Delhi High Court
Shabnam @ Mukri @ Abdul Qayum vs State on 1 May, 2013
Author: R.V. Easwar
Bench: R.V. Easwar
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 26th April, 2013
% Date of Decision: 1st May, 2013
+ CRL. A.251/1996
SHABNAM @ MUKRI @ ABDUL QAYUM ..... Appellant
Through: Mr K B Andley, Sr. Adv. with Mr
M. Shamikh, Adv.
versus
STATE ..... Respondent
Through: Mr H J S Ahluwalia, Spl. P.P.
CORAM:
MR. JUSTICE R.V. EASWAR
JUDGMENT
R.V. EASWAR, J.:
This is an appeal filed by the accused Shabnam alias Mukri alias Abdul Qayum against the judgment dated 19.10.1996 rendered by the Additional Sessions Judge, Karkardooma Courts, Delhi in SC No.23/95 in FIR No.426/84, PS Kalyanpuri, holding the appellant guilty of the offences under Section 148, 397 and 436 of the IPC. The appellant was sentenced to undergo RI for three years under section 148 IPC with fine of `3,000/- and in default to undergo RI for six months; to undergo RI for 10 years and fine of `25,000/-
and in default to undergo RI for two years, under section 397 IPC; and sentenced to RI for a period of 10 years and fine of `25,000/- with RI for two CRL. A. 251/1996 Page 1 of 30 years in default, under section 436 IPC. Both the sentences i.e. under section 397 and section 436 IPC were to run concurrently. The benefit of section 428 Cr.P.C. was directed to be given.
2. The appeal arises in the following circumstances. In the aftermath of the assassination of Smt. Indira Gandhi, the then Prime Minister of India on 31.10.1984, riots broke out in Delhi. The rioters targeted the Sikh community and there was large scale violence, looting, killing etc. The present is one such case. One Sagori Bai was living in House No.32/12 in Trilokpuri, Delhi along with her husband Ranjha Singh. Their sons were living in House No.13 and 14 in the same block with their respective families. In the course of the riots, these houses were also attacked, looted and burnt by the rioters. In the riots, the husband of the complainant, Ranjha Singh and their three sons namely Saroop Singh, Hakam Singh and Dalip Singh were all killed. Sagori Bai lodged a complaint in FIR 426/84. Two other FIRs i.e., FIR Nos.507 and 509 of 1991 were also filed, one by Janki Bai W/o Hakam Singh and the other by Sugri Bai, W/o Saroop Singh. They were the daughters-in-law of Sagori Bai and Ranjha Singh. Janki Bai was living in house No.14 of block No.32 and Sugri Bai was living in House No.13 of block No.32. Initially, it would appear that the FIRs of Janki Bai and Sugri Bai were not registered but on the CRL. A. 251/1996 Page 2 of 30 recommendation of the Justice Jain Aggarwal Committee, they were registered on the basis of the affidavits of Janki Bai and Sugri Bai.
3. The cases registered by Janki Bai and Sugri Bai in FIR Nos.507 and 509 of 1991 were tried in Sessions Case Nos.78 and 79 of 1994 by the Additional Sessions Judge, Karkardooma, Delhi. By judgment dated 29.05.1995, three accused persons namely Rampal Saroj, the present appellant and one Kishori who were all charged under Sections 147, 148, 149, 302, 427 and 436 IPC read with Section 149 IPC for the murder of Ranjha Singh, Hakam Singh and Dalip Singh and for looting and burning the house Nos.13 and 14 in block No.32, Trilokpuri were acquitted, giving the benefit of doubt.
4. FIR 426/1984 filed by Sagori Bai, W/o Late Ranjha Singh was tried by the trial court separately in Sessions Case No.23/1995. The accused were Shabnam alias Mukri and Kishori. They were tried for looting and burning the House No.32/12 Trilokpuri and charges were framed under Sections 147, 149, 302, 395 and 436 of the IPC. It would appear that after charges were framed, the accused moved an application for discharge on the ground that they had already faced trial in Sessions Case No.78 and 79 of 1994 arising out of FIR Nos.507 and 509 of 1991 for the murder of the deceased persons and therefore, could not be tried again in view of Article 20 of the Constitution of CRL. A. 251/1996 Page 3 of 30 India and Section 300 of Cr.P.C. This application was partly accepted by the trial court and it directed the deletion of the charge under Section 302 IPC, but directed that the charges under the other sections of the Indian Penal Code would remain and were maintainable. Accordingly, the charges were reframed and the trial proceeded.
5. Section 147 prescribes the punishment for rioting which is defined and dealt with in Section 146. Section 149 provides that every member of the unlawful assembly would be guilty of the offence committed in prosecution of the common object. Section 395 of the Indian Penal Code prescribes the punishment for dacoity, which is defined in Section 391. Section 436 of the IPC deals with mischief by fire or explosive substance with intent to destroy a dwelling house and prescribes the punishment for the same.
6. I now turn to the evidence recorded in the present case by the trial court and his findings. On 1.11.1984 a large crowd of rioters carrying iron rods, meat cutting knives, dandaas etc. forcibly entered the house of the complainant Sagori Bai, looted the articles in the house and killed her sons Hakam Singh and Dalip Singh. She was able to identify three persons in the crowd namely Rampal Saroj, Kishori and the present appellant. They were instigating the crowd and shouting "choro mat maro". Kishori was having a big chura in his hand; the present accused was also in the crowd. After the CRL. A. 251/1996 Page 4 of 30 killing and looting, all the accused put the house on fire by instigating the rioters. Sagori Bai was so dazed and shocked that she could not move from the place and was sitting in the same place outside the house. Unfortunately for her the next day her husband Ranjha Singh was also killed in the riots. After the murder of the husband and sons she left the place and went to her village and was ultimately shifted to a relief camp.
7. During the trial Rampal Saroj died and the other two persons namely Kishori and the present accused pleaded not guilty to the charges. The prosecution examined 14 witnesses and apart from the formal witnesses, the trial court has discussed the testimony of the more important witnesses. PW8 is Janki Bai, who was living in House No.32/14 and PW9 is Sugri Bai living in House No.32/13. The three houses, according to the trial court, were adjoining each other. The aforesaid two witnesses and PW5, i.e. Sagori Bai, W/o Ranjha Singh all deposed that all the three persons namely Rampal Saroj, Kishori and the present appellant were among the rioters. They were carrying iron rods, churas, lathis, kerosene, petrol etc. They took part in the rioting, killing and looting of the household articles and also instigated the rioters to burn the house. They encouraged the crowed to loot the house.
8. Sagori Bai was subjected to a lengthy cross-examination in the course of which she reaffirmed the facts relating to the looting and burning of the CRL. A. 251/1996 Page 5 of 30 house. She remarked about the police inaction. She also stated that she knew the present appellant even before the riots as he used to come to her house to meet her sons and sometimes even took meals at her house. Most of the cross-examination concerned the killing of the sons. She also described how the entire family and the three houses were destroyed by the rioters.
9. The testimony of Sagori Bai was corroborated by Janki Kaur in material particulars. Sugri Bai (PW9) also corroborated the testimony of her mother-in-law Sagori Bai. She stated during cross-examination that she knew the accused Shabnam as Sukhan Lal Shabnam. She denied the suggestion that Sukhan Lal was the counsellor of the area and stated that one Sukhi Singh was the counsellor of the area and he died long back.
10. After discussing the aforesaid evidence, the trial court proceeded to dispose of the contention of the accused persons that since they had already been tried and acquitted for the same offences in FIR Nos.507 and 509 of 1991, they cannot be tried again and therefore, should be discharged. It examined the records of the cases in FIR Nos.507 and 509 of 1991 and noted that though Sagori Bai who was living in House No.32/13 Trilokpuri had appeared in the earlier case, she had named Rampal Saroj and Chhappan Mukri. The present accused was known by several names as per the witnesses who deposed in the earlier cases. He was also known as Mukri. CRL. A. 251/1996 Page 6 of 30 The trial court also noted that there were no material contradictions in the testimony of Sugri Bai regarding the incident. It observed that at the very first opportunity which she got in September, 1985, to inform the Ranganath Misra Commission about the murder of her husband and sons, Sagori Bai had filed an affidavit in which she had mentioned the names of the very same three accused persons - Rampal Saroj, Kishori and the present appellant. The trial court therefore concluded that the testimony of Sagori Bai who was the main witness in the present case was reliable.
11. As regards the argument based on the acquittal of the accused in the cases arising out of FIR Nos.507 and 509 of 1991, the trial court noted that these two cases concerned murder charges in respect of the murder of Ranjha Singh, the husband of Sagori Bai and their three sons and in respect of the looting and burning of the house Nos.32/13 and 32/14. It noted that in the earlier cases no charge was framed against the accused persons for looting and burning of House No.32/12 because no FIR was registered on the basis of the affidavit of Sagori Bai and those two FIRs were registered only on the basis of the affidavits of Janki Bai and Sugri Bai, the daughters-in-law of Sagori Bai. According to the trial court, the accused persons were part of an unlawful assembly which had the common object of killing members of Sikh community, looting their houses and burning them and it was with this object CRL. A. 251/1996 Page 7 of 30 in mind that the houses occupied by members of the Sikh community were targeted and attacked. About 15 houses out of 500 houses in block No.32 of Trilokpuri were occupied by members of the Sikh community. He was of the view that the attack and the looting and burning of each house constituted a distinct and separate offence under the provisions of Indian Penal Code.
12. The offences of killing, burning and looting of a particular house were complete when the mob finished the burning, killing and looting of the first house and when it moved to the second house and committed the same offences, that was a second group of offences for which they could be tried separately. Applying this principle, the trial court came to the conclusion that the trial of burning and looting of each house is a separate trial and "if some members of the mob had been acquitted of the charges of burning and looting of one house that does not entitle the members of the mob for acquittal from the burning and looting of other (houses) even though the house may be adjoining each other". According to the trial court, acquittal of an accused could be the result of various reasons including technical reasons, unreliability of the testimony of the witnesses etc. but it cannot be treated as a certificate of innocence. Moreover, the testimony of a witness in one case may not be believed by the judge trying that case, but it could be believed by the higher Court and therefore, it cannot be said that since the witnesses were CRL. A. 251/1996 Page 8 of 30 not believed by the judge who tried the cases arising out of FIR Nos.507 and 509 of 1991, the testimony of the same witnesses should not be believed by the judge trying a separate case arising out of a separate FIR.
13. In this view of the matter, the trial court held that based on the testimony of the witnesses who deposed in the trial before him relating to the burning and looting at House No.32/12 Trilokpuri, it is open to him to convict the accused of the offence. With particular reference to the testimony of Sagori Bai it observed as under: -
"Here, in this case Sidori (sic.) Bai is the person who was living at House No.32/12 at the time when rioters attacked. She was the most unfortunate witness of the occurrence. In that attack by rioters her sons were killed, house was looted and set on fire on 1.11.84. Her husband had run away and succeeded in escaping on that day but, however, was killed on next day. There was no likelihood of implicating by her persons who were not actually involved in the looting & burning of her accused and those who had killed her relatives. She would be least interested in sparing the real culprits and involving the others. Her testimony can not be rejected. A close scrutiny of her testimony show that on all material points she has been consisted from the beginning. She had named these there accused persons at the very first opportunity."
14. The trial court also held that it was not a case of mistaken identity and that the accused Shabnam was known as Shabnam or Mukri but nobody had named him as Abdul Qayum. He noted that Shabnam alias Mukri was living in the same area and he was named by several riot victims either as Shabnam CRL. A. 251/1996 Page 9 of 30 or Mukri or Shabnam @ Mukri. Nobody, according to the learned judge, named him as Abdul Qayum. He therefore rejected the contention that it was a case of mistaken identity and the real guilty person was Abdul Qayum and not the present appellant.
15. The appellant had produced one witness by name Tejinder Singh in defence. According to Tejinder Singh, he lived in block No.29, House No.481 in Trilokpuri in November, 1984; according to his testimony, when he found that the rioters were coming towards his house, it was Abdul Qayum who gave him shelter in his house where he (Tejinder Singh) remained up to 2.11.1984. Obviously it was the attempt of the appellant to show that he actually gave shelter to members of the Sikh community during the riots and therefore could not have committed the offences for which he was being tried. In the course of the cross-examination, Tejinder Singh stated that he came to know about the case against the appellant only 5 or 6 days prior to his appearance in the Court. He testified that the rioters had covered their faces. The testimony of the defence witness was rejected by the trial court. It doubted the claim of the witness that he was living in Trilokpuri. The house of the witness was not attacked and, therefore, he was in no position to say that the rioters had covered or muffled their faces. The trial court also noted that none of the riot victims or even the accused had stated that the rioters had CRL. A. 251/1996 Page 10 of 30 muffled their faces during the riots. Further the defence witness was not even aware whether anybody was killed in the nearby house. His testimony was, for these reasons, not believed by the trial court.
16. After scrutinising the evidence on record, the trial court held the accused guilty of rioting under section 148 IPC. It held that the members of the assembly were armed with various weapons such as knives, kerosene oil and iron rod and non-recovery of any weapon by the police was not of any consequence because the police had all along helped the rioters and did not even bother to recover the looted articles or the arms used. The present appellant was thus held guilty of looting and burning house No.32/12, Trilokpuri. The accused was also held guilty of the offences under sections 397 and 436 IPC read with section 149 IPC. Relying on the judgment of the Supreme Court in Shamsul Kanwar vs. State of U.P. : AIR 1995 SC 1748, the trial court convicted the present accused under these sections for rioting, burning and looting house No.32/12, Trilokpuri.
17. The learned senior counsel for the appellant put forth a two-fold agrument. The first argument was that there was no charge laid under section 397 IPC and, therefore, there can be no conviction under that section. The second argument was that the appellant was already tried in Sessions Case Nos.78 and 79/1994 by the Additional Sessions Judge, Karkardooma, Delhi in CRL. A. 251/1996 Page 11 of 30 which he was acquitted and, therefore, cannot be tried again. It is contended that the incident of rioting which resulted in those two sessions cases against the accused and which resulted in his acquittal was the same as the present case. In support of this contention, strong reliance is placed on the judgment of the Supreme Court in Anju Chaudhary vs. State of U.P. and Anr. : 2013 CRI.L.J. 776.
18. On the other hand, the submission of the learned Additional Public Prosecutor in regard to the first point raised by the appellant is based on section 216/ 464 Cr.P.C. He contended that if the necessary facts are present, it is immaterial that a specific charge under section 397 IPC was not laid and that it was open to the trial court to convict the accused under that section. In support of this contention, reliance was placed on the judgment of the Supreme court in Dalbir Singh vs. State of U.P. : 2004 CRI.L.J. 2025. As regards the second contention of the learned counsel for the appellant, the learned Additional Public Prosecutor submits that the acquittal of the accused was in a different case where the charge was that he was part of the rioters who looted and burnt house Nos.32/13 and 32/14, whereas the present case is a case where the accused was charged with looting and burning house No.32/12 which is a separate offence. He thus submitted that it is not a case CRL. A. 251/1996 Page 12 of 30 of a single rioting but is a distinct and separate offence as held by the trial court and, therefore, he can be tried separately.
19. I may take up the first contention of the appellant now. It is not denied by the learned Additional Public Prosecutor that there was no separate charge laid against the appellant under section 397 of the IPC. This section deals with robbery or dacoity or dacoity with attempt to cause death or grievous hurt. According to the section, if at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years. It is necessary to examine what PW-5 (Sagori Bai) deposed before the trial court. She stated that on 01.11.1984 a large crowd of rioters came to her house at No.32/12, Trilokpuri, that they were carrying iron rods, meat-cutting knives, dandas, etc., that they forcibly entered the house, looted the articles and killed her three sons. She also stated that the appellant was present in the crowd, along with Kishori and Ramphal Singh. Though she stated that Kishori was holding a big chura in his hand and caught hold of her son and struck him with the chhura and that Ramphal was calling out "maaro maaro" and "chhoro mat, maaro", she did not state that the present appellant was carrying or holding any deadly weapon. Her statement was merely to the CRL. A. 251/1996 Page 13 of 30 effect that he was among the rioters and taking part in the riots, killing and looting. In the course of the cross-examination she described the killing of her husband and sons in considerable detail. Though the witness (PW-5) had deposed that the appellant was not armed with any deadly weapon but the appellant's conviction for the offence under section 397 of the IPC is amply justified with the aid of his conviction for the offence under section 148/149 of IPC. The main ingredient of section 397 of IPC is that the offender, at the time of committing robbery and dacoity should have used a deadly weapon or should have caused grievous hurt to any person or should have attempted to cause death or grievous hurt to any person. Barfi Kaur, w/o Dalip Singh, (PW-6) who was living in House No.32/13 deposed that she saw Mukri (appellant herein) beating her husband with lathi and saria along with other rioters.
20. In the case of Dalbir Singh vs. State of U.P. (supra), on which reliance was placed by the learned Additional Public Prosecutor, it was observed by the Supreme Court that in view of section 464 Cr.P.C. it is possible for the appellate or revisional court to convict an accused for an offence for which no charge was framed unless the court is of opinion that a failure of justice would be occasioned. It was further held that it will be relevant to examine whether the accused was aware of the basic ingredients of the offence for which he CRL. A. 251/1996 Page 14 of 30 was being convicted, whether the main facts sought to be established against him were explained to him clearly and whether he got a fair chance to defend himself. In the statement made under section 313 Cr.P.C., it was put to the appellant that the mob was carrying iron rods, dandas and knives. It was also put to him that he was among the rioters who were carrying deadly weapons. A specific question was put to him whether it was correct that his co-accused Kishori was carrying chhura while Ramphal was instigating the crowd. It was also put to him specifically that it was in evidence that he had struck Dalip Singh, son of Sagori Bai. This was denied by him by saying that he did not give danda blow to anyone. It was thus put to the accused that he was carrying a deadly weapon with which he struck Dalip Singh, which was a fact essential to prove the offence under section 397 of IPC. A perusal of the statement under section 313 shows that every aspect of the prosecution case was put to him including the case that he struck Dalip Singh with a danda which was apparently based on Barfi Kaur's evidence.
21. There is one aspect of the matter which needs to be noticed. The trial court has considered the deposition of Barfi Kaur who was living in House No.32/13 to be irrelevant since in her deposition she has only talked about the riots in general and about the killing of her husband Dalip Singh by the rioters in the morning of 01.11.1984. The learned judge has further observed that CRL. A. 251/1996 Page 15 of 30 though she has identified one of the accused as the killer of her husband, but since the charge of murder of Dalip singh was not being tried, her testimony about the murder and burning the body of her husband and looting of her house was not relevant for the present case. It may be true that the present appellant is not being tried for murder of Dalip Singh; however, the deposition of Barfi Kaur to the extent that she saw her husband being beaten by Mukri (the appellant herein) and others with sarias and lathis certainly establishes that the appellant was carrying a deadly weapon.
22. Though by itself a lathi may not amount to a deadly weapon in normal circumstances but in combination with saria it could prove to be deadly. A saria or a metal rod seen to be carried by the appellant, having regard to the purpose of the rioters, would certainly have been of such length, thickness and strength as to inflict grievous hurt upon the person hit by it. It is also reasonable to assume that a member of the mob or rioters would be carrying a saria which would cause menace and would be of such nature as to cause serious injury to the person attacked. Therefore, it seems to me that the trial court erred in not placing reliance on the deposition of Barfi Kaur to the extent that it referred to the appellant carrying saria and lathi. In fact, the witness lends further strength to the conviction of the appellant under sections 148 and 397 of the IPC. It was, therefore, within the powers of the trial court CRL. A. 251/1996 Page 16 of 30 to invoke section 397 of the IPC though that section was not included in the chargesheet.
23. I now take up the second aspect of the argument of the learned counsel for the appellant for consideration. The argument was that the accused had already been tried and acquitted in Sessions Case Nos.78 and 79/1994 arising out of FIR Nos.507 and 509/1991 and, therefore, he cannot be tried again for the same offence. The argument erroneously assumes that the appellant was already tried for the offence of burning and looting house No.32/12 in which Sagori Bai and her husband Ranjha Singh were living. The further argument was that it was the same mob which had attacked all the three houses i.e. house No.32/12, 32/13 and 32/14 on the same day and around the same time, that they were adjoining houses and, therefore, it is not a case of a distinct or separate or different rioting and since the appellant had been acquitted of the offence in Sessions Cases Nos.78-79/1994 he cannot be tried again. Article 20(2) of the Constitution of India and section 300 Cr.P.C. are pressed into service. This argument, however, cannot be accepted. Sessions cases Nos.78-79/1994 are distinct and separate from the present case which arises out of a separate FIR No.426/1984. The earlier sessions cases arise out of the FIR Nos.507 and 509/1991 and they were with regard to the looting and burning of house Nos.32/13 and 32/14, which were occupied by Sugri Bai and CRL. A. 251/1996 Page 17 of 30 Janki Bai, both daughters-in-law of the deceased sons of Sagori Bai, who was living in house No.32/12 along with her husband. It is also not a case of a single rioting. There is no evidence to show that the constitution of the mob which went from house to house was the same. In this connection the learned Additional Public Prosecutor pointed out that in FIR No.507/1991 the present appellant was not named; the accused who were named therein were Ramphal and one Pehalwan. Similarly, in FIR No.509, the accused named were Ramphal and Abdul Qayum (the appellant herein). In FIR No.423/1995, the appellant has been named along with Kishori. There was thus a different constitution of the unlawful assembly. In any event, the case of looting and burning house No.32/12 has been separately registered and treated as an offence separate and distinct from the cases of looting and burning house No.32/13 and 32/14. This is the line of reasoning adopted by the trial court that has refused to treat the present case as arising out of the same facts involved in Sessions Cases Nos.78-79/1994. Since the present case is a different offence, the doctrine against double jeopardy envisaged in Article 20(2) of the Constitution of India cannot be invoked. In order to attract section 300 of Cr.P.C., the offence for which a person is sought to be tried again should be the same offence for which he was earlier tried and acquitted or should be an offence based on the same facts. I have already accepted the contention of the learned Additional Public Prosecutor that the case of looting CRL. A. 251/1996 Page 18 of 30 and burning house No.32/12 is not the same offence as that of looting and burning house Nos.32/13 and 32/14.
24. There is difference in facts also, the basic difference being that the house attacked, looted and burnt is completely different from the houses which were concerned in the earlier cases. The mere fact that the houses were adjoining each other cannot justify the treating of the offences in relation to each one of them as the same offence. It is seen from the cross-examination of Sagori Bai that there is no boundary wall between the courtyards of house No.32/13 and 32/14 but there is a boundary wall separating them from the house No.32/12 which means that house No.32/12 was distinct and separate from the other two houses. She also speaks of the "house" of Hakam Singh and the "house" of Saroop Singh. These facts show that the looting and burning of house No.32/12 is a separate and distinct offence and does not arise out of the same facts as in the case of house No.32/13 and 32/14.
25. Even as a matter of law, it has been held in Mohinder Singh vs. State of Punjab : AIR 1999 SC 211, that section 220 of the Cr.P.C., which provides for joint trial where more than one offence is committed by the same person in a series of acts which are so connected to form part of the same transaction, is only an enabling provision which permits the court to try more than one offence in one trial; the court may or may not try all the offences in CRL. A. 251/1996 Page 19 of 30 one trial and therefore by trying the offences separately the court cannot be said to have committed any illegality. In State of Punjab & Anr. vs. Rajesh Syal : (2002) 8 SCC 158, different persons were defrauded by the company and each offence was therefore treated as a separate and distinct one; the Supreme Court held that all the offences cannot be regarded as constituting a single series of facts/ transaction. This judgment lends support to the decision of the trial court that the rioting, burning and looting at each of the three houses constitute a distinct and separate offence not arising out of a single series of facts/ transaction and need not be tried jointly under section 220(1).
26. As noted earlier, strong reliance was placed on behalf of the appellant on the judgment of the Supreme Court in Anju Chaudhary vs. State of U.P. and Anr. (supra). Paragraphs 40 to 42 of the judgment on which particular reliance was placed are as under: -
"40. It is true that law recognizes common trial or a common FIR being registered for one series of acts so connected together as to form the same transaction as contemplated under Section 220 of the Code. There cannot be any straightjacket formula, but this question has to be answered on the facts of each case. This Court in the case of Mohan Baitha v. State of Bihar [(2001) 4 SCC 350 : (AIR 2001 SC 1490 : 2001 AIR SCW 1332)], held that the expression „same transaction‟ from its very nature is incapable of exact definition. It is not intended to be interpreted in any artificial or technical sense. Common sense in the ordinary use of language must decide whether or not in the very facts of a case, it can be held to be one transaction.CRL. A. 251/1996 Page 20 of 30
41. It is not possible to enunciate any formula of universal application for the purpose of determining whether two or more acts constitute the same transaction. Such things are to be gathered from the circumstances of a given case indicating proximity of time, unity or proximity of place, continuity of action, commonality of purpose or design. Where two incidents are of different times with involvement of different persons, there is no commonality and the purpose thereof different and they emerge from different circumstances, it will not be possible for the Court to take a view that they form part of the same transaction and therefore, there could be a common FIR or subsequent FIR could not be permitted to be registered or there could be common trial.
42. Similarly, for several offences to be part of the same transaction, the test which has to be applied is whether they are so related to one another in point of purpose or of cause and effect, or as principal and subsidiary, so as to result in one continuous action. Thus, where there is a commonality of purpose or design, where there is a continuity of action, then all those persons involved can be accused of the same or different offences "committed in the course of the same transaction"."
27. The above observations read in proper perspective show that the question whether a series of acts are so connected as to form part of the same transaction cannot be resolved by the application of any universal formula; it has to be answered on the facts of each case. Herein the burning and looting of all the three houses have been treated as separate and distinct transactions or offences and on that basis three separate FIRs were registered. Each house belonged to a different person. The looting and burning of each house therefore constitutes a separate offence.
CRL. A. 251/1996 Page 21 of 30
28. The trial court has, in the impugned judgment, dealt with the acquittal of the accused in the cases relating to the looting and burning of house Nos.32/13 and 32/14, Trilokpuri. Two separate judgments have been rendered by the learned Additional Sessions Judge, Karkardooma in Sessions Case No.78-79/1994 on 29.05.1995 and therein some of the witnesses were not believed by the court and the present appellant and other accused were acquitted. In the impugned judgment the trial court has however given cogent reasons as to why it considers the acquittal in the earlier cases to be of no consequence so far as the present case is concerned. It has noticed that the earlier two cases concerned murder charges for the murder of the husband and sons of Sugori Bai and for looting and burning of house Nos.32/13 and 32/14. It has referred to the fact that the acquittal of the accused in the earlier cases cannot be taken as a certificate of his innocence since the acquittal was on the ground that some of the witnesses could not be believed by the trial court. According to the trial court, in the earlier decision, clean acquittal was not given and only benefit of doubt was extended. Apart from this, the trial court in the impugned judgment adverted to the fact that the weight which the court should attach to the evidence and the credibility of the witnesses may differ from case to case and that he was not bound by the earlier decision as the witnesses were not believed in that case. The trial court has further discussed CRL. A. 251/1996 Page 22 of 30 the evidence and the deposition of the witnesses, particularly that of PW-5 (Sugori Bai) and has given cogent reasons as to why it considers the witness to be reliable. The trial court has also given reasons as to why it considers the defence witness Tejinder Singh to be unreliable. I have already referred to this part of the impugned judgment.
29. No strong grounds have been made out on behalf of the appellant to displace the finding returned by the trial court in the impugned judgment which is duly supported by evidence on record. Upon scrutiny of the entire evidence on record, this court finds no good reason to take a different view than the one taken by the trial court.
30. The result of the foregoing discussion is that I entirely agree with the trial court that the appellant committed the offence mentioned in section 148, 397 and 436 of the Indian Penal Code. He was guilty of rioting and of being armed with a deadly weapon which, used as a weapon of offence, is likely to cause death. The appellant was also rightly found guilty of the offence under section 397 which punishes the use of a deadly weapon while committing robbery or dacoity. I also uphold the conviction under section 436 of the IPC which punishes a person who commits mischief by fire or any explosive substance, intending to cause destruction of any building used as a human dwelling.
CRL. A. 251/1996 Page 23 of 30
31. I now turn to the question of sentence. The appellant has been in custody for a period of 2 months and 27 days and the unexpired portion of the sentence has been shown in the nominal roll as 9 years, 8 months and 25 days after taking into account the remission of 8 days earned by him. The learned counsel for the appellant would submit that considering the trauma of the trial which the appellant had undergone for about 28 years, the period undergone in jail should be sufficient punishment. On the other hand the learned Additional Public Prosecutor has argued for maintaining the sentence. The trial court has duly taken note of the fact that the appellant had no criminal record nor was he involved in any other case except the riot cases, that he was well established in business and was the only earning member of the family. The trial court has referred to the judgment of the Supreme Court in the case of Dhananjay Chatterjee @ Dhana vs. State of West Bengal : (1994) 2 SCC 220, in which it was observed that the object of sentencing should be to see that the crime does not go unpunished and the victim of the crime and the society get the satisfaction that justice has been done. It was further observed that the measure of punishment must be proportional to the atrocity of the crime, the conduct of the criminal and the defenceless and unprotected state of the victim. The courts, it was observed, should not only keep in view the rights of the criminal but should also pay regard to the rights of the victim of CRL. A. 251/1996 Page 24 of 30 the crime and the society at large while considering the imposition of appropriate punishment.
32. In a recent judgment in Hazara Singh vs. Rajkumar and others, rendered on 18.04.2013 in Criminal Appeal Nos.603-604/2013 (arising out of SLP (Crl.) Nos.2014-2015/2009), a 3-Judge Bench of the Supreme Court has laid down the following guidelines with regard to sentencing: -
(a) Since the judiciary has been bestowed enormous discretion in sentencing, it must be exercised with utmost care and caution.
(b) The punishment awarded must be directly proportionate to the nature and the magnitude of the offence. The bench mark of proportionate sentencing can assist the judges in arriving at a fair and impartial verdict.
(c) The sentence imposed on the offender should reflect the crime he has committed and be proportionate to the gravity of the offence.
These are cardinal principles of sentencing policy.
33. In Sevaka Perumal vs. State of Tamil Nadu : (1991) 3 SCC 471, it was observed that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society. The following factors were held to constitute governing principles in the matter of sentencing: (a) the facts and CRL. A. 251/1996 Page 25 of 30 circumstances of each case; (b) the nature of the crime; (c) the manner in which the crime was planned and committed; (d) the motive for commission of the crime; (e) the conduct of the accused; (f) the nature of weapons used and all other attending circumstances.
34. In Ahmed Hussein Vali Mohammed Saiyed and Anr. vs. State of Gujarat : (2009) 7 SCC 254, the Supreme Court cautioned against adopting a liberal attitude by imposing meagre sentences or taking too sympathetic a view merely on account of lapse of time in respect of the offences which will be result-wise counter productive in the long run and against the interests of the society which need to be cared for and strengthened by the string of deterrence inbuilt in the sentencing system.
35. After noticing the aforesaid principles, the Supreme court in Hazara Singh (supra) observed that "it was unfortunate that the High Court failed to appreciate that the reduction of sentence merely on the ground of long pending trial is not justifiable". Support for this proposition was found in an earlier 3-Judge Bench of the Court in Sadha Singh and Anr. vs. State of Punjab : (1985) 3 SCC 225, in which it was held that the power of the High Court to reduce the sentence, after confirming the conviction, on the ground that it is heavy or unduly harsh, must be exercised on the basis of well- recognised judicial dicta. In the case before the Supreme Court in Hazara CRL. A. 251/1996 Page 26 of 30 Singh (supra) the Court noticed that the High Court reduced the sentence from rigorous imprisonment for five years and a fine of `10,000/- and in default, to further rigorous imprisonment for one year on four of the accused, who were held guilty of the offence under section 307 IPC, to the period of sentence already undergone by them. The period of sentence undergone by the accused ranged from two months to 14 months. Such reduction of the sentence was disapproved by the Supreme Court on the ground that it was done without appreciating the nature of the offence and the grievous injuries of the witnesses/ victims. The Supreme Court also disapproved the other reason given by the High Court, namely, that sending the accused behind bars again would revive the old enmity between the accused and the family of the victim. The Supreme Court observed that this ground is irrelevant for the purpose of determining the sentence to be awarded and that the Courts cannot let the accused go scot free on mere suspicion of eruption of enmity between the families. The High Court, it was noticed, had also failed to take note of the fact that the accused had inflicted grievous injury on the head of the victim with a weapon.
36. In Shailesh Jasvantbai & Anr. vs. State of Gujarat : (2006) 2 SCC 359, the Supreme Court made observations regarding crimes against security of persons and property. In this case, it was recognised that in deciding a just CRL. A. 251/1996 Page 27 of 30 and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime was committed have to be delicately balanced and looked at in a dispassionate manner by the Court and that such act of balancing is "indeed a difficult task". The Supreme Court has noted the judgment of a U.S. Court in Dennis Councle McGautha vs. State of California : (402) US 183, where it was held that: -
"......no formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of the crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished."
37. In view of the aforesaid legal position and the peculiar facts of the case, I am not persuaded to agree with the contention of the learned counsel for the appellant that the sentence imposed by the trial court under sections 148, 397 and 436 of the Indian Penal Code should be reduced. The sentences, in my view, cannot be said to be disproportionate to the gravity of the offence committed by the appellant. He was part of the mob of rioters which was carrying deadly weapons and had also indulged in looting of articles and burning and causing damage to dwelling places. There is no evidence of any previous enmity between the accused and the family of victims. On the CRL. A. 251/1996 Page 28 of 30 contrary, Sugori Bai has deposed that the appellant was friendly to her sons and frequently visited her house and at times used to even take food with them. Despite this, the appellant had indulged in violence against the family members of Sugori Bai and Ranjha Singh. Taking into account the gravity of the acts committed by the appellant, I do not find the sentence awarded to be disproportionate. The fact that the appellant is running a well-established business and is the only bread winner of the family has been held to be an irrelevant consideration in the matter of sentencing in the case of Sevaka Perumal and another vs. State of Tamil Nadu (supra), where the Supreme Court observed that "such compassionate grounds would always be present in most cases and are not relevant for interference". I note that in that case the accused were all young men with wives, minor children and aged parents. Despite this, the Supreme Court refused to reduce the sentence of death to imprisonment for life, considering the depravity and hardened criminality of the accused who had no regard for precious lives of innocent young boys and had committed four murders in a span of five years for gain in a cold-blooded, pre-meditated and planned way. The case before me does not stand on a different footing. There are no mitigating factors. In the peculiar circumstances of this case, the conviction and the sentence awarded by the trial court are maintained.
CRL. A. 251/1996 Page 29 of 30
38. The appeal is dismissed. The appellant is on bail. He is, therefore, directed to surrender within 15 days from today, failing which he shall be taken into custody to serve the remaining period of the sentence. The trial court be apprised of this judgment forthwith to ensure its compliance.
(R.V. EASWAR) JUDGE MAY 01, 2013 vld/hs CRL. A. 251/1996 Page 30 of 30