Delhi District Court
Fir No: 489/84 vs . on 22 August, 2009
1
FIR NO: 489/84
PS SARAI ROHILLA
U/S 148/395/436/307 R/W 149 IPC
STATE
vs.
1.Mangal Sein @ Billa 2.Bhagat Singh, 3.Brij Mohan Verma
29.8.09
Pr: Ld. Addl. PP for State
All three convicts produced from J/C
Ld. Counsels for convicts also present
Submissions on the point of sentence heard at length. Vide a
separate order of the day convict Mangal Sain @ Billa, Bhagat Singh
and Brij Mohan Verma are sentenced for commission of offence
punishable U/s 148 IPC to undergo RI for a period of 2 ½ yrs apart
from fine 10,000/ each I/D to undergo SI for 6 months. Further
convict Mangal Sain @ Billa, Bhagat Singh and Brij Mohan Verma
are sentenced for commission of offence punishable U/s 149 IPC to
undergo RI for a period of 2 ½ yrs apart from fine 10,000/ each I/D to
undergo SI for 6 months. Further convict Mangal Sain @ Billa, Bhagat
Singh and Brij Mohan Verma are sentenced for commission of
offence punishable U/s 307 IPC to undergo RI for life apart from
fine of Rs.3 lacs each I/D to undergo SI for one year. Apart from
that convict Mangal Sain @ Billa, Bhagat Singh and Brij Mohan
Verma are sentenced for commission of offence punishable U/s
395 IPC to undergo RI for a period of 10 yrs apart from fine one lac
contd/......
2
each I/D to undergo SI for one year. For commission of offence
punishable U/s 436 IPC convict Mangal Sain @ Billa, Bhagat Singh
and Brij Mohan Verma are sentenced to undergo RI for a period of
10 yrs apart from fine two lacs each I/D to undergo SI for one year.
Out of the collective fine amount of Rs.18,60,000/, Rs. 10 lacs shall
be given to the injured Jagmohan Singh and Rs.8 lacs shall be given
to the injured Gurinder Singh as a token of compensation.All
sentences shall run concurrently. Fine not paid. Warrants be
prepared accordingly and file be consigned to RR.
Before parting with this file I consider this to be
my abundant duty to send copy of this judgment and order on
sentence to various government functionaries who are part and
parcel of maintaining law and order of our country and are related
to research, development and training our police forces. As detailed
in the judgment and the order on sentence the role played by Delhi
police was so incomprehensible that it must have been a marish
experience for a trainer of police forces to see that his forces are
falling in line with violators of law and rather abetting the violations of
law on mass scale.
Let a copy of this judgment and order on
sentence be sent to Director General, Bureau of Police Research and
contd/......
3
Development, Lodhi Estate Delhi and Commissioner, Delhi Police , so
that the conduct of police officials in a situation as it was in 1984 can
be critically assessed. It can be treated as a test case for updating
the training curriculum of the police forces so that they are
psychologically more strong and well prepared for facing such like
testing times professionally to upheld Rule of Law. One copy of this
order be sent to Chairman, Minority Commission, Government of
India so that members of the commission can give their valuable
suggestions to Home Ministry and Director General of the Police
Research and Development to ensure that life and property of
minorities in our country is safeguarded under such like testing times
and hardships . One copy of this judgment and order on sentence
be sent to Chief Secretary, Ministry of Home Affairs , Government of
India which is administrative controller of Delhi Police so that it can
be pondered upon as to why not only on the police forces but also
other agencies like Fire Department and Health Departments failed
to discharge their legal duties. Record showed that Fire Department
failed to prepare a formal Fire Report of victims' house even though
it was burned to ashen by convicts and other.
contd/......
4
Similarly Hindu Rao Hospital also failed to
prepare MLC of injured Jagmohan and Gurinder even though both
were treated there .
In these testing times and heightened security
where terrorists are always on prowls to get an opportunity strike in
our country ; the lackadaisical approach of our Government
Department and multiply the damage instead to containing it.
After due compliance the file be consigned to
record room. Record summoned from RR , Patiala House Courts be
sent back.
( SURINDER S. RATHI )
ADDL. SESSIONS JUDGE
29.8.09
contd/......
5
IN THE COURT OF SHRI SURINDER S. RATHI: ADDL. SESSIONS JUDGE
FAST TRACK COURT : TIS HAZARI COURTS : DELHI
FIR NO: 489/94
U/s 147/148/149/427/436/452/395 IPC
PS: SARAI ROHILLA
STATE vs MANGAL SAIN @ Billa & Others.
JUDGMENT
1 Sl. No. of the Case SC7 /2009
2 Date of Committal of case 5.8.95
3 Received by this court on transfer 18.2.2009
4 Name of the complainant S. Gurnam Singh S/oLate Swaran Singh
5 Date of commission of offence 01/11/84
6 Name of accused, parentage and 1.Mangal Sain @ Billa S/o Shri Ram address Nath R/o R/o B6151, Sector 8, Rohini, Delhi , age 61 yrs
2. Radhey Shyam Verma S/o Late Shri Ram Verma (Dead)
3.Bhagat Singh S/o Shri Budh Singh R/o L294, Shastri Nagar, Delhi52, age 52 yrs
4.Brij Mohan Verma S/o Late Sh. Pyare Lal R/o A302, Shastri Nagar, Delhi52, Age: 60 years 7 Offences as per chargesheet 147/148/149/427/436/452/395 IPC 8 Offences Charged U/S 148/395/436/307 R/W 149 IPC 9 Plea of guilt Pleaded not guilty 10 Final order CONVICTED 11 Date on which order reserved 25.7.09 11 Date on which order announced 22.8.09 contd/......
6BRIEF REASONS FOR DECISION
1. After assassination of Smt. Indira Gandhi Late Prime Minister of India, entire North India in general and Delhi in particular witnesses volcano of communal frenzy. Shastri Nagar locality in North Delhi where seizeable Sikh population used to reside also witnessed series of assaults on Sikh populace by Non Sikhs between 01.11.84 and 03.11.84. Officials of PS Sarai Rohilla registered FIR No. 489/84 on 01.11.84 on the complaint of one Azayab Singh S/o Sohan Singh qua communal riots who took place at B1764, Shastri Nagar, B1638 Ahstri Nagar and B1600 Shastri Nagar wherein human life was also lost. FIR was registered U/s 147/148/149/304/308/427/436/452/411/188 IPC . After registration of this FIR police, investigated the matter and filed charge sheet dated 30.11.84 against 18 accused persons. In the body of the charge sheet scores of house nos. were mentioned indicating that communal assaults took place on these properties as well. H.No. B 1580 which belonged to Joginder Singh also find mention in this charge sheet and name of Joginder Singh also appeared at Serial Number 53 in the list of witnesses.
2. Since, the role by the police played during and after the contd/......
7communal riots came under heavy criticism owing to their failure and omission to attend the riots and book the culprits. Government of India constituted " Justice Ranga Nath Mishra, Commissioner came in the year 1985". This commission invited affidavits from various victims in which victim Joginder Singh also furnished his affidavit dated 09.09.85. On the same day Jagmohan Singh who is S/o Joginder Singh also furnished this affidavit, qua the incident which took place at their house B1580 Shastri Nagar wherein Jagmohan and his brother Gurinder Singh were seriously injured and their house was also looted and was set on a fire.
3. Meanwhile as the slow wheels of law looks it time in moving and processing the affidavits of the father and son duo, the trial in the initial charge sheet continued and concluded in judgment on acquittal dated 29.03.93 by the Court of Sh.S.S. Bal, the then Ld. ASJ Patiala House. Affidavit furnished by Joginder and his son Jagmohan before Justice Ranga Nath Mishra Commission were processed by Justice JainPoti Rosha Committee, thereafter by Justice JainBanerjee Committee and thereafter by Justice Jain Aggarwal Committee. There later committee finalised the contd/......
8processing of affidavits received by them and vide its recommend ation dated 10.08.92 a recommendation for further investigation U/s 173 (8) Cr. P.C. was passed while criticising the role played by the local police. Apart from other things, police was criticised for their omission to site injured Jagmohan as an eye witness. This recommend ation was followed by the order of LD. L.G. Delhi issued by Joint Secretary, Home dated 23.10.092.
4. Meanwhile a Special Roits Cell was created within Delhi Police which took up further investigations in the matter. Upon conclusion of further investigation they came up with a supplementary charge sheet dated 03.12.93 against 14 accused persons including three accused in hand. Here yet again Delhi police officials of Roits Cell committed same mistake which they committed in the earlier charge sheet in so far as they again clubbed two incidents which took place at two different houses in two different blocks of Shastri Nagar in one charge sheet. This supplementary charge sheet covered incident which took place at A302, Shastri Nagar, as well as B1580 Shasti Nagar. This anomaly was finally be rectified on an application moved by Spl. PP looking after this matter. Ld. Predecessor of the Court passed contd/......
9an order dated 08.05.2000 where by riots cell of Delhi police was directed to segregate the charge sheets by filing supplementary charge sheets. In compliance of this charge sheet in this case dated 20.10.2000 was filed initially against four accused persons namely Mangal Sain @ Billa , Radhey Shyam, Bhagat Singh and Brij Mohan. Names of accused Om Prakash Ration Wala and Mahender Kachauri Wala was although mentioned in the charge sheet but they were not challaned as they were allegedly not tracea ble. One accused Sunil gupta had reportedly died by that time. During the course of trial one accused Radhey Shyam also expired leaving only three accused persons who faced trial. This trial took some time in conclusion as witness of this case had shifted to Amritsar Punjab in December 1984 itself. Opportunity of accused to cross examine the witness was closed and off shoots were filed by the defence before Hon'ble High Court.
5. As far as the incident pertaining to the chargesheet in hand is concerned, the same is said to have taken place at 2.00 PM on 1.11.1984 at B1580 Shastri Nagar, Delhi. At that time this property was home to Sh. Joginder Singh and his wife Smt. Baljeet Kaur apart from his sons namely Sh. Jagmohan Singh, Shri Gurinder contd/......
10Singh , Shri Manohar Singh and others. As per the police case on the relevant date and time a mob of around 300400 people armed with iron rods , wooden sticks and bricks came to their house . This group of people comprised of accused Mangal Sein @ Billa, accused Bhagat Singh, accused Brij Mohan apart from Radheyshyam Verma, Om Parkash Ration Wala, Mahender Kachuri Wala and Sunil Kumar Gupta. All these accused with other members of unlawful assembly attacked their house and pelted stones. They all pulled Jagmohan Singh and his brother Gurinder Singh out of the house and started assaulting them with lathies and iron rods. Their house was looted and was set afire. Both the injured were removed to HRH (Hindu Rao Hospital) where Jagmohan Singh who had become unconscious had to remain admitted from 1.11.1984 to 8.11.1984 for the head injury suffered by him. He was later on treat at Guru Harkishan Hospital, Bangal Sahib as well where he was found to be suffering from fractured Maxilla apart form other injuries. He could hardly see through his right eyes owing to odema.
6. After separation of the chargesheet separate charges were framed against accused Mangal Sein @ Billa, accused Bhagat contd/......
11Singh and accused Brij Mohan apart from Radhey Shyam Verma (now deceased) on 2.11.2001 U/s 148/395/436/307 r/w 149 IPC. All the accused pleade d not guilty to the charges and claimed trial.
7. In order to prove its case, prosecution examined as many as 9 witnesses . After conclusion of PE, statements of the accused persons were recorded in detail wherein they pleaded innocence and claimed false implication. In their defence, accused have examined DW1 Sardar Amreek Singh.
8. I have heard argument from LD. Addl. PP for State Sh. Irfan Ahmad and LD. Defence Counsel Sh. Rakesh Malhotra for accused persons. I have also carefully gone through the entire judicial file.
9. First witness examined by the prosecution is PW1 Gurnam Singh . This 86 years old man was resident of A302, Shastri Nagar in 1984. This witness was apparently not a witness to the incident in question which took place at B1580, Shastri Nagar. Although he deposed that while he used to reside at the above address with his family including his wife and three sons, a huge mob carrying lathi and iron saria came to his house. They poured kerosene oil contd/......
12and burnt his house . Since this incident pertains to other property number, he could not identify any of the accused.
10.PW2 is Kulwant Singh. He too was not resident of B1580 , Shastri Nagar but was a resident of B1596, Shastri Nagar. He also deposed about a huge armed crowd which lotted and burnt Sikh houses and properties on 1.11.1984 but he too could not identified the accused as he was resident of other property.
11.PW3 is Manohar Singh . As per him on 1.11.1984, he was around 18 years old and he used to live with his family in B1580 , Shastri Nagar. In the morning a huge armed crowd came to his house and started damaging it . They looted the house property and burnt the same . As per him he ran away from the house of fear and conce aled himself in the house of one of his friends. He could not get the opportunity to see the assasilants and as such could not identify them. As per him he came back to his house after 34 days and found that entire household property was looted and house was burnt. He however, denied the suggestion of the defence that his father had business rivalry with the accused persons and that accused have been falsely implicated contd/......
13due to enemical relations.
12.PW4 is Shri Jagmohan Singh , injured of this case . He has not only throughly supported the prosecution case but has also identified all the accused persons present in the court. He categorically deposed that on 1.11.1984 at around 3.00 4.00pm where he used to live with his family including wife and children, he was present at his house when a mob of 300400 armed rioters came to his house . They were carrying oil with them. They looted his household properties and burnt the house. They also gave beatings to him and injured him. As per him accused present in the court were part of the rioters. He deposed that accused Mangal Sein looted the household property, Radhey Shyam hit him with a sharp weapon. Accused Bhagat Singh also hit him while Brij Mohan also looted his household property. He deposed that he tried to save his life by running towards the Gurudwara but since the gates of the gurudwara were closed , he could not escaped and was caught and assaulted again. Thereafter he beca me unconscious and regained senses after 8 days in HRH. He suffered injuries all over his body. Thereafter in December 1984 he migrated to Amritsar, Punjab. He was cross examined at contd/......
14length. He deposed that he was working as SEWADAR in Bangla Sahem Gurudwara in 1984 while his father was an employee of Delhi Gurudwara Prabhandhak Committee. He deposed that his house had only one entry and exit door. He identified the copy of affidavit given by him to Ragnath Commission as Ex. PW4/DA, Ex. PW4/DB is statement given by him to police. He identified the complaint made by his father Ex. PW4/DC, while an affidavit given by his father is Ex. PW4/DD. He denied the suggestion of the defence that he is falsely implicating the accused due to business rivalry.
13.PW5 is Dr. U.C. Tyagi from HRH. He has proved the discharge slip of PW4 Sh. Jagmohan Singh injured having MRD NO. 36529 as Ex. PW5/A. As per this witness injured Jagmohan had suffered head injuries and had remained hospitalised from 1.11.1984 to 8.11.1984. He has proved his letter dated 20.7.93 as Ex. PW1/A according to which no separate MLC of injured persons were prepared during 1984 riots.
14.PW6 is Dr. Pritam Singh who was working as Medical Officer at Guru Harkishan Hospital, Bangla Sahib Gurudwara. He identified contd/......
15the certificate given qua injuries received by Jagmohan Singh as Ex. Pw6/A. He deposed that Jagmohan had suffered fracture on maxilla (left side). He however stated in the cross examination that there was no facility of xray in the hospital at that time.
15.PW7 Smt. Baljeet Kaur . She is wife of PW4 Jagmohan Singh . She too deposed that in November'84 she was residing with her husband and other family members at B1580 Shastri Nagar. Although she deposed that on 1.11.1984 at around 10.00 AM an armed crowd came to their house , but as per her she left the house and went into hiding in the house of Sh. Gurbachan Singh . She could not identify the accused persons. She further deposed that when the crowd started looting their house, she ran away from the house. On the same evening when she came back , all her household goods were damage d and house were burnt. She identified the accused persons as her neighbours .
16.PW8 is Sh. Gurinder Singh , brother of PW4 Jagmohan Singh . He was a young teenager in 1984 . He deposed on 1.11.1984 he was residing at B1580, Shastri Nagar when armed rioters came to his house at around 10.00 am . He identified the accused persons as contd/......
16rioters who had lathies in their hand and who had assaulted and injured him . He received head injuries. His brother Jagmohan was also badly assaulted. Upon being assasulted he too became unconscious and was taken to HRH where he remained hospitalised for around 10 days. In 1985 , he migrated to Amritsar, Punjab. In his cross he stated that he knew the accused prior to the incident . As per him crowd remained outside his house for 23 hours. He clarified in the cross examination that he was inside the house when the mob came and he himself saw the looting. He denied the suggestion of the defence that he deliberately naming the accused to falsely implicate them or he is deposing at the instigation of leaders of Akali Dal.
17.PW9 Inspector J.K. Tyagi who conducte d investigation in October 1992 as SI in the Riots Cell . Investigation in this case was started after receipt of letter dated 23.10.1992 on the basis of four affidavits which included affidavits of PW4 Jagmohan Singh and his father Late Sh. Joginder Singh. He has proved on record the report of the Commission as Ex. PW9/A and the aforesaid letter Ex. PW9/B. Ex. PW9/C is seizure memo documents belonging to the victim's family while Ex. PW9/C is the site plan of the area. He contd/......
17prepared the chargesheet and filed the same. He was cross examined by Ld. Defence counsel wherein he denied the suggestion of the defence that accused have falsely been implicated in this case.
18.Although the prosecution witnesses were suggested by the defence that they have falsely implicated the accused due to business rivalry but in their statements U/s 313 Cr.P.C there is not even a whisper in this regards.
19.The defence witness examined DW1 Amrik Singh . He has stated that he did not hear of any incident of riot at the house of Jagmohan Singh and claimed that accused were not member of the mob. In his cross examination done by Ld. Addl. PP , he stated that not even a single Sikh house was looted. He himself contradicts his this plea by saying that he saw the activities of rioters while standing in the Varanda of his house .
20.While opening his arguments , Ld. Addl. PP submits that the first detailed account of incident of riot which took place at the house of Late Sh. Joginder Singh , father of PW4 Jagmohan Singh is contd/......
18available in Jagmohan Singh's affidavit dated 9.9.85 wherein all the accused are specifically named. As regard this incident , Sh. Joginder Singh's one complaint dated 9.11.1984 is also available on record in which one of the accused namely Mangal Sein @ Billa is specifically named . It is said that witnesses have categorically deposed in the court about the accused persons being members of unlawful assembly which looted the house of PW4 Jagmohan and set it on fire apart from looting and assaulting him and his brother Joginder Singh.
21.First plea taken by LD. Defence counsel in this case is that no specific role has been assigned to the accused persons in this case and also that the accused were not named in the FIR. As mentioned (supra) the FIR in hand i.e. 489/84 was registered on the basis of complaint of one Sh. Ajab Singh resident of B1764, Shastri Nagar. This FIR was primarily qua incident of culpable homicide apart from rioting and torching houses. As regards the non mention of house no.B1580, Shastri Nagar belonging to PW4 Jagmohan, it goes without saying that it is only the mischievous and passive role played by Delhi Police in November'1984 which is to be blamed. Not only Delhi Police failed to safeguard and contd/......
19uphold the rights of life and liberty of citizens of our country as enshrined in our constitution but as per the reports of various Commissions , police acted a facilitator and abettor .
22.It is evident from the record that even though PW4 and his brother PW8 were fatally wounded and were admitted to HRH in unconscious stated, neither any attempt was made by the police nor even their formal MLC were prepared. There is no explanation in this regard either from police agency or from the medical authorities as to why basic and standard legal procedures were not followed. All these goes on to show that the State Machinery had collapsed and had given in to the hordes of the rioters who were boisterously indulging in cold blooded senseless carnage, looting and rampage .
23.Statistics qua the incidents of rioting were deliberately fudged and FIRs were not registered by Delhi Police to under play the whole carnage and pogrom. It is evident from plain reading of the text of the first chargesheet filed in the FIR in hand in which several dozen individual incidents of loss of human lives apart from looting were clubbed in one as if they are part and parcel of one contd/......
20incident. Even though a written complaint was given by Late Sh. Joginder Singh to SHO of PS Sarai Rohilla on 9.11.1984. Despite the receipt of the same but FIR was registered. Even though we boast of being world's largest democracy, the sheer mention of 1984 Anti Sikh Riots in Delhi in general and role played by Delhi Police and the Government in particular, is enough to make our heads hang in shame in the eyes of world polity. It is ironical that the aiding hands of justice delivery system could not reach even to the citizens living in the capital city. When the victim themselves reached the police station with written text of turmoil and bigotry faced by them, no action whatsoever was taken .
24.Such was the plight, as evident in the typed complaint dated 9.11.1984, that it was only aimed at making of a case of grant of monetary compensation, as if the victims had lost all hopes of getting justice from the Government of the times. Even though every government run hospital is duty bound to prepare MLC of each patient who is admitted with bodily injuries and the Duty Officer posted there is supposed to alarm the concerned police station qua the admission of an injured, neither of the two things were got down and there is no explanation as well . It is a settled contd/......
21legal proposition that omissions of the part of Investigating Officer or lapses in the investigation should not have any bearing on the merits of a case .
25.In case titled State of Karnatka Vs. MN Ram Dass AIR 2002 SC (3109) Hon'ble Supreme Court observed:
" Lapse in investigation will not caste a cloud of doubt on prosecution case . Benefit of an act or omission of the investigating agency should not go to the accused in the interest of justice."
Similar observation was made by Hon'ble Supreme Court in Sachdevan Vs. State" AIR 2002 SC 215 that:
"any irregularity in investigation should not be allowed to be made a tool to dislodge the entire prosecution case on merits."
In State Vs. Mir Mohd. Omar (2000) 8 SCC 382 Hon'ble Supreme Court observed that "If offenders are acquitted only on account of flaws or defects in investigation, the cause of criminal justice becomes the victim. Efforts should be made by courts to see that criminal justice is salvaged contd/......
22despite such defects in investigation." In Karnel Singh Vs. State (1995) 5 SCC 518 Hon'ble Supreme Court while addressing a plea of defective investigation ruled , " In cases of defective investigation the court has to be circumspect in evaluating the evidence but it would not be right in acquitting the accused solely on account of the defect. To do so would tantamount to playing into the hands of the investigating officer if investigation is designedly defective."
26.Justice dispensation system and interest of justice and fairplay can not be allowed to be hijacked by deliberate omission and misconduct on the part of police and other agencies legally bound to aid in the investigation. Even though the incident in hand pertains to 1.11.1984 , an injured PW4 Jagmohan Singh remained hospitalised upto 8.11.1984 in HRH , no attempt was made by any official of Delhi Police or functionary of State to come to his rescue and to record his statement . In this backdrop I do not find any strength in the plea of LD. Counsel for defendant no specific role has been assigned to the accused persons. Perusal of deposition of PW4 clearly shows that he has actually assigned the roles to the accused persons , when he deposed that : contd/......
23........ 300/400 rioters carrying lathies etc in their hands came to my house . They were also carrying oil in their hands. First of all they burnt my house. Rioters looted my house hold property and they caused injuries to me . I can identify some of the rioters . Mangal Sein @ Billa , Brij Mohan, Radhey Shyam and Bhagat Singh present in the court were members of the rioters. Mangal Sein accused looted my household property. Radhey Shyam hit me with some sharp weapon . Bhagat also hit me . Brij Mohan also looted household property of my house............... Plain reading of this portion of this deposition categorically shows that each accused has been assigned specific role contrary hat is claimed by Ld. Defence counsel. I also do not find any strength in the plea of the defence that there is delay in recording of 161 Cr.P.C. Statements. Section 161 sub section 3 of Cr.P.C. reads :
EXAMINATION OF WITNESS BY POLICE 3 The police officer may reduce into writing any statement made to him in the course of examination under this section, if he does so, he shall make a separate and true record of the statement of each person whose statement he records.
contd/......24
27.This specific provision nowhere says that it is mandatory for police to record 161 Cr.P.C statement of a witness .
28.In 51 Cr.LJ 1307 it was held " It is not obligatory on the police officer to record any statement made to him ."
As regards the delay in recording of such statements , the law is well settled. In case titled Dr. Krishna Pal Vs. State (1996) 7 SCC 194 Hon'ble Supreme Court held that :
" simply on the ground of delay , convincing and reliable evidence produced by the prosecution can not be discarded.
Similarly in AIR 1979 SC 135 Hon'ble Supreme Court had observed that "
Delay simplicitor in recording statement may not by itself amount to serious infirmity in prosecution case."
29.These statutory provisions in the backdrop of the colossal failure of law and order situation due to calculated inaction of the police and passive response of the government, any delay attributable contd/......
25to the lapses of the police during investigation can not be allowed to have any adverse inference on the merits of this case.
30.Another plea taken by LD. Defence counsel is that prosecution has failed to prove any bodily injury on either of the two injured since there is no MLC prepared by doctor. As discussed (supra) even though house of late Sh. Jogender Singh was looted and burnt and his sons were brutally assaulted in the broad day light, no legal action whatsoever was taken qua this incident which took place B1580, Shastri Nagar. After PW4 Jagmohan was brutally assaulted alongwith his brother , he becam e unconscious . As per PW8 Gurinder , PW4 Jagmohan was assaulted so badly that it appeared that he had died . He probably survived , since the accused left considering him to be already dead. After he was removed to hospital by PW8, he could not regain senses for almost 8 days. In this backdrop non preparation of formal MLC by the doctors on duty is a lapse on the part of the Medical Department of the Government hospital and the helpless victims can not be in any manner held responsible for omissions on the part of the state. Although discharge slip of PW4 Jogender from HRH on 8.11.1984 is placed contd/......
26and proved on record in original as Ex. PW5/A. PW5 Dr. U.C.Tyagi of HRH deposed in the court that Jagmohan Singh had suffered head injuries and he remained hospitalised from 1.11.1984 to 8.11.1984. Not only this PW6 Dr. Pritam Singh of Guru Harkishan Hospital has also proved on record medical certificate of PW4 Jagmohan issued by him as per which the injured had suffered fracture of left side maxilla i.e. left facial skull bone. The medical certificate Ex. PW6/A also shows that Jagmohan could hardly see from his right eye owing to oedema and he had also suffered a broken nose bridge .
31.Even though photoco py of treatment chart of injured PW8 Gurmender Singh prepared by HRH on 1.11.1984 is available on record as per which he received a CLW apparently on his forehead and had to be given stitches but the same has not been formally proved on record. I also do not find much strength in the plea of defence counsel that in order to make out a case of grievous injuries the prosecution should have produced xray report of PW4 of skull fracture. It goes without saying that in order to make out a case of 307 IPC, plain reading of the section shows that an injury is not at all necessary to make out the case of contd/......
27attempt to murder rather presence of an injury which can be referred to simply as "hurt", it calls for invocation of later part of the section. For ready reference section 307 IPC is produced herein under:
32.Section 307 IPC runs as under:
307 Attempt to murder - Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years , and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.
33.In State Vs. Balram AIR 1983 SC 305 Hon'ble Supreme Court observed:
"In order to sustain a conviction it is not essential that bodily injury capable of causing death should have been inflicted. It is sufficient if the act, irrespetive of the result , was done with intention or knowledge and under circumstances indicated in the section.
contd/......28
Thus High Court would not be justified in acquitting the accused merely because the injuries inflicted on the victims were in the nature of a simple hurt."
34.Further more in order to see whether a set of facts available on record constitutes a case of attempt to murder as possible U/s 307 IPC, it has to be seen as to what was the interest of the assaulter and this has to be gauged from the surrounding circumstances.
35.In Hari Vs. Sukhbir AIR 1988 SC 2127 Hon'ble Supreme Court held :
"To constitute an offence under the section, it has to be seen whether the act, irrespective of the result, was done with the intention or knowledge and under circumstances as mentioned therein. The intention or knowledge of the accused must be such as is necessary to constitute murder. Without this ingredient being established, thee can be no offence under the section. Since the intention precedes the Act, such intention has to be gathered from all circumstances."
36.In Hazara Singh Vs. State AIR 1969 SC 951 Hon'ble Supreme Court ruled contd/......
29
" when two injuries , one about the left eyebrow and other on the right side of the forehead are inflicted with a deadly weapon, case falls within section 307 IPC."
37.In the case in hand as discussed (Supra) the rioters which included the accused under trial had their intentions quite clear to do away with the lives of any Sikh which came across them. Evidence available on record shows that the mob had swarmed to strength 300400 rioters belonging to the locality , all armed with iron saria and lathis apart from kerosene oil. The houses were looted and burnt to ensure that no Sikh folk is allowed to hide inside the house and all are smoked out . Thereafter they were brutally and mercilessly assaulted . Iron sarias and lathis were aimed at the most vital part of the body i.e. face and skull . Pw4 Jagmohan suffered multiple hits on his body at the hand of accused persons and other rioters. Such was the severity of the assault that he lost his consciousness and collapsed in the street. People stopped assaulting him only after they took him dead but he miraculously survived after remaining unconscious for more than a week in HRH.
contd/......
30
38.As such in the light of above discussion and medical certificate of PW4 Jagmohan Singh issued by HRH and by Guru Harkishan Hospital, I have no hesitation in concluding that prosecution has successfully proved the injuries received by the injured.
39.Another plea raised by LD. Defence counsel was that no conviction can be based until and unless a formal report of the Fire Brigade Station is available and proved on record. It will be handy in case section 436 IPC is reproduce d for ready reference.
40.Section 436 IPC Mischief by fire or explosive substance with intent to destroy house etc. Whoever commits mischief by fire or any explosive substance, intending to cause or knowing it to be likely that he will thereby cause, the destruction of any building which is ordinarily used as a place of worship or as a human dwelling or as a place for the custody of property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Ingredients of offence The essential ingredients of the offence contd/......
31under section 436 as follows
1. Accused committed mischief
2. He did it by setting fire or using any explosive substance.
3. Accused intended to cause or knew it to be likely to cause destruction of a building by such act.
4. The building was used as a place of worship or as a human dwelling or as a place for the custody of property.
41.The text of the statutory provisions and inventory of its ingredients when read in conjunction with the facts available and proved on record shows that accused persons armed alongwith other rioters had reached the house of the victim family, duly armed with oil. It is not the case of the defence that house no.B1580 Sastri Nagar was not a dwelling unit. PW2 Kulwant Singh , PW3 Manohar Singh, PW4 Jagmohan Singh, PW8 Gurinder Singh have categorically deposed that rioters looted and burnt the house thereby damaging and destroying it completely. Although in an ideal case scenario filing of a report from nearest Fire Brigade can add strength in the prosecution case but in the backdrop of the anarchical mayhem set loose on 1.11.1984 when neither Delhi Police nor the Medical Authorities or for that matter any other contd/......
32common department was willing to abide by its Constitutional Duties , non filing of any fire report is inconsequent. Even otherwise when there is plethora of evidence available on record, then non filing of any fire report can not in any manner dislodge the per se believeworthy and reliable oral evidence.
42.The other plea taken by Ld. Defence counsel is that offence of section 149 IPC is not made out against the accused persons as in the trial in hand only four persons have been chargesheeted. He submits that to make a case of unlawful assembly, atleast 5 persons are required to be chargesheeted. For ready reference of section 149 IPC, same is reproduced here in under: Section 149 IPC 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 committed in prosecution of that object, every person who at the time of committing of that offence is a member of the same assembly, is guilty of that offence.
contd/......
33
43.Plain reading of this section shows that it has following ingredients:
44.Ingredients of offence
1. There was an unlawful assembly.
2. the accused was a member of the said assembly
3. accused joined intentionally or continued in the assembly
4. accused had the knowledge of the common object;
5. the offence was committed by one of the members of the assembly;
6. commission of offence was in pursuance of the common object ; and
7. accused knew, as a member of the unlawful assembly, that such offence is likely to be committed.
45.In Masalti Vs. State of UP AIR 1965 SC , Hon'ble Supreme Court while dealing with a 302 r/w 149 IPC matter observed that :
" it is not necessary for the prosecution to prove which of the member of the unlawful assembly did which or what act. ........ while empowered act , an active participation can indicate , common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten criminal liability U/s 149 IPC."
contd/......
34
46.In case titled as Lal Ji Vs. State of UP AIR 1989 SC 754 Hon'ble Supreme Court observed:
" the common object of unlawful assembly can be gathered from the nature of the assembly , arms used by them and behaviour of the assembly at or before the scene before this occurrence. It is an inference to be deduced from the facts and circumstances of each case."
47.In Sheo Parsad @ Siri Parsad Vs. State of Assam AIR 2007 SC 918 , Hon'ble Supreme Court observed that :
"When charged U/s 149 IPC, it is not necessary that each one should be assigned independent part played in the meeting if it is found that one of them was the member of unlawful assembly and that unlawful assembly assaulted the deceased which ultimately caused the death of deceased, then all who were members of the unlawful assembly can be held liable "
contd/......
35
48.In another case titled Hori Lal Vs. State of UP 2007 (1 ) JT 290 (SC), Hon'ble Supreme Court while addressing to the question whether mere presence of a person in unlawful assembly can make him member of an unlawful assembly , observed that : "There is no unqualified proposition of law that mere presence would not make him member of unlawful assembly."
49.Coming to the facts of this case , in the FIR in hand i.e. 489/84 PS Sarai Rohilla , initially chargesheet was filed against 18 accused persons . Thereafter investigation in this very FIR was reopened in the year 1992 U/s 173 (8) Cr. P.C .on the basis of affidavits submitted before Justice Rangnath Commission in 1985. After further investigation , chargesheet was filed against 14 accused persons including accused persons in hand . Thereafter under orders of the court this chargesheet was directed to be split into two since it pertained to two separate incidents of riots . The chargesheet in hand primarily pertained to seven persons, including the three accused in hand . Out of the remaining four, accused Radhey Shyam Verma and Sunil Kumar Gupta reportedly died while accused Om Parkash Ration Wala and Mahender contd/......
36Kachuri Wala could not be traced . In this backdrop I do not find any strength in the plea of the defence that since chargesheet contains name of only four accused , the charge U/s 149 IPC can not be substantiated. This chargesheet is aimed at prosecuting the accused who were shown to be part of a larger group of 300 400 persons . This rioters group constituted unlawful assembly in the eye of law in so far as they were all armed with iron sarias and lathis and were kerosene oil with them. They all shared common intention to target Sikh houses and kill Sikh populace. In their depositions, as detailed supra , all the public witnesses have deposed that entire group was armed and were shouting slogans to eliminate Sikhs. Out of this larger group, witnesses could identify only seven persons . Out of these seven persons, two had died, two were untracea ble while three are facing trial. Even if those who are untracea ble are not considered , still figure of minimum 5 is available as defined U/s 141 of IPC and as required by section 149 IPC.
50.Section 141 IPC defines the term UNLAWFUL ASSEMBLY. Which reads as under:
contd/......37
51.Section 141 IPC: Unlawful Assembly - In assembly of five or more persons is designated as an unlawful assembly, if the common object of the persons , composing that assembly is ....................... to commit mischief or criminal trespass or other offence....................
52.Since in the case in hand , the first chargesheet was against 18 accused persons, the reinvestigation chargesheet was against 14 accused persons and chargesheet in hand is against 7 accused persons, all of them very well covered U/s 149 IPC. Moreover, none of the accused is being prosecuted simply for being a member of unlawful assembly in so far as specific role has been assigned to each one of them as evident from the evidence on record .
53.Another plea taken by LD. Defence counsel is that there are contradictions in the deposition of eye witnesses qua the time of incident . He said that as per PW3, PW7 and PW8, the incident took place at around 10.00 AM but as per PW4 the incident is of 3.004.00 PM. Perusal of affidavit of PW4 Jagmohan Singh dated 9.9.85 clearly shows that incident was of morning only . This contd/......
38affidavit names seven accused persons including the accused in hand . This court can not remain oblivious of the fact that deposition of PW4 Jagmohan Singh was recorded for the first time in court after gap of around two decad es. Moreover , it has come in evidence of PW8 Virender Singh, another injured in this matter that actually rioting continued on 1.11.1984 for the whole day . In his cross examination he stated that after rioters initially attacked their house at around 10.00 AM , they remained outside their houses for about 23 hours. Hence much can not be allowed to be read in this minor contradiction.
54.It is a settled legal proposition that minor contradictions are rather healthy in so fact as they are indicative of the fact that this witnesses are natural and not tutored one . A parrot like verbatim deposition by witnesses, on the contrary , is effort to by the defence as the tutored evidence. It goes without saying that power and capa city of each individual to perceive , retain and reproduce the narration of a factual incident after a gap of time varies from person to person. Even otherwise a minor contradiction which has crept in due to lapse of long time and which does not go to the root of the matter, it is in consequent contd/......
39and is of no aid to the defence.
55.In case titled AIR 2000 Supreme Court 908 Ranadhir Basu Vs. State of West Bengal Hon'ble Supreme Court observed:
"Some inconsistencies of minor nature in her evidence can be regarded as natural - Giving more details while deposing before Sessions Court are not improvements of such a nature as would create any doubt regarding her trustworthiness."
In case AIR 2003 Supreme Court 282 titled Alamgir Vs. State , Hon'ble Supreme Court observed :
"..... Admittedly this piece of evidence was not available in the statement of the witness under section 161 Cr.P.C but does it take away the nature and character of the evidence in the event there is some omission on the part of the police official. Would that be taken recourse to as amounting to rejection of an otherwise creditworthy and acceptable evidence - the answer, in our view, can not but be in the negative. In that view of the matter, the evidence of Pw6 thus ought to be treated as credit worthy and acceptable and it is to be seen the effect of such an acceptability. "
contd/......
40In case titled State Vs. Lekh Raj (2000) 1 SCC 247, Hon'ble Supreme Court observed that: "minor contradictions are bound to appear even in the statements of truthful witnesses as memory sometimes plays false and the sense of observation differ from person to person and the same would not cause any dent in the testimony of the witness."
56.One another minor issue touched by Ld. Defence counsel is that even though as per the prosecution case , PW4 Jagmohan was assaulted and injured in front of his house at around 3.004.00 PM, in her cross examination , PW7 has deposed that Jagmohan had gone to Gurudwara Bangla Sahib from 7.00 am to 7.00 pm. Plain reading of this part of cross examination of PW7 shows that this interpretation is being done out of context. In her two sentence cross examination all that PW7 was asked is as to at what time Jagmohan used to leave for Gurudwara Bangla Sahib to which she replied at 7.00 AM. The later part of the question is ambiguous when it refers to "ON THAT DAY" . It has come in the deposition of PW4, PW8 and also PW5 Dr. U.C. Tyagi of HRH that Jagmohan was admitted to HRH and remained their hospitalised for more than a week from 1.11.1984 to 8.11.1984.
contd/......
41
57.Moreover, it was never the case of the defence that working hours of Jagmohan were from 7.00 AM to .7.00 Pm since in his cross examination done on 23.2.2005, he was suggested that he was in Gurudwara Bangla Sahib from 7.30 to 1.00 PM which he denied . An explanation has come on record that after the death of Indira Gandhi on 31.10.1984, the situation had become tensed and as mob rioters were roaming around in the area he could not go to attend his duty.
58.While describing the such was the anarchial atmosphere prevelent in the first week of November'1984 that more than 3000 valuable lives were lost at the hands mob comprising of insensitive maniacs . Such was the ferocity of the dastardly acts that entire Sikh Community was shell shocked and family injured Jagmohan had to migrate to Amritsar , Punjab. While commenting upon the prevelent lawlessness , Hon'ble Delhi High Court in case titled Raj Bahadur @ Danny and another Vs. State 1996 (1AD) , Delhi page 1049 observed : Chaos and anarchy permeated every look and corner of the city. People ran amok for the blood of the contd/......
42members of Sikh Community which was held responsible for assassination of Mrs. Gandhi.
59.Moreover, it was held by Hon'ble Supreme Court in Omkar Nath Vs. Delhi Administration AIR 1977 SC 1108 that :
"A Trial Court can take judicial notice of a fact which in that case was holding of strike by Railway Employees which affected the lives of citizens of our nation."
60.Similarly in the case in hand as well , this court can also take judicial to the fact that 1984 anti Sikhs riots was a blotch on our democracy which shocked the conscience of entire nation . The fear was reining high in the minds of the victims who not only saw their loved ones were butchered mercilessly in front of their eyes but also saw their houses were being looted and burnts to ashes by fire. Neither the police or the Estate Agency were coming in to contain the law and order situation nor they were paying any heed to the pleas of devastated victims. The distrust went so deep in the minds of victims qua the government and the administration that when Justice Rang Nath Mishra Commission initially invited riot victims to file their affidavits, only one affidavit was received in the commission out of thousand of contd/......
43victims in Delhi. Similarly before Justice Jain Aggarwal Committee as well, only three women filed their affidavits."
61.This is amply clear from the observation of Justice Rang Nath Mishra Commission in its report extracts given below: "Grievances was made that the victims were afraid filing affdavits disclosing the true state of affairs as such disclosure was bound to be against people in the party in power, officers of Government and mainly the police also influential persons of the respective localities. Initially the Commission was of the view that unless concrete incidents were placed before it, it would be difficult to assume a genuine basis for such apprehension. By August 9, 1985, which was the last date for receipt of affidavits in terms of the Commission's Notification a solitary affidavit had been received . The Commission, therefore, extended the time for receipt of affidavits by one further months and issued fresh Notification in several newspaper publicising the fact of such extension. The information was also duly given out through the All India Radio and Doordarshan. Within the extended time, 2905 affidavits were received by the Commission in regard to the incidents of Delhi."
62.About the role played by the police, the commission further contd/......
44
observed "Several instances have come to be narrated where police persons in uniform were found marching behind or mingled in the crowd. Since they did not make any attempt to stop the mob for indulging in criminal acts, an inference has been drawn that they were part of the mob and had the common intent and purpose. Some instances, though few in number, have also been noticed where policemen in uniform have participated in looting."
63.In case titled Gangadhar Behra Vs. State (2002) 8 SCC 381 Hon'ble Supreme Court observed '' a Judge does not preside over the criminal trial merely to see that no innocent man is punished, a Judge also presides to see that a guilt man does not escape. Both are public duty ................. doubts would be called reasonable if they are free from a zest for abstract speculation. Law can not afford any favourite other than truth. "
64.As such in view of the above detailed discussion and the material contd/......
45available on record , I have no hesitation in concluding that prosecution has successfully proved the charges framed against the accused persons beyond any shadow of doubt. Accordingly accused Mangal Sain @ Billa, 2. Bhagat Singh and 3.Brij Mohan Verma stands convicted for commission of offences punishable U/s 148/395/436/307 r/w 149 IPC. Accused be taken into custody and remanded to J/C. However, they shall be heard separately on the point of sentence on 29.8.09.
ANNOUNCED IN OPEN COURT
ON : 22.8.09 ( SURINDER S. RATHI )
ADDL. SESSIONS JUDGE
DELHI.
contd/......
46
IN THE COURT OF SHRI SURINDER S. RATHI:ASJ:
TIS HAZARI COURTS :DELHI FIR NO: 489/84 PS SARAI ROHILLA U/S 148/395/436/307 R/W 149 IPC STATE vs. Mangal Sein @ Billa Bhagat Singh Brij Mohan Verma ORDER ON SENTENCE :
29.8.09 Pr: Ld. Addl PP Sh. Irfan Ahmad for state alongwith Parvi Officer ASI Mustfa Ali from Special Riots Cell with both the injured Jagmohan Singh and Gurinder Singh from Amritsar Punjab.
Convict Brij Mohan Verma with Ld. Counsel Sh. Rakesh Malhotra Advocate Convict Mangal Sain with LD. Counsel Kulbhushan Mehta Advocate Convict Bhagat Singh with LD. Counsel Sh. Atul Kumar Sharma Advocate Submissions on the point of sentence heard at length and file perused.
Vide separate judgment dated 22.8.09 convicts Mangal Sein @ Billa Bhagat Singh and Brij Mohan Verma were found guilty for commission of offence punishable U/s U/S 148/395/436/307 R/W 149 contd/......
47IPC. Today submissions on the point of sentence heard.
While opening his arguments Ld. APP Sh. Irfan Ahmad has prayed that convicts deserve to be given maximum sentence in so far as they committed the crime without provocation in a cold blooded manner. The victims had no defence and were taken by surprise. It is said that convicts had no reason to commit the offence. They were matured individuals in the age ground of 3035 yrs and were neighbours of the victims. Instead of helping them in their hour of need , they themselves becam e part of unlawful assembly, assaulted, looted and burnt their house. It is said that victim had to shift to Amritsar after the crime and their entire lives were ruined. It is also stated that they deserve to be given deterrent sentence so that right message be sent to the society.
It is argued on behalf of convict Mangal Sain @ Billa by his counsel that he is aged 61 years and has vision defect apart from heart ailment and as such he be sentenced leniently .
While making submission on behalf of convict Bhagat Singh it is submitted by Ld. Counsel that he has clean anteced ents and has five children to take care apart from aged father. He too has prayed for minimum sentence.
On behalf of convict Brij Mohan Verma it is submitted by LD.
contd/......
48Counsel that he is facing trial since 1985 and has three daughters and it said to be TB patient.
At the onset it would be appropriate to glance through purpose of sentencing and punishment as elucidated beautifully in Halsbury's Laws of England, " The aims of punishment are now considered to be retribution, justice, deterrence, reformation and protection and modern sentencing policy reflects a combination of several or all of these aims. The retributive element is intended to show public revulsion to the offence and to punish the offender for his wrong punishment should fit the offence and also that like offences should receive similar punishments. An increasingly important aspect of punishment is deterrence and also potential offenders from breaking the law. The importance of reformation of the offender is shown by the growing emphasis laid upon it by much modern legislation, but judicial opinion towards this particular aim is varied and rehabilitation will not usually be accorded precedence over deterrence. The main aim of punishment in judicial thought, however, is still the protection of society and the other objects frequently receive only secondary consideration when sentences are being decided."
Hon'ble Supreme Court in case titled " State Vs. Rajesh" (2005) 8 SCC 11 observed, " Any liberal attitude by imposing meager sentences or taking too sympathetic a view merely on account of lapse of time or considerations personal to the accused only in respect of such contd/......
49offences will be resultwise counter productive in the long run and against societal interest which needs to be cared for and strengthened by the required string of deterrence inbuilt in the sentencing system. It is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate sentence in a criminal trial.
The judgment of conviction pronounced in this matter , pertains to one of the most unfortunate times which our country has faced in post independence. Assassination of Smt. Indira Gandhi on 31.10.1984 triggered a mayhem in the country which colossaled into loss of more than 3000 lives. What is more unfortunate is that since the murderer of late Prime Minister belonged to Sikh Community , through out North India Sikh Community was targeted. Sikh families were identified . They were dragged out of their houses , they were ruthlessely murdered and assaulted, their houses holds were looted and houses were set on fire.
This incident compels us to think as to how one criminal act of couple of persons can result into targeting of the entire community they belong to . Since its origin , Sikhism as a religion has always had a sacred and close bonda ge with Hinduism . Sikh Community has like all other communities including Islam have served our nation since its origination in all walks of life. We can not imagine of our contd/......
50independence from Britishers without bowing ourselves to the extreme sacrifice of Saheed a Azam Bhagat Singh and our other martyrs.
Even though all our religions primarily preach of peace and brotherhood and Dhan Sri Guru Granth Sahib also preaches the same that we should respect the sanctity of peace and life , I see no justification in claiming that 1984 Anti Sikh Riots were emotional outburst of masses. There can be no justification , verbose or otherwise to justify such like mayhem and pogrom in the name of emotional outburst.
It is evident that our society is becoming more and more intolerant towards each other . This dangerous trend is acquiring explosive proportions since incidents akin to 1984 riots have been raising head every now and then . In the case in hand what is more disturbing is that the convicts who assaulted, looted and burnt the houses of the victims were not strangers to them but were their next door neighbours. Instead of coming to their aid in their hour of need and making them feel safe, these convicts deliberately participated in the crime and ruined the life of victims. This kind of unprecedented erosion of brotherhood amongst neighbours is disturbing as well as contd/......
51alarming. This is high time that common citizens of our country needs to introspect and analyse their psyche as to why such things ever happened and should ensure that no such things should ever take place again.
History would never forgive the police officials who were at the helm of affairs and the Government of the day for their unprecedented slothful and quiescent role . But for the contrived in action and sluggish response of Delhi Police and Government of the day , scores of priceless lives and valuable property could have been saved.
In this regard one of our greatest Saints Sant Kabir Sahib has stated in one of his Sakhis DEHRA DINO KHET KO, DEHRA KHETI KHAI TEENO LOK SANSHAY PADI, INHE KOI SAMJHAEY Meaning thereby that in case those who are dutybound by oath to safeguard the rights of lives and property of citizens themselves abet those who violates the same , there can be no safety for the subjects in any world.
In his another such hard hitting Sakhi Sant Shri Kabir Sahib states contd/......
52KO AS KARE NAGAR KOTWALIYA MANSU PHAILAY GIDH RAKHWARIA MOOS BHOU NAAV MAJHAR KADHIHARIYA SAUWEY DADUR SARP PAHRIYA BAAIL BIYAY GAI BHAI BANJHA BADARU DUHIYE TIINE TIENE SANJHA NIT UTHI SIGHUR SIYARASO JUJHEY , KABIRA KA PAD BIRLA BUJHEY.
This saki indicates that the rightful thinking leaders and torch bearer of human rights in a civilised society are disturbed and perplexed since these rights are like small pieces of flesh scattered all around and incompetent, undeserving, corrupt and indignant officers who are akin to vultures are placed on duty to safeguard. It also indicates that rightful thinkers who care for the society and can safeguard the human rights have gone barren like a sacred cow by retreating into their sheds and not participating in the governance of our country and have left the field open for unmindful bulls (corrupt and incompetent officials) to prey upon the society.
Despite knowing fully well that it was caught on a wrong footing qua its role during and after the 1984 Anti Sikh Riots, it appears that Delhi Police had done precious little in preparing its carder psychologically to handle the scenarios in such like turbulent time. Facts available on records that they are not totally insulated from political interference. There is a famous addage which is traditionally follow in army which says, contd/......
53
" If you shed sweat in peace , you save blood in war"
Our police force also needs to tighten its belts and prepare itself in the time of peace to face such like scenario more professionally and competently so that human lives and property are not lost. It is unfortunate that in its testing time , Delhi Police failed to rise for the occasion. Instead of showing allegiance in the rule of law, our constitution and the oath taken by them , a better part of their course was found toeing line of their political rulers. A incompetent and unprofessional police force has always used to their advantage by the ruling parties. Despite several recommend ations , no serious attempt is being made in segregating the police force administratively for increasing its efficiency.
Everytime when such a tragedy strikes our multi cultural and multi religious nation, it is the innocent citizens who have to pay the price by loosing their lives and limbs apart from property. Everytime there is a hullabaloo in the government circles but it is primarily all on paper. Actually no lessons are learnt and nothing percolates to actual action on ground.
1984 Anti Sikh Riots taught us many lessons , the hard way but our country had to still encounter religious and racist fanaticism contd/......
54during the incidents of Babri Masjid Demolition and Gujarat Riots . Ironically in both these instances as well , the role of local police and government of the day came under dark thick cloud and heavy criticism .
Instead of joining hands to avoid re occurrence of any such incidents, it is unfortunate that section of leadership of our country is using the mayhem for settling political s cores and fulfillment of their personal political agendas by cropping up names of individuals .
The scenario which prevailed during the relevant period in 1984 Anti Sikh Riots exactly contrary to what our Constitution provides for . Our Constituent Assembly could not have or talk that in post independent India the fundamental rights promised by our Constitution to our citizens would be violated ruthlessly with impunity and thats too in our capital city Delhi. As mentioned in the judgment it had technical support of Delhi Police and Justice Rangnath Mishra Committee has specifically observed that police was found marching alongwith the rioters and at places they were mingling with them .
In his book title "The Changing Law", Lord Dennig said , " Those three great institutions Parliament , the Press and the Judges are safeguards of justice and liberty, and they embody spirit of the constitution."
contd/......
55While submitting on the role of politicians, Sir John Kerr said, "No Constitution can work smoothly if politicians play too rough"
One of the paramounts and most sacred duty of the government is to protect citizens. It is mentioned in Manu Smiriti VII that:
"A ruler whose subjects are not given protection, then they are oppressed by criminals , murderers and cheats , are as good as dead."
Coming to the case in hand as discussed supra, the role played by the convicts despite being neighbours, in murderously assaulting injured Jagmohan Singh and his brother Gurinder Singh apart from looting their house and setting it afire does not entitle them any leniency or mercy from the court.
One of the duty of a sentencing court is to send the right lesson in society that such like acts of mindless violence even in the name of emotional outburst can not be and would not be tolerated at any cost. Perpetrators of such like crimes would be tried under the law and would be subjected to maximum punishment as per law of the land.
Since in the case in hand the entire household goods of contd/......
56victims were looted and the house was burnt and they were totally ruined to such an extend that they had to migrate Amritsar, Punjab within days to save themselves , they deserve to be financially compensated as well.
In case titled Bodhisattwa Gautam Vs. Subhra Chakarborty, AIR 1996, SC 922 Hon'ble Supreme Court invented a new path breaking conce pt of interim compensation to victims of crime while observing, " This decision recognises the right of the victim for compensation by providing that it shall be awarded by the court on conviction of offender subject to finalisation the scheme by the Central Government. If the court trying an offence of rape as jurisdiction award the compensation at the final stage, there is no reason to deny to the court the right to award interim compensation, which should also be provided in scheme ."
While commenting upon the failure of trial courts in invoking the benign provision of Section 357 Cr. P.C , in case titled " Harikishan & State of Haryana Vs. Sukhbir Singh" AIR 1988 SC 2127 Hon'ble Supreme Court observed , " It is an important provision but courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the court to award compensation to victims contd/......
57while passing judgment of conviction. In addition to conviction, the court may order the accused to pay some amount by way of compensation to victim who has suffered by the action of accused. It may be noted that this power of courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive the victim crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all courts to exercise this power liberally so as to meet the end of justice in a better way." In its 41 st report the Law Commission of India clearly stated that our courts are not liberal in utilising these provisions and went to the extent of saying that it is regrettable that our courts do not exercise their statutory powers under this Section as freely and as liberally as they could desire. All this show that a good law, when badly administered, may fail its social purpose and if overlooked in practice, may fail both in the purpose and utility. In this regard highlighting the plight of victims of crime, apparently perturbed Hon'ble Supreme Court in case titled " Zahira H. Sheikh Vs. State of Gujrat, AIR 2006, SC 1367" famously known as Best Bakery contd/......
58Case observed, " The judges.... should have taken more proactive role, using a range of mechanisms to ensure justice..... unusual circumstances and the exceptional nature of the case attracts judicial opprobrium. Exceptional situations merit exceptional measures by the judiciary.... the Lower Courts can neither feel power less nor abdicate its duty to arrive at the truth and satisfy the ends of justice..... they have to take a participative role in trial." As such in view of the foregoing discussions convict Mangal Sain @ Billa, Bhagat Singh and Brij Mohan Verma are sentenced for commission of offence punishable U/s 148 IPC to undergo RI for a period of 2 ½ yrs apart from fine 10,000/ each I/D to undergo SI for 6 months.
Further convict Mangal Sain @ Billa, Bhagat Singh and Brij Mohan Verma are sentenced for commission of offence punishable U/s 149 IPC to undergo RI for a period of 2 ½ yrs apart from fine 10,000/ each I/D to undergo SI for 6 months.
Further convict Mangal Sain @ Billa, Bhagat Singh and Brij Mohan Verma are sentenced for commission of offence punishable U/s 307 IPC to undergo RI for life apart from fine of Rs.3 lacs each I/D to undergo SI for one year.
Apart from that convict Mangal Sain @ Billa, Bhagat Singh and contd/......
59Brij Mohan Verma are sentenced for commission of offence punishable U/s 395 IPC to undergo RI for a period of 10 yrs apart from fine one lac each I/D to undergo SI for one year.
For commission of offence punishable U/s 436 IPC convict Mangal Sain @ Billa, Bhagat Singh and Brij Mohan Verma are sentenced to undergo RI for a period of 10 yrs apart from fine two lacs each I/D to undergo SI for one year.
Although no amount of monetary compensation can undo the pain and agony to which the victim and their family members underwent but still out of the collective fine amount of Rs.18,60,000/ , Rs. 10 lacs shall be given to the injured Jagmohan Singh and Rs.8 lacs shall be given to the injured Gurinder Singh as a token of compensation.
All sentences shall run concurrently.
Fine not paid. Warrants be prepared accordingly and file be consigned to RR.
ANNOUNCED IN OPEN COURT ON: 29.8.09 ( SURINDER S. RATHI ) ADDL.SESSIONS JUDGE DELHI FIR NO: 489/84 PS SARAI ROHILLA U/S 148/395/436/307 R/W 149 IPC STATE contd/......
60vs. Mangal Sein @ Billa Bhagat Singh Brij Mohan Verma 22.8.09 Pr: Ld. Addl. PP for State All three accused are on CB Vide a separate judgment of the day , all three accused stand convicted for commission of offence punishable U/s 148/395/436/307 R/W 149 IPC. They be taken into custody. Warrants be prepared accordingly. Convicts shall be heard on the point of sentence now on 29.8.09.
(SURINDER S. RATHI) ADJ:DELHI 22.8.09 contd/......
61IN THE COURT OF SHRI SURINDER S. RATHI:ADJ:
ROOM NO.32:TIS HAZARI COURTS :DELHI FIR NO: 489/84 PS SARAI ROHILLA U/S 148/395/436/307 R/W 149 IPC STATE vs.
1. Mangal Sein @ Billa
2. Bhagat Singh
3. Brij Mohan Verma To Supdt. Jail Tihar , New Delhi Whereas in the above noted case accused Mangal Sain @ Billa S/o Shri Ram Nath R/o R/o B6151, Sector 8, Rohini, Delhi , age 61 yrs is found guilty and stands convicted for commission of offence punishable U/S 148/395/436/307 R/W 149 IPC. Convict Mangal Sain @ Billa S/o Shri Ram Nath be taken into custody and kept in J/c. You are directed to produce the convict Mangal Sain @ Billa S/o Shri Ram Nath for order on sentence now on 29.8.09.
GIVEN UNDER MY HAND AND SEAL OF THE COURT ON 22.8.09.
(SURINDER S. RATHI ) ADJ:DELHI22.8.09 contd/......
62IN THE COURT OF SHRI SURINDER S. RATHI:ADJ:
ROOM NO.32:TIS HAZARI COURTS :DELHI FIR NO: 489/84 PS SARAI ROHILLA U/S 148/395/436/307 R/W 149 IPC STATE vs.
1.Mangal Sein @ Billa
2.Bhagat Singh
3.Brij Mohan Verma To Supdt. Jail Tihar , New Delhi Whereas in the above noted case accused Bhagat Singh S/o Shri Budh Singh R/o L294, Shastri Nagar, Delhi52, age 52 yrs is found guilty and stands convicted for commission of offence punishable U/S 148/395/436/307 R/W 149 IPC. Convict Bhagat Singh S/o Shri Budh Singh be taken into custody and kept in J/c. You are directed to produce the convict Bhagat Singh S/o Shri Budh Singh for order on sentence now on 29.8.09.
GIVEN UNDER MY HAND AND SEAL OF THE COURT ON 22.8.09.
(SURINDER S. RATHI ) ADJ:DELHI22.8.09 contd/......
63IN THE COURT OF SHRI SURINDER S. RATHI:ADJ:
ROOM NO.32:TIS HAZARI COURTS :DELHI FIR NO: 489/84 PS SARAI ROHILLA U/S 148/395/436/307 R/W 149 IPC STATE vs.
1.Mangal Sein @ Billa
2.Bhagat Singh
3.Brij Mohan Verma To Supdt. Jail Tihar , New Delhi Whereas in the above noted case accused Brij Mohan Verma S/o Late Sh. Pyare Lal R/o A302, Shastri Nagar, Delhi52, Age: 60 years is found guilty and stands convicted for commission of offence punishable U/S 148/395/436/307 R/W 149 IPC. Convict Brij Mohan Verma S/o Late Sh. Pyare Lal be taken into custody and kept in J/c. You are directed to produce the convict Brij Mohan Verma S/o Late Sh. Pyare Lal for order on sentence now on 29.8.09.
GIVEN UNDER MY HAND AND SEAL OF THE COURT ON 22.8.09.
(SURINDER S. RATHI ) ADJ:DELHI22.8.09 contd/......
64contd/......
65FORM NO.5 IN THE COURT OF SHRI SURINDER S. RATHI : ADDL. SESSIONS JUDGE TIS HAZARI COURTS : DELHI WARRANT OF COMMITMENT ON A SENTENCE OF IMPRISONMENT BY A SESSIONS JUDGE FIR NO: 489/84 PS SARAI ROHILLA U/S 148/395/436/307 R/W 149 IPC STATE vs.
1.Mangal Sein @ Billa 2.Bhagat Singh,3.Brij Mohan Verma To The Superintendent of the Jail at Tihar Jail th Whereas at the Session held before me on 29 day of August of 2009, convict
1.Mangal Sain @ Billa S/o Shri Ram Nath R/o R/o B6151, Sector 8, Rohini, Delhi , age 61 yrs has been found guilty for commission of offence punishable U/s 148 IPC to undergo RI for a period of 2 ½ yrs apart from fine 10,000/ I/D to undergo SI for 6 months. and for commission of offence punishable U/s 149 IPC convict to undergo RI for a period of 2 ½ yrs apart from fine 10,000/ I/D to undergo SI for 6 months. For commission of offence punishable U/s 307 IPC convict to undergo RI for life apart from fine of Rs.3 lacs I/D to undergo SI for one year. Further he is sentenced for commission of offence punishable U/s 395 IPC to undergo RI for a period of 10 yrs apart from fine one lac I/D to undergo SI for one year. For commission of offence punishable U/s 436 IPC convict is sentenced to undergo RI for a period of 10 yrs apart from fine two lacs I/D to undergo SI for one year.
All sentences shall run concurrently. FINE NOT PAID This is to authorize and require you , the said Superintendent, to receive the said Mangal Sain @ Billa S/o Shri Ram Nath R/o R/o B6151, Sector 8, Rohini, Delhi , age 61 yrs in to your custody in the said Jail, together with this Warrant, and there carry the aforesaid sentence into execution according to law.
GIVEN UNDER MY HAND AND THE SEAL OF THE COURT ON 29.8.09 ( SURINDER S. RATHI ) ADDL. SESSIONS JUDGE 29.8.09 contd/......
66FORM NO.5 IN THE COURT OF SHRI SURINDER S. RATHI : ADDL. SESSIONS JUDGE TIS HAZARI COURTS : DELHI WARRANT OF COMMITMENT ON A SENTENCE OF IMPRISONMENT BY A SESSIONS JUDGE FIR NO: 489/84 PS SARAI ROHILLA U/S 148/395/436/307 R/W 149 IPC STATE vs. Mangal Sein @ Billa,Bhagat Singh,Brij Mohan Verma To The Superintendent of the Jail at Tihar Jail th Whereas at the Session held before me on 29 day of August of 2009, convict Bhagat Singh S/o Shri Budh Singh R/o L294, Shastri Nagar, Delhi52, age 52 yrs has been found guilty for commission of offence punishable U/s148 IPC to undergo RI for a period of 2 ½ yrs apart from fine 10,000/ I/D to undergo SI for 6 months. and for commission of offence punishable U/s 149 IPC convict to undergo RI for a period of 2 ½ yrs apart from fine 10,000/ I/D to undergo SI for 6 months. For commission of offence punishable U/s 307 IPC convict to undergo RI for life apart from fine of Rs.3 lacs I/D to undergo SI for one year. Further he is sentenced for commission of offence punishable U/s 395 IPC to undergo RI for a period of 10 yrs apart from fine one lac I/D to undergo SI for one year. For commission of offence punishable U/s 436 IPC convict is sentenced to undergo RI for a period of 10 yrs apart from fine two lacs I/D to undergo SI for one year. All sentences shall run concurrently. FINE NOT PAID This is to authorize and require you , the said Superintendent, to receive the said Bhagat Singh S/o Shri Budh Singh R/o L294, Shastri Nagar, Delhi52, age 52 yrs in to your custody in the said Jail, together with this Warrant, and there carry the aforesaid sentence into execution according to law.
GIVEN UNDER MY HAND AND THE SEAL OF THE COURT on 29.8.09 ( SURINDER S. RATHI ) ADDL. SESSIONS JUDGE 29.8.09 contd/......
67FORM NO.5 IN THE COURT OF SHRI SURINDER S. RATHI : ADDL. SESSIONS JUDGE TIS HAZARI COURTS : DELHI WARRANT OF COMMITMENT ON A SENTENCE OF IMPRISONMENT BY A SESSIONS JUDGE FIR NO: 489/84 PS SARAI ROHILLA U/S 148/395/436/307 R/W 149 IPC STATE vs.
1.Mangal Sein @ Billa
2.Bhagat Singh
3.Brij Mohan Verma To The Superintendent of the Jail at Tihar Jail th Whereas at the Session held before me on 29 day of August of 2009, convict Brij Mohan Verma S/o Late Sh. Pyare Lal R/o A302, Shastri Nagar, Delhi52, Age: 60 years has been found guilty for commission of offence punishable U/s U/s148 IPC to undergo RI for a period of 2 ½ yrs apart from fine 10,000/ I/D to undergo SI for 6 months. and for commission of offence punishable U/s 149 IPC convict to undergo RI for a period of 2 ½ yrs apart from fine 10,000/ I/D to undergo SI for 6 months. For commission of offence punishable U/s 307 IPC convict to undergo RI for life apart from fine of Rs.3 lacs I/D to undergo SI for one year. Further he is sentenced for commission of offence punishable U/s 395 IPC to undergo RI for a period of 10 yrs apart from fine one lac I/D to undergo SI for one year. For commission of offence punishable U/s 436 IPC convict is sentenced to undergo RI for a period of 10 yrs apart from fine two lacs I/D to undergo SI for one year. All sentences shall run concurrently. FINE NOT PAID This is to authorize and require you , the said Superintendent, to receive the said Brij Mohan Verma S/o Late Sh. Pyare Lal R/o A302, Shastri Nagar, Delhi52, Age: 60 years in to your custody in the said Jail, together with this Warrant, and there carry the aforesaid sentence into execution according to law.
GIVEN UNDER MY HAND AND THE SEAL OF THE COURT on 29.8.09 ( SURINDER S. RATHI ) ADDL. SESSIONS JUDGE 29.8.09 contd/......
68contd/......
69contd/......