Delhi District Court
S.C. No. 201/2018 State vs . Babu Lal Page No. 1 Of 30 on 16 December, 2022
DLNW010032712018
Presented on : 27-03-2018
Registered on : 27-03-2018
Decided on : 16-12-2022
Duration : 4 years, 8 months, 20
days
IN THE COURT OF
ASJ/SPECIAL.JUDGE(NDPS)
AT NORTH WEST, ROHINI COURTS, DELHI
(Presided Over by Sh. Vikram)
SC/201/2018
Exhibits. As per ANNEXURE 'A'
FIR No. : 229/1992
Police Station : Mangolpuri
STATE
Vs.
1. Babu Lal
S/o Late Sh. Shyam Lal
R/o T-1182, Mangol Puri,
Delhi.
2. Shiv Shankar @ Shankar (since deceased)
S/o Late Sh. Deep Chand
R/o RZ-100, Gali No. 10, Karan Vihar,
Amand Vihar, near Mangal Bazaar
Chowk, Delhi.
-----------------------------------------------------------------------------
Special PP for SIT Sh. Gaurav Singh alongwith Sh. Maqsood
Ahmad ld. Chief Public Prosecutor.
Advocate of accused Sh. Bhupesh Kumar
-----------------------------------------------------------------------------
S.C. No. 201/2018 State Vs. Babu Lal Page No. 1 of 30
Offence punishable under : 143/147/148/302 r/w Section
149, 307 r/w Section 149, 455
r/w Section 149, 395 r/w Section
149, 506(II) r/w Section 149
of IPC
JUDGMENT
(Delivered on 16.12.2022) INTRODUCTION:
from JUSTICE NANAVATI COMMISSION OF INQUIRY (1984 ANTI-SIKH RIOTS)
1. The assassination of Prime Minister Smt. Indira Gandhi on 31-10-1984, by her two Sikh security guards, led to violent attacks on Sikhs and their properties in Delhi and other parts of the country. The incidents of violence in Delhi started from the evening of 31-10-84. During the following two days fierce violence was let loose on the Sikhs and their properties.
Hundreds of Sikhs were killed. Several others were injured. Their properties were looted and burnt on a very large scale. Though the incidents of violence continued till 5-11-84 the situation started improving from 3-11-84. As a result of these riots, hundreds of Sikhs had to leave their homes and take refuge in relief camps or in other safer places. Many Sikh families lost their male members and thus suffered great emotional and heavy financial loss.
2. Considering the feelings of the Sikh community and criticism of the bodies concerned with protection of human rights S.C. No. 201/2018 State Vs. Babu Lal Page No. 2 of 30 and civil liberties, the Government of India appointed a Commission headed by Mr. Justice Ranganath Mishra, the then Hon'ble Chief Justice of India, under Section 3 of the Commissions of Inquiry Act, 1952 " to inquire into the allegations in regard to the incidents of organized violence which took place in Delhi and also the disturbances which took place in the Bokaro Tehsil, Chas Tehsil and at Kanpur and to recommend measures which may be adopted for prevention of recurrence of such incidents."
3. Pursuant to the recommendations made by the Commission, the Government on 23-02-87, appointed three Committees. One of these was Committee consisting of Mr. Justice M.L. Jain, a retired Judge of the Delhi High Court and Shri E.N. Renision, a retired I.P.S. officer (later on replaced by Shri A.K. Banerji, a retired I.P.S. officer) constituted to examine cases relating to riots in Delhi.
4. Jain Banerji Committee could not make any progress because of an interim injunction granted by Hon'ble High Court of Delhi. Later on the notification appointing that Committee was quashed by Hon'ble High Court. Therefore, the Delhi Administration appointed another Committee on 23-3-1990 consisting of Shri P. Subramanian Poti, retired Chief Justice of Gujarat High Court as its Chairman and Shri P. A. Rosha, retired officer of the Indian Police Service as a member with the following terms of reference:
a) To examine whether there were cases of omission to register or properly investigate offences committed in Delhi S.C. No. 201/2018 State Vs. Babu Lal Page No. 3 of 30 during the period of riots from 31st October, 1984 to 7th November 1984;
b) To recommend to the Administrator, where necessary, the registration of Cases and their investigation.
c) To make suggestions to the Administrator where necessary, for the conduct of investigation and prosecution of cases.
5. The Committee was further authorized to look into any papers relating to its terms of reference and to obtain such information, as it deemed necessary from the police and the prosecution agencies in order to carry out its functions. That Committee was reconstituted on 1-10-1990 by appointing Shri Aggarwal, a retired IPS Officer in place of Shri P. A. Rosha. Both Shri Poti and Shri Aggarwal relinquished their office on 22-9- 1990 after completion of the tenure of six months. The reconstituted Committee of Mr. Justice J. D. Jain, a retired Justice of Hon'ble High Court of Delhi and Shri D. K. Aggarwal started functioning from December 1990. It took into consideration 669 affidavits filed before Justice Mishra Commission. It also received 415 affidavits from affected persons and their family members. It looked into 403 FIRs recorded by the Delhi Police in respect of the riot cases. It found that as a result of not recording a separate or distinct FIR for each incident and by following a novel procedure of recording a general, vague and omnibus type of FIR covering many incidents, no proper investigation was done by the Police in respect of each incident/offence and even at the stage of trial proper evidence incident-wise was not produced. The Committee S.C. No. 201/2018 State Vs. Babu Lal Page No. 4 of 30 also found that in most of the cases investigation carried out by the police was absolutely casual, perfunctory and faulty. The Committee also found that many written reports of the incidents lodged by the victims or by their relatives were not acted upon by the police. Another malpractice noticed by the Committee was that the Police had prepared a kind of format for the aggrieved persons for submitting their complaints and it mainly called for information regarding their looted or burnt properties and the quantum of loss suffered by them. It did not contain any column regarding names of the victims and the offenders. The Committee also noticed that in large number of cases, the incidents reported by the aggrieved persons were not reflected in the charge sheets even though those persons had spoken about them during the course of investigation of those offences. The charge sheets filed in the courts were mostly couched in general terms without specifically referring to each incident and several accused (in some cases numbering 100 or more) were put up together to stand their trial even though allegations against them were totally different. The result was that such cases ended in acquittal of the accused due to utter confusion and want of marshalling of evidence. No serious attempt was made by the Police to examine all relevant witnesses in the Court on the pretext that they were not traceable. In view of such serious lapses and derelictions of duty on the part of Police, the Committee recommended to the Government to take disciplinary action against the lower level defaulter police officials. As regards the Deputy Commissioners of Police and Assistant Commissioners of Police, the Committee observed that some of them had simply abdicated their responsibility of supervision and control over investigation of S.C. No. 201/2018 State Vs. Babu Lal Page No. 5 of 30 riots cases. The Committee also made certain suggestions regarding improvements to be made in the Police Organization and their training.
REGISTRATION OF CASE and UNTRACE REPORT
6. One of the affidavit examined by this 'Jain Aggarwal Committee' was of Ajit Singh @ Jit dated 09.09.1985, filed before Justice Ranganath Mishra Commission of inquiry. The committee examined Sh. Ajit Singh on affidavit and on the basis of that affidavit recommended for registration of FIR. As such the present FIR no. 229/92 u/S 120B/147/148/149/302/307/436/ 395 IPC dated 16.04.1992 was registered at PS Mangolpuri and Anti riot cell Delhi Police Malviya Nagar.
7. In the affidavit before the commission, Sh. Ajit Singh had deposed that "on 01.11.1984, while we were sitting in our house [(S-42, Mangolpuri) taken from address in affidavit], we came to know of disturbance in R Block, the killing of Sikhs and burning of their houses. We were terrified and went inside our house. At about 12.00/1.00 pm a big mob attacked our house. They were carrying sticks and iron rods and were raising slogans. They stoned us and we went in our houses, trying to save ourselves. In the midst of this attack, the police came at about 2/2.30 pm. They did not help us at all. On the contrary they incited the mob and asked them to kill the Sikhs and burn their houses. The mob began stoning vigorously. The mob beat with sticks and iron rods those Sikhs whom they caught. One of our men died and some were injured. The mob continued violence and stoning in S.C. No. 201/2018 State Vs. Babu Lal Page No. 6 of 30 presence of the police. When the pressure of mob increased very much, we ran and hid ourselves wherever we could find a hiding place. During this period our houses were looted. Had the police not come in support of the mob the mob would not dare to attack us. I suffered a loss of Rs. 30,000/40,000/- in the looting of my house."
8. The matter was investigated by SI Bhanwar Singh from Anti Riot Cell and after investigation untrace report was filed before Ld. MM Concerned which was accepted on 03.05.1994.
CONSTITUTION OF SIT (1984 RIOTS) and FURTHER INVESTIGATION
9. As the Ministry of Home Affairs, Government of India, had been receiving large number of complaints from various individuals/ associations regarding the Anti-Sikh riots which took place in October-November 1984, a decision was taken to constitute a Committee to look into the grievances raised and also to oversee the implementation of the payment of additional compensation and vide Notification Ncy13028/13/2014-Delhi-1 (NC) dated 23rd December, 2014 a committee was constituted to look into, (i) Need for constitution of SIT for investigating the cases of 1984 riots; (ii) To look into the grievances related to 1984 riots; (iii) To oversee the implementation of the payment of additional/ enhanced compensation; and (iv) Requirement of any other assistance for 1984 riot victims.
10. While concluding, the Committee recommended S.C. No. 201/2018 State Vs. Babu Lal Page No. 7 of 30 constitution of a Special Investigation Team (SIT) to be headed by a senior and experienced officer to examine the records of the Police Stations and also the files of Justice J.D. Jain and Shri D.K. Agarwal Committee in appropriate serious cases and after investigation if sufficient evidence is found available, file charge- sheet against the accused in the proper court.
11. On the basis of above, SIT (1984 Riots) was notified and intimation regarding further investigation of this case was given to Ld. MM Concerned on 08.09.2016 and the matter was investigated further. During investigation victims and riot effected parties were traced. From investigation it was revealed that on 01.11.1984 noon, a mob of about 500-700 persons armed with lathi, iron rods etc, came to lane of S block Mangolpuri where complainant Ajit Singh and other Sikh person's families were residing. The mob attacked Sikhs in which Sher Singh s/o Bhagat Singh, who was returning to his house, was mercilessly beaten. This was witnessed by his two daughter in laws, namely Surinder Kaur and Rajinder Kaur. They came out of their house and tried to save Sher Singh. However, the mob pushed them aside and threatened them. Sher Singh died due to attack of mob. His sons Gurcharan @ Chhinna and Himmat Singh, who had taken shelter in neighbouring house were pulled out by the mob and brutally assaulted with intention to kill them. They were left when they become unconscious. The mob also barged into the houses of Sikhs, including house of Satpal, Sher Singh and Ajit Singh, and damaged and looted their property.
12. Injured Gurcharan Singh @Chainna and Himmat Singh S.C. No. 201/2018 State Vs. Babu Lal Page No. 8 of 30 regained their consciousness in Safdarjung Hospital. The eldest son of Sher Singh namely Baldev Singh, who had stayed back at his work place at Faridabad due to riots, found his brothers in Safdarjung Hospital and after 4 days identified the photograph of his father at PS Mangol puri among the photographs of dead. However, he did not get the dead body of Sher Singh. The witnesses, in their statement had identified two persons from the mob as they were their neighbors. These two persons are Babulal (A1) and Shiv Shankar (since deceased) (A2), who had actively participated in commission of crime.
13. After completion of investigation SIT filed chargesheet against accused Babu lal and Shankar (abated, since deceased) for prosecution u/S 120B/143/147/148/149/302/307/326/395/ 396/436/452 IPC.
14. After compliance of Section 207 Cr.P.C, the charge-sheet was committed to this Court by Ld. MM.
15. Vide order dated 06.06.2018 charge under Sections 143 IPC, 147/148 IPC, 302 IPC r/w Section 149 IPC, 307 IPC r/w Section 149 IPC, 455 IPC r/w Section 149 IPC, 395 IPC r/w Section 149 IPC & 506 Part II IPC r/w Section 149 IPC was framed against Babu Lal to which he pleaded not guilty and claimed trial.
EVIDENCE
16. In order to prove its case prosecution examined 18 S.C. No. 201/2018 State Vs. Babu Lal Page No. 9 of 30 witnesses. A gist of their testimony is as under:
Pw1 Ajit Singh is the complainant. He deposed that at the time of incident he was resident of S-42 Mangolpuri and was doing work of making Iron Shutters. His wife, children and his brother Dilip also used to live with him and deceased Sher was his relative through wife. To the incident Pw1 deposed that it was 1st day of month when he came to know about assassination of Prime Minister Indira Gandhi and he had went to his job place at Raja Garden but his employer asked him to return to home in view of the riots. As per Pw1 on next day he, with his family members, had confined himself in his home and he was watching the riots from the gap of his door and he witnessed that at about 3-4 pm the accused Babulal, his neighbour, alongwith Shankar, also a neighbour, with the mob carrying bottles filled with chemicals, iron rods and dandas, went to the house of Sher Singh and were attacking persons of Sikh community. Sher Singh had returned from Gurudwara and accused and the mob were beating Sher Singh and due to their beatings Sher Singh Expired at spot. Pw1 also deposed that when elder daughter in law of Sher Singh tried to rescue him the accused and the mob beat her on shoulder with stick and when Gurcharan and Himmat tried to rescue Sher Singh they were also beaten by the mob. As per Pw1, due to beatings Himmat became permanently insane.
To the identification of accused, Pw1 deposed that accused Babulal was living in same area where he was living and he belongs to Congress Party and he deposed that accused Babulal and the mob also looted articles from his house. Pw1 also S.C. No. 201/2018 State Vs. Babu Lal Page No. 10 of 30 deposed about his affidavit filed before Justice Ranganath Mishra Commission of Inquiry and proved the same as Ex.P1. Pw1 also proved his complaint dated 13.11.1984 filed in PS Mangolpuri as Ex.P2. Pw1 further proved his statement dated 14.10.1991 as Ex.P3. During investigation Pw1 had taken the police to the house of accused Babulal at T-1182 Mangolpuri however, as per Pw1 accused Babulal was not present in the house on that day.
Pw2 Surender Kaur is daughter in law of deceased Sher Singh and wife of injured Gurcharan Singh. She deposed that on 1.11.1984 she had heard about riots in different area of Delhi in which Sikhs were beings killed. Because of that her husband and both her Devars (brother in laws), namely Himmat and Baldev, were at home and at about 1-1.30 pm Sher Singh had returned from gurdwara after extinguishing the fire as a mob had burnt the Gurdwara. She deposed that loud noises were coming from outside as mob had gathered, therefore her husband Gurcharan went outside with 2-3 boys. Pw2 described the location that there was a small park in front of her house and across the park situated the house of accused Babulal and Shankar. Pw2 deposed that her husband asked Babulal and Shanker and others to help them and save them from the mob. Her husband, father in law, brother in law Himmat and other Sikh people were there in the gali when the mob, carrying Dandas and rods in their hands, including accused Babulal and Shankar attacked them with rods and lathis.
Pw2 deposed that her father in law fell unconscious at the spot due to beatings but her husband and brother in law fled S.C. No. 201/2018 State Vs. Babu Lal Page No. 11 of 30 away and hid themselves in the roof of neighbour. The accused and the mob, however, followed them to roof and there they were beaten mercilessly to the extent that their blood started flowing through stairs. Pw2 deposed that when her Jethani ( sister in law) Rajender Kaur tried to pour water in the mouth of Sher Singh, who was lying unconscious, accused and the mob hit her on shoulder with lathi. Pw2 in order to save herself and her children locked her inside the house. From the home she heard the mob instigating to burn the house on whose roof top her husband and Dever were lying. Pw2 also deposed that one neighbour took her, her children, mother in law and Jethani to his house and they stayed there till arrival of military after which her father in law, her husband and Devar were taken by military officials.
Pw2 also deposed that mob looted all valuable articles from her house and burnt their clothes. She and other family members stayed in the house of neighbour for 3 days believing that her husband, devar and father in law had died however someone told them that Gurcharan and Himmat are admitted in Safdarjung Hospital. Pw2 and her mother in law had went to hospital and saw that her husband and Devar were badly injured by the mob. There she came to know that her father in law died on the way to hospital. Pw2 further deposed that after discharge of her Husband and Devar they were brought to Tilak Nagar Gurdwara Relief camp where they were given further treatment. Pw2 further deposed that her Devar Himmat had gone permanently insane due to injuries who was taken by some volunteers of Gurdwara and now his whereabouts are not known S.C. No. 201/2018 State Vs. Babu Lal Page No. 12 of 30 and her husband has died. Pw2 also deposed that as she had to raise her children she did not go anywhere for making any complaint nor any agency or authority came to her for taking statement, except the IO of this case.
Pw3 Sh. D.K. Agarwal (examined through commission) is one of the member of Jain Aggarwal Committee who had examined the affidavits filed before J Ranganath Mishra Commission on 1984 Anti Sikh Riots. It was before him Pw1 had given his statement Ex.P3 which was recorded by Pw3 on 04.10.1991.
Pw4 Daljit Singh is son of deceased Sher Singh. He was not present in S block Mngolpuri during riots as he had stayed at his workplace at Faridabad. Pw4 had returned to his home on 03.11.1984 and found his family missing and home ransacked. He searched for his family and found his wife, mother, his children and his brothers Himmat and Gurcharan in relief camp run by Gurudwara Committee in Tilak Nagar. Pw4 deposed that he found his brothers badly injured having head injuries, however, he did not find dead body of his father. He went to PS Mangolpuri and identified the photograph of his father among the photographs of dead persons. Pw4 also deposed that one Ajit Singh and his sister in law Surender Kaur had told him that Babulal and Shankar were involved with the mob in killing of his father and beating of his brothers. Pw4 also deposed that no police official made inquiry from him, except Insp. Meena (the IO of this case), about the incident.
S.C. No. 201/2018 State Vs. Babu Lal Page No. 13 of 30 Pw5 Baldev Singh is another son of deceased Sher Singh and he was about 15-16 years old at the time of incident. He deposed that on 1.11.1984 apprehending some wrong he returned home from his office and on the way he witnessed public persons beating people of Sikh Community and after reaching home told this fact to his family members. Pw5 further deposed that due to fear he and Gurcharan Singh concealed themselves in nearby house and while he had concealed himself he saw his father Sher Singh was beaten severally by the rioters due to which he died. Pw5 also deposed that his brother Gurcharan and Himmat were also taken out by the rioters and beaten up severally that when they became unconscious rioters thought that they have died. Pw5 saved himself by hiding in nearby house and he later came to know that his father had died and his brothers were treated in some hospital. Pw5 also deposed that after some day he came to know that accused Babulal and Shankar were involved in the rioting. However, he being illiterate had no knowledge how to report the incident and was under fear of his life. Pw5 further deposed that inquiries from his family were made for the first time about three years before deposition (i.e. during investigation by SIT).
Pw6 ASI Ramji Lal was joined in investigation to collect the record of death of Sh. Sher Singh and the photographs of deceased which were already destroyed vide order Ex.Pw6/A. Pw6 however proved the FIR no.229/92 as Ex.Pw6/B. Pw7 Smt. Rajender Kaur is daughter in law of deceased Sher Singh and wife of Pw4. Pw7 deposed that due to riots she S.C. No. 201/2018 State Vs. Babu Lal Page No. 14 of 30 was in house no. S-51 along with her children, Pw2 and two children of Pw2. She further deposed that her brother in laws had also hid themselves in the house of neighbour and at about 2-2.30 pm many rioters instantly came in her mohalla, armed with lathi and rods. She deposed that her father in law Sher Singh, who had gone to Gurudwara for prayers, had arrived from Gurudwara and when he reached near gate of her house rioters caught him and gave sever beatings. Pw7 further deposed that she and Pw2 tried to save him but the rioters threatened them to stay away otherwise they will be killed. When Pw7 tried to save Sher Singh by covering him she was also beaten in which she suffered injuries on her shoulder. Pw7 further deposed that her father in law died then and there and rioters also beat her brother in laws Gurcharan and Himmat, who were hiding on the roof of neighbour's house, till they became unconscious. Pw7 further deposed that her father in law was removed to some place by some persons and she never got to know where he was taken nor his body was recovered. To the identification of accused Pw7 deposed that she was told by her devarani i.e. Pw2 that accused Babu lal and Shankar, who were resident of next gali, were among the rioters. Pw7 also deposed that no police officials made inquiry from them before 2-2 ½ years from deposition.
Pw8 Retd. ACP Rajender Singh Dahiya was SHO PS Mangolpuri. His deposition is general that after riots several dead bodies were found in Mangolpuri area which were photographed but their identity could not be established. He aslo deposed about the registration of FIR no. 174/84 against unknown persons record of which was not traceable during investigation of this S.C. No. 201/2018 State Vs. Babu Lal Page No. 15 of 30 case.
Pw9 Radhe Shyam Meena ACP Anti Riot Cell had joined as Insp. Anti Riot Cell on 07.11.2012. he deposed about formation of SIT by order of MHA dated 12.02.2015 and its circulation after which he handed over all the record of cases to SIT.
Pw10 Balbir Singh is resident of S-167 Mangolpuri. His testimony is relevant to the extent that riots had occurred in S- block in which he helped on Balwant Singh. He had not seen the rioters nor deposed about incident with Sher Singh and his family.
Pw11 Smt. Satya Devi Medical Record Officer Safdarjung Hospital was joined in investigation to seek medical record of victims of 1984 riots which was already weeded out. She had given letter, Ex.Pw11/A, in this regard to IO. She also proved the certificate of weeding out Ex.Pw11/B. Pw12 Retd. Insp. Mam Chand was working as Insp. Riot Cell from 1990 to 1995 and he was the 2nd IO who filed the untrace report in this FIR, after approval from ACP Anti Riot Cell. Pw12 proved the copy of untrace report Ex.Pw12/A. Pw12 also deposed that untrace report was filed as rioters were not identified by witnesses and it was not know who caused the death of Sher Singh.
Pw13 Insp. Yogesh Kumar had translated the affidavit of S.C. No. 201/2018 State Vs. Babu Lal Page No. 16 of 30 Pw1, Ex.P1, from Gurumukhi to Hindi and proved the translated copy as Ex.Pw13/A. He also produced his qualification in this regard and proved the same Ex.Pw13/B. Pw14 Dr. Satbir Bedi proved the letter dated 06.04.1992, Ex.Pw14/A, to commissioner of police intimating the recommendations of Jain Aggarwal Committee to register fresh case with request to take appropriate action.
Pw15 Sh. Satpal was resident of S-37 Mangolpuri. He proved the death certificate of his father and also proved the list of loss Ex.Pw15/B, filed by his father before police.
Pw16 HC Krishan proved the letter Ex.Pw16/A whereby it was intimated to the IO that records of rojnamcha and duty roster of police officials have been destroyed.
Pw17 Sh. Bhanwar Singh was SI Anti Riot Cell in 1992 and was the first IO of this case. Pw17 deposed that he contacted Pw1 and enquired the matter in detail after which he prepared site plan Ex.Pw17/A and got the scaled site plan from draftsman, Ex.Pw17/B. Pw17 also deposed that he contacted the family members of complainant regarding names of persons who committed riots but none provide any detail. Pw17 further deposed that he had recorded statements of Ajit Singh and other persons and nothing incriminating was found during his investigation.
Pw18 Insp Ram Karan Meena is the IO of SIT. Pw18 S.C. No. 201/2018 State Vs. Babu Lal Page No. 17 of 30 proved the order by which SIT was constituted as Ex.Pw18/A and its notification Ex.Pw18/B. He had given the intimation of re-investigation to Ld MM concerned vide application Ex.Pw18/C. Pw18 deposed that on the same day when he filed application Ex.Pw18/C he interrogated Pw1 and Pw1 mentioned him the name of Babulal and Shankar being involved among the rioters. Pw18 further deposed that public notice was given in 11 news papers calling the victims and persons having knowledge to come forward and join the investigation. Pw18 had recorded the statements of witnesses and collected the documents during investigation and filed the chargesheet.
17. After completion of prosecution evidence accused was examined u/S 313 Cr.P.C and all the incriminating material were put to him. The accused claimed innocence and false implication and stated that the IO R K Meena had come to him at the instance of some secret informer and made inquiries from him regarding his address and parentage on the pretext of assisting him in getting Atal Pension Yojna and later falsely implicated in this case. To the identification by witnesses accused claimed that the witnesses have made false deposition on the instance of IO to get compensation from government and as per his knowledge no Sikh was murdered in his locality. Accused pleaded that he is 78 years old and had never involved in any criminal activity and is being harassed at this age. Accused opted not to lead any defence evidence.
ARGUMENTS OF DEFENCE AS WELL AS
PROSECUTION.
S.C. No. 201/2018 State Vs. Babu Lal Page No. 18 of 30
18. I have heard Ld. Special PP for SIT, Sh. Gaurav Singh and Sh. Maqsood Ahmad (ld. Chief Public Prosecutor) and Sh. Bhupesh Kumar, Ld. Counsel for accused person and carefully perused the record.
19. There is a feeble contest from the side of defence about happening of riots at S-Block Mangolpuri and murder of Sher Singh in the riot. However, not just from the testimonies of witnesses but also from initial record i.e. Ex.18/Z1 it is established that there were riots in S-Block Mangolpuri on 01.11.1984. Mrs. Kulvant Kaur during initial investigation in FIR no. 174/1984 had stated about death of her husband. Even the complainant Ajit Singh, in his affidavit filed before Justice Ranganath Mishra Commission, had stated that one of their member, i.e. Sikh, was killed. This has been constantly stated by Pw1 in his subsequent affidavits filed before Jain Aggarwal Committee and during investigation. Therefore there is no doubt that on 01.11.1984 there were riots in S-Block Mangolpuri in which Sher Singh was killed. Riots were targeted towards members of Sikh Community therefore undoubtedly the mob must not have left any Sikh unharmed unless they were saved by hiding or concealing. Unbelievable would be the situation if the sons of Sher Singh were left unharmed. Hence when Pws deposed that Gurcharan Singh and Himmat Singh were brutally beaten by mob it must be believed irrespective of the fact that police could not find any medical record, for everything was weeded out.
S.C. No. 201/2018 State Vs. Babu Lal Page No. 19 of 30
20. Question, however, is if the accused Babu Lal was part of that mob committing riots.
21. On this point Ld. Special Prosecutor for SIT has contended that this investigation was conducted after 32 years of incident and by then almost all the records were destroyed. Therefore except the statement of eyewitnesses nothing could have been brought. It is contended on behalf of prosecution the the victims have spoken and identified the accused during the trial which is the best evidence in all circumstances and little bit of contradictions here and there, in their testimony, should not sway the court to doubt their their testimony. Ld. Prosecutor also submitted that it must be considered that the witnesses are examined after about 34 years therefore they are bound to have mixed memories of incident and little bit of exaggeration and discrepancies, which are not material and of which no explanation is sought by defence should not be read against prosecution and in favour of accused.
22. In support of his contentions Ld. Special PP for SIT has placed reliance on:-
1) V.K Mishra & Anr. vs. State of Uttrakhand & Anr. AIR 2015 SC 3043,
2) Tehsildar Singh Vs. State of UP,
3) Sayyed Hussain & Ors. Vs. The State,
4) Appabhai Vs. State of Gujrat AIR 1988 SC 694,
5) Shamshuddin Vs. State of MP 2003 (12) SCC 693,
6) State of Rajasthan Vs. Smt. Kalki 1981 SCC 2,
7) Sucha Singh Vs. State of Punjab AIR 2003 SC 3617, S.C. No. 201/2018 State Vs. Babu Lal Page No. 20 of 30
8) State of UP Vs. Nagesh 2011 Cr.L.J 2162 SC,
9) C. Muniappan Vs. State of Tamilnadu AIR 2010 SC 3718, and
10) Samal Ghose Vs. State of West Bengal 2012 ALL SCR 1921.
23. Per contra the contention of Ld. Defence Counsel is that this case has been investigated third time and this time altogether new things are brought on record by SIT. It is contended on behalf of defence that the statements of witnesses are the manipulations of IO as on prior occasion none of the witnesses had stated anything about identification of rioters, much less of accused, despite the fact that as per prosecution accused was immediate neighbour of witnesses. It is also contended on behalf of defence that this FIR was investigated in detail by Pw17 and when all the witnesses stated that they did not know anyone from mob the untrace report was filed which was accepted by Ld. MM after getting satisfied from complainant. Therefore, these new facts introduced by SIT are tutored and manipulated to absolve the role of police, as the witnesses had initially put blame on police officials. Further, it is claimed by defence that prosecution has failed to prove beyond reasonable doubt that accused Babu Lal was part of mob committing riots, causing death of Sher Singh, injuring Gurcharan Singh and Himmat Singh and committing arson and loot in the houses of Sikh Community.
24. In support of his contention defence has placed reliance on:
Bhagirath Vs. State of MP AIR 1976 SC 975, S.C. No. 201/2018 State Vs. Babu Lal Page No. 21 of 30 State of MP Vs. Basodi 2007 (14) SCC 548, State of HP Vs. Nokh Ram 1992 (2) Crimes 30, Hardev Singh Vs. UT of J&K and Another Crl. A(S) No. 80/2020, State of Himachal Pradesh Vs. Bhawani Singh 1991 (3) Crimes 578, and Padala Veerareddy Vs. State of AP AIR 1990 SC 79.
25. An accused is presumed to be innocent until he is found guilty. The burden of proof that he is guilty, is on prosecution and the prosecution has to establish its case beyond all reasonable doubts. In other words, the innocence of an accused can be dispelled by the prosecution only on establishing his guilt beyond all reasonable doubts on the basis of evidence. Sohan and Another Vs. State of Haryana and Another (2001) 3 SCC 620.
26. It is the case of SIT that accused Babulal was resident of S- Block Mangolpuri and he was identified because he was neighbour of Ajit Singh and Sher Singh. Out of 7 public witnesses, i.e. Pw1, Pw2, Pw4, Pw5, Pw7, Pw10 and Pw15, only 5 witnesses, i.e. Pw1, Pw2, Pw4, Pw5 and Pw7, have named Babulal as part of mob committing riots. Out of these 5 witnesses Pw4, Pw5 and Pw7 have not deposed that they saw accused Babulal committing riots. Their deposition is that they were told about presence of accused Babulal among the rioters. Therefore only witnesses who have identified accused as part of mob are Pw1 and Pw2.
27. Both Pw1 and Pw2 have claimed that Babulal was resident S.C. No. 201/2018 State Vs. Babu Lal Page No. 22 of 30 of S-Block. Pw1 even deposed to her certainty that house of Babulal was in front of her house across the park. Similarly Pw1 has deposed that Babulal was living in the same area across the park. However, the house of Babulal was not at S-block but T Block. The house number of accused is T-1182 and as per prosecution on 06.01.2017 Pw1 had taken the police to house of accused Babulal at T-1182. When this fact was asked to IO, Pw18, in cross examination he answered that earlier accused Babulal used to reside at S-Block but he shifted to T-Block after his family expanded. There is nothing to doubt that accused Babulal must have been known to Pw1, Pw2, Pw4, Pw5 and Pw7 even if he was resident of T-1182 as T-block was next to S Block. However, this claim that accused Babulal lived across the house of Pw1 and later shifted to T-Block appears to be false because when Pw7 deposed that she was told by Pw2 that Babulal was part of mob she categorically deposed that he lived in the next gali. The deposition of Pw7 to this point, in examination in chief, is that "regarding the rioter my devrani informed me that accused Babulal and Shankar were among the rioters. Both the persons namely Babulal and Shankar were residing only a gali apart from our gali".
28. The name of accused Babulal had never surfaced as part of rioters before the investigation by SIT in 2016. It is the claim of prosecution that he could not be identified as rioter because these witnesses were never investigated by the police. However, this claim is again contrary to record. The first document of information of rioting on record is Ex.Pw18/Z1. This is a case diary no. 19A in FIR no. 174/84. This diary records that Smt S.C. No. 201/2018 State Vs. Babu Lal Page No. 23 of 30 Kulvant Kaur wife of deceased Sher Singh had stated that her husband was killed by rioters and was burnt but she did not identify any of the rioters. Although the statement made by Smt Kulvant Kaur regarding burning of her husband may be mistaken because she did not get the dead body of her husband but it cannot be believed that if a neighbour was part of mob, killing her husband, identified by her daughter in law and neighbour Ajit, committing riots, they would not have told her the name of that neighbour who killed her husband. It is also unebeliveable that Kulvant Kaur would not have told the name of that neighbour to police despite knowing the name. However, Kulvant Kaur can be given benefit of doubt for not disclosing name despite knowledge considering threat and hostility. It can also be accepted that police may not have written the name deliberately. After all, had the victims had support of police there would not have any inquiry commission and need for recommendation for fresh investigation of riots from Jain Aggarwal Committee in 1992.
29. However, after registration of FIR in 1992 this matter was investigated by Pw17. Pw17, in his testimony, has categorically deposed that he had recorded the statement of Pw1 Ajit Singh and other witnesses but none of them were knowing the name and identification of the rioters therefore, untrace report was filed. In cross examination Pw17 deposed that he had specifically asked family members of Sher Singh to provide him any proof or statement of any neighbour or any other person giving any clue regarding the rioters but they had no clue. Pw17 also deposed that even Ajit Singh did not give any name or clue regarding S.C. No. 201/2018 State Vs. Babu Lal Page No. 24 of 30 identification of any rioters and even before the court where untrace report was filed Ajit Singh did not provide the name of any rioter. Pw17 deposed that he was present in the court when the judge inquired from Ajit Singh before accepting untrace report.
30. All the public witnesses in this case have claimed that they were never examined by any police official before investigation by SIT. If that is true Pw17 has deposed false not only before this court but also before Ld. MM where untrace report was filed. It is then not just a case of giving false deposition but of falsification of records and harbouring the offender for which Pw17 should have been prosecuted. Yet he is made a witness, not an accused.
31. Pw17 had handed over the file of untrace report to Pw12 Insp. Mamchand including the statements of family of Sher Singh. As the matter was re-investigated entire record was collected by IO Pw18. Therefore when he recorded statement of Pw1, Pw2, Pw4, Pw5 and Pw7 he must had the knowledge, on the basis of statements in untrace report, that earlier these witnesses had stated that they do not know who the culprits are. Even if those statements were not made by these witnesses, for their presence in the untrace file, it was mandatory for IO to seek clarification from witnesses. Had it been the case that those statements were not made by the witnesses but manufactured by Pw17, there must have been recommendation for disciplinary action, if not prosecution, against Pw17.
S.C. No. 201/2018 State Vs. Babu Lal Page No. 25 of 30
32. Here the SIT is blowing hot and cold at the same time by relying on Pw17 as well as the complainant and family members of Sher Singh. Although there are statements of all the witnesses in the untrace report but the defence could bring only one statement Mark Pw18/Z of Ajit Singh on record which shows that during the investigation of this case by Anti Riot Cell on 03.05.1992 Ajit Singh had stated that he do not know any person from the rioters.
33. Fact of the matter is that Pw1 Ajit Singh never named accused Babu Lal in any of his statements before his examination by SIT. Rather he never knew any person from the mob before his examination by SIT on 08.09.2016. In his affidavit, Ex.P1, before Justice Ranganath Mishra Commission, Pw1 had blamed the police for its inaction but this was regarding compensation for loss, it was not necessary to give names of rioters. However, before Jain Aggarwal Committee also, in Ex.P3, Pw1 did not give any name of rioter. Even if it is accepted that committee was not supposed to record the name of accused, it is unacceptable that Pw1 would not name the accused, who is known being a neighbour, during investigation of case by anti riot cell or before Ld. MM where untrace report was accepted.
34. It is not a minor discrepancy to not give the name of an accused, who was already known to witnesses. There is a reasonable doubt that witnesses never knew any of the rioters and the name of accused was introduced for the first time by SIT because he was of the locality. This explains the contradictions in the claim of Pw1 and Pw2 as to address of accused. Had accused S.C. No. 201/2018 State Vs. Babu Lal Page No. 26 of 30 been resident of S Block, Pw7 would not have deposed with certainty that he lived in the next gali. None of the witnesses have given the house number of accused in S-Block nor IO has specified his house at S-Block in site plan. Accused is resident of T-Block at house no.1182.
ORDER
35. In view of the discussion above held the testimony of Pw1 and Pw2 identifying accused Babulal becomes highly doubtful. It rather appears motivated. They have also named on Shankar (Shiv Shankar) who cannot be defended as he had already expired on 23.08.2010. Against him also they have claimed that he was resident of S-Block, but his death certificate Ex.Pw18/D speaks for him that his permanent address was R-100 Karan Vihar Gali no.10 Mangal Bazar ND not S-Block Mangolpuri. IO has not collected any evidence to show if Shankar had shifted form S-Block to Karan Vihar. I am, therefore, of the view that prosecution has failed in discharging its burden to prove the case against accused, that he was part of mob, beyond all reasonable doubts. The accused is therefore acquitted of all charges.
Digitally signed by VIKRAM Date: VIKRAM 2022.12.16
Date : 16.12.2022 16:55:14
+0530 (VIKRAM)
ASJ-02/Spl. Judge (NDPS),
North West, Rohini Courts,
Delhi/16.12.2022
Dictated on : 16.12.2022 Digitally signed
Transcribed on : 16.12.2022 VIKRAM
by VIKRAM
Date: 2022.12.16
checked on : 16.12.2022 16:55:24 +0530
Signed on : 16.12.2022 (VIKRAM)
ASJ-02/Spl. Judge (NDPS),
North West, Rohini Courts,
Delhi/16.12.2022
S.C. No. 201/2018 State Vs. Babu Lal Page No. 27 of 30
ANNEXUE 'A'
Sr. No. Exhibits Document Remarks
1. Ex. P1 Affidavit of Ajit Singh (PW1)
in punjabi language
2. Ex. P2 Photocopy of complaint made by
Ajit Singh (PW1)
3. Ex. P3 Statement of Ajit Singh (PW1)
dated 04.10.1991 recorded
during investigation
4. Ex. PW 2/A Death certificate of Gurcharan (OSR)
Singh
5. Ex. PW 6/A Order of Addl. DCP dated Order is
26.08.1999 regarding
destruction of old
record.
6. Ex. PW 6/B Copy of FIR (OSR)
7. Mark A Letter of ASI Gaj Raj Singh Letter is with
respect to
confirmation/affir
mation that
record of FIR No.
174/84 is not
available. Said
document is
marked as Mark
X but
inadvertently in
examination of
witness written as
Mark A.
8. Ex. PW 11/A Letter dated 27.09.2016 Letter given by
Medical Record
Officer that
medical record of
the year 1984 has
already been
weeded out.
9. Ex. PW 11/B Certificate for weeding out the record.
10. Ex. PW 12/A Untrace report
11. Ex. PW 13/A Hindi version of affidavit already Ex P1.
S.C. No. 201/2018 State Vs. Babu Lal Page No. 28 of 30
12. Ex. PW 13/B Certificate of Punjabi Language Examination
13. Ex. PW 14/A Letter/recommendation by Joint Secretary Home Letter dated 06.04.1992
14. Ex. PW 15/A Death certificate of Balwant Singh
15. Ex. PW 15/B Copy of list of articles looted Carbon Copy from the house of Balwant Sigh.
16. Mark 16/A Copy of letter dated 04.05.2017 Actual date of letter is 03.03.2017.
Inadvertently mentioned in examination of PW 16 as 04.05.2017.
17. Ex. PW 16/B Copy of letter dated 19.07.2012 (OSR)
18. Ex. PW 17/A Site plan
19. Ex. PW 17/B Scaled site plan
20. Ex. PW Statement of Bhanwar Singh 17/DA (PW17)
21. Ex. PW 18/A MHA order dated 12.02.2015
22. Ex. PW 18/B Notification of LG dated 09.07.2015
23. Ex. PW 18/C Intimation given to concerned Court with respect to further investigation.
24. Ex. PW 18/D Death certificate of Shiv Shankar
25. Ex. PW 18/X Statement under Section 161 Cr.P.C. of Ajit Singh @ Jit Singh
26. Mark PW Communication date 07.02.1992 18/A by Secretary to the Administrator, UT of Delhi for registration of fresh case in respect of affidavit Ajit Singh @ Jit Singh.
27. Mark PW Death certificate of Sher Singh 18/B
28. Mark PW Copy of ration card of S.C. No. 201/2018 State Vs. Babu Lal Page No. 29 of 30 18/C & complainant Ajeet Singh 18/C1
29. Mark PW Statement of complainant 18/Z recorded on 03.05.1992
30. Mark Z1 Record of FIR no. 174/1984
31. Ex. PW Case Diary No. 19A 18/Z1
32. Mark A Letter of DGHS dated One document is 10.02.2014 also mentioned as Mark A in the testimony of PW
8. However, the said document is infact marked as Mark X. S.C. No. 201/2018 State Vs. Babu Lal Page No. 30 of 30