Delhi District Court
Rc 23 (S)/2005 State (Through Cbi) vs . Suresh Kumar @ Panewala Page No. 1 Of 26 on 20 August, 2014
IN THE COURT OF SH. SANJAY BANSAL:
ADDITIONAL SESSIONS JUDGE-03 (East):
KARKARDOOMA COURTS: DELHI.
S.C. No: 56/2014
ID No.: 02402R0655482007
State (Through CBI)
Versus
Suresh Kumar @ Panewala
S/o Sh. Balbir Singh
R/o 4479, Gali Jatan, Pahari Dheraj,
PS Sadar Bazar, Delhi-110006.
RC 23 (S)/2005
FIR No: 316/1984
PS.: Bara Hindu Rao
U/s. 147/148/149/302/457/320/436/295/188 IPC
Chargesheet Allocated on : 20.05.2010
Judgment Reserved on : 12.08.2014
Judgment Delivered on : 20.08.2014
JUDGMENT:
1. The present case is one of the 1984 anti-Sikh riot cases. On 01.11.1984, FIR No. 316/84 was registered at PS Bara Hindu Rao u/s 147/148/149/302/457/320/436/295/188 of Indian Penal Code ("IPC"). This FIR was transferred to CBI for investigation/re-investigation in view of report of Justice Nanavati Commission and in terms of letter being DO No. U.13018/5/05- Delhi-I dt. 24.10.2005. The CBI registered the case as RC.23(S)/2005-SCU.I on 22.11.2005.
2. In the investigation conducted by the local police, it was found that Gurudwara Pul Bangash was set on fire by a mob and three persons namely RC 23 (S)/2005 State (Through CBI) Vs. Suresh Kumar @ Panewala Page No. 1 of 26 Sardar Thakur Singh, Badal Singh and Gurcharan Singh were burnt to death on 01.11.1984 in front of said Gurudwara. However, only two bodies were found in burnt condition at the spot. Post mortems were carried out. After completion of the investigation, chargesheet was filed against Amarkant @ Titu and 31 other persons u/s 147/148/149/302/436/188/295 and 427 IPC on 12.11.1985. All the said accused persons were acquitted on 10.04.1992. A supplementary chargesheet was also filed on 12.11.1992 against one Ravi Kumar Kodwani who was also acquitted on 09.11.1993.
3. In the investigation conducted by the CBI, it was revealed that on 01.11.1984 Gurudwara Pul Bangash was set on fire by a mob comprising of more than 1000 persons who had assembled there from 10 am. Sardar Thakur Singh was hit with an iron rod in front of Gurudwara Pul Bangash and his body was set on fire by putting burning tyre on him. Sardar Badal Singh was thrown from the rooftop of house of one Amarjeet Singh Bedi and brought in front of the Gurudwara Pul Bangash on a handcart and burnt by putting burning tyre on him. Similarly, Gurcharan Singh @ Channi who was an employee of Amarjeet Singh Bedi was also thrown from the rooftop of Bedi's house and brought in front of the Gurudwara Pul Bangash and burnt. Relying of statements of various witnesses, CBI concluded that there was enough evidence against accused Suresh Kumar @ Panewala for commission of offences u/s 147/149/109 r/w Sec. 302/295/427 and 436 IPC.
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4. It was stated in the chargesheet that there was no material against Sh. Jagdish Tytler. During pendency of this case, an application was filed on behalf of one Jasbir Singh, a witness stating therein that he was willing to depose against Mr. Tytler. Matter was sent for further investigation vide order dt. 18.12.2007. The said Jasbir Singh was residing in USA. One Surender Singh who was Granthi of the Gurudwara Pul Bangash at the time of incident was also in USA. As such the investigating officer went to USA and recorded their statements. The CBI did not believe the statement of Jasbir Singh. Similarly, it also disbelieved the statement of Surender Singh. A supplementary report was also filed by the CBI again reiterating that there was no sufficient evidence against Mr. Tytler.
5. Learned ACMM vide order dt. 27.04.2010, approved this final report against Mr. Tytler. This order was challenged and vide order dated 10.4.2013, the same was set aside. The CBI was directed to further investigate the case. The matter is still under further investigation with respect to Mr. Tytler.
6. The case was committed to the Sessions Court with respect to accused Suresh Kumar @ Panewala.
7. My learned Predecessor after hearing the arguments, vide order dt. 06.02.2013, ordered to frame charges against the accused for offences punishable u/s 147 IPC; 295 r/w 149 IPC; 427 r/w 149 IPC; 436 r/w 149 IPC; 302 r/w 149 IPC; and 109 r/w 302/295/427/436 IPC. The names of the deceased RC 23 (S)/2005 State (Through CBI) Vs. Suresh Kumar @ Panewala Page No. 3 of 26 persons were stated as Sardar Thakur Singh, Badal Singh and Gurcharan Singh.
8. To prove the charges, CBI examined 17 witnesses. They are :
PW1 Sh. Chander Kishore Police Officer on duty on 01.11.1984 at the spot. PW2 Sh. Soran Singh Police Officer on duty on 01.11.1984 at the spot. PW3 Sh. Kailash Chand Resident of the area and eye witness. Kapoor PW4 Sh. Kuljeet Singh Resident of neighbouring area and eye witness. Duggal PW5 Sh. Ranbir Singh Police Officer on duty on 01.11.1984 at the spot. PW6 Sh. Hari Bhushan Police Officer who conducted investigation earlier. PW7 Sh. Gopal Ram An official of Justice Nanavati Commission. PW8 Sh. Jagdish Singh Brother of deceased Badal Singh.
PW9 Sh. K. P. Singh An Official of Govt. of India. PW10 Sh. N. J. Thomas An Official of Govt. of India. PW11 Sh. Labh Singh An Official of Govt. of India. Chane
PW12 Sh. Amarjeet Singh Residing opposite Gurudwara Pul Bangash and eye witness.
PW13 Sh. Harbhajan Resident of the Gurudwara Pul Bangash and eye Singh witness. PW14 Sh. N. K. Malhotra Learned MM who recorded statement u/s 164 CrPC of Late S. Harminder Singh.
PW15 Retired ACP Sh. SHO PS Sadar Bazar at the relevant time. Ranbir Singh PW16 HC Prem Kumar An Official of CBI.
Arya PW17 Sh. S. S. Kishore Investigating Officer.
9. Statement of accused was also recorded u/s 313 CrPC. Accused produced one Sh. Jasbir Singh S/o Late Sh. Joginder Singh as DW1 but this RC 23 (S)/2005 State (Through CBI) Vs. Suresh Kumar @ Panewala Page No. 4 of 26 witness did not turn up for cross-examination and as such defence evidence was closed.
10. I have heard Sh. Sanjay Kumar, learned Sr. PP for CBI and Sh.
Vikram Singh Saini, learned defence counsel. I have gone through the record including the written submissions filed by the CBI.
11. PW3, PW4, PW8, PW12 and PW13 are public witnesses. PW1, PW2, PW5 and PW6 are police officials who were on duty on 01.11.1984. PW7 was an official of Nanavati Commission. PW9 was Special Secretary and PW10 was Under Secretary in the Ministry of Home Affairs, Govt. of India, New Delhi. PW11 was also an official of Ministry of Home Affairs. PW14 was learned MM who had recorded statement u/s 161 CrPC of one witness namely Harminder Singh. PW15 was SHO of PS Sadar Bazar. On 21.08.2007, CBI sought information from him regarding three persons. Two persons were not residents of his area. The third one was purportedly the accused. PW16 is an official of CBI who had gone to serve one notice u/s 160 CrPC which was purportedly in the name of the accused. PW17 is the investigating officer of the CBI.
12. The accused in his statement u/s 313 CrPC stated that his name is Suresh Kumar and not Suresh Kumar @ Panewala. He stated that Suresh Kumar @ Panewala is a bad character of his area who was residing in his neighbourhood. He stated that at the time of alleged incident, he was on duty at railway mail services at Old Delhi Railway Station till 12.40 pm. He stated that he RC 23 (S)/2005 State (Through CBI) Vs. Suresh Kumar @ Panewala Page No. 5 of 26 had gone to his friend Jasbir Singh Ahluwalia's house and remained there for whole night.
13. PW1 deposed that on 01.11.1984, he was on patrolling duty from Pul Mithai to Pul Bangash. He was posted as a constable at PS Bara Hindu Rao. He deposed that when he was present at Pul Mithai alongwith SI Ranbir Singh, a wireless message was received that Gurudwara Pul Bangash had been set fire and they were also directed to reach there. PW1 upon reaching there found a mob of 700-800 rioters and they had set fire to one handcart and number of tyres. The mob was also carrying sticks and raising slogans. SI Ranbir Singh informed the mob that there was curfew in the area and directed them to disburse. Some of them left and some remained there. He deposed that the rioters killed two persons in the incident. Around 30-31 rioters were arrested from the spot. He identified signature of SI Ranbir Singh on the rukka and the certified copy thereof was marked as Ex.PW1/A. Similarly, certified copy of site plan was marked as Ex.PW1/B. He also identified signatures of duty officers Shankar Dutt and certified copy of FIR No.316/84 was marked as Ex.PW1/C. He stated that since the incident was more than 20 years old, he was not in a position to identify anyone who was member of the said mob. Cross-examination was nil.
14. Similarly, PW2 was posted as ASI on 01.11.1984 and was on patrolling duty. He deposed that he saw smoke coming out from Gurudwara Pul Bangash. He also saw mob from there. He also saw two dead bodies. He too RC 23 (S)/2005 State (Through CBI) Vs. Suresh Kumar @ Panewala Page No. 6 of 26 was unable to identify anyone. Cross-examination was nil.
15. PW3 was resident of nearby locality. He deposed that in October November 1984, he was living at 6183, Pakki Gali, Bara Hindu Rao. He stated that Gurudwara Pul Bangash as well as the road in front of Gurudwara was clearing visible from his rooftop. He deposed that on 01.11.1984, there was a mob of around 1000-1500 persons. The rioters were throwing burning bories/bags and tyres into the Gurudwara. The articles of the gurudwara were also looted by them. The rioters were carrying sticks, stones/bricks etc. in their hands. PW3 deposed that he was watching all this from his rooftop. He further deposed that he came to know that two persons were killed by the rioters. The rioters also damaged the gurudwara. At around 9-10 pm, PW3 alongwith others rescued 8-9 sewadars who were dragged inside the gurudwara and took them to house of one Rashid Ahmad. Later on, they were handed over to SHO for safe custody. PW3 specifically stated that he cannot identify any of the rioters who were present at the spot on 01.11.1984.
16. PW4 is another resident of the locality. He also deposed about the rioting done by the rioters in the morning of 01.11.1984. He deposed that he was present on the rooftop of Kailash Chand Kapoor (PW3). PW4 deposed that rioters killed Sardar Thakur Singh outside the gurudwara and kept his body near piao. He deposed that rioters also killed Sardar Badal Singh who was a kirtaniya of the gurudwara. His dead body was also kept near body of Sardar Thakur RC 23 (S)/2005 State (Through CBI) Vs. Suresh Kumar @ Panewala Page No. 7 of 26 Singh. He went on to depose that the rioters also killed one Charanjeet Singh Channi who used to work as videographer with Bedi Electronics and whose dead body was brought on handcart and kept near the other two bodies. He deposed that when Charanjeet's was brought outside the gurudwara, he was alive. The rioters thereafter started putting burning tyres on him.
17. He further stated that in the evening, 3-6 persons came outside the gurudwara with swords in their hands and the mob was disbursed. The police also fired in the air. Two gas cylinders were thrown out by the residents of the gurudwara but the rioters again threw the said cylinders inside the burning gurudwara and a blast took place due to which stairs of the gurudwara got damaged. He deposed that his shop by the name of Preeti Electronics which was infront of the gurudwara was looted by the rioters. He stated that on 05/06.11.84, he went to PS Bara Hindu Rao for lodging complaint in this regard. After great persuasion, his complaint was registered. He deposed that he had informed about names of 8 rioters who were members of the unlawful mob. They were Titu Aman, Bhaiya Doodhwala, Om Prakash, Ravi of Bharat Tailor, Suresh Pane, etc.
18. PW4 stated that he could not identify any person who were members of the unlawful mob. He however stated that the persons named by him were definitely present outside the gurudwara and were part of the unlawful mob. He deposed that Suresh Pane was resident of the same locality. He stated that he knew the said Suresh Pane as they were residing since their childhood at RC 23 (S)/2005 State (Through CBI) Vs. Suresh Kumar @ Panewala Page No. 8 of 26 the said place.
19. PW4 was asked to look at accused in the court and was asked if accused was the said Suresh Pane who was present at the time of rioting. PW4 stated that he could not identify him since 28 years had elapsed. He stated that he never appeared as any witness before any commission. He informed that residence of Suresh Pane is at distance of about 1000 meters or so from the gurudwara. He did not know profession of Suresh Pane. He stated that Suresh Pane was residing at the same address since long. This witness was also not cross-examined on behalf of accused.
20. PW5 was posted as SI at PS Bara Hindu Rao. He was on patrolling duty at that time. He deposed that there was tension in the area and mob was damaging properties/articles of sikhs after taking out from the said shop. He als reached Gurudwara Pul Bangash and saw thousands of persons. He sas that SHO PS Sadar Bazar and ACP Sadar Bazar were trying to disbursed th mob. Two dead bodies were burning near the piao in front of gurudwara and burning tyres were put on those dead bodies. He deposed that mob was asked to disburse. Some of them left the spot. He also deposed that gurudwara was set on fire.
21. PW5 deposed that 31 persons were arrested by Soran Singh. Two dead bodies were recovered in dead condition. PW5 had sent rukka for registration of FIR. Rukka is Ex.PW1/A bearing his signature at point A. On this RC 23 (S)/2005 State (Through CBI) Vs. Suresh Kumar @ Panewala Page No. 9 of 26 rukka, FIR No. 316/84 was registered which is Ex.PW1/C. PW5 had also prepared site plan which is Ex.PW1/B. He also conducted proceedings u/s 174 CrPC and sent the dead bodies for post mortem. The inquest papers prepared by PW5 are Ex.PW5/A & B. Request for post mortem is Ex.PW5/C & D. PW5 stated names of rioters as Kishori, Suresh and Ravi Kumar. He deposed about arresting one Anup Kant @ Titu. He did not remember if he had mentioned address and other particulars of Suresh Kumar in his case diary. PW5 recollected that the said person was Suresh Kumar Panewala who was resident of Pahari Dhiraj. He deposed that Suresh was a badmash/bad character. In cross-examination, he stated that he had no personal knowledge about involvement of Suresh, Kishori and Ravi Kumar and stated that these names surfaced only during examination of witnesses. Further the witnesses did not give any description or residential address or parentage of the said Suresh. PW5 retracted his statement given in the court that the said person was Suresh Kumar Panewala and he was a badmash/bad character.
22. PW5 was re-examined by ld. Prosecutor for CBI in which he stated that he had put his signatures by guess as his eye sight was weak.
23. PW6 is also from the Delhi Police and he was posted as Inspector (Vigilance) in 1984-85. PW6 was shown certified copies of chargesheet, list of accused and list of witnesses of FIR No. 316/84, PS Bara Hindu Rao and identified his signatures. Certified copy of chargesheet is Ex.PW6/A, list of RC 23 (S)/2005 State (Through CBI) Vs. Suresh Kumar @ Panewala Page No. 10 of 26 witnesses is ExPW6/B and list of accused persons is Ex.PW6/C. He deposed that names of other persons were also surfaced. They were Suresh Kumar (Badmash), Kishori and Ravi. He did not remember as to why these three persons were not arrested.
24. PW7 deposed about some correspondence done with Nanavati Commission by some persons. He was posted as Assistant with the said Commission.
25. PW8 was residing at the gurudwara at GP Pocket, Pitampura. He had three brothers namely late Badal Singh, Preet Pal Singh and Late Ajmer Singh. He deposed that on 06.11.1984 he had gone to Gurudwara Pul Bangash where he found that gurudwara was badly damaged. He also came to know that three persons were killed on 01.11.1984 by the rioters. Deceased late Sardar Badal Singh was his brother. The other deceased was servant of Amarjeet Singh Bedi and one was the Sewadar of the gurudwara. He deposed that his brother Badal Singh/deceased was inside the gurudwara and Smt. Lokender Kaur i.e. Wife of Late Sardar Badal Singh was at village. PW8 also stated that he did not know who were the rioters who attacked on gurudwara on 01.11.1984. PW8 also expressed his inability to identify any of them. Cross-examination was nil.
26. PW9 was also in the Ministry of Home Affairs and identified his signatures on some letters. Similarly, PW10 had forwarded written statement of one Harminder Singh which was filed before Nanavati Commission. Cross- RC 23 (S)/2005 State (Through CBI) Vs. Suresh Kumar @ Panewala Page No. 11 of 26 examination was nil. PW11 is also Govt. officer who had forwarded affidavit of one Jasvinder Singh.
27. PW12 used to reside in front of the gurudwara in October- November 1984. He deposed that on 01.11.1984, his shop by the name of Bedi Electronics situated in front of gurudwara was looted by the rioters and he suffered loss of Rs.10 lacs. He also deposed that three persons were killed one of whom was his servant Channi. He deposed that he was hiding himself in a neighbour's house. He deposed that people informed him later about involvement of various persons but now he did not remember those names. Cross- examination is nil.
28. PW13 deposed that he used to reside in the Gurudwara Pul Bangash in October-November 1984. They were five brothers namely PW13 himself, Gurcharan Singh, Harminder Singh, Jasvinder Singh and Gurdeep Singh. Three of them namely Gurcharan Singh, Harminder Singh and Jasvinder singh have since expired. He deposed that on 01.11.1984, he was inside Gurudwara Pul Bangash. There was a mob of 1000 persons outside the gurudwara. Some one threw white colour chemical inside the gurudwara, due to which fire broke out inside the gurudwara. PW13 alongwith 7 persons came out of the gurudwara to disburse the mob. He deposed that there was police firing at that time. He saw that rioters were carrying stones, sticks and bricks. The ladies and children residing the gurudrawa were sent to the residence of one Jahangir RC 23 (S)/2005 State (Through CBI) Vs. Suresh Kumar @ Panewala Page No. 12 of 26 and Faisal. The fires spread upto 3rd and 4th floor. He deposed that gas cylinders lying in the gurudwara were thrown out of the gurudwara but the rioters threw back the same. The cylinders burst. He deposed that three persons were killed in the said attack. They were Thakur Singh, Badal Singh and Channi.
29. He further deposed that they left the gurudwara in the night at about 11 pm. The next day millitary came and took them to Gurudrawa Shish Ganj. He also deposed that articles lying in the Gurudwara Pul Bangash were also looted by the rioters.
30. PW13 identified the signature of his brother Harminder Singh on one statement which was already Ex. PW7/F. He also identified signatures of Jasvinder Singh on an Affidavit which was already Ex. PW7/H. He further identified signatures of Harminder Snigh on carbon copy of statements u/s 164 CrPC which was marked Ex.PW13/A. He deposed that his brother Harminder Singh expired on 14.08.2011 at his residence. PW13 specifically stated that he did not know the names of the persons who were involved in the attack at Gurudwara Pul Bangash. He also expressed his inability to identify any person. He deposed that he knew Suresh Kumar Panwala as Suresh's boss was his friend. He deposed that Suresh Kumar Panewala was residing at Pahari Dhiraj. There is no cross-examination.
31. PW14 was posted as learned Metropolitan Magistrate at Karkardooma court on 12.09.2007. He deposed about recording statement of RC 23 (S)/2005 State (Through CBI) Vs. Suresh Kumar @ Panewala Page No. 13 of 26 one Harminder Singh S/o Late Pratap Singh u/s 164 CrPC. The statement is Ex.PW14/B. Application for recording statement is Ex.PW14/A.
32. PW15 was posted as SHO PS Sadar Bazar on 21.08.2007. He deposed about receiving a letter Ex. PW15/A from the CBI. He deposed that information was sought about three persons. Two of them were not residents of his area. The third was Suresh Kumar Panewala S/o Balbir Singh R/o H. No. 4479, Gali Jatan, Pahari Dhiraj, Sadar Bazar, Delhi. He gave reply Ex.PW15/B. He stated that accused was Suresh Kumar Panewala. There were three cases against him details of which were mentioned in reply Ex.PW15/B. In cross- examination, he stated that he had given report regarding those cases after checking register no.9 Part-III but he had not sent the copy of the same with his reply Ex.PW15/B. He denied that he wrongly identified the accused as Suresh Kumar Panewala.
33. PW16 deposed that on 09.05.2007, he had gone to serve one notice u/s 160 CrPC upon one Suresh Kumar Panewala. He deposed that he served the same to him and stated that accused was the said Suresh Kumar Panewala. The notice is Ex.PW16/B whereas his report is Ex.PW16/A. He identified the signature of the accused at the place of receipt. In cross- examination, it has come that in the notice Ex.PW16/B, parentage and specific address of addressee has not been mentioned. He stated that he did not take any documentary proof to satisfy himself that the persons to whom he had RC 23 (S)/2005 State (Through CBI) Vs. Suresh Kumar @ Panewala Page No. 14 of 26 served the notice was Suresh Panwala. He stated that he did not record statement of any person from whom he had made inquiries about Suresh Kumar Panewala. He denied the suggestion that signatures of accused were obtained forcibly on report Ex.PW16/A.
34. PW17 is the investigating officer. He proved the FIR/RC as Ex.PW17/A. He deposed that prior permission was obtained from the court of learned District Judge vide order dt. 20.12.2005 which is Ex.PW17/B. He deposed about collecting some certified copies which are Ex.PW17/C to J. He also exhibited some other documents such as Death Certificate of Ravi Kodwani (Ex. PW 17/ K), its forwarding letter (Ex. PW17/L), statement of Late S. Harminder Singh given before Justice Nanavati Commission (Ex. PW17/M), He deposed about the investigation and found that Suresh Kumar Panewala was involved in the incident which happened at the Gurudwara Pul Bangash on 01.11.1984. He identified the accused as Suresh Kumar Panewala.
35. In cross-examination, he deposed that on 22.11.2005, he came to know for the first time that Suresh Kumar Panewala was involved in the incident. He came to know this from the report of the Nanavati Commission. He stated that parentage, physical appearance and specific address of the said Suresh Kumar Panewala were not mentioned in the said report. He stated that he did not disclose the source from whom he came to know the address of Suresh Kumar Panewala. He admitted that no TIP was got conducted. He denied the suggestion RC 23 (S)/2005 State (Through CBI) Vs. Suresh Kumar @ Panewala Page No. 15 of 26 that he had wrongly identified the accused as Suresh Kumar Panewala. He also admitted that no documentary evidence was collected regarding bad character of Suresh Kumar Panewala. He denied the suggestion that there was a person named Suresh Kumar a bad character but was not chargesheeted or that accused was falsely chargesheeted.
36. The accused in his statement u/s 313 CrPC denied the incriminating circumstances and stated that he was forced to sign the notice Ex.PW16/B. He stated that his name was only Suresh Kumar. He informed that there was one Suresh Kumar Panewala who was bad character of the area and residing in his neighbourhood. He further stated that due to political rivalry he had been involved in this case. He took up the defence that at the time of alleged incident, he was on duty at Railway main services, Old Delhi Railway Station till 12.40 pm. When he reached his house at Pahari Dhiraj, he received a call from his friend Jasbir Singh Ahluwalia and he went to his house and remained there for whole night.
37. Accused had brought the said Jasbir Singh as DW1. However, after examination-in-chief, DW1 did not turn up for cross-examination. As such defence evidence was closed. Testimony of DW1 cannot be considered.
38. Learned Sr. PP for CBI argued that prosecution has proved the identity of the accused through witnesses i.e. PW4, PW5, PW7, PW13, PW14, PW15, PW16 and PW17. He argued that it has been established beyond doubt RC 23 (S)/2005 State (Through CBI) Vs. Suresh Kumar @ Panewala Page No. 16 of 26 that accused was a member of the unlawful assembly and indulged in rioting. He further submitted that prosecution has proved that the said mob/unlawful assembly killed the three deceased persons namely Sardar Thakur Singh, Sardar Badal Singh and Channi and caused extensive damage to the Gurudwara. Learned prosecutor also referred to the statement of late Sh. Harminder Singh recorded u/s 164 CrPC (Ex.PW14/B) and submitted that therein the said witness has clearly stated that Suresh Kumar Panewala was also one of the rioters. Unfortunately, Sh. Harminder Singh died before he could examined in the court. Learned prosecutor, however, urged that his statement u/s 164 CrPC can be read as evidence. He relied upon AIR 1983 AP 257 titled Kadiam Paparao vs. Siddireddy 1961 Crl. L.J. 382 titled State of Madras vs. G. Krishnan; and 2003 Crl. L.J. 3253 titled Guruvindapalli Anna Rao & Ors. vs. The State of A P Satyanarayana; 1986 (3) Crimes 536 titled Pacha Devendra Rao vs. State of AP. He also referred to statements recorded before Justice Nanavati Commission [Ex. PW7/F & H].
39. On the other hand, learned defence counsel submitted that the prosecution has miserably failed to connect the accused with crime in question. He emphasized that testimonies of various witnesses including those referred to by learned prosecutor are not sufficient to establish that it was accused who was one of the rioters.
40. I have considered the submissions.
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41. The chargesheet was filed for various offences including those u/s 147/149 IPC. It is a case of rioting. Under section 149 IPC every member of the unlawful assembly is held responsible for any offence(s) committed in prosecution of the common object by any of the members. This section creates vicarious liability in criminal law.
42. Section 149 of IPC reads as follows:
"149. Every member of unlawful assembly guilty of offence committed in prosecution of common object --
If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence."
43. Before prosecution can bring home the guilt with aid of Sec. 149 IPC, it has to establish the following facts:
a) that there was an unlawful assembly i.e. an assembly of five or more persons which had any of purposes as specified in section 141 IPC as its common object;
b) that any member(s) of the said unlawful assembly committed any offence in prosecution of the common object or which they knew to be likely to be committed in prosecution of the common object; and
c) that the person charged under this section was a member of the said unlawful assembly at the time of committing the offence.
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44. It was observed in (2013) 12 SCC 76 titled " State of Rajasthan vs. Shiv Charan & Ors." as under:
"19. The pivotal question of applicability of Section 149 IPC has its foundation on constructive liability which is the sine qua non for its application. It contains essentially only two ingredients, namely, (I) offence committed by any member of any unlawful assembly consisting five or more members and; (II) such offence must be committed in prosecution of the common object (Section 141 IPC) of the assembly or members of that assembly knew to be likely to be committed in prosecution of the common object. It is not necessary that for common object there should be a prior concert as the common object may be formed on spur of the moment. Common object would mean the purpose or design shared by all members of such assembly and it may be formed at any stage. Even if the offence committed is not in direct prosecution of the common object of the unlawful assembly, it may yet fall under second part of Section 149 IPC if it is established that the offence was such, as the members knew, was likely to be committed. For instance, if a body of persons go armed to take forcible possession of the land, it may be presumed that someone is likely to be killed, and all the members of the unlawful assembly must be aware of that likelihood and, thus, each of them can be held guilty of the offence punishable under Section 149 IPC. The court must keep in mind the distinction between the two parts of Section 149 IPC, and, once it is established that unlawful assembly had a common object, it is not necessary that all persons forming the unlawful assembly must be shown to have committed some overt act, rather they can be convicted for vicarious liability. However, it may be relevant to determine whether the assembly consist of some persons which were merely passive witnesses and had joined the assembly as a matter of ideal curiosity without intending to entertain the common object of the assembly. However, it is only the rule of caution and not the rule of law. Thus, a mere presence or association with other members alone does not per se be sufficient to hold everyone of them criminally liable for the offence committed by the others unless there is sufficient evidence on record to show that each intended to or knew the likelihood of commission of such an offending act, being a member of unlawful assembly as provided for under Section 142 IPC. It may also not be a case of group rivalry or sudden or free fight or an act of the member of unlawful assembly beyond the common object.
(Vide: Baladin & Ors. v. State of U.P., AIR 1956 SC 181; Masalti v. State of U.P., AIR 1965 SC 202; Chandra Bihari Gautam & Ors. v. State of Bihar, AIR 2002 SC 1836; Ramesh & Ors. v. State of Haryana, AIR 2011 SC 169; Ramachandran & Ors. Etc. v. State of Kerala, AIR 2011 SC 3581; Onkar & Anr. v. State of Uttar Pradesh, (2012) 2 SCC 273; Roy Farnandez v. State of Goa & Ors., AIR 2012 SC 1030; and Krishnappa & Ors. v. State of Karnataka, AIR 2012 SC 2946).
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20. Thus, for resorting to the provisions of Section 149 IPC, the prosecution has to establish that (i) there was an assembly of five persons; (ii) the assembly had a common object; and (iii) the said common object was to consist one or more of the five illegal objects specified in Section 141 IPC."
45. It was also observed in Ramachandran & Ors. vs. State of Kerala, (2011) 9 SCC 257 : 2011 Crl. L.J. 4845, quoted by learned Prosecutor, as under :
"20. However, once it is established that the unlawful assembly had common object, it is not necessary that all persons forming the unlawful assembly must be shown to have committed some overt act. For the purpose of incurring the vicarious liability under the provision, the liability of other members of the unlawful assembly for the offence committed during the continuance of the occurrence, rests upon the fact whether the other members knew before hand that the offence actually committed was likely to be committed in prosecution of the common object. [See : Daya Kishan v. State of Haryana, (2010) 5 SCC 81; Sikandar Singh v. State of Bihar, (2010) 7 SCC 477, and Debashis Daw v. State of W.B., (2010) 9 SCC 111]."
46. From the testimonies of various witnesses such as PW1, PW2, PW3, PW4, PW5, PW6, PW8, PW12 and PW13, it has been established beyond any doubt that on 01.11.1984, rioting took place at Gurudwara Pul Bangash. There was mob of around 1000 persons gathered there which indulged into extreme violence. The mob caused damaged to the Gurudwara. It has also been established that S. Thakur Singh and S. Badal Singh died due to the injuries caused to them by the rioters. Post mortems were conducted on their dead bodies. Body of S. Gurcharan Singh @ Channi was not recovered. However from the testimonies of various witnesses, it has been established that S. Gurcharan Singh @ Channi was also killed in the incident by the rioters. In Mani Kumar Thapa vs. State of Sikkim (2002) 7 SCC 157, it has been held that, "it is neither RC 23 (S)/2005 State (Through CBI) Vs. Suresh Kumar @ Panewala Page No. 20 of 26 an absolute necessity nor an essential ingredient to establish corpus delicti". This position in law was approved in Prithipal Singh & Ors. vs. State of Punjab & Anr., (2012) 1 SCC 10. Thus, prosecution has established that three persons were killed by the rioters.
47. Prosecution was now required to establish that the accused was one of those rioters i.e. accused was a member of the said unlawful assembly and that he was present at the time the offences were committed.
48. It is pertinent to note that the accused was not arrested during the investigation. As such no TI proceedings were conducting during investigation. Accused says his name is Suresh Kumar. Whereas prosecution asserts that his name is Suresh Kumar @ Panewala. Some of the witnesses (PW4 and PW5) have deposed that one Suresh Pane or Suresh or Suresh Kumar Panewala was one of the rioters but they did not identify accused as the said Suresh Kumar Panewala. None of the witnesses who had seen the riots i.e. PW1, PW2, PW3, PW4, PW5, PW12 and PW13 have identified accused as one of the rioters. Only PW4 and PW5 told that one Suresh Kumar Panewala was also present but they too did not identify the accused as the said Suresh Kumar Panewala. Few police and CBI officials (PW15, PW16 and PW17) have stated that name of accused is Suresh Kumar Panewala but then these officials were not eyewitnesses. They had not seen the incident.
49. Ld. Prosecutor tried to establish identity of the accused by RC 23 (S)/2005 State (Through CBI) Vs. Suresh Kumar @ Panewala Page No. 21 of 26 submitting that PW4 establishes that one Suresh Kumar Panewala was one of the rioters and that PW15 & PW16 prove that accused is the said Suresh Kumar Panewala. He referred to notice Ex. PW16/B u/s 160 CrPC and submitted that this notice was served upon accused and, therefore, accused is Suresh Kumar Panewala. He also referred to testimony of PW5 who was initial IO from the local police. He had named Kishori, Suresh and Ravi Kumar as rioters. Learned Prosecutor thus emphasized that involvement of one Suresh was established. He stressed that statements of PW4 and PW5 are unrebutted. He relied upon Sunil vs. State of Haryana, 2003 (2) RCR (Crl.) 314 and submitted that unrebutted statements ought to be accepted.
50. This argument looks impressive at first instance but closure scrutiny exposes its baselessness. The notice Ex. PW16/B is addressed to 'Suresh Panwala' and not 'Suresh Kumar Panewala' or 'Suresh Kumar @ Panewala'. Further there is no specific address or parentage mentioned in this notice. The address is mentioned as 'Pahari Dheeraj, New Delhi'. It has come in cross- examination of PW16 that he had not taken any documentary proof to ascertain parentage of the addressee i.e. identity of the Suresh Panwala. Therefore, this notice is not of any significance.
51. Record would reveal that prosecution itself is not clear about the correct name of the rioter. The following is the table showing different names of the said rioter:
RC 23 (S)/2005 State (Through CBI) Vs. Suresh Kumar @ Panewala Page No. 22 of 26 PW No. Name of the same Rioter PW4 Suresh Pane PW5 Suresh, Suresh Kumar, Suresh Kumar Panewala PW6 Suresh Kumar PW13 Suresh Kumar Panwala, Suresh Kumar Panewala PW15 Suresh Kumar Panewala PW16 Suresh Kumar Panewala, Suresh Panewala, Suresh Panwala PW17 Suresh Kumar Panewala
52. Such is state of affairs that it is exremely impossible to conclude as to what acctually is the correct name of the rioter. PW4's testimony is of no help. Firstly, PW4 told name of rioter as 'Suresh Pane' and not 'Suresh Kumar Panewala'. And secondly, PW4 did not identify the accused as the said 'Suresh Pane' or 'Suresh Kumar Panewala' for that matter. Similar is the case of PW5.
53. Learned Prosecutor also sought assistance from statement of Late S. Harminder Singh recorded under section 164 CrPC (Ex. PW14/B or Ex. PW13/A). In this statement, Late S. Harminder Singh stated that one Suresh Kumar Panewala was one of the rioters and he could identify him. Unfortunately, this witness died before he could be examined in the Court. What value should be given to such statement?
54. It has to be kept in mind that this statement of Late S. Harminder Singh has not been tested on touchstone of cross-examination. In such RC 23 (S)/2005 State (Through CBI) Vs. Suresh Kumar @ Panewala Page No. 23 of 26 circumstances, it will be highly unsafe to give a finding of guilt solely on the basis of such untested statement. Judicial conscience does not allow it. The cases cited by learned Prosecutor in this respect are of no help. In none of the said cases, a statement u/s. 164 CrPC was used as substantive piece of evidence. The law is well settled that such a statement can only be used either to corroborate or contradict the maker of the statement. Thus this statement Ex. PW14/B or Ex. PW13/A is also of no help.
55. Learned Prosecutor also referred to statements of Harminder Singh (Ex. PW7/F) and Jaswinder Singh (PW7/H) recorded before Justice Nanavati Commission, and argued that in those statements name of Suresh Panewala is mentioned.
56. Statements recorded before Justice Nanavati Commission can also not be taken as evidence. Learned Prosecutor's submission that those statements can be used as corroborative evidence is misplaced. The makers of those statements have not been examined as witnesses before this court. Thus those statements cannot be used for corroboration either.
57. Learned Prosecutor also sought support from testimony of PW15 i.e. ACP Ranbir Singh who had given information to CBI about criminal cases against Suresh Kumar Panewala. It is Ex. PW15/B. Learned Prosecutor argued that this witness also identified accused as Suresh Kumar Panewala and involved in a number of cases.
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58. This witness did not produce any record on the basis of which he gave report Ex. PW15/B. The concerned court record was also not produced as evidence.
59. The situation boils down to this - the witnesses who had seen the rioting incident have not told any name of rioter or though named him but have not identified the accused as the said person; and witnesses who have identified the accused as bearing a particular name i.e. Suresh Kumar Panewala or Suresh Panewala or Suresh Panwala had not seen the accused at the spot indulging in rioting or being one of the rioter. Prosecution's best witnesses i.e. PW1 to PW5, PW12 and PW13 who had seen the incident have not identified the accused which goes against prosecution. PW13 is brother of Late S. Harminder Singh (who had given statement u/s 164 CrPC as well as before Justice Nanawati Commission). It is strange that despite being brother of S. Harminder Singh, PW13 was unaware of any of the names of the rioters. Late S. Harminder Singh claimed to have witnessed the incident and had told various names of the rioters. It remains inexplicable as to why PW13 who is his brother is not aware of any such names. This not only renders testimony of PW13 useless but also casts a shadow of doubt on the statements of Late S. Harminder Singh.
60. It must be held that the prosecution has a very very weak case. It has not proved the charge beyond reasonable doubt against the accused. It has RC 23 (S)/2005 State (Through CBI) Vs. Suresh Kumar @ Panewala Page No. 25 of 26 failed to establish presence of the accused at the spot at the time of commission of the offences.
61. As a necessary consequence, the accused is hereby acquitted of the charges against him.
62. Accused is directed to furnish fresh bail bonds in sum of Rs. 25,000/- with one surety of the like amount for the purpose of sec. 437A CrPC. Bail bonds furnished and same are accepted for a period of six months.
63. File be consigned to Record Room.
Announced in open court on 20th day of August, 2014 (Sanjay Bansal) ASJ-03 (East) KKD Courts/Delhi.
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