Patna High Court
Mangru Singh vs State Of Bihar [Alongwith Criminal ... on 14 February, 1995
Equivalent citations: 1995(1)BLJR611
Author: Prasun Kumar Deb
Bench: Prasun Kumar Deb
JUDGMENT Prasun Kumar Deb, J.
1. All the three appeals mentioned above are taken up together for disposal as the first two appeals arise out of the common judgment while the third appeal although arises out of the separate judgment but relates to the same incident.
2. Seventeen accused persons including the three appellants of first two appeals mentioned above faced trial in Sessions Trial No. 201 of 1985 before the 6th Additional Sessions Judge, Dhanbad (Camp at Chas) for the offences charged against them under Sections 396 and 302/149 of the Indian Penal Code and also under Section 412 of the Indian Penal Code against some of the accused persons.
3. The alleged occurrence relates to hair-raising hatred, riot and murder with arson, looting etc., in the wake of the murder of Ex-Prime Minister, Smt. Indira Gandhi at New Delhi allegedly by some Sikh persons. There were riots on that issue covering the whole of the country and one such incident occurred in between 9 to 9.30 A.M., on 1.11.1984 at Dasmesh Nagar Colony of Marafari Police Station in Bokaro Steel City of the then district of Dhanbad. There was mass killing, looting, arsoning of non-Sikh by entering into Jhopri Colony of Mainesh Nagar at the alleged time and date and attrocities were committed almost in every house of the Sikh religion who were residing in that colony. There were in total fifteen persons killed in the case. Even small babies were not spared. They were taken out from the lap of their mother and killed instantaneously. There was also gruesome killing of living persons by sprinkling Kerosene Oil on him. It was also a horror tale and show of the mass upheaval and uprising against the Sikh community in general.
4. The present case was initiated on the basis of the alleged fard beyan (Ext.1) filed by the informant Hardayal Singh (P.W. 22) recorded by the Sub-Inspector of Police, Sri P.K. Biswas of Marafari Police Station in the Police Control Room on the very date of occurrence, i.e. 1.11.1984 at about 19.30 hours. This P.W. 22 Hardayal Singh has deposed in both the cases. It should be mentioned that the first two appeals arose out of Sessions Trial No. 201 of 1985 while the third appeal arises out of the judgment of conviction and sentence in Sessions Trial No. 201-A of 1985. It was alleged in the fard beyan that fifty -sixty family of Sikh community were living in Jhopri Colony of Damesh Nagar and a news was spread on 31.10.1984 to the effect that murder of Ex-Prime Minister Smt. Indira Gandhi had been committed by some Sikh persons. On hearing this news, non-Sikh community became very much enraged and next day about one thousand persons of nearby locality after forming an unlawful assembly being armed with bombs, pistal, lathis, dandas, bhala, barchha, brick bats and other leathal weapons attacked Sardar Colony. They were shouting slogans to kill, cut the Sikhs and loot them. All sorts of vandalism's such as arson, looting and killing were resorted to. Kerosene Oil was sprinkled on living human beings and setting them to fire. The informant Hardayal Singh's father Sada Singh, his brother Guru Dayal Singh and his related brother Gur Dayal Singh Gill were killed by the rioters with bomb, spear and bullets and all belongings were looted away from his house. Besides the above three twelve other persons were also killed including a child. The informant named thirty persons amongst rioters whom he could recognise in the mob. Out of them 17 persons were put on trial at the first instance. It was also alleged that Gurudwara situated in the Sardar Colony .was also set on fire and hutments were also demolished. List of articles looted away from the house of the informant had also been particularly mentioned in the fard beyan which amounted to rupees fifty thousand and odd. When the police party arrived, the mob fled away. The informant along with some other persons of. the Sikh Colony who could be rescued were taken to police control room for safety by the police patrolling party. P.W. 6 Prashant Kumar Sahu) the then Junior Sub-Inspector recorded the/arc? beyan (Ext. 1) and he also proved the formal first information report made by P.W. 24, In course of investigation, inquest were held over the dead bodies and they were sent for post mortem examination and after completion of investigation, charge-sheet was submitted against the many persons including 17 accused who faced trial along with others. 17 accused persons who could be arrested by the police were brought on trial and after conclusion of that trial, accused appellant Gopal Prasad Verma could be arrested and trial proceeded separately against him and ended in his conviction under Section 302/149 of the Indian Penal Code. Charges under Sections 396 and 412 of the Indian Penal Code could not be established and after end of bath the trials, only four amongst the other accused persons were-convicted under Section 302/149 of the Indian Penal Code and they have now preferred the above three appeals as mentioned above.
5. For and on behalf of the prosecution, as many as 31 witnesses have been examined in Sessions Trial No. 201 of 1985 while 28 P.Ws. have been examined in Sessions Trial No, 201-A of 1985. Most of them are common in both the trials. The list of common witnesses may be made as follows :--
___________________________________________________________________ Name of the Witnesses P.Ws. In S.T. No. P.Ws. in S.T. No. 201 of 1985 201-A of 1985 ___________________________________________________________________ Darshan Kaur P.W.1 P.W.25 Dr. Pramod Kumar P.W.7 P.W.8 Sardar Awatar Singh P.W.8 P.W.26 Sardar Gurmukh Singh P.W.9 P.W.27 SurendraKaur P.W.10 P.W.23 Harbhajan Singh P.W.11 P.W.24 Dr. Sharda Prasad Sinha P.W.12 P.W.10 Byas Singh P.W.13 P.W.1 Ajit Singh P.W.14 P.W.2 Prara Singh P.W.15 P.W.3 Amrit Singh P.W.16 P.W.4 Jogender Singh P.W.17 P.W.5 Kunti Kumari P.W.18 P.W.6 Amrik Singh P.W.20 P.W.8 (Tendered) Dr. D.Das Gupta P.W.21 P.W.9 Sardar Hardayal Singh (Informant) P.W.22 P.W.11 Kulwant Kaur' P.W.25 P.W.12 Akhtar Alam P.W.24 P.W.13 Gyan Singh P.W.25 P.W.17 Ratan Kaur P.W.26 P.W.18 Baldeo Singh P.W.27 P.W.19 Jai Ram Das P.W.28 P.W.20 Rabindra Prasad P.W.29 P.W.21 Bachan Kaur P.W.30 P.W.22 Jai Gopal Singh P.W.31 P.W.15 ________________________________________________________________________
6. After scrutiny of the evidence on record, the learned court below who delivered both the judgments came to the finding that the incident could be proved beyond all reasonable doubt by the prosecution witnesses and that on further scrutiny, it could be found that the accused-appellants in all the three appeals could be identified properly as members of the unlawful assembly and, as such, they were convicted and sentenced under Section 302/149 of the Indian Penal Code although along with other accused persons who were tried jointly, they were also acquitted of the charge under Section 396 of the Indian Penal Code and also under Section 412 of the Indian Penal Code.
7. Mr. P.S. Dayal, learned Counsel appearing on behalf of the appellants in all the three appeals, has strenuously argued that the impugned judgments of conviction are based more on emotion rather on proper appreciation of the evidence on record. No overt act could be attributed to any of the accused-appellants and only their so-called identification in the court resulted in their conviction by the impugned judgments. On the other hand, Mr. Jawahar Prasad learned Counsel appearing on behalf of the prosecution by referring to the deposition of the individual witnesses has supported the impugned judgments.
8. First-of all, let me consider the legal position in this case. That there was an incident of rioting, killing, arsoning and lootiong could be proved by the prosecution witnesses beyond all reasonable doubt and for that unlawful assembly as alleged by the prosecution being armed with deadly weapons, there is no charge against any of the accused persons. Unless a person is proved to be a member of the unlawful assembly, he cannot be bound down for other or major offences roping under Section 149 of the Indian Penal Code. Moreover, in the present case, Section 149 of the Indian Penal Code has been added even after the evidence was totally closed and at the stage of argument but that would not have affected the prosecution case, if the charges were made properly in the case. I have already mentioned that although there is/was allegation of unlawful assembly and when on the basis of that unlawful assembly, conviction has been based roping under Section 149 of the Indian Penal Code, then the major charge under Section 148 ought to have been framed against the accused persons but that has not been done and this defect in the present case could riot be explained from the side of the learned Additional Public Prosecutor. If and when un unlawful assembly is proved on the charge of Section 147 or Section 148 of the Indian Penal Code, then the member of that unlawful assembly may be convicted for other major offences roping under Section 149 of the Indian Penal Code even if there is no overt act attributed to any of the accused persons. Thus there is inherent defect in the prosecution case from the very beginning itself and that has not been cured even after alteration/modification of the charges at the latter stage. Leaving aside that part, we are not to see whether the conviction is based on legal evidence and even if the accused persons may not be convicted roping under Section 149 of the Indian Penal Code but they could be made liable roping under Section 34 of the Indian Penal Code although in that case, some overt act would be necessary to be attributed to them.
9. There is another challenge regarding the inception of the case to the effect that Ext. 1, the fard beyan and the first information report filed in the case can be considered as a first information report or not in the true sense of the term as contemplated under the provision of the Code of Criminal Procedure. As per the prosecution case, the first information report (Ext.1) was lodged on the very date of occurrence at the Police Control Room and the fard beyan of P.W.22 (P.W.11 of the other case) Hardayal Singh at the Police Control Room on that very date, but from the statement of P.W. 22 before the court it is clear that his statement was recorded by the police after two-three days of the occurrence at the Saint Xavier School where a camp was set up for the affected persons due to riot and that while Hardayal Singh was giving statement before the police, names of some of the persons which were included in his fard beyan are not only given by him alone but also by other persons and those names were included in the fard beyan of Hardayal Singh without mentioning as to the names which were mentioned by other Sardars present at the Camp itself. Although the learned lower court has discussed this point but did not arrive at the decision as to whether Ext. 1 could be considered as a first information report or not. From the subsequent discussions in the impugned judgments, it is found that he has held that the fard beyan was made by Hardayal Singh two-three days after the occurrence at the Camp in St. Xavier School, so this fard beyan cannot be considered as a first information report as investigation had already been started hand and inquest, post mortem, examination of injuries, seizure of the alleged looted articles had already been made before this fard beyan was recorded. So, at best, this statement of Hardayal Singh can be considered as a statement under Section 161 of the Code of Criminal Procedure and not a first information report. In this context, reliance of the learned court below of mentioning the names of the assailants in the first information report could, not be taken as truth without embellishment for the purpose of identification of the accused persons without holding the test identification parade. The learned court below has mentioned in his impugned judgments that as the situation was surcharged because of such horrible incident, this formalities of recording of the first information report may not be considered of much importance as is done in other criminal cases. It is true that the situation was surcharged. The people of Sardar Colony who could be saved of their life definitely horror-striken and could not be able to make proper statement at that point of time. This fact shall cut both ways. There is possibility of including some of the names just on being emotionally surcharged or by stretching of imagination. There were more than 1,000 people in the mob as is admitted by all the witnesses of the prosecution. People were being run helter-skelter because of the sudden attack and at that time it was definitely not possible for the people who were really attacked to identify the companion of the attackers who had actually attacked the individual. "Person being attacked may identify the person who actually attacked him or entered into his house and took away belongings, then there must be some overt act attributed to that person, but at that very moment, he might not be able to see as to other person in the mob who were doing other attrocities in other houses. This fact has totally been lost sight of the learned court below. So only naming some of the persons within the mob may not be the sole ground for their conviction for the major offence under Section 302 of the Indian Penal Code.
10. Let us now take up the individual cases of the accused appellants. The three appellants, namely, Prem Kumar Singh and Indradeo Sao alias Indradeo Gawala (Criminal Appeal No. 177 of 1990 (R), Mangru Singh (Criminal Appeal No. 155/90 (R) have been convicted on the basis of analysis of the testimony of P.Ws. 1, 2, 3, 9, 22 and 23. The star witness is P.W. 22 who alleged to be the informant in the case and his wife P.W. 23 Kulwant Kaur who also identified two amongst the above three accused appellants. From the evidence of P.W.22 it appears that he could not identify the attackers or the members of the mob while he was in the house or in his vicinity, but he could identify them after coming from his house and from a distance of about half kilometer away. He has not put the parentage of the accused persons whom he could identify or name in the so-called first information report. He also stated that he made it clear before the Investigating Officer that he did not know the name of the rioters but could be able to identify them in the test identification parade. The learned court below has analysed and scrutinised this piece of evidence to the effect that those statements are only applicable to the persons other than the accused appellants who were named in the first information report. It is also there in his evidence that the names put in the so-called first information report were not only supplied by him but also supplied by some other Sardars. He has not made any attribution regarding the overt act to any of the accused appellants. These evidence also go against the prosecution story to the effect that P.W. 22 and P.W. 23 met each other, but surprisingly none of them disclosed the names of the attackers to either of them. P.W.23 has categorically stated that she did not name any of the attackers either to her husband or to the police or to the other members of the Sikh community when they met each other in the Camp itself. It is also in evidence that P.W. 23 was sent at the Town Out Post for informing about the incident and accordingly she made information and practically that should not have been the first information report in the case but that is not produced for obvious reasons. She has not disclosed any name of the attackers either before the T.O.P. or before the office of the Superintendent of Police where she went after informing T.O.P. This lacuna, as disclosed, has been explained by the learned court below as only mere omission not affecting the veracity of the witnesses who are identifying the accused appellants along with others in the court itself for the first time.
11. The house of the accused-appellant Prem Kumar Singh is in the vicinity of the witnesses. This has been clearly stated by the witnesses. P.W.I (Darshan Kaur) has stated that accused Prem Kumar Singh gave orders on the basis of which Indradeo Sao. alias Indradeo Gawala had committed attrocities on Mohan Singh but she did not say anything of this overt acts as alleged in her deposition and in her statement before the police. P.W.2 Daljit Kaur had identified accused Mangru Singh and Indradeo Sao alias Indradeo Gawala and she stated that she could identify those accused, while they were going away with looted articles but no looted articles could be recovered from these two accused persons nor she stated these things or the source of identification in her statement before the police P.W. 3 Yogendra Kaur could not identify any body who entered inside her house, but according to her, when her husband came out then Prem Kumar Singh identified her husband as Sikh personal and then accused appellant Indradeo Sao alias Indradeo Gawala and another accused Ranjeet (acquitted) had assaulted her husband but these statements are not there in her statement under Section 161 of the Code of Criminal Procedure. These are the forms of evidence or deposition of the witnesses relying which, the conviction has been passed against the above named three accused appellants. Obviously, first information report which has been shown to be the first information in the case is not a statement made for the first time before the police and as such no reliance can be made on such first information report for the purpose of identification, when it is the clear evidence of the witnesses that they would be able to identify the attackers if the test identification parade was held but that has not been made so which shows manipulation from die side of the Investigating Agency. After the names are collected from the different sources then those were put in the mouth of P.W.22 (Hardayal Singh) to form the first information report but such manipulation could be revealed in course of trial, but the learned court below practically surcharged with emotion had passed the order of conviction stating that whatever not there in the early statement of the witnesses as mere omissions only. In a criminal trial, the prosecution is to prove their case beyond all reasonable doubt. It is not known as to how on such evidence, some other accused persons against whom also some sort of identification is there, have been acquitted and out of them only three accused appellants have been picked up for the purpose of conviction. The reasonings given by the learned court below, are not proper and justified. We are not convicted to the fact that the prosecution could be able to prove by sufficient and cogent evidence to bring book the charge against the above three accused appellants. For the purpose of brevity, we are not discussing the evidence of each and individual witnesses in this appeal as those would be revealed from the impugned judgment itself.
12. As regards the other accused-appellant namely Gopal Prasad Verma, his conviction has been based on the basis of the evidence of P.Ws. 11, 12, 22, 23, 24, 25 and P.W.2 P.W. 11 identified the accused appellant Gopal Pasad Verma as Rationwala only. P.W, 12 Kulwant Kaur had identified Gopal Prasad Verma. P.W. 23 Surendra Kaur had identified him in dock but in the earlier trial of the other accused persons, she named Gopal as Govind Gope. P.W. 24 identified this accused appellant as having ration shop in front of his shop No parentage, nothing of the sort has been given nor test identification parade was held. P.W. 23 Darshan Kaur identified these accused appellants but she had not' stated so in her statement before the police. The evidence of P.W.2 is totally unreliable as according to him, he ran away from the place of occurrence without identifying any body as stated before the police P.W. 22 Gurmukh Singh identified this appellant along with others. He identified this accused appellant as having Pan Gumti in their vicinity. These are the evidence available against this accused appellant but his specific case is of ali bi to the effect that on the very date of occurrence, he was working as Supervisor under M/s. Singh Construction, a contractor of Bokaro Steel Plant and was on duty in Bokaro Steel Plant from 8 A.M. to 5.30 P.M. on 1.11.1984. This plea of' ali-bl has been proved by adducing evidence of six witnesses in the case. On close scrutiny of the evidence of D.Ws. we are convinced that this accused appellant could be able to prove his plea of ali-bi.
13. In view of the discussions made above, we find that the prosecution could not be able to prove the guilt of the accused-appellants beyond all reasonable doubt by adducing cogent and reliable evidence. It is true that the incident was brutal and any person involved in such brutal activity should not be let out, but on the same breath a person cannot be convicted only on emotional surcharge when evidence is lacking against him. I have already mentioned that there is not only legal lacuna but on factual side also the prosecution was lacking in bringing book the charges against the accused appellants.
14. In the result, these three appeals, as mentioned above are allowed. The judgment of conviction and order of sentence against the four accused persons are hereby set aside and they are acquitted on benefit of doubt. Accused-appellants Prem Kumar Singh and Indradeo Sao alias Indradeo Gawala (in Criminal Appeal No. 177 of 1990 (R) are in custody. They shall be released forthwith, if not wanted in any other case, but accused-appellant Mangru Singh (in Criminal Appeal No. 155 of 1990 (R) was granted bail by this Court vide order dated 11.9.1990. He is discharged from the liability of his bail bond. Similarly accused-appellant Gopal Prasad Verma (in Criminal Appeal No. 215 of 1991 (R) was granted bail by this Court vide order dated 25.9.1991. He is also discharged from the liability of his bail bond.
Ravi Nandan Sahay, J.
15. I agree.