. He carried her home, whereafter she died.

7. Hanif, PW-4, another son of Taheruddin allegedly alongwith Zakir Hussain was in the kitchen. He is said to be a labourer and allegedly also sustained injuries. He has not been examined. 8. Three accused, Kalyash, Hari Singh and Ratan, according to him, entered his room. He was not assaulted but allegedly Zakir was taken away by them. He allegedly took shelter under a banana tree and observed the entire incident. According to him when his mother came out, Gopal, Kalyash,.Ghandul, Krishna and Haren Doctor assaulted his mother who died there. When Hajeera came out from the room, she was assaulted by Badhuram Timu, Hari Singh and Rahna. Other three sisters escaped but Bimala was assaulted by Gopal, Ratan and Haren Doctor. They also caused hurt to Zakir.

9. Although, according to PW-2 the army vehicle came and went away, as per the version of others, both army and police team came to the place of occurrence.

10. Whereas the injured were taken to the District Hospital for treatment by the Police, the dead bodies were taken in the army vehicle.

11. The injured were examined by the Medical Officer at about 1.00 a.m. and were said to have suffered the following injuries :-

Zakir Hussain

(1) There was vertical cut injury over the lip. Size 2" x ="

(2) There are six cut injuries over the scalp each about 2" x1/2" in size.

(3) Left little finger was severed at the bone of the proximal phalange.

(4) There i