Delhi High Court
Raj Bahadur Alias Denny And Another Etc. vs State on 28 February, 1996
Equivalent citations: 1996CRILJ2364
JUDGMENT Mohd. Shamim, J.
1. These are two connected appeals bearing Nos. 75/92 and 81/92. Therefore, they are being taken up together as they have been preferred against the same judgment and order dated March 28, 1992 and April 8, 1992. They have arisen under the following circumstances : that in the wake of assassination of late Mrs. Indira Gandhi, Prime Minister of India, on October 31, 1984 riots took place throughout the length and breadth of this contrary on different dates i.e. on November 1, 1984 and November 2, 1984. Despite the promulgation of prohibitory orders under Section 144, Cr.P.C. by the Commissioner of Police, on October 31, 1984 the area of Union Territory of Delhi was also engulfed in the flames of the said riots on November 2, 1984. These was a general animosity and hatred against the Sikh community as the assassins of the late Smt. Indira Gandhi belonged to that community. The Sikhs were thus killed. Their houses and properties were set at flame. There was a general break down of law and order, complete chaos and anarchy prevailed in every nook and corner of the city of Delhi as a corollary whereof no formal complaint was lodged with regard to the incidents which took place on the abovementioned dates. However, one Bhajan Singh (PW 4) lodged a report with SI Krishan Kumar (PW 16) of police station Sultanpuri, Delhi, with regard to the aforesaid mentioned incidents which took place on November 2, 1984. The S.I. sent the said report to the police station for registration of a formal F.I.R. along with his endorsement and the said F.I.R. was registered by ASI Ghasi Ram (PW 17) vide Ex. PW 17/A. He stated therein with regard to large-scale killings of the Sikhs of residents of A-4 Block, Sultanpuri. He also brought to the notice of the authority the factum of setting on fire the houses belonging to the Sikhs and the fact of their being robbed by the mob. He further disclosed that his household goods such as utensils and clothes were removed. His auto-rickshaw bearing registration No. DER-3832 was set ablaze. According to him, similar incidents also took place in F, G & H Blocks of Sultanpuri.
2. The machinery of law was set in motion on the basis of the said F.I.R. During the course of investigation of the said F.I.R. several other incidents were taken note of. Separate charge-sheets were prepared and filed in Courts in regard to the separate incidents. The instant case relates to the Sikhs residents of house No. P-3/343, P-3/344, P-3/370 & P-3/371, Sultanpuri wherein four persons known as Balwant Singh, Kirpal Singh, Sher Singh and Pritam Singh were done to death by members of an unlawful assembly, including the present accused persons (hereinafter referred to as the appellants in order to facilitate the reference) on November 2, 1984 at about 7.00 a.m. During the course of the said incident one Puran Singh (PW 5) also incurred the wrath of the above said unlawful assembly being a Sikh. As such, he was attacked and was injured. He was later on sent to the hospital. Damzel luck smiled on him and he survived.
3. Four dead bodies of certain unknown persons were recovered on November 2, 1984 by SI Sukhbir Singh from P-3 Block of Sultanpuri. He prepared inquest reports with regard to the said four dead bodies vide Ex. PW 2/A, Ex. PW 2/B, Ex. PW 2/C and Ex. PW 2/D. He got the said dead bodies identified at the mortuary. Thereafter he sent the dead bodies for the purposes of post-mortem through Constable Kaptan Singh and Dinesh. The post-mortem on the said dead bodies was conducted by Dr. L. T. Ramani (PW 7) Ex. PW 7/A, Ex. PW 7/B, Ex. PW 7/C and Ex. PW 7/D. During the course of the investigation it transpired that the appellants were involved in the incident dated November 2, 1984 which resulted in the killings of the four persons along with other members of the unlawful assembly. He also prepared the site plan Ex. PW 15/A, recorded that statements of the witnesses and after completing the investigation he submitted the charge-sheet before the concerned Magistrate.
4. The learned Magistrate was of the view that the case was exclusively triable by the Court of Session. He thus committed the appellants to the Court of Session to stand their under the different Sections of the Indian Penal Code.
5. The learned Additional Sessions Judge after the appraisal of the evidence found the appellants guilty under Sections 147/148/149, 395/397/149, 436/149 and 302/149 of the Indian Penal Code and convicted them under the said Sections. All the three appellants were sentenced to undergo RI for one year under Section 147, I.P.C., RI for one-and-a-half years under Section 148, I.P.C. They were further directed to undergo RI for three months under Section 188, I.P.C. and RI for five years under Section 436/149, I.P.C. They were also sentenced to seven years RI with a fine of Rs. 250/- each under Sections 395/197/149, I.P.C. In case of default of payment of fine they were required to undergo RI for six months. All the three appellants were sentenced to imprisonment for life under Section 302 read with Section 149 of I.P.C.
6. Having been dissatisfied with the said judgment and order the appellants have approached this Court.
7. Learned counsel for the appellants Mr. Soni, Mr. K. K. Sud and Mr. Pramod Swarup have assailed the legality and the validity of the impugned judgment and order passed by the learned lower Court, during the course of their arguments. According to them there is absolutely no evidence on record to show and prove that it were the appellants who killed the deceased persons inasmuch as the dead bodies were never got identified at any stage of the investigation. In fact, the dead bodies which were recovered were cremated and disposed of before they could be identified. Since the corpus delicti was not found, hence no conviction could have been recorded. The occurrence in the instant case is dated November 2, 1984. Curiously enough the F.I.R. in the instant case was lodged on November 13, 1984. Thus there is an inordinate delay in lodging the F.I.R. The statements of the prosecution witnesses were recorded nearabout four months after the occurrence. This fact by itself is sufficient enough to cast suspicion and doubt with regard to the authenticity of the prosecution version. The statements of the prosecution witnesses are replete with material contradictions. They contradict one another on all the material points, and thus render nugatory the case of the prosecution. The photographs which have been placed on the file of this Court with regard to the burning of houses (vide Ex.PW 12/1 & Ex. PW 12/2) relate to F.I.R. No. 250/84 with regard to the incident which took place on November 1, 1984. This is highly redolent of suspicion and is not free from doubt.
8. Learned PP, Mr. H. J. S. Ahluwalia, has urged to the contrary.
9. We have heard the learned counsel for appellants as well as the learned PP at sufficient length and have very carefully examined their rival contentions and have given our anxious thought thereto.
10. The first contention raised by the learned counsel for the appellants is that admittedly the dead bodies of the persons alleged to have been killed on November 2, 1984 were never recovered and found. There is thus no evidence with regard to the fact that they were ever killed and that too by the appellants. Hence the entire case of the prosecution is highly redolent of doubt and suspicion and is liable to be flung to the winds on this ground alone. According to the learned counsel, the identification of the dead bodies by the relations of the deceased is the foundation of the case of the prosecution whereon the subsequent structure of the prosecution version is raised since the dead body is the very proof of the crime. Once it is shown that the dead bodies were not recovered, the bottom of the prosecution case is knocked out and the entire edifice of the prosecution comes crumbling to the ground.
11. We are sorry we are unable to agree with the said contention of the learned counsel. Whenever a crime is committed it is but natural that, the criminal would like to do away with the proof of the crime which is likely to implicate him in the crime. Thus, he would leave no stone unturned to destroy the proof i.e. the dead body which may show his complicity in the crime. Thus if the contention of the learned counsel is to be accepted, in that eventuality it would be very difficult to prove the cases where the dead bodies have been destroyed and as such are not traceable. To hold so would be against the spirit of the Criminal Law. Thus to substantiate the case of the prosecution we feel it is not required that the dead bodies must have been made available for the identification of the relations if the prosecution witnesses are otherwise in a position to prove the guilt of the accused persons.
12. The above view is substantiated by the observations of their Lordships of the Supreme Court as reported in Ram Chandra v. State of Uttar Pradesh, ......... "It is true that in law a conviction for an offence does not necessarily depend upon the corpus delicti being found. There may be reliable evidence, direct or circumstantial; of the commission of the murder though the corpus delimit are not traceable." The same view was again reiterated by the Hon'ble Supreme Court in the case reported as Rama Nand v. State of Himachal Pradesh, , ........ "It is true that one of the essential ingredients of the offence of culpable homicide required to be proved by the prosecution is that the accused "caused the death" of the person alleged to have been killed. But, discovery of the dead body of the victim bearing physical evidence of violence, has never been considered as the only mode of proving the corpus delicti in murder. In fact the 'body' doctrine is merely a rule of caution and not of law. Where the dead body of the victim in a murder case is not found other cogent and satisfactory proof of homicidal death of the victim must be adduced by the prosecution. Such proof may be by the direct ocular account of an eye-witness, or by circumstantial evidence, or by both ...."
13. It has next been contended by the learned counsel for the appellants that the photographs which have been placed on the file of this Court relate to F.I.R. No. 250/84 with regard to the occurrence which took place on November 1, 1984. The present case admittedly pertains to F.I.R. No. 252/84. The said fact according to the learned counsel sets at naught the entire case of the prosecution. We are unable to agree with the contention of the learned counsel. Admittedly, the riots took place on November 1, 1984 as well as on November 2, 1984 as is manifest vide Ex. PW 1/4 and Ex. PW 1/B (vide statement of PW-1 HC Bhopal Singh). Thus the said photographs relate to the incident dated November 1, 1984 and are in no way connected and concerned with the occurrence in question which we are dealing with. Thus the said photographs relating to occurrence dated November 1, 1984 pertaining to houses Nos. P-3/343 and P-3/344, Sultanpuri are in no way relevant for the purposes of the present case. This is all the more so when PW 12 HC Sarup Singh is not an ocular witness with regard to any incident having taken place in his presence relating to the above said houses. He is in fact an unnecessary witness.
14. It has been urged for and on behalf of the appellants that the occurrence in the instant case took place on November 2, 1984. The F.I.R. in the instant case was lodged on November 13, 1984 (vide Ex. PW 17/A). Thus the said F.I.R. is highly belated and rendered nugatory the entire case of the prosecution. The learned counsel in support of their contention have placed reliance on the observations of their Lordships of the Supreme Court as reported in Thulia Kalvi v. The State of Tamil Nadu, ....... "First information report in a criminal case, is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of the eye-witnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of after-thought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained."
15. The contention of the learned counsel for the appellants is without any merit. It is a well-recognised principle of Criminal Jurisprudence that the delay by itself in lodging the F.I.R. is not fatal to the case of the prosecution if it is explained to the satisfaction of the Court as is also manifest from the authority alluded to above. Admittedly, the instant case relates to the riots which took place on account of the assassination of late Prime Minister Mrs. Indira Gandhi which led to the complete break-down of the law and order machinery. Chaos and anarchy permeated every nook and corner of the city. People ran amuck for the blood of the members of the Sikh community which was held responsible for the assassination of late Mrs. Indira Gandhi. It was in the above circumstances that there was a delay of 11 days in lodging the F.I.R. Thus we feel that the delay has been satisfactorily explained.
16. The above view was taken by the Hon'ble Supreme Court in a catena of authorities. It was observed in Lalai alias Dindoo v. State of U.P., , ...... "The only other ground on which Radhey Shyam's evidence was challenged is that though the incident took place at about 10.30 p.m. on the 24th it was not until 11 a.m. on the 25th that Radhey Shyam lodged the First Information Report. This undoubtedly is an important circumstance but the Sessions Court and the High Court have given a reasonable explanation of the delay. The night was dark, the road was rough and the assault so fierce that Radhey Shyam could not have collected his wits to proceed straightway to the Police Station. There is no indication in the evidence that the names of the appellants were incorporated in the First Information Report as a result of any confabulation."
17. To the same effect are the observations of their Lordships of the Supreme Court as reported in Ram Murti v. State of Haryana, ....... "It is, no doubt, true that there was some delay in the filing of the first information report by Surja and the explanation given for the delay does not appear to be very satisfactory, but that cannot by itself be a ground for disbelieving the prosecution evidence and particularly when it has been accepted both by the learned Additional Sessions Judge and the High Court."
18. The next contention put forward by the learned counsel for the appellants is that there was an inordinate delay in recording the statements of the prosecution witnesses inasmuch as the occurrence took place on November 2, 1984 at 7 a.m., the F.I.R. was lodged on November 13, 1984 (vide Ex. PW 17/A) whereas the statements of the prosecution witnesses, namely Puran Singh and Jaswant Kaur were recorded by the I.O. on February 26, 1985 and that of Nirmal Kaur, Parwati and Tej Kaur were recorded on April 23, 1985. The learned counsel thus contend that the said statements should not be taken into consideration since there was sufficient time on the part of the I.O. to fabricate and concoct statements of the prosecution witnesses and to make them state on certain dotted lines. The counsel for the appellants in support of their contention have relied on Balakrushna v. State of Orissa, ....... "These contradictions ordinarily by themselves do not have much significance but where as in this case the witness for no justifiable reasons was not examined for nearly 10 days and he is found to be telling falsehood on material aspects of the case it becomes difficult to place any reliance on such testimony particularly when he tries to conform to the evidence of PW 1 in the Sessions Court that the first blow was given by a lathi on the waist and the second by a Katuri on the head."
19. The contention of the learned counsel we feel is devoid of any force. There is no dispute that the statement of the prosecution witnesses should be recorded as promptly as possible, without giving them any opportunity to improve upon and substract from what they saw. Since the delay is likely to give an opportunity to a witness to concoct a different version. However, the delay on the part of the I.O. to record the statements of witnesses should not be made a ground for rejection of the testimony of that witness if the evidence of the particular witness inspires confidence and cogent reasons are given for not recording the statements promptly.
20. We have already observed above that the occurrence in the instant case took place on a date and at a time when there was a complete chaos and anarchy. There was no semblance of law and order. A large number of persons were killed. It became very difficult for the police and the investigating agency to cope with the said situation in order to find out as to who were the complainants and the witnesses in support of the prosecution version. Thus we feel that the delay has been satisfactorily explained in the instant case.
21. We find support for the above view in the observations of the Hon'ble Supreme Court as reported in Ranbir v. State of Punjab, ....... "The appellants counsel also faintly contended that Tota Ram P.W. 7 was examined by the police after considerable delay, the suggestion being that his evidence must be looked at with suspicions. We are not impressed by this submission. The fact of delayed examination of Tota Ram should, in our opinion, have been put to the Investigation Officer so as to enable him to explain the undue delay, if any, in examining Tota Ram. The question of delay in examining a witness during investigation is material only if it is indicative and suggestive of some unfair practice by the investigating agency for the purpose of introducing a got-up witness to falsely support the prosecution case. It is, therefore, essential that the Investigating Officer should be asked specifically about the delay and the reasons therefore." After going through the statements of Investigating Officers in the instant case i.e. of PW 15 Daya Kishan and PW 16 Inspector K. K. Kashyap we find no question was put to them with regard to delay in recording their statements. Hence they were not given any opportunity to explain the delay.
22. It has then been urged for and on behalf of the appellants that the statements of the prosecution witnesses in the instant case are replete with material contradictions. They contradict one another with regard to the weapons of offence alleged to have been used by assailants/appellants. According to the PW 6/PW 8 Smt. Tej Kaur, Satish appellant was having a tin of kerosene oil whereas Raj Bahadur alias Danny appellant was armed with a dagger and the third appellant Hira Lal was armed with a lathi. On the other hand, according to PW 4 Smt. Nirmal Kaur, Hira Lal and Satish appellants were armed with iron weapons whereas appellant Danny was carrying a canister filled with kerosene oil. PW 10 Smt. Jaswant Kaur has got this to say on this point that Hira Lal was armed with a chopper (Gandasa) whereas Danny was armed with a dagger (Khukri) and Satish was having a container containing kerosene oil. Thus the learned counsel contend that the prosecution witnesses contradict one another on the material point which renders nugatory the entire case of the prosecution.
23. The contention of the learned counsel does not hold any water. Such like contradictions are bound to creep in with the passage of time since every event as soon as it has happened soon starts fading in the memory. Impressions which we gather after seeing an event get foggy with the passage of time. Present impinges on the past. Days, dates and months' events run into one another. Thus it becomes well nigh impossible to exactly reproduce a particular event on a subsequent date as we saw it.
24. The learned Public Prosecutor on the other hand, has led us through the statements of the prosecution witnesses. According to him, there is absolutely no reason whatsoever, as to why they should not be believed particularly when they have not been cross-examined for and on behalf of the appellants. PW 6/PW 8 Smt. Tej Kaur has deposed in unequivocal terms that the appellants present in the Court were amongst those persons who attacked her husband Balwant Singh, Pritam Singh, Kirpal Singh and Sher Singh. According to her, they were the members of an unlawful assembly when they did so. She further goes on to state that all the above-named persons later on succumbed to the injuries sustained at the hands of the appellants. They robbed them of their belongings and house-hold goods and set their houses on fire. There is absolutely nothing in her statement to render her testimony unworthy of credence. In fact, she was not cross-examined on the point that the appellants did not kill the above-named persons who were her close relations. To the same effect are the statements of PW 10 Jaswant Kaur and PW 15 Smt. Nirmal Kaur. They were not cross-examined with regard to the fact that the appellant did not kill the above-named persons. Thus, the factum of killing of the above-named persons at their hands goes uncontroverted. There is absolutely to reason whatsoever as to why they should not be believed in the above circumstances.
25. Then there is the statement of PW. 13 Smt. Parwati. She is a lady 100 years of age. She has also deposed with regard to the killings of her son Balwant Singh, two grand sons namely Kirpal Singh and Sher Singh. However, she was not in a position to identify the accused persons as she has got purblind on account of her old age.
26. Then there is the statement of PW 5 Puran Singh. He, too, has averred in unequivocal terms that a mob consisting of 400 or 500 persons attacked the Sikhs on November 2, 1984 at 7.45 p.m., including him. Appellant Hira Lal was one of them. He was armed with a chopper with which he attacked. However, he was not in a position to identify the other accused persons. His house was set ablaze and all of his goods and belongings were looted. On being cross-examined, he admitted with regard to the killings of Balwant Singh, Pritam Singh, Sher Singh and Kirpal Singh.
27. A faint argument was raised that since PW 5 Puran Singh went back on his previous statement made before the police and supported the case of the prosecution in part, no reliance should be placed on his statement. We are unable to agree with the contention of the learned counsel.
28. It is now a well-settled principle of law that though a witness has been declared hostile, her statement could not be discarded in toto merely, because on certain points she has chosen not to support the prosecution. The above view finds support from the observations of their Lordships of the Supreme Court as reported in Syed Akbar v. State of Karnataka, ..... "Even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the Court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether, it is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto."
29. To the same effect are the observations of the Hon'ble Supreme Court as reported in Kehar Singh v. State, .
30. In the above circumstances we do not see any force in the present appeals and the same are hereby dismissed.
31. Appeals dismissed.