Delhi District Court
State vs (1)Mange Ram S/O Ram Pal on 21 March, 2011
IN THE COURT OF SHRI P.S. TEJI : DISTRICT JUDGE
(EAST) cum ADDL. SESSIONS JUDGE, KARKARDOOMA
COURTS, DELHI.
SC No.1A/2011
Unique Case ID No.02402R00025912011
FIR No.290/1991
Police Station Trilok Puri
Under Section 188/148/302/397/436 r/w 149 IPC
State Versus (1)Mange Ram S/o Ram Pal
R/o 14/280, Trilokpuri, Delhi.
(Already acquitted vide judgment dt. 30.1.97)
(2)Mahesh @ Dabbu
S/o Ram Dass
R/o C138, Pandav Nagar,
Trilokpuri, Delhi.
(3)Amir Khan S/o Sher Khan
R/o 13/106, Trilokpuri, Delhi.
(Already acquitted vide judgment dt. 30.1.97)
(4)Baleswar S/o Mukhtair
R/o 306, Trilokpuri, Village
Seemapuri, Delhi.
(Already convicted vide judgment dt. 30.1.97)
SC No.1A/2011 State vs Mange Ram etc. Page 1 of 63
Date of Institution : 03.07.1996
Date of judgment reserved : 07.03.2011
Date of judgment : 16.03.2011
JUDGMENT
All the four accused persons were tried by my Ld. Predecessor and accordingly judgment dated 30.1.1997 was delivered vide which accused Mange Ram and Amir Khan were acquitted whereas accused Baleshwar and Mahesh @ Dabbu were convicted for offences under section 148/397/302 read with section 149 IPC. No appeal has been shown to be filed by accused Baleswar. Present accused Mahesh filed the appeal before the Hon'ble High Court and the case was remanded back by the Division Bench (comprising of Hon'ble Mr. Justice Badar Durrez Ahmed and Hon'ble Mr. Justice V.K. Jain) of Hon'ble High Court vide order dated 8.12.2010, while observing as under : "The appellant will appear before the concerned Court at 10 am on 10th January, 2011. The prosecution will produce Smt. Vidya Kaur before the Trial Court on that date as also on some other date which the Trial Court fix for her cross examination in terms of this order. The Trial SC No.1A/2011 State vs Mange Ram etc. Page 2 of 63 Court will pronounce a fresh judgment expeditiously and preferably not later than three months of the appellant appearing before it. The Registry is directed to send the Trial Court Record back within one week alongwith a copy of this order."
2 After remanding back of the case, PW2 Smt. Vidya Kumar was produced by the Prosecution. Original file was summoned which was reported to be destroyed. Her statement under section 161 Cr.P.C. made in FIR No.427/1984 was supplied. Ld. Counsel for the accused moved an application treating the statement of Smt. Vidya as secondary evidence as the original file was already destroyed. The prosecution was in agreement with the request of the accused, as a result, the crossexamination of PW2 Smt. Vidya was recorded.
3 As per directions of Hon'ble High Court, fresh judgment is being delivered qua accused Mahesh @ Dabbu. 4 Background of the present case is that in the first week of November 1984, riots broke out in Delhi. On 3.11.1984, a mob of rioters came at the house of the complainant Smt. Vidya Kaur where four persons were killed by burning them alive by the accused SC No.1A/2011 State vs Mange Ram etc. Page 3 of 63 persons. It is also alleged against the accused persons that they along with other rioters looted the belongings of the complainant and set on fire her house. When police did not pay any heed to the complaint of the complainant, she had to file her affidavit before Justice Ranganath Misra Commission which was probing the atrocities meted out with innocent people in the riots. Said affidavit was handed over to Justice Jain Aggarwal Committee. Sh. S.L. Chopra, Secretary to the said Committee wrote a letter to the Administrator of Union Territory of Delhi. On the basis of letter of Sh. S.L. Chopra, FIR of the present case was registered.
5 Facts of the present case are that on 9.9.1985, Smt. Vidya (PW2) (hereinafter shall be referred as the complainant) submitted her affidavit Ex.PW7/A before Mr. Justice Ranganath Mishra, Inquiry Commission. In her affidavit, she had stated that she along with her family was earlier residing in Qr. No.41, Street No.5, Block No.13, Trilok Puri, Delhi. On 1.1.1984 at about 8.30 PM, a mob of about 4050 nonSikhs comprising of men from blocks 13,14 and 25 of Trilok Puri, headed by one Khan, driver/constable of Delhi Police, one Mange and one Bulesher, sweeper of block No.14 and several others came to her house and some of them were armed with SC No.1A/2011 State vs Mange Ram etc. Page 4 of 63 swords and others were with iron rods. Out of them, one was having pistol and others were having Barchas and Bhallas. One Dabbu was having Burchhi in his hand. They abused them and brickbatted their house and went away as no male members came out of the house as her husband was away on duty in DESU. She further stated that on 2.11.1984 at about 5.00 AM, when her husband came back in DESU Jeep, he was attacked at the turn of block 13 Trilok Puri. Her husband reported the matter to the police but police refused to record the report and thereafter he came back to the house. On 3.11.1984 at about 8 AM, about 10001500 persons attacked their house and on asking they told that one train of slain Hindus came from Punjab and they would not spare any Sikh in Delhi. Complainant (PW2) further stated that she was caught by two persons inside her house and one pointed his pistol towards her and demanded jewellery. She gave her jewellery to save the lives of her husband and others. She further stated that the mob firstly killed Anokha Singh, Bhanja (nephew) of her husband, then Satnam Singh (friend of her husband) and then her husband Jaswant Singh. Bhajan Singh ran out of the house and he was killed. She further stated that her house was looted and then set on fire. The police refused to record her report and to give her police assistance. SC No.1A/2011 State vs Mange Ram etc. Page 5 of 63 6 Sh. S.L. Chopra (PW10), Secretary to the Committee sent a letter dated 4.3.1991 Ex.PW10/A to the Administrator of Union Territory of Delhi. The same was assigned to Inspector Sukhram. The Inspector vide letter dated 16.5.1991, Ex.PW9/A addressed to the SHO Police Station Trilok Puri got registered FIR Ex.PW11/B. Along with this letter, affidavit of the complainant (PW2) was also annexed. Further investigation of the case was assigned to Inspector J.K. Tyagi (PW9) who tried to contact the complainant (PW2) but could not find her. Further investigation of the case was transferred to SI Tej Singh (PW6) who recorded statement of the complainant (PW2) and also statements of her son Kuldeep Singh (PW4) and Surjit Singh (PW3) under section 161 Cr.P.C. The Investigating Officer prepared the site plan Ex.PW6/A. Further investigation of the case was transferred to SI Lakhi Ram (PW11). He got prepared scaled site plan Ex.PW12/A from Draughtsman HC Balbir Singh (PW12). SI Lakhi Ram (PW11) gave marginal notes Ex.PW11/A over the site plan Ex.PW12/A. During the course of investigation, he collected death certificates of Satnam Singh and Jaswant Singh, Ex.PW5/B and Ex.PW5/A respectively. He arrested accused persons. He tried to SC No.1A/2011 State vs Mange Ram etc. Page 6 of 63 obtain death certificate of Anokha Singh and Bhajan Singh but could not succeed.
7 After completion of the investigation, the challan was put up in the court of the Metropolitan Magistrate, where accused persons were supplied with the copies of documents of the prosecution and then, the case was committed to the Sessions Court for the trial of the accused persons.
8 The charges for offence under Section 188/148/302/ 397/436 read with Section 149 IPC was framed against all the accused persons on 11.9.1996. All the four accused persons were also charged for offence under section 148 IPC. Accused persons pleaded not guilty to the charges framed against them and claimed trial. 9 In support of its case, prosecution has examined twelve witnesses. PW2 Smt. Vidya Kaur is the complainant whereas PW3 Surjit Singh and PW4 Kuldeep Singh are her sons. PW1 Smt. Surjit Kaur is the wife of deceased Satnam Singh. Investigation was conducted Investigating Officers PW9 Inspector Jitender Kumar Tyagi, PW6 SI Tej Singh and PW11 SI Lakhi Ram. PW12 HC Balbir Singh was the Draftsman and prepared the site plan. PW8 Sh. R.K. Sikka, official of DESU stated that Jaswant Singh and Satnam Singh SC No.1A/2011 State vs Mange Ram etc. Page 7 of 63 expired on 3.11.1984 and they lastly attended office on 1.11.1984. PW10 Sh. S.L. Chopra is the Secretary to the Committee. PW5 Sh. Chottey Lal is the SubRegistrar who proved death certificates of Jaswant Singh and Satnam Singh. PW7 Ms. Gurdeep Khera was the Advocate who attested the affidavit of the complainant (PW2). 10 The statements of the accused persons were recorded under Section 313 Cr.P.C. Accused Mahesh has stated that he was known as Dabbu and lived in block 14 Trilok Puri from 1976 to the beginning of 1983. In 1983, he shifted to Paschim Vihar and then to Pandav Nagar in 1983 itself. He further stated that he used to visit the house of Jaswant Singh and Vidya Kaur to take liquor. He has taken the defence that he was falsely named by the witnesses on account of some money he owed to Jaswant Singh and quarrels had taken place between them on account of money. Accused persons opted to lead evidence in their defence.
11 Accused Mahesh produced witness Amarjit Singh (DW2). This witness deposed that he knew accused Mahesh for the last 13/14 years as he was living in his street at a distance of 3/4 houses. He has stated that no riot had taken place in Pandav Nagar in 1984. he further stated that on 31.11.1984 when father of Mahesh SC No.1A/2011 State vs Mange Ram etc. Page 8 of 63 was going for his duty, he asked the witness to remain inside the house as some vehicles were being burnt in Laxmi Nagar. On 1.12.1984 riots spread in the area of Trilok Puri. After that 100150 sikhs and Hindu boys took responsibility of guarding and they marked duties in Pandav Nagar. He further stated that Mahesh and Rajiv used to do night watchman duty in Pandav Nagar during that period. He further stated that from 1.12.1984 to 4.12.1984, Mahesh remained with him on the roof of their house.
12 I have heard Sh. B.S. Joon, Learned Special PP for the State as well as Sh. V.K. Singh, Amicus Curiae for the accused. I have carefully gone through their submissions and the record of the case.
Prosecution case 13 To establish its case, the prosecution brought forth the circumstances of taking place of riots, presence of eye witnesses at the spot, presence of accused Mahesh at the spot at the time of incident, murder of deceased Jaswant Singh, Satnam Singh, Anokha Singh, Bhajan Singh and participation of accused in crime. Riots 14 To prove its case, the prosecution has examined the SC No.1A/2011 State vs Mange Ram etc. Page 9 of 63 eyewitness of the incident i.e. complainant (PW2). The complainant (PW2) is the widow of deceased Jaswant Singh who was among the other persons killed in the incident.
15 The complainant (PW2) has deposed that "During Nov. 1984 riots I was living at Trilok Puri 13/41, with my husband and six children and my devar Bhajan Singh. Anokha Singh my Nanad's son was living with us for about 3 months. He had come to our house for search of a job in Delhi. My husband was working in DESU. My husband went on duty on 1.11.84 in the morning abut 8 a.m. My husband's colleague Satnam Singh also used to work in DESU. My husband was to come back in the evening of 1.11.84 as usual from duty but due to riots his officers did not permit him to come back to Trilok uri on 1.11.84. My husband however came at about 5 a.m. on 2.11.84 after pursuading his officers that his family was alone at home and at this time of riots, he wanted to be with his family. He came back along with Satnam Singh. He was left at home in the morning hours by DESU driver in a DESU vehicle. It was about 8 a.m. On 3.11.84 when I found a crowd of about 1000 rioters in the gali. On seeing the crowd I went to the roof. Anokha SC No.1A/2011 State vs Mange Ram etc. Page 10 of 63 Singh was also on the roof. From the roof I saw the rioters pelting stones at my house and they pelted heap of stones on the house. Thereafter the rioters broke open the door. Among the rioters were two tall big persons who were foremost. On their breaking door I came down. I told the rioters that my family had not killed Indira Gandhi. The Sikh who had killed Indira Gandhi be punished. That killer was not related to me in any manner. Why they had attacked our house. Rioters retorted that they do not know any law and they had come to finish black vipers (KALE NAGO KO KHATAM KARNE AYE HAI)." She also stated that accused Mahesh @ Dabbu was part of the mob of rioters which forcibly entered into her house.
16 The other eye witnesses of the incident are sons of complainant (PW2), namely, Surjit Singh (PW3) and Kuldeep Singh (PW4). Surjit Singh (PW3) has stated that "In Nov. 1984 I was living with my parents in block no.13 house number 41, Trilok Puri. It was 3.11.84 when a mob had come to the area and the entire gali was full of rioters. Rioters were carrying different arms. Someone was carrying iron rod, someone was carrying danda/lathi and SC No.1A/2011 State vs Mange Ram etc. Page 11 of 63 someone was carrying swords. Our house was locked from outside and we were inside. They were searching Sikhs. They broke open the door. They also pelted stones and bricks on our house. Out of the rioters I could identify only one person accused Baleshwar present in the court. He used to clean the drains of our area in the morning. I was at that time child of about 9/10 years. First my mother took me and others to the roof but thereafter when we saw the rioters breaking the door we all brothers had separated from each other and I had taken shelter in some neighbourer's house. From that neighbours house I could see from an opening and see the rioters."
17 Kuldeep Singh (PW4) has stated that "In Nov. 1984 I was living at Trilok Puri with my parents and brothers and sisters at house no.13/41. Anokha Singh my cousin was also, during those days, living with us. On 3.11.84, at about 8 a.m. I was inside the house along with my mother, father, brother and sister and Anokha Singh. One Satnam Singh who was working at my father's office was also at our home. He had come along with my father from office. He was to go to his house in block no.36, but since riots were SC No.1A/2011 State vs Mange Ram etc. Page 12 of 63 taking place, he had stayed back at our house. About 150200 persons had attacked our house. They were carrying lathis, knives etc. at about 8/8.15 a.m. My mother tried to escape but she was caught by the rioters. My mother started pursuading the rioters that they should spare their life and started talking to them but they pushed my mother. I also tried to escape. The rioters had broken open our door in order to enter our house. Some of them had also jumped the wall. They started striking at our house with brickbats etc. and told us to come out. When I was trying to escape the rioters caught hold of me and started shouting for my father to come out and threatened that if he did not come out, I may be killed. I ran away from that group of rioters but on the other side also there was another group of rioters also. Then I went on the roof of neighbourers and hide myself in the galary at the roof. Out of the rioters I am able to identify one person Dabbu (The witness had pointed out to accused Mahesh @ Dabbu." This witness has also identified accused Mahesh @ Dabbu among the rioters. 18 From the statement of the complainant (PW2), it is evident that she has categorically deposed that on the day of incident SC No.1A/2011 State vs Mange Ram etc. Page 13 of 63 i.e. on 3.11.1984, she was present at her house along with her family members. One Satnam Singh, colleague of her husband was also present in the house. She also deposed that in the area of Trilo Puri where she was residing, riots broke out. She stated that the rioters came to her house and broke open the door of her house. The rioters pelted stones at her house. Testimony of the complainant has duly been corroborated by her sons, namely, Surjit Singh (PW3) and Kuldeep Singh (PW4) who are also the eye witnesses of the incident. Surjit Singh (PW3) has stated that on 3.11.1984 when he along with his family members was present in his house, rioters attacked their house. The rioters were carrying deadly weapons and they broke open the door of their house. Similarly, Kuldeep Singh (PW4) has stated that on the day of incident i.e. on 3.11.1984, he was inside his house along with his parents, brothers, sister, Anokha Singh and Satnam Singh. He also categorically stated that on the said day, rioters attacked their house and they were carrying deadly weapons. 19 All the above circumstances clearly establishes that in the first week of November, 1984 riots broke out in the area of Trilok Puri where complainant (PW2) and her family was residing and the rioters entered their house on 3.11.1984. From the testimony of SC No.1A/2011 State vs Mange Ram etc. Page 14 of 63 complainant (PW2) and other eye witnesses (PW3 & PW4), it has been established that on 3.11.1984, riots broke out in the area of Trilok Puri where complainant (PW2) and her family members were residing and they bore the brunt of riots of which accused Mahesh was a member.
Presence of eye witnesses at the spot 20 The Ld. Defence counsel has disputed that the complainant (PW2) had not seen the incident and had also not seen accused Mahesh while committing the alleged offence. I am not agreeable with the arguments advanced by the ld. Defence counsel. Statement of complainant recorded u/s 161 Cr.PC in FIR No.427/1984, Ex.PW2/DA was treated as secondary evidence. She deposed that in her said statement she stated before the police that when rioters entered her house and killed the inmates of the house, she became unconscious. In her said statement, she had not stated the name of any culprit to the police. But during the course of cross examination, she stated that she told police that apart from her, her sons Kuldeep Singh and Surjeet Singh had also witnessed the occurrence. She categorically stated that she told police that she SC No.1A/2011 State vs Mange Ram etc. Page 15 of 63 could identify the persons who committed the murder, but said fact was not recorded in her statement u/s 161 Cr.PC. She further stated that she told police that she was conscious at the time of incident and became unconscious subsequently when the dead bodies were taken to hospital.
21 The complainant (PW2) has categorically stated in her crossexamination that she was conscious and witnessed the incident. She has categorically stated that recording of her being unconscious in statement u/s 161 Cr.PC, Ex.PW2/DA, is wrong and her statement was not correctly recorded. She denied that she stated to police that she could not identify any culprit, but this fact cannot be ignored that the complainant (PW2) during her crossexamination in the court has categorically stated otherwise. It is also matter of record that statement u/s 161 Cr.PC Ex.PW2/DA is not a signed statement of the complainant. There is every possibility that the police officer who had recorded the statement of the complainant (PW2), had not recorded the correct version given by her. The other eyewitnesses Surjit Singh (PW3) and Kuldeep Singh (PW4) have also stated that they were present at the spot and witnessed the incident. 22 The presence of eyewitnesses has not been SC No.1A/2011 State vs Mange Ram etc. Page 16 of 63 questioned by the defence. Rather, the case of defence was that the eye witness i.e. complainant (PW2) became unconscious and was not in a position to identify, whereas this fact has categorically been denied by the complainant (PW2). As a result, the prosecution has successfully established the presence of eye witnesses i.e. complainant (PW2), Surjit Singh (PW3) and Kuldeep Singh (PW4) at the spot at the time of incident .
Presence of accused at the spot 23 The complainant (PW2) has specifically stated that on the day of incident a mob attacked their house and accused Mahesh @ Dabbu was among the rioters who attacked, looted and killed her husband and other inmates of the house. She identified accused Mahesh @ Dabbu in the Court as the same person who was resident of Block No.14 as one of the rioters. She specifically stated that accused Mahesh was known as Dabbu and he was among the rioters on 3.11.1984 when her husband and others were killed. Even in the affidavit Ex.PW7/A submitted by the complainant (PW2) before Justice Ranghnath Mishra Inquiry Commission, the name of accused Dabbu finds mentioned as one of the rioters on the fateful day. Son of SC No.1A/2011 State vs Mange Ram etc. Page 17 of 63 the complainant, namely, Kuldeep Singh (PW4) who is also witness to the occurrence has stated that accused Mahesh @ Dabbu was one of the rioters who along with other rioters attacked his house. He has specifically stated that at that time, accused Mahesh was having a big knife in his hand. So, the complainant (PW2) as well as other eye witnesses (PW3 & PW4) have specifically stated that accused Mahesh was present in the mob of rioters on the day of incident. Accused Mahesh has also been identified by the witnesses in the Court as the culprit.
In my view, the prosecution has successfully established that accused Mahesh @ Dabbu was present in the mob of rioters which attacked the house of the complainant (PW2) on 3.11.1984. Murder of deceased Jaswant Singh, Satnam Singh, Anokha Singh, Bhajan Singh and participation of accused in crime 24 To prove the factum of murder of deceased persons, the prosecution has relied upon the testimony of eyewitnesses. The complainant (PW2) has stated that "My husband was still at the door of the house. He was not being allowed by the rioters to go out. Satnam Singh, Bhajan Singh and Anoop Singh were still in the SC No.1A/2011 State vs Mange Ram etc. Page 18 of 63 house. Then one person from among the rioters went inside the house and hit Anokh Singh on the face with a knife. At that time I was near the door of the house. I could not tolerate the same an stepped behind. Rioters started pelting stones. I seeing them pelting stones had gone on one side of the gali at the advise of neighbourer but again I took courage an went back to my house. I saw my husband being hit with a brick on the head by the rioters and saw him falling down. Satnam Singh who was hiding in our house was pulled out of the house by the rioters and I saw them taking him away and dragging. Bhajan Singh had also tried to rush out from the house and when he was at the turn of the gali he was hit by the rioters and killed. Anokh Singh after being hit by the rioters with a knife had also tried to save his life by running away from there but he was hit by the rioters by iron rods, stones etc., etc. Accused Baleshwar present in the court was among the rioters. Accused Mangey had come on 2.11.84 with Torch and a lathi in his hand and he wanted to see if my husband was at home or not. One boy Dabbu of block no.14 was among the rioters (witness pointed out to accused Mahesh saying that he was known as Dabbu and he was SC No.1A/2011 State vs Mange Ram etc. Page 19 of 63 among the rioters on 3.11.84 when my husband and others were killed).
25 The complainant (PW2) was crossexamined at length by the learned defence counsel. During crossexamination, complainant (PW2) has stated that her husband had come along with Satnam Singh. She further stated that dead body of the family members of her house who were killed by the rioters, were burnt in her presence by the rioters in the chowk. They were burnt with the help of clothes taken out of her house. Dead bodies were carried one by one but they were burnt in a heap by the rioters. She categorically stated that she knew accused Mange, Baleshwar and Dabbu before 1984's riots. She admitted that accused persons were in the mob. She stated that rioter who had taken her ornaments was having pistol. She further stated that first of all rioters attacked Anokha Singh at her house. She categorically stated that accused Baleshwar and Mahesh @ Dabbu were among the rioters and they had done everything. She further stated that accused Mahesh and Baleshwar were carrying iron rods and other instruments of attacking and they attacked her husband and other family members. She stated that rioters looted her household articles. She further stated that body of Anokha Singh was SC No.1A/2011 State vs Mange Ram etc. Page 20 of 63 removed from the Gali where he was killed and then burnt by the rioters.
26 After the remanding back of the case by Hon'ble High Court vide order dated 8.12.2010, complainant Vidya Kaur (PW2) was further cross examined in reference to her statement Ex.PW2/DA recorded under section 161 Cr.P.C. in case FIR No.427/84. During her further cross examination, complainant admitted that her statement was recorded by the police on 8.11.1984 in FIR No.427/84, P.S. Kalyan Puri. In her said statement, she had stated that apart from her, her sons Kuldeep Singh and Surjit Singh had also witnessed the occurrence. She further stated that police recorded the statement of both her sons in her presence. She stated that she had told the police that at the time attack in her house, her nephew Anokha Singh was present. She stated that she made statement to the police that Satnam who had been working in DESU had also come to her residence. She further stated that she made statement to police that the people came to her residence while armed with lathis, dandas and bricks and after causing the death of deceased, they were burnt by pouring kerosene oil. She denied that she stated before the police in her statement Ex.PW2/DA that "main marne wale logon mein kisi ko nahin pehchan SC No.1A/2011 State vs Mange Ram etc. Page 21 of 63 sakti, unme se kisi ka naam nahin maloom kyonki main mare dar ke behosh ho gai thi." She denied that she made improvement in her statement just to involve the present accused in this case. 27 Another eyewitness of the incident Surjit Singh (PW3) has corroborated the testimony of her mother (PW2) that on 3.11.1984, a mob of rioters entered their house. He stated that "I had taken shelter in some neighbourer's house. From that neighbours house I could see from an opening and see the rioters. My mother after leaving me in that house had gone back to our own house. I kept hiding there for quite sometime. When I came out I found Baleshwar accused present in the court washing a blood stained iron rod on the hand pump. I found bodies of my father and other relatives burning on the crossing and entire house littered with bricks and stones."
28 Another son of the complainant, namely, Kuldeep Singh (PW4) had also witnessed the incident. He has stated that on 3.11.1984, about 150200 persons attacked their house while carrying arms. Her mother (PW2) persuaded the rioters to spare their lives. When he tried to escape, he was caught hold by the rioters and his father was threatened that if he did not come out, this witness would SC No.1A/2011 State vs Mange Ram etc. Page 22 of 63 be killed. This witness went on the roof of the neighbours and hid himself in the gallery of the roof. This witness identified accused Dabbu as one of the rioters and stated that he was having a big knife in his hand. He further stated that accused Baleshwar was also among the rioters. He further stated that "The rioters attacked my father Jaswant Singh, his friend Satnam Singh and my cousin brother Anokha Singh when they came out of the room. They had surrounded them and were attacking them with various instruments which they were carrying and then they dragged them to the chowk and burnt them there."
29 Witness Smt. Surjit Kaur (PW1), wife of deceased Satnam Singh has stated that she was living at 36/220 Trilokpuri. Her husband who was working in DESU left for his office on 1.11.1984. In DESU Jeep, her husband came along with husband of the complainant (PW2) and the jeep left both of them to the house of the complainant. After reaching there, her husband sent a message that he was in the house of the complainant. She further stated that on 4.11.1984, she reached to the house of the complainant (PW2) where complainant informed her that her husband and husband of the complainant were killed by the rioters and after killing them, they SC No.1A/2011 State vs Mange Ram etc. Page 23 of 63 were burnt. The complainant (PW2) handed over her turban and shoes of her deceased husband. During crossexamination, she stated that complainant and her entire family was weeping and that she visited her house in the morning of 4.11.1984 at around 10 AM. 30 Witness Sh. R.K. Sikka (PW8), official of DESU has brought the record of deceased Jaswant Singh and Satnam Singh. He stated that both the abovesaid deceased were employees of DESU and as per service book, both of them died on 3.11.1984. He further stated that both Jaswant Singh and Satnam Singh lastly attended office on 1.11.984.
31 From the testimony of Sh. R.K. Sikka (PW8), it is evident that deceased Jaswant Singh and Satnam Singh were the employees of DESU and they lastly attended their duties on 1.11.1984. It is immediately thereafter i.e. on 3.11.1984, rioters attacked the house of the complainant (PW2) and committed the murder of both of them along with two others. This fact also established the case of the prosecution that both Jaswant Singh and Satnam Singh were on duty on 1.11.1984 and they were left to the house of the complainant (PW2) in DESU jeep on 2.11.1984. Satnam Singh remained in the house of the complainant as the atmosphere of SC No.1A/2011 State vs Mange Ram etc. Page 24 of 63 riots was not conducive to leave the house. Immediately thereafter in the morning of 3.11.1984, rioters attacked the house wherein they along with others were killed.
32 The Draughtsman HC Balbir Singh (PW12) prepared the site plan Ex.PW12/A of the place of occurrence. The site plan is of the house of the complainant (PW2) which was situated in B Block of Trilokpuri. This was the place where the rioters attacked the house of the complainant. At point A of the site plan, all the four deceased persons were killed by the rioters and from point B, complainant (PW2) witnessed the incident.
33 Ms. Gurdeep Khera (PW7), Advocate stated that she attested the affidavit, Ex.PW7/A of the complainant (PW2) on 9.9.1985. The complainant (PW2) filed this affidavit before Justice Ranganath Commission mentioning therein the incident which had taken place in her house on 3.11.1984. In this affidavit, she had mentioned the name of accused Mahesh @ Dabbu as one of the assailants.
34 Sh. S.L. Chopra (PW10), Secretary to Justice Jain Aggarwal Committee has stated that on the directions of the Committee, he wrote a letter Ex.PW10/A to the Administrator of SC No.1A/2011 State vs Mange Ram etc. Page 25 of 63 Union Territory of Delhi. He further stated that along with his letter Ex.PW10/A, he annexed the affidavit Ex.PW7/A filed by the complainant (PW2). On the basis of letter Ex.PW10/A and the affidavit Ex.PW7/A of the complainant (PW7), FIR Ex.PW11/B of the present case was registered.
35 Inspector Jitender Kumar Tyagi (PW9), SI Tej Singh (PW6) and SI Lakhi Ram (PW11) were the investigating officers of the case. Inspector Jitender Kumar Tyagi (PW9) has stated that Inspector Sukh Ram made endorsement with regard to registration of FIR. He further stated that he tried to contact the complainant but could not find her. SI Tej Singh (PW6) stated that he recorded statement of the complainant (PW2) on 11.7.1991 and also of her sons Kuldip Singh and Surjit Singh. SI Lakhi Ram (PW11) has stated that during investigation he made marginal notes Ex.PW11/A on the site plan. He also collected death certificates of Satnam Singh and Jaswant Singh. He arrested the accused persons. 36 Sh. Chhotey Lal (PW5), Sub Registrar, Birth and Death, Shahdara North Zone, Delhi has stated that deaths of Jaswant Singh, Bhajan Singh and Satnam Singh was recorded in the record which had taken place on 3.11.1984. He further stated that as per SC No.1A/2011 State vs Mange Ram etc. Page 26 of 63 record place of death of Satnam Singh and Jaswant Singh is block no.13/41/42, Trilok Puri. He proved the death certificate of Jaswant Singh as Ex.PW5/A and that of Satnam Singh as Ex.PW5/B. From the statement of the complainant (PW2), her sons (PW3 & PW4) and Sh. Chhotey Lal (PW5), it is established fact that the death of deceased Jaswant Singh, Satnam Singh, Anokha Singh and Bhajan Singh had taken place in riots taken place on 3.11.1984. 37 The complainant has narrated the incident which happened in her house on 3.11.1984 when a mob attacked her house and after looting, killed four persons including her husband Jaswant Singh, her nephew Anokha Singh, devar Bhajan Singh and Satnam Singh. The complainant has given the exact details of incident. She has categorically stated that accused Mahesh @ Dabbu was the part of the rioters who committed the murder of her husband Jaswant Singh and other inmates of the house, namely, Satnam Singh, Anokha Singh and Bhajan Singh. Her testimony is duly corroborated by her sons Surjit Singh (PW3) and Kuldeep Singh (PW4) who are also eyewitnesses of the incident. Sons (PW3 & PW4) of the complainant (PW2) have also stated that on the fateful day, a mob attacked their house and his father and other inmates of SC No.1A/2011 State vs Mange Ram etc. Page 27 of 63 the house were murdered by the rioters of which accused Mahesh @ Dabbu was a member. All the deceased persons died in the riots taken place on 3.11.1984 is also an established fact. 38 Consequently, from the testimony of eye witnesses coupled with other material on record, it is held that the prosecution has established that on the day of incident i.e. 3.11.1984, rioters entered the house of the complainant (PW2) and committed the murder of four persons, namely, Jaswant Singh, Satnam Singh, Anokha Singh and Bhajan Singh. The prosecution has also established on record that accused Mahesh @ Dabbu was among the rioters which committed the murder of abovementioned four persons.
39 It has been argued by the Ld. Special PP for the State that the eyewitnesses examined in the court have specifically stated that accused Mahesh was present in the mob of rioters and his role has been stated by them. On the other hand, it is argued by Ld. Defence Counsel that role of accused has not been specified by the complainant and other eye witnesses.
40 It is an established fact that riots had taken place in the first week of November 1984 whereas statements of witnesses to SC No.1A/2011 State vs Mange Ram etc. Page 28 of 63 the incident were recorded in the year 1996 i.e. after 12 years of incident. It has also been stated by the eye witnesses that their house was attacked by about 1000 people and those persons were carrying weapons/arms in their hands. There was atmosphere of hue and cry everywhere. During those days of riots, atmosphere of hatred and violence was prevailing. The rioters were even the known ones and in some cases were the neighbourers. When a mob comprising around 1000 people attacks, it is not possible to assign specific role to each and every member of such a huge mob. If one go through the mental state of eye witnesses at the time of incident, when their family members were killed by rioters, it is quite possible to not to recall the participation of each and member of mob. Even otherwise, accused Mahesh @ Dabbu has been identified as one of the member of the mob who attacked the house of the complainant (PW2) and was a part of murdering the family members.
41 My this view has been strengthened by an authoritative pronouncement of Hon'ble Apex Court in case titled Shamshul Kanwar Vs. State of U.P. (Reported in AIR 1995 SC 1748), it was held that in case of rioting between two factions resulting in death of many persons by many assailants specifying SC No.1A/2011 State vs Mange Ram etc. Page 29 of 63 particular part played by each accused is not possible for the witnesses because there were many assailants who had come to the scene of occurrence armed with lethal weapons in a group and proceeded to participate in the attack.
42 The prosecution has succeeded in establishing that rioters of which accused Mahesh was a member, entered the house of the complainant (PW2) and committed the murder of four innocent people. From the testimony of complainant (PW2) and other eye witnesses, Surjit Singh (PW3) and Kuldeep Singh (PW4), the prosecution has successfully established that accused Mahesh actively participated in the riots on the day of incident. Defence version 43 It has been argued by Ld. Defence Counsel that there are discrepancies in the statement of the witnesses. It is further argued that complainant is the sole witness of the occurrence and being wife of deceased Jaswant Singh, her testimony can not be made the basis to convict the accused as she was interested and related to the deceased persons. It has been argued that the accused was having previous enmity with the complainant party as having dispute with the SC No.1A/2011 State vs Mange Ram etc. Page 30 of 63 deceased husband of the complainant and that is the reason being falsely implicated in the present case. The accused has taken the plea of alibi that he was not present at the spot at the time of incident. Discrepancies in statements of witnesses 44 Contention raised by the learned defence counsel is that there are discrepancies in the statements of the eye witnesses while making deposition in the court. I am not convinced with the arguments advanced inasmuch as firstly the contradictions so alleged have not been pointed out which go to the root of the matter and discredit the case set up by the prosecution. In State of U.P. Vs. M.K. Anthony (Reported in AIR 1985 SC 48) it was held that minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of the context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of the evidence as a whole. It was further observed that unless there are weighty and formidable reasons, it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. It was also observed that even honest or truthful SC No.1A/2011 State vs Mange Ram etc. Page 31 of 63 witnesses may differ in some details unrelated to the main incident because of power of observation, retention and reproduction defer with individuals.
45 In Prithu @ Prithvi Chand and Another Vs. State of Himachal Pradesh, (2009) 11 SCC 588, it was held that while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the prosecution's case, may not prompt the court to reject the evidence in its entirety. Difference in some minor detail, which does not otherwise affect the core of the prosecution case, even if present, would not itself prompt the court to reject the evidence on minor variations and discrepancies. As the mental capabilities of a human being cannot be expected to be atuned to absorb all the details, minor discrepancies are bound to occur in the statements of witnesses.
46 In State of U.P. Vs. Dan Singh (Reported in AIR 1997 SC 1654) it has been held that in case of rioting where there are large number of assailants, murder of several persons is committed by an unlawful assembly, contradictions in the testimony of witnesses are natural and testimony of the witnesses cannot be expected to be identical. It was further observed that what has to be seen is whether SC No.1A/2011 State vs Mange Ram etc. Page 32 of 63 basic features of occurrence have been viewed and described by witnesses in a manner which tallies with the outcome of riot. 47 It is matter of record that the incident had taken place in the year 1984 and the statements of witnesses were recorded in the year 1996 i.e. after a gap of 12 years. Due to such a long gap between the day of incident and their deposition in the Court, it is quite possible for a human being not to give a pictographic description of the incident. Due to passage of such a long time, there is possibility of variations in the statements of witnesses, but the variations in the statements of witnesses in the present case are not as such to cast any doubt on the presence of accused Mahesh at the place of incident. The witnesses are not expected to give identical statements. The complainant (PW2) as well as other eyewitnesses (PW3 and PW4) have narrated the happening of riots on the fateful day of incident at their house in which the looting and murder of four persons had happened. As per statements of witnesses (PW2, PW3 and PW4), accused Mahesh @ Dabbu was one of the rioters on the day of incident. Accused Mahesh @ Dabbu has been specifically named by the complainant SC No.1A/2011 State vs Mange Ram etc. Page 33 of 63 (PW2) as well as other witnesses as one of the assailants on the said date.
48 On the basis of statements of complainant (PW2), Surjit Singh (PW3), Kuldeep Singh (PW4) and the law laid down by Hon'ble Supreme Court in State of U.P. Vs. M.K. Anthony (supra), Prithu @ Prithvi Chand and Another Vs. State of Himachal Pradesh (supra) & State of U.P. Vs. dan Singh (supra), I am of the considered opinion that there are minor variations in the statements of witnesses which does not in any way affect the prosecution case. Such minor variations are bound to occur due to passage of time. Such variations are not such which go to the root of the case. The eye witnesses have narrated the incident in almost similar manner and minor variations do not affect the case of prosecution. Relative witnesses 49 It has been argued by the learned defence counsel that the testimony of complainant (PW2) and her sons (PW3 & PW4) cannot be made the basis to convict the accused as they are the family members of the deceased and are interested witnesses and as such SC No.1A/2011 State vs Mange Ram etc. Page 34 of 63 they are inclined to get the accused punished.
50 I am not agreeable with the contention raised by the learned defence counsel. I am also not convinced with the contention of the learned defence counsel that since the complainant (PW2) and other eyewitnesses were related to the deceased persons, they are interested witnesses and their testimony cannot be relied upon to convict the accused. In Dalip Singh & Ors. Vs State of Punjab (Reported in AIR 1953 SC 364) it was held that mere fact of relationship far from being a foundation is often sure guarantee of truth and that each case must be judged on its own facts. In that case the eye witness was wife of one of the deceased persons. Her testimony was made the basis to convict the accused. It was further held that a close relative will seldom screen the real offender and implicate the innocent person.
51 In Rizan & Anr. Vs State of Chattisgarh Through the Chief Secretary, Government of Chattisgarh, Raipur, Chattisgarh, (2003) 2 SCC 661, it has been held that merely because the witnesses were closely related to the deceased persons, their testimonies can not be discarded. Their relationship to one of the parties is not a factor that effects the credibility of a witness more so, SC No.1A/2011 State vs Mange Ram etc. Page 35 of 63 a relation would not conceal the actual culprit and make allegations against an innocent person. A party has to lay down a factual foundation and prove by leading impeccable evidence in respect of its false implication. However, in such cases, the court has to adopt a careful approach and analyse the evidence to find out whether it is cogent and credible evidence.
52 Even otherwise, in case titled Anil Phukan Vs. State of Assam (AIR 1993 SC 1462), it was held by Hon'ble Supreme Court that where the eye witness was a close relative of the deceased, conviction can be based on testimony of even a single eye witness and there is no rule of law or evidence which says to the contrary, provided the witness passes the test of reliability. 53 In the present case, it is true that the complainant (PW2) is the widow of deceased Jaswant Singh whereas Surjit Singh (PW3) and Kuldeep Singh (PW4) are the sons of deceased, but this fact cannot be ignored that all these witnesses have stated in single voice that on the fateful day, accused Mahesh @ Dabbu was a part of the mob which attacked their house. The said mob after attacking their house, looted the jewellery/household articles and then killed four inmates of the house, namely, Jaswant Singh, SC No.1A/2011 State vs Mange Ram etc. Page 36 of 63 Bhajan Singh, Satnam Singh and Anokha Singh. Relationship of complainant and other eyewitnesses with the deceased persons in any way does not affect their credibility. Their testimony cannot be discarded merely on the basis that they were related to the deceased persons, particularly when the presence of eyewitnesses (PW2, PW3 & PW4) is natural and established on record. On the basis of statements of complainant (PW2), Surjit Singh (PW3), Kuldeep Singh (PW4) and the judgments of Hon'ble Supreme Court in case Dalip Singh & Ors. Vs. State of Punjab (supra), Rizan @ Anr. Vs. State of Chhatisgarh (supra) & Anil Phukan Vs. State of Assam (supra), this court is of the considered opinion that there is no reason with the witnesses to falsely implicate the accused in the present case.
Plea of Alibi by the accused 54 It has been argued by the Ld. Defence counsel that the accused Mahesh was not present at the spot at the time of alleged incident, rather he was present on the roof of the house of Amarjit Singh (DW2). The accused has taken the plea of alibi that at the time of incident he was not present at the spot, rather he was present SC No.1A/2011 State vs Mange Ram etc. Page 37 of 63 elsewhere. Accused has also taken the defence that he has been falsely implicated by the complainant (PW2) as they had to pay some money to her husband Jaswant Singh and earlier also there was some altercation between them on account of money.
55 The plea of alibi flows from section 11 of the Indian Evidence Act and is demonstrated by illustration(a). The word "alibi" is a latin word and means "elsewhere". It is a common term used by an accused that when the occurrence took place, he was so far away from the place of occurrence and it was highly improbable for him to participate in the crime. When the prosecution succeeds in proving the commission of offence by the accused, then it is incumbent on the accused taking the plea of alibi to prove it with certainty so as to exclude the possibility of his presence at the place and time of occurrence. In order to prove the plea of alibi, accused has to prove that he was present elsewhere and not at the scene of crime. A similar situation arose before Hon'ble Supreme Court in case titled as Dudh Nath Pandey vs State of UP reported in 1981 AIR SC 911. Facts of the said case were that accused had taken alibi that he was not present at the place of occurrence where murder had taken place rather he was on his duty at his usual place of work. In the said case, the Trial SC No.1A/2011 State vs Mange Ram etc. Page 38 of 63 Court as well as Hon'ble High Court had not accepted the alibi set up by the accused. Hon'ble Supreme Court was also of the view that accused had failed to establish the plea of alibi. Relevant para No. 19 of the judgment is reproduced as under : ''Counsel for the appellant pressed hard upon us that the defence evidence establishes the alibi of the appellant. We think not. The evidence led by the appellant to show'' that at the relevant time, he was on duty at his usual place of work at Naini has a certain amount of plausibility but that is about all. The High Court and the Sessions Court have pointed out many a reason why that evidence can not be accepted as true. The appellant's colleagues at the Indian Telephone Industries made a brave bid to save his life by giving suggesting that he was at his desk at or about the time when the murder took place and further, that he was arrested from within the factory. We do not want to attribute motives to them merely because they were examined by the defence. Defence witnesses are entitled to equal treatment with those of the prosecution. And Court ought to overcome their traditional instinctive disbelief in defence witnesses. Quite often they tell lies but so do the prosecution witnesses. Granting that DWs 1 to 5 are right, their evidence, particularly in the light of evidence of two court witnesses, is insufficient to prove that the appellant could not have been present near the Hathi Park at about 9.00 A.M. when the SC No.1A/2011 State vs Mange Ram etc. Page 39 of 63 murder of Pappoo was committed. The plea of alibi postulates the physical impossibility of presence of accused at the scene of offence by reason of his presence at another place. The plea can therefore succeed only if it is shown that the accused was so far away at the relevant time that he could not be present at the place where the crime was committed. The evidence of the defence witnesses, accepting it at its face value is consistent with appellant's presence at the Naini Factory at 8.30 A.M. and at the scene of offence at 9.00 A.M. So short is the distance between the two points. The workers punch their cards when they enter the factory but when they leave the factory they do not have to punch the time of their exit. The appellant, in all probability, went to the factory at the appointed hour, left it immediately and went in search of his prey. He knew when, precisely, Pappoo would return after dropping Ranjana at the school. The appellant appears to have attempted to go back to his work but that involved the risk of the time of his reentry being punched again. That is how he was arrested at about 2.30 p.m. while he was loitering near the Panshop in front of the factory. There is no truth in the claim that he was arrested from inside the factory''.
56 It is pertinent to mention that during statement under Section 313 Cr.PC, specific questions were put to the accused Mahesh with regard to his presence on 3.11.1984 in the house of the SC No.1A/2011 State vs Mange Ram etc. Page 40 of 63 complainant along with other rioters. In reply thereto, accused Mahesh has stated that he has only stated that he was not present there. But the fact remains that he had not narrated the place of his presence during that time i.e. on 3.11.1984. This was the best possible opportunity available with the accused to explain as to where he was present at the time of alleged incident, but he has not given any details of the same. In the absence of such explanation and in the absence of any evidence, from no stretch of imagination it can be inferred that accused was not present at the spot and present elsewhere at the time of commission of offences in the present case. The accused has examined DW2 Amarjit Singh who stated that accused Mahesh remained with him on the roof of his house from 1.12.1984 to 4.12.1984 as they were guarding the area from the rioters. It is matter of record that the alleged incident had taken place on 3.11.1984 in the house of the complainant and not during the period 1.12.1984 to 4.12.1984. Statement of defence witness (DW2) that accused Mahesh was present with him from 1.12.84 to 4.12.84, does not have bearing on prosecution case. He had not spoken a single word about the presence of accused on 3.11.1984. So, it can safely be said that the accused has failed to establish the plea of alibi SC No.1A/2011 State vs Mange Ram etc. Page 41 of 63 taken by him that he was not present at the spot at the time of incident rather he was present elsewhere at that time.
On the basis of discussion made above and the law laid down by Hon'ble Supreme Court in Dudh Nath Pandey Vs. State of UP (supra), I am of the considered opinion that the plea of the accused of alibi is not supported by the evidence on record. It was not taken at the first instance and there was just whispering in statement under Section 313 Cr.PC that he was not present at the spot at the time of incident. Leading the defence evidence of DW2 Amarjit Singh apparently appears to be brought forth just for the sake of plea and does not establish the presence of accused at the house of DW2 as claimed by him. So, the plea of alibi taken by the accused is not acceptable.
Previous enmity with the accused 57 It has been argued on behalf of accused that earlier also there were some altercations between accused and deceased husband of the complainant and that is the reason of false implication of the accused in the present case. However, to substantiate the same, accused has not adduced any evidence either in the form of oral SC No.1A/2011 State vs Mange Ram etc. Page 42 of 63 evidence or documentary evidence. Even, DW2 Amarjit Singh, examined on behalf of accused Mahesh failed to throw any light on this aspect. Even otherwise, accused Mahesh has not examined any other witness of the locality who could have witnessed the alleged altercation between him and Jaswant Singh. On the other hand, it has specifically been stated by the complainant (PW2) and other eye witnesses (PW3 & PW4) that accused Mahesh was present in the mob of rioters which attacked their house and looted the articles apart from killing four inmates of the house.
58 It is specifically stated by the complainant (PW2) during her statement that she knew the accused Mahesh @ Dabbu as he was the resident of same locality. It has not been disputed by the accused himself that he was not known to the complainant party. It is case of accused himself that he was living in the same vicinity and there was some money dispute between him and the deceased husband of the complainant (PW2). The complainant (PW2) and her sons identified the accused Mahesh in the Court and have stated that he was the resident of same vicinity in which they were residing and he was a member of rioters which attacked their house on 3.11.1984 and committed the murder of four inmates of the house. SC No.1A/2011 State vs Mange Ram etc. Page 43 of 63 59 The plea taken by the accused is that he was having enmity with the complainant (PW2) on some money matter prior to the happening of incident and that is why he has been named in the present case. Plea taken by the accused do not render any help to him as the riots had taken place on 3.11.1984. The complainant (PW2) as well as her sons (PW3 & PW4) have specifically stated while making statements in the Court that accused Mahesh @ Dabbu was the part of the rioters which attacked their house on 3.11.1984. It has also been stated by the eye witnesses of the incident that the rioters murdered four persons, namely, Jaswant Singh, Satnam Singh, Anokha Singh and Bhajan Singh. The witnesses have specifically named the accused as one of the rioters who was actively involved in the commission of crime committed on 3.11.1984 in the house of the complainant (PW2). The plea of the accused is that the eye witnesses i.e. complainant (PW2), Surjit Singh (PW3) and Kuldeep Singh (PW4) did not mention his name, is contrary to the natural character. Had the complainant have any enmity with the accused prior to the riots and the accused was named because of previous annoyance, then the accused would have named on 8.11.1984 itself when her statement Ex.PW2/DA was recorded in FIR No.427/1984. In the present case, SC No.1A/2011 State vs Mange Ram etc. Page 44 of 63 FIR was lodged on the submission of affidavit by the complainant before Justice Ranganath Mishra Commission much later and during this period from the recording of statement of complainant (PW2) on 8.11.1984 till the filing of affidavit before the Commission, neither any annoyance pleaded nor put to the witnesses. The version given by the eye witnesses of the incident is natural and trustworthy. 60 The plea of previous enmity of the accused with the deceased husband of the complainant (PW2) is double edged weapon and having different consequences in different circumstances. The accused has taken the plea that he was having enmity with deceased Jaswant Singh. Apparently, the deceased has not made any statement or alleged against the accused. The allegations against the accused have been made by the complainant (PW2), her sons, namely, Surjit Singh (PW3) and Kuldeep Singh (PW4). Rather, previous enmity could have given cause to the accused to be part of the mob to settle his score with a view to take revenge and rather that could have additional motive to act along with the mob of rioters.
The defence taken by the accused has been falsified and SC No.1A/2011 State vs Mange Ram etc. Page 45 of 63 contradictory to various pleas taken in defence, particularly when the circumstances of presence of accused at the spot, presence of eye witnesses at the spot, taking place of riots and murder of deceased have been established by the prosecution by leading evidence before the Court.
Conclusion 61 From the entire testimony of complainant (PW2) which has duly been corroborated by Surjit Singh (PW3) and Kuldeep Singh (PW4), it is evident that they are the eye witnesses of the incident. They saw the entire incident with their own eyes. Their relatives were killed before them and they narrated the incident in a nature manner. In my view, there is no need to corroborate the version given by the eye witnesses. Testimony of a single eye witness is sufficient to convict an accused if it inspires confidence of Court. Testimony of complainant (PW2) as well as her sons (PW3 & PW4) is reliable. In the present case, there are three eye witnesses to the incident and their testimony is quite natural and trustworthy. After a close scrutiny of their evidence, I do not find any element of falsehood in the depositions. There is no necessity of further SC No.1A/2011 State vs Mange Ram etc. Page 46 of 63 corroboration to their testimony in view of the fact that their testimony is natural, trustworthy, reliable and inspires confidence. 62 It is case of the complainant (PW2) that after looting and killing of her husband and other relatives, when she approached the police, her statement was not recorded. Thereafter, she had filed an affidavit before Justice Ranganath Mishra Commission which was inquiring into the massacre of innocent people in the riots taken place during those days. Affidavit filed by the complainant before the Commission, led to registration of present FIR. 63 It has been held by Hon'ble Supreme Court in case titled Mehbub Samsuddin Malek Vs. State of Gujarat (Reported in 1996 Cri.L.J. SC 4129) that in case of communal riots where statements of witnesses are recorded after a long interval, there was no infirmity in the prosecution case on this ground inasmuch as in case of communal riots, reluctance of the witness to go to the police and give his statement can be well appreciated.
64 During those days, an atmosphere of hatred developed and there was massacre of innocent people in such a large number that they were attacked, looted and killed. The rioters were strolling on the road to kill innocent people. So, there was every SC No.1A/2011 State vs Mange Ram etc. Page 47 of 63 possibility of victims of crime not to report the atrocities against them to the police when even the Administration became helpless. It is quite possible that the innocent victims did not come forward to lodge the complaints to the police. It is a fact that during those days innocent people were massacred for three days and police become inactive or silent spectator. It is only after the intervention of military, law and order situation came in control. There is no fault in making statements of the witnesses with the police at the later stage. The complainant got prepared her affidavit and then filed the same before Justice Ranganath Mishra Commission which led to lodging of present FIR. Delay in registration of FIR cannot be said to be fatal to the case of the prosecution in such a scenario.
65 So, the delay in lodging the FIR cannot be said to be fatal to the case of the prosecution as there were compelling circumstances under which the complaint of the complainant (PW2) was not taken by the police officials and she had to run from pillar to post to get lodged her complaint. She made herculian efforts which resulted into filing of her affidavit with Justice Mishra Commission which ordered for registration of the FIR. 66 From the testimony of complainant (PW2) coupled SC No.1A/2011 State vs Mange Ram etc. Page 48 of 63 with the statements of her sons Surjit Singh (PW3) and Kuldeep Singh (PW4), it has been established that on 3.11.1984 riots broke out in the area of Trilok Puri, Delhi where the house of the complainant (PW2) was situated. On the said date, rioters forcibly entered into the house of the complainant (PW2). It has categorically been stated by all the abovementioned eye witnesses that accused Mahesh @ Dabbu was the member of rioters which entered in their house on the day of incident. From the testimony of complainant (PW2) and other eye witnesses i.e. her sons Surjit Singh (PW3) and Kuldeep Singh (PW4), it has also been established on the record that rioters committed the murder of four persons of which accused Mahesh @ Dabbu was a member, in the house of the complainant (PW2) i.e. her husband Jaswant Singh, her nephew Anokha Singh, Bhajan Singh and Satnam Singh, colleague of her husband. From the testimony of R.K. Sikka (PW8), it has been established that deceased Jaswant Singh and Satnam Singh lastly attended DESU office on 1.11.1984 and immediately thereafter, their return to home on 2.11.1984, they were murdered in the house on the morning of 3.11.1984. The Sub Registrar Sh. Chottey Lal (PW5) proved the death certificates of deceased Jaswant Singh and Satnam Singh. As per record produced SC No.1A/2011 State vs Mange Ram etc. Page 49 of 63 by him, deceased Bhajan Singh also died in the incident in question. The prosecution has successfully proved on the record that accused Mahesh @ Dabbu was present at the spot on the day of incident along with other rioters which committed the murder of abovementioned four persons. The identity of the accused is not in dispute as he was known to the complainant party as he was also the resident of same locality in the which the house of the complainant (PW2) was situated. It is even case of accused Mahesh himself that there were some money transactions between him and deceased husband of the complainant prior to incident. The complainant (PW2) and other eye witnesses (PW3 & PW4) have categorically stated that accused Mahesh was part of the mob of rioters who attacked their house on 3.11.1984. They have also stated that the rioters killed four persons in their house. In my considered view, it is not possible for a witness to specify role of each and every member of such a large group of assailants because there were many so many assailants at the spot armed with lethal weapons in a group and proceeded to participate in the attack on same time. In such a scenario, it is not possible for a witness to notice act of each and every assailant in the same fraction of time when they all attacked together.
SC No.1A/2011 State vs Mange Ram etc. Page 50 of 63 67 The accused has tried to establish the plea of alibi that he was not present at the spot at the time of incident. In support of his plea of alibi, he has produced defence witness DW2, but this witness was not found to be trustworthy. The defence witness Amarjit Singh (DW2) has stated that accused Mahesh remained with him from 1.12.1984 to 4.12.1984, but the incident in question had not occurred on the said dates. In the present case, the incident occurred on 3.11.1984 and the dates given by the defence witness (DW2) were of one month later to the date of incident. Accused has not been able to bring any other material on record to prove the plea of alibi that he was not present at the spot at the spot on the day of incident or that he was present elsewhere. On the contrary, the prosecution has successfully established on record beyond reasonable doubt that on the day of incident i.e. on 3.11.1984, accused was a member of rioters which attacked the house of the complainant (PW2) and committed the murder of four innocent persons apart from committing other offences. Prosecution has also successfully established the identity of the accused.
68 The accused has failed to bring forth that there are any material discrepancies in the statements of the witnesses. The SC No.1A/2011 State vs Mange Ram etc. Page 51 of 63 eye witnesses have narrated the incident in almost similar voice. Their testimony cannot be on identical lines. It is not possible for number of witnesses to give parrot like statement. Discrepancies referred by the accused in the statements of witnesses are not such so as to affect the case of prosecution in any manner. The defence has failed to put any dent to their testimony. Their testimony remained unshaken. The statements made by the witnesses in the Court inspire confidence. Statements of the eye witnesses are natural, trustworthy and reliable to convict the accused. 69 The accused has also failed to show his defence that he had been falsely implicated in the present case as he had previous enmity with the deceased husband of the complainant. The accused took the defence that prior to incident, he was having some altercation with the deceased husband of the complainant on nonreturn of money, but he has failed to produce any witness in support of his defence. No witness has been produced by the accused to establish his defence that he was having any money transaction with deceased husband of the complainant or that any altercation between him and deceased husband of the complainant had taken place prior to incident. No circumstance has been brought on record by the accused SC No.1A/2011 State vs Mange Ram etc. Page 52 of 63 to show that he was having any dispute with the complainant even prior to present incident, which led to his false implication in the present case, in other words, to put the dent on the testimony of the prosecution witnesses. On the other hand, prosecution has successfully established the role of accused Mahesh, being member of rioters, in committing the murder of four persons, namely, Jaswant Singh, Satnam Singh, Anokha Singh and Bhajan Singh on the day of incident.
70 On the basis evidence brought forth by the prosecution, particularly the statements of complainant (PW2), Surjit Singh (PW3), Kuldeep Singh (PW4) and the law laid down by Hon'ble Supreme Court in case of Shamshul Kanwar @ State of U.P. (supra), State of U.P. Vs. M.K. Anthony (supra), Prithu @ Prithvi Chand and Another Vs. State of Himachal Pradesh (supra), State of U.P. Vs. Dan Singh (supra), Dalip Singh & Ors. Vs. State of Punjab (supra), Rizan & Anr. Vs. State of Chattisgarh (supra), Anil Phukan Vs. State of Assam (supra), Dudh Nath Pandey Vs. State of UP (supra), Mehbub Samsuddin Malek Vs. State of Gujarat (supra), the prosecution has successfully proved the guilt of accused Mahesh in riots (under Section 148 IPC) and his participation in the SC No.1A/2011 State vs Mange Ram etc. Page 53 of 63 commission of murder (under Section 302 IPC read with Section 149 IPC).
71 However, the prosecution could not establish the guilt of accused Mahesh (under Section 397 IPC, 436 IPC and 188 IPC) as discussed below.
Offence U/s 397 IPC 72 The complainant (PW2) has not stated anything to the effect that on the day of incident accused Mahesh used any deadly weapon at the time of commission of crime. Neither the complainant (PW2) nor his sons who are other eye witnesses of the incident, namely, Surjit Singh (PW3) and Kuldeep Singh (PW4) have stated that accused Mahesh used any weapon on the day of incident. It is correct that the death of the deceased persons in the incident had taken place by the use of weapons, but it has not stated specifically by any of the eye witnesses that accused Mahesh used any weapon in the incident. It has been stated by the complainant (PW2) that one person from the rioters robbed her valuable articles and household articles. It is an established fact that the accused Mahesh was one of the member of the rioters, but no charge for commission of offence of robbery under Section 392 IPC has been framed against accused Mahesh, so SC No.1A/2011 State vs Mange Ram etc. Page 54 of 63 he cannot be held guilty for commission of robbery. No eye witness present at the spot had stated that accused Mahesh used any weapon at the time of incident. So, in my considered view, no case under Section 397 IPC is made out against accused Mahesh for using deadly weapon at the time of commission of crime.
Offence U/s 436 IPC 73 Accused Mahesh has also been charged for committing mischief by burning the house of the complainant (PW2). It has not been stated by the complainant (PW2) and other eye witnesses (PW3 & PW4) that the rioters put their house on fire. No evidence has been brought on the record by the prosecution to show that the rioters of which accused Mahesh was a member, set on fire the house of the complainant (PW2). In the absence of any clinching evidence on this aspect, it is hereby held that the prosecution has failed to establish that the accused Mahesh committed mischief bu burning the house of the complainant. Accused Mahesh is thus liable to be acquitted for the offence punishable under Section 436 IPC. Offence u/s 188 IPC 74 The charge for commission of offence under Section 188 IPC has also been framed against the accused Mahesh. It is SC No.1A/2011 State vs Mange Ram etc. Page 55 of 63 alleged against the accused Mahesh that he violated the curfew orders issued by the Commissioner of Police. No evidence has been produced by the prosecution to show that on the day of incident i.e. on 3.11.1984 any curfew/prohibitory orders were passed by the competent authority. Neither the competent authority who passed prohibitory/curfew order has been produced in the witness box, nor any such prohibitory order has been placed on the record. No document has been proved by the prosecution on record to show that any prohibitory order for the area of Trilok Puri, Delhi was issued and that the same was enforceable on date of incident i.e. 3.11.1984. In the absence of same, it cannot be said that accused Mahesh violated any prohibitory/curfew order issued by the competent authority. Accused Mahesh is liable to be acquitted for the commission of offence punishable under Section 188 IPC.
75 In view of the abovementioned facts and circumstances of the case, it is hereby held that the prosecution has failed to make out any case against accused Mahesh for commission of offence punishable under Section 188/397/436 IPC. So, he is acquitted under said offences.
76 However, the prosecution has successfully SC No.1A/2011 State vs Mange Ram etc. Page 56 of 63 established on record beyond reasonable doubt that the accused was a member of unlawful assembly at the time of commission of offence and entered into the house of the complainant (PW2). Prosecution has also successfully established that after entering into the house of the complainant (PW2), being member of unlawful assembly, accused Mahesh @ Dabbu committed the murder of Jaswant Singh, Satnam Singh, Anokha Singh and Bhajan Singh. 77 Consequently, accused Mahesh @ Dabbu is hereby convicted for the commission of offences punishable under Section 148 IPC and 302 read with Section 149 IPC.
Announced in the open Court ( P.S. TEJI )
Dated: 16.03.2011 District Judge (East)
cum Addl. Sessions Judge
Karkardooma Courts, Delhi
SC No.1A/2011 State vs Mange Ram etc. Page 57 of 63
IN THE COURT OF SHRI P.S. TEJI : DISTRICT JUDGE
(EAST) cum ADDL. SESSIONS JUDGE, KARKARDOOMA
COURTS, DELHI.
SC No.1A/2011
Unique Case ID No.02402R00025912011
FIR No.290/1991
Police Station Trilok Puri
Under Section 188/148/302/397/436 r/w 149 IPC
State Versus (1)Mange Ram S/o Ram Pal
R/o 14/280, Trilokpuri, Delhi.
(Already acquitted vide judgment dt. 30.1.97)
(2)Mahesh @ Dabbu
S/o Ram Dass
R/o C138, Pandav Nagar,
Trilokpuri, Delhi.
(Convicted vide judgment dt. 16.3.2011)
(3)Amir Khan S/o Sher Khan
R/o 13/106, Trilokpuri, Delhi.
(Already acquitted vide judgment dt. 30.1.97)
(4)Baleswar S/o Mukhtair
R/o 306, Trilokpuri, Village
Seemapuri, Delhi.
(Already convicted vide judgment dt. 30.1.97)
SC No.1A/2011 State vs Mange Ram etc. Page 58 of 63
ORDER ON SENTENCE
Vide my judgment dated 16.3.2011, convict
Mahesh @ Dabbu has been convicted for the commission of offences punishable under Section 148 IPC and under Section 302 read with Section 149 IPC. Arguments on the quantum of sentence were heard on 18.3.2011.
2 I have heard Sh. B.S. Joon, Ld. Special PP for the State as well as Sh. V.K. Singh, Ld. Amicus curiae for convict on the point of sentence.
3 The learned Special PP has argued that in the present case convict Mahesh was a part of rioters and committed four murders. There are three eyewitnesses on the basis of whose testimony, convict Mahesh has been convicted. It has further been argued that the acts done by convict were inhumane. He had brutally and barbarically murdered four innocent persons in the riots. Even the dead bodies of the killed persons were burnt in a heap of other dead bodies. Ld. Special PP has demanded capital punishment for the convict as the present case falls in the category of rarest of rare cases. It is further argued that the convict brutally murdered four innocent SC No.1A/2011 State vs Mange Ram etc. Page 59 of 63 persons and the deceased persons were the sole bread earners of their family.
4 In support of his arguments, Ld. Special PP has relied upon the judgment in case of State of U.P. Vs. Sattan @ Satyendra & Ors. (Reported in 2009 III AD (Cr.) (S.C.) 85). In the said case murder of six persons was committed by the accused. The Hon'ble Apex Court confirmed the death sentence awarded to two accused persons. Ld. Special PP has also relied upon judgment in case of Prajeet Kumar Singh Vs. State of Bihar (Reported in 2008 III AD (Cr.) (S.C.) 41). In the said case murder of three children was committed. The Hon'ble Apex Court confirmed the death sentence of the accused awarded by courts below. In both these cases, Hon'ble Apex Court has framed principles in which death sentence can be awarded to the culprits.
5 On the other hand, learned Amicus Curiae for the convict has argued that the present case does not fall in the category of rarest of rare cases. Convict was only a part of the rioters and no specific role has been attributed to him. He has further argued that the incident of the present case is 27 years old and convict has already faced the prolonged trial.
SC No.1A/2011 State vs Mange Ram etc. Page 60 of 63 6 It is matter of record that in the present case my Ld. Predecessor convicted the convict Mahesh @ Dabbu vide judgment dated 30.1.1997 in which he was sentenced to life imprisonment for offence u/s 302 read with 149 IPC. Thereafter, he preferred an appeal against his conviction. The Hon'ble High Court remanded back the case with the direction to deliver the judgment afresh qua convict Mahesh after crossexamination of Smt. Vidya Kaur (PW2). Admittedly, the prosecution did not prefer any appeal against convict Mahesh for enhancement of sentence. 7 In the present case, convict Mahesh @ Dabbu acted as a member of rioters. It is a fact that when people join a mob, members of such group loses one's self restraint or sense of judgment or reality. When there is a collective action, as in the present case of riots, there is a diminished individual responsibility unless there are special circumstances. It has not been indicated in the present case that convict Mahesh had acted with predetermination in the commission of murder of four persons. It is also not uncommon that when a person joins the mob either on his own volition or at the instigation of mob, playing no role of leadership, it can be presumed that such person did so under the influence of collective fury. SC No.1A/2011 State vs Mange Ram etc. Page 61 of 63 8 In case of Kishori Vs. State of Delhi (Reported in AIR 1999 SC 382), accused Kishori was sentenced capital punishment by the trial court and the Hon'ble High Court confirmed the death sentence. It was also the matter of riots taken place in 1984. The Hon'ble Apex Court while deciding the appeal against death sentence, held that death sentence was not warranted in the said case as the convict was not a hardcore criminal and was a part of unlawful assembly acting as a result of temporary frenzy in the wake of breaking out of riots. It was observed that accused was not the leader of the mob and in the commission of murders, mob psychology worked and there was influence of collective fury. 9 The prosecution has not brought forth any instance of 1984 riots in which death sentence has been awarded and the same has been confirmed.
10 In view of above discussion, I am not convinced with the Ld. Special PP that the present case qualifies the notoriety of being rarest of rare cases to warrant death sentence to the convict.
11 Keeping in view the facts and circumstances of the case, convict Mahesh @ Dabbu is hereby sentenced three years SC No.1A/2011 State vs Mange Ram etc. Page 62 of 63 RI and fine of Rs.5,000/ for the offence punishable under Section 148 IPC. In default of payment of fine, the convict shall undergo SI for six months. Convict Mahesh @ Dabbu is also awarded life imprisonment and fine of Rs.25,000/ for the offence punishable under Section 302 read with Section 149 IPC. In default of payment of fine, the convict shall undergo SI for two years. 12 Both the sentences shall run concurrently. The convict shall be entitled for the benefit as per the provisions of Section 428 Cr. PC. Copies of the judgment and order on sentence be given free of cost to the convict.
File be consigned to record room.
Announced in the open Court ( P.S. TEJI )
Dated: 21.03.2011 District Judge (East)
Addl. Sessions Judge
Karkardooma Courts : Delhi
SC No.1A/2011 State vs Mange Ram etc. Page 63 of 63