Delhi High Court
State vs Ravinder Singh & Ors. on 9 February, 2009
Author: V.B. Gupta
Bench: V.B. Gupta, Badar Durrez Ahmed
* HIGH COURT OF DELHI : NEW DELHI
Crl. Appeal No.103/1992
% Judgment reserved on: 15th January, 2009
Judgment delivered on: 9th February, 2009
State .... Appellant
Through: Mr. M.N. Dudeja, Adv.
Versus
1.Ravinder Singh s/o. Chhutkan Singh
2.Daya Shanker s/o. Chhutkan Singh
3.Raghbir Singh s/o. Sukhi Lal
4.Ram Avtar s/o. Ved Parkash
5.Ramesh So. Bansi ..... Respondents
Through : Mr. Akshay Malik, Adv. for R-
1, 2 and 5.
Mr. Dhananjay Shahi, Adv. for
R-3 & 4.
Coram:
HON'BLE MR. JUSTICE V.B. GUPTA
HON'BLE MR.JUSTICE BADAR DURREZ AHMED
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
Crl.A.No.103/1992 Page 1 of 24
V.B. GUPTA, J.
1. State has filed the present appeal against the acquittal of the respondents.
2. Present case was registered on the statement of Bhan Singh, Security Guard employed at Mohan Machine, Coca-cola Factory, situated at Okhla Industrial Area, Phase-I. He in his statement Ex-PW 7/A, made to the police stated that on 1st November, 1984, he was posted as a security guard in the above factory. The factory was closed due to weekly off on Thursday. He along with Mohinder Singh, Santokh Singh, Balkar Singh, Jit Singh, Prakash Singh, Balwant Singh, Bachan Singh, Bhoop Singh and Ram Chander was present on duty. At about 2.30 p.m., a crowd of about 1500 to 2000 persons armed with lathis, saria etc. came and they started throwing stones and breaking glass panes of the factory and put the factory vehicles on fire. These persons while damaging and setting ablaze the factory, were heard saying that the owner of the factory was a Sardar/Sikh and they would Crl.A.No.103/1992 Page 2 of 24 take revenge of the death of Prime Minister in that manner. They looted from factory, crates of Campa Cola bottles, type writers, furniture etc. He (Bhan Singh) and his companion saved their lives with great difficulty by concealing themselves under the goods of the factory and in the meantime police came and they were taken out. This crowd had intentionally committed riots with common object by setting the factory on fire and looting away the goods therefrom.
3. Whereabouts of his other companions namely Balkar Singh, Jit Singh, Rankash Singh, Balwant Singh, Bachan Singh, Bhoop Singh and Ram Chander, who were also on duty are not known to him. Bhan Singh in his complaint has stated that he did not know the name of any persons out of the crowd but he can identify them if confronted.
4. On the basis of this statement made by the complainant, the present case was registered and investigated.
Crl.A.No.103/1992 Page 3 of 24
5. All the respondents herein were charge sheeted by the police for offences under Sections 148/436/149, 427/149, 395 and 411 IPC.
6. After trial, the Additional Sessions Judge acquitted all the respondents by giving them benefit of doubt.
7. It has been contended by learned counsel for the State that prosecution witnesses namely PW 8, Bachan Singh, PW 9 Balwant Singh and PW 11 Santokh Singh, who were at the scene of occurrence had named all the respondents as culprits. Besides that, there are statements of other witnesses namely, PW 6 K.B. Gulati, PW 7 S.I. Ganga Sahai, (I.O), PW 10 Mohinder Singh and PW 12 Rajbir Singh, who are the witnesses to the recovery of stolen articles effected from the jhuggis of the respondents in pursuance to the disclosure statements made by them, and the same are Ex PW7/A, E, F, G and I.
8. Another contention raised by learned counsel for the State is that Test Identification parade was not Crl.A.No.103/1992 Page 4 of 24 conducted since all the respondents were already known to the eye-witnesses.
9. The recovery of the stolen property in this case was effected from the jhuggis as well as outside the jhuggis of the respondents. All the eye-witnesses are categorical in their statements that all the respondents were members of the mob which had set the factory on fire and looted the property and had indulged in rioting.
10. On the other hand, it has been contended by learned counsel for the respondents that none of the respondents was named in the F.I.R nor any description was given and further, no Test Identification parade was conducted.
11. PW1 Bhoop Singh, who is an independent witness did not identify any of the respondents whereas, PW 8 Bachan Singh who was on duty in the factory up to 2.00 p.m. did not inform anybody regarding the incident.
Crl.A.No.103/1992 Page 5 of 24
12. It is also contended that none of the eye- witnesses were associated with the recovery of the stolen property, as PW 9, the so-called eye-witness, in his cross-examination has stated that he did not join the police party to search the respondents in jhuggis.
13. Another contention is that as per statement of PW 11 Santokh Singh, the mob remained in the factory for about 2 ½ hour and if the mob had remained there for 2 ½ hour then why not even a single rioter was caught.
14. It is further contended that statements of all the so-called eye-witnesses were recorded after about 8-9 months and there is no explanation as to why there was such a delay in recording their statements.
15. It is also contended that there is nothing on record to show that the jhuggis from where the stolen properties were recovered, belonged to the respondents. No documentary evidence to this effect has been placed or proved on record. No site plan of any of the jhuggis was prepared.
Crl.A.No.103/1992 Page 6 of 24
16. Learned counsel also contended that there is nothing on record to show that the articles recovered from the jhuggis of the respondents, are owned by Mohan Machines, Okhla, Phase-1. Moreover, as per prosecution‟s own case, many of the articles were lying outside the jhuggis of the respondents and as such the articles recovered in this case have not been connected with the respondents.
17. Lastly, it is contended that one of the respondents namely Ravinder Singh has been implicated by the management in connivance with police due to enmity, since he was General Secretary of the Union and was turned out by the management in the year 1983. Hence, there is no evidence on record to connect the respondents, with the commission of the offences.
18. The present appeal is against acquittal. It cannot be forgotten that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that Crl.A.No.103/1992 Page 7 of 24 every person should be presumed to be innocent unless he is proved to be guilty by a competent court of law. Secondly, the accused having secured an acquittal, the presumption of his innocence is certainly not weakened but reinforced, reaffirmed and strengthened by the trial court.
19. The dictum of the Privy Council in Sheo Swarup v. King Emperor [1934 (61) IA 398] and various decisions of Supreme Court have firmly established the position that although in an appeal from an order of acquittal the powers of the High Court to reassess the evidence and reach its own conclusions are as extensive as in an appeal against an order of conviction, yet, as a rule of prudence, it should-to use the words of Lord Russel of Killowen-„always give proper weight and consideration to such matters as (1) the views of the Trial Judge as to the credibility of the witnesses (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at the trial; (3) Crl.A.No.103/1992 Page 8 of 24 the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.‟ Where two reasonable conclusions can be drawn on the evidence on record, the High Court should, as a matter of judicial caution, refrain from interfering with the order of acquittal recorded by the Court below. In other words, if the main grounds on which the Court below has based its order acquitting the accused, are reasonable and plausible, and cannot be entirely and effectively dislodged or demolished, the high Court should not disturb the acquittal.
20. Keeping in mind these principles, we have carefully examined the evidence of all material witnesses.
21. The first and foremost question which arises for our consideration is as to how the present respondents are connected with the commission of the offence. None of the respondents have been named in the First Crl.A.No.103/1992 Page 9 of 24 Information Report, neither the parentage of Respondent Ravinder has been mentioned nor his address. Same is position with regard to remaining four respondents.
22. Bhan Singh, complainant, in his complaint, has stated that he did not know the name of any persons in the crowd but he can identify, if confronted. So, the names of respondents were not known to the complainant Bhan Singh.
23. Now let us see how the police has connected the respondents with the crime.
24. As per statement of PW 7 Ganga Sahai, I.O., on 5th November, 1984, he along with other police officers was investigating the case and a secret information was received by him that in case Ravinder Singh is interrogated, the looted property can be recovered. Thereafter, he apprehended Respondent Ravinder Singh and interrogated him.
25. Thus, the prosecution case is that, after Ravinder was apprehended, he made a disclosure statement and Crl.A.No.103/1992 Page 10 of 24 disclosed the names of his accomplices, who are other respondents in the present case. In pursuance of disclosure made by respondent Ravinder, the property was recovered and similarly other respondents also made their disclosures, and got the properties recovered.
26. We fail to understand as to how the secret informer had come to know about the name of respondent Ravinder, when admittedly PW Bhan Singh in his initial complaint has categorically stated that "he did not know the name of any persons out of the crowd".
27. There is nothing on record to show that secret informer had given either the description of Ravinder or his parentage or his residential address, to the I.O. Even if Ravinder was involved in the crime as per the secret informer, it is not clear as to how the police party was able to apprehend him, without his parentage, description and residential address. Crl.A.No.103/1992 Page 11 of 24
28. If the secret informer knew that Ravinder had the looted property with him, then under those circumstances secret informer must have seen Ravinder committing the crime as well as looting the property. Then in that case, this secret informer ought to have been made as an eye witness.
29. This secret information available with the Investigating Officer that "in case Ravinder Singh is interrogated, the looted property can be recovered", cannot lead to his arrest when parentage, description or address of Ravinder Singh has not been given.
30. Thus, the prosecution has failed to establish as to how respondent Ravinder (who was not named in the initial complaint), has been connected with the commission of the present offence. If the case of prosecution qua respondent Ravinder fails, consequently, the arrest of other respondents, made in pursuance of Ravinder Singh‟s disclosure statement, also goes.
Crl.A.No.103/1992 Page 12 of 24
31. The next point for consideration is as to why the Investigating Officer did not get Test Identification Parade of respondents, when as per complaint of Bhan Singh, he did not know the name of any of the respondents, but could only identify, if confronted.
32. Since, respondents were not named in the First Information Report, nor had they been apprehended from the scene of crime, it was imperative for the Investigating Officer to have got the Test Identification Parade done of all the respondents.
33. It is well settled that the identification tests may not constitute substantive evidence and these tests are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on right lines.
34. When a party‟s identity with an ascertained person is in issue, it may be proved or disproved not only by direct testimony, or opinion evidence, but presumptively by similarity or dissimilarity of Crl.A.No.103/1992 Page 13 of 24 characteristics (eg, age, height, size, hair complexion, voice, handwriting, manner, dress, distinctive marks, faculties, or peculiarities including blood group, as well as of residence, occupation, family relationship, education, travel, religion, knowledge of particular people, places or facts and other details of personal history [See: Phipson on The Law of Evidence 9th Ed P 137].
35. In Kanan and Others v. State of Kerala, AIR 1979 SC 1127 Supreme Court held that;
"Where a witness identifies an accused who is not known to him in the Court for the first time his evidence is absolutely valueless unless there has been a previous T.I. Parade to test his power of observations. The idea of holding a T.I. Parade under Section 9 is to test the veracity of the witness on the question of capability to identify an unknown person whom the witness may have seen only once. If no T.I. Parade is held then it will be wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in court."
36. Under these circumstances, it is not safe to rely on the testimony of any of the so-called eye witnesses. Crl.A.No.103/1992 Page 14 of 24
37. Another point which arises for consideration is that as per initial complaint Ex PW 7/A made to the police, there were eight other persons who were the eye-witnesses, but none of them was associated with the disclosure proceedings of any respondents. Moreover, no recoveries were effected from the respondents in presence of any of the eye witnesses.
38. PW 6 K.B. Gulati, who was working as Assistant Purchase Officer was however, associated with the recovery proceedings. In his statement he has stated that at about 10.30 a.m., the police party had arrived at the factory and he joined the police party and thereafter, all the five respondents were apprehended from their jhuggis and got recovered the stolen articles from their jhuggis.
39. This witness contradicts PW 7 Ganga Sahai, because PW 7 states that he along with other police personnel was investigating the case, when a secret information was received by him that in case Ravinder is interrogated, the looted property shall be recovered. Crl.A.No.103/1992 Page 15 of 24 He apprehended Respondent Ravinder from near his jhuggi and interrogated him.
40. PW 7 Ganga Sahai, did not state about the presence of PW 6 K.B. Gulati at that time.
41. So, this is a very material contradiction in the case of prosecution.
42. Another version given by the I.O. in his cross- examination is that, PW 6 K.B. Gulati was with him at the time of apprehension of the respondents and he (PW 6) was present in the factory at the time of the incident. He had identified all the respondents. PW 6 K.B. Gulati had told him that respondents are some of the rioters/culprits, who had taken part in the riots. Whereas, PW 6 K.B. Gulati in his statement has nowhere stated at all, that respondents are the rioters/culprits who had taken part in the riots.
43. On the other hand, in his cross-examination PW 6 states that on 5th November, 1984, at about 10.30 a.m., the police came to their factory and he was deputed by Crl.A.No.103/1992 Page 16 of 24 his senior officer to accompany the police for purposes of identification of the property.
44. Defence of respondent Ravinder Singh is that police in connivance with management concocted this case to break the union of which he was General Secretary and was turned out by the management in the year 1983. He has further stated that still there is a union in Mohan Machines and he is the Chairman of the said union.
45. PW 11 Santokh Singh, who was working as a security guard in the factory at the relevant time, in his cross-examination has admitted that there was a union of labourers in Mohan Machines and respondent Ravinder has worked for some period in their factory, before this incident. At that time, respondent Ravinder was a member of union.
46. PW 14 K.L. Arora, who was working as a Manager, Mohan Machines at that time has admitted that respondent Ravinder had joined as a worker with him.
Crl.A.No.103/1992 Page 17 of 24
47. In view of the statement of the prosecution witness PW 11, Santokh Singh, respondent Ravinder Singh had worked in the factory of Mohan Machines for some period and was also member of union. So, false implication of respondent Ravinder due to union activities, cannot be ruled out.
48. With regard to possibility of false implication of respondents, it would be relevant to have a glance at the findings of Trial Court which read as under;
"The statement of the PW 11 is still worst and does not advance the case of the prosecution any further. He has named the accused persons as culprits or as the persons who were present in the mob which indulged in the act of destroying and looting the factory. But this PW. States that he did not disclose this incident to anyone out of fear. He does not know as per his own statement that who were the persons from whom he entertained fear. Besides this he remained in Police Station for 2/3 days but at the Police Station he did not disclose the name of the accused as being the members of the mob who looted Crl.A.No.103/1992 Page 18 of 24 the property. Had this PW witnessed the accused persons participating in riots he would have definitely named them to the Police Officers or given their descriptions. But not doing only indicates the possibility of the false implication of the accused persons."
49. Now, coming to the recovery of the stolen properties. The prosecution has to prove in the first instance, that the properties which have been looted or stolen, were owned by Mohan Machines Factory.
50. There is nothing on record to show that the goods/articles which were recovered from the possession of the respondents, were owned by Mohan Machines Ltd.
51. In this respect, statement of PW 14, K.L. Arora, who was working as a Manager of Mohan Machines Ltd., may be referred to. He in his statement has stated that he had given detailed list of the articles, looted/burnt and damaged in the incident. However, that list is not traceable on record or available with the police.
Crl.A.No.103/1992 Page 19 of 24
52. In cross-examination, he has stated that the list was made with the help of others and the same was not made in his personal knowledge.
53. So, there is no documentary proof or otherwise that the stolen or looted articles recovered in this case were owned by Mohan Machines Ltd.
54. Now, coming to the recovery of the so-called stolen articles, it has been admitted by the prosecution witnesses that many of the articles which were recovered in this case were lying outside the jhuggis of the respondents.
55. Before a person can be convicted for being in possession of stolen property, the prosecution had to show firstly, that it is owned by someone who is the owner of this property, secondly, the property has been found in the conscious possession of the accused. Both these things are missing in the present case.
56. Next point for consideration is with regard to delay in recording the statements of the witnesses. Crl.A.No.103/1992 Page 20 of 24
57. As per findings of the Trial Court, there is delay in recording the statement of the witnesses, which read as under;
"There is delay in recording the statement of these PWs. I.O., PW 7 and PW 13 does not remember when statement of the eye witnesses were recorded but they were not recorded immediately after the occurrence. The perusal of the zimni shows that these statements were th recorded on 11 June, 1985, over eight months of the occurrence of this case. The delay in recording the statement of the PWs coupled with the absence of T.I.P. does not stirs up confidence in me to rely on their statement that they have witnessed the occurrence."
58. In State of Punjab v. Jagir Singh, Baljit Singh and Karam Singh, AIR 1973 SC 2407, it has been held that;
"A criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and fantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, Crl.A.No.103/1992 Page 21 of 24 its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures".
59. In the present case since the statements of the witnesses were recorded eight months after the occurrence of the event, so it does not inspire confidence.
60. Hence, from the entire material available on record, we hold that the prosecution has miserably failed to link the present respondents with the commission of the alleged offences and the trial court rightly acquitted all the respondents.
61. Before parting with, we must express our anguish about the manner in which the present case has been investigated by the police.
62. Present case is a classic example of State roping in innocent persons to solve a riot case. It is a known Crl.A.No.103/1992 Page 22 of 24 fact that in the year 1984, after the murder of Smt. Indira Gandhi, the then Prime Minister of India, large scale rioting took place in this country. The arrests of the present respondents were made in a pre-mediated and designed manner, aimed only at working out the present case with scant regard for actual culpability or involvement of arrested persons. Police in their overzealousness to solve this case, made unbelievable recoveries of articles from jhuggi dwellers and also made them face the trial for about quarter century. The investigation conducted by the police in this case is full of suspicion and the same is shoddy.
63. Police is meant for safety and protection of the citizens and to provide necessary help in the hour of distress. When police failed to control the riots in November, 1984, so in order to overcome its inefficiency and incompetency and to have some face- saving in view of its severe criticism, it roped in the present respondents. Serious crimes were committed in the wake of the said riots. But, inadequate and Crl.A.No.103/1992 Page 23 of 24 inefficient investigations have enabled the actual perpetrators of the crimes to slip through the net of justice.
64. Under these circumstances, the present appeal filed by the State against the acquittal of the respondents is hereby dismissed.
V.B.GUPTA, J BADAR DURREZ AHMED, J 9th February, 2009 rb Crl.A.No.103/1992 Page 24 of 24