Delhi High Court
Shakti Singh And Ors. vs State on 15 December, 1994
Equivalent citations: 57(1995)DLT731
Author: S.D. Pandit
Bench: S.D. Pandit
JUDGMENT S.D. Pandit, J.
(1) Shakti Singh s/o Bhagwana, Ashok Kumar s/o Bhagwana,both residents of A2/50-51, Sultan Puri, Delhi and Zile Singh s/o Sardare resident of A2/273 Sultanpuri, Delhi stand convicted by the Additional Sessions Judge of Delhi in Session's Case No. 38/90 for the offences punishable under Sections 147,148,188 and 302 read with Sections 149,201 read with Sections 149,395 read with Section 149 and 395 read with Section 149. Each of them is sentenced to suffer rigorous imprisonment for one year under Section 147, rigorous imprisonment for two years under Section 148, rigorous imprisonment for three months under Section 188, rigorous imprisonment for three years under Section 201 read with Section 149, rigorous imprisonment for five years and to pay a fine of Rs. 12,000 each and in default of payment of fine further rigorous imprisonment for 2" years under Section 395 read with Section 149 of the Indian Penal Code.
(2) The appellants were challaned in Fir No. 254/84 on the allegations that on 2/11/1984 at about 6.30 A.M. they and other 37-47 persons had formed an unlawful assembly with the common object of looting and murdering and at that time they were armed with deadly weapons and in the prosecution of the said common object they committed murders of Inder Singh, Hardeep Singh, DalipSngh, Prabhu Singh, Paitu Singh, Shanti Kaur, Sangat Singh and Badam Singh and they further destroyed the evidence of murder by burning the dead bodies of those persons and that they had looted the houses of those persons and had also set on fire the houses of those persons.
(3) The charge was framed against the appellants on 30/05/1987 for offences punishable under Sections 147, 148, 188, 201 read with Section 149,395 read with Section 149 and 302 read with Section 149 for which the appellants had pleaded not guilty of the charge. Their evidence is of total denial and falseimplication. According to them as a matter of fact they were the neighbours of the victims and they had gone to save them and that they have been falsely implicated at the instance of the police.
(4) In order to prove its case against the present appellants, prosecution has examined in all 15 witnesses. Out of those 15 witnesses P.W.2 Narangi Kaur, P.W.3Bindo Kaur, P.W.5 Vaijanti Kaur, P.W.6 Durjan Kaur, P.W.7 Basanti Kaur, P.W.8Kaur Bai, P.W.9 Jit Kaur, P.W.10 Chal Kaur, P.W.12 Rajni Kaur are examined as direct eye witnesses to the incident in question. Accused had examined two witnesses in support of their defense. The learned Additional Sessions Judge found favor with the evidence of the said eye witnesses and he preferred the evidence of those eye witnesses to that of defense witnesses examined by the appellantsnamely, D.W.1 Vidya and D.W.2 Malkeet Kaur. He, therefore, held the appellants guilty of the offences with which they were charged and convicted and sentenced them as stated earlier.
(5) Being felt aggrieved by the said decision the appellants have come in appeal before us. It is submitted before us by the learned Counsel for the appellants that the prosecution has failed to prove the fact that the persons who are stated to have been murdered and killed were in fact murdered and killed and as a matter of fact one of those persons namely, Badam Singh was alive on the date of the trial as well as on the date of the conviction. Therefore, that facts shows that the claim of the prosecution could not be accepted beyond doubt. It is further contended that the first version given by the prosecution witnesses was that the persons who had committed the rioting, looting and killing were not from their vicinity and that they were unknown persons and therefore, their belated version before the Court ought not to have been accepted. It is also further contended that there is no proper identification of the present three appellants and as there was no proper identification parade of the present appellants the Trial Court ought not to have accepted the evidence against the appellants. It is also further contended that there is no independent evidence to corroborate the version put up by the prosecution against the present appellants. He also contended that the prosecution has not put before the Court the cogent, clear and sufficient evidence to support the prosecution claim against the present appellants. Therefore, in these circumstances, the appellants are entitled to get the benefit of doubt and that they deserve to be acquitted.
(6) As against this the learned Counsel for the State vehemently urged before us that the prosecution witnesses are true and natural witnesses to the incident inquestion. There was no animosity or ill will towards the present appellants. In view of the situation then prevailing the delay caused in collecting the evidence should not be taken into consideration. She further contended that merely because one of the persons said to have been murdered has been proved to be alive at the date ofthe conviction even could not be taken into consideration for rejecting whole of the prosecution case. She contended that merely because the prosecution has not produced positive evidence regarding the death, the claim of the prosecution witnesses who are wife, mother and daughter in law of the victims should not berejected.
(7) It is an admitted fact that the incident in question has taken place after the riots which took place in Delhi after the assassination of Smt. Indira Gandhi. The prosecution has examined P.W.2 Narangi Kaur, P.W.3 Bindo Kaur, P.W.5 VaijantiKaur, P.W.6 Durjan Kaur, P.W.7 Basanti Kaur, P.W.8 Kaur Bai, P.W.9 Jit Kaur,P.W.10 Chal Kaur and P.W.12 Rajni Kaur as eye witnesses to the incident inquestion. Out of these witnesses P.W.2 Narangi Kaur, P.W.5 Vaijanti Kaur, P.W.9Jit Kaur, P.W.8 Kaur Bai and P.W.IO Chal Kaur had given a statement under Section 161 on 16/11/1984. The said witnesses have clearly stated in their statements of 16/11/1984 that the rioters were not from their locality, theywere outsiders and they were not in a position to identify and name those rioters. No doubt when these persons have entered the witness box they have tried to identify the present three appellants and they had also deposed about the certain acts committed by the three appellants. But when it is their first version that the rioters were not from their locality and that the rioters were not known to them and that the rioters were not identified by them, their belated identification of thosepersons on the date of trial in the Trial Court could not be believed and accepted without any hesitation of mind. It must also be further mentioned here that first statements of P.Ws. 2,3 & 5 were recorded on 15/11/1984 and they had made supplementary statements on 25/01/1985. It is very pertinent to note that in these supplementary statements of 25/01/1985 they had not claimed that they were afraid of those persons and because of the fear of those persons -the present accused persons - they were not in a position to identify the present appellants and to name the present appellants. Even in those statements of 2 5/01/1985 they had not stated any specific acts committed by the present appellants for being responsible for the incident in question. Therefore, in these circumstances when the five witnesses examined by the prosecution had not stated about the participation of the present appellants in their earlier version before The police, their statements in the Court could not be believed and accepted without any hesitation of mind.
(8) There are only three witnesses P.W.6 Durjan Kaur, P.W.7 Basanti Kaur andP.W.12 Rajni Kaur whose statements are recorded on 25/02/1985. Out of these three witnesses only P.W- 6 Durjan Kaur is the witness who has not made a previous statement as per the record put up by the police. If her statement beforethe Court is seen then it would be quite clear that according to her the police came to her on 2-4 times and had made inquiries from her about 3-4 days after the incident in question. Therefore, if that version given by her in her examination in chief is considered then it would be quite clear that she was interrogated by the police and police had recorded her statement about 3-4 days after the incident inquestion. But no such statement is coming forth. Therefore, it will have to be observed that that statement of her is being suppressed and the suppression of her statement makes her claim made by her before the Trial Court doubtful particularly in view of the fact that all other witnesses had made their statements mentioning there in that the persons who had committed the acts of rioting, arsoning, murdering and looting were not from their locality and they were not known to them. It must also be further mentioned here that as per her testimonies she had come back to her residence about 15-16days after the incident in question. If she was available to the police after a fortnight to the incident in question the police ought to have recorded her statement and her delayed statement which is recorded after more than 3 months i.e. on 23/02/1985 could not be said to be her real version of the incident in question.
(9) It must be further mentioned here that out of the persons who are said to have been murdered, P.W.12 Rajni Kaur's husband Badam Singh is proved to be alive on the date of the trial as well as on the date of conviction. As a matter of fact he died on 1/01/1993. This fact is brought on record during the pendency of the appeal by moving an application in this Court. The fact that he was alive on 1/11/1984 is an admitted fact and it is stated on behalf of the State that asa matter of fact on the day of incident he was in the tempo lying in unconscious condition and when he regained conscious he escaped from the tempo that is how he was alive. Thus it was known to this witness P.W.12 Rajni Kaur as well as prosecution that he was alive on the date of trial and inspite of this when the prosecution has pressed for the trial of his murder and led evidence before the Court for his alleged murder, it becomes very difficult to accept the claim of the prosecution without any hesitation of mind. No doubt the prosecution witnesses are the wives and daughter-in-laws of the alleged deceased persons but there is absolutely no evidence collected by the prosecution to show that as a matter of fact the alleged killed persons were alive on the date of the alleged incident. Merely because the prosecution witnesses are coming before the Court and saying that six persons are dead and particularly when one of the persons whom they claim to have been killed and murdered on the day is proved to be alive on the day ofincident, the claim of the prosecution that six persons who are said to have been murdered were in fact alive could not be accepted without any hesitation of mind.It is very pertinent to know that every witness is speaking about her relation'salleged killing and is not referring to any other alleged killing. Documents, like ration card or voter's list could be proved to show that those persons were alive on the date of occurrence.
(10) If the evidence of prosecution witnesses is considered then it would be quite clear that as per their evidence these three appellants were the residents of the same locality where they were residing and they were known to them. If that was the real situation then we have failed to understand as to what prevented them from naming those persons in their first statement before the police. No doubt one of them has stated that they were afraid and out of fear they had not named the appellants but that is not the explanation coming in her subsequent statements and statements of other witnesses and it is also not stated by the witnesses that theywere in fact knowing the real assailants but out of fear they were not ready to disdose their names. On the contrary they have made a positive statement that persons who had attacked them. were not from their locality and they were outsiders and they were not identified by them. In the circumstances the claim made on their behalf by the learned Counsel for the State that they must not have named the present appellants out of fear could not be accepted and believed.
(11) It is vehemently urged by the learned Counsel for the appellants that the prosecution had not held a prior identification parade and in the absence of the prior identification parade the evidence of identification by the witnesses in the Court ought not to have been accepted. But if the material on record is taken into consideration then this contention raised by Mr. Sud could not be accepted because it is the claim of all those witnesses that they are residents of the locality where the present appellants are residing and because of the same they were knowing the present appellants. The appellants had also suggested in the cross examination of all those witnesses that as the appellants were their neighbours and the appellants were known to them so they were naming them falsely. Then it is quite clear thatthe claim of the witnesses that the appellants were known to them and they were in a position to identify them prior to the incident in question was not in dispute during the trial or during the investigation. When it is the claim of the appellants themselves that they were known to the prosecution witnesses as they were neighbours the prosecution witnesses have falsely named them, their contention that there ought to have been an identification parade for their identification beforethe trial in question could not be accepted.
(12) The appellants have taken a specific defense that as a matter of fact theywere trying to save the Sikhs who were residing in their locality and for that purpose they were moving in the area and in order to prove the said claim they have examined two defense witnesses. Now apart from those two witnesses, P.W.7Basanti Kaur had admitted in her cross examination that the accused were among those persons who had come to rescue them. No doubt she had again tried to go away from the said admission given by her by saying that in fact accused had killed her husband. But her claim could not be accepted in view of the material on record and the admission given by her, in her cross examination that the appellants had come to save them. It is very pertinent to note that none of the witnesses are attributing any specific act to any of the appellants. They are merely saying that the appellants were in that mob. Therefore the possibility of appellants persuading the mob not to attack Sikhs as deposed by two Sikh women - defense witnesses -could not be ruled out.
(13) The evidence of P.W.6 Durjan Kaur and two other witnesses show that asa matter of fact when the incident in question had taken place police officers were present there. But no police officer has come before the Court to depose about the incident in question. If the version given by P.W.6 Durjan Kaur was true and correct one then in the natural course of event the police officers would have come forward as prosecution witnesses to depose in favor of the prosecution and to support the testimony of P.W.6 Durjan Kaur. The failure of the prosecution to examine the police witnesses who were present as per the claim of this prosecution witness also makes the case of the prosecution very doubtful.
(14) The prosecution has alleged that the accused had committed the offences of dacoity, robbery and ransoming but if the evidence led before the Court is seen then it would be quite clear that the prosecution has absolutely produced no evidence to support that charge against the present appellants. The prosecution has not produced any evidence on record to show that which houses were burnt.The witnesses have deposed that they had given a list of the articles which were robbed and the articles which were taken away after looting of their houses but those lists which are said to have been supplied by the witnesses to the investigating officer are not on record. No memorandums regarding the burning of houses,no memorandums regarding the causing of damages to the houses as well as the removal of the articles from the houses of the witnesses were produced on record.As a matter of fact the investigating officer who has entered the witness box had not made a statement that they had visited the houses of the witnesses and had in fact verified the burning of those houses and looting of those houses.
(15) If the investigation in this case is seen then it would be quite dear that the investigating officers have made only a farce of investigation. They have not taken the proper steps to carry out the proper and correct investigation in this case. They have not collected any material to show that the persons who were said to havebeen murdered were alive on the date of incident and that in fact they are not alive and that their dead bodies were burnt and destroyed. They have not tried to collect the statements of the witnesses immediately when the witnesses were available.They have not visited the houses and prepared the memorandums regarding the situation of the houses in order to show that there was burning of the houses as wellas looting of houses. They have not also taken prompt steps to arrest the accused and to recover the property from the accused. They have merely recorded very short statements of the witnesses without asking them any details regarding the incident as well as their conduct. The whole investigation carried out by the investigating officers clearly shows that they were not really interested in picking the real culprits and to see that the real culprits are convicted. They have merely made a farce pretence of interrogation to show that they had taken steps and they had sent somebody for trial and that the trial has taken place and that thereby they have fulfillled their duties.
(16) Though the learned Counsel for the appellants as well as for the State have cited before us various case law in support of their legal submissions, we do not think it necessary to refer to each of the case or any of the case cited by them in viewof the peculiar facts of the present case. We have found that the prosecution witnesses have not initially named the present appellants as the participants and on the contrary they have made a positive statement that the rioters and looters were not from their locality and they were not identified by them. The prosecution has not led positive evidence to show that the persons who were alleged to have beenmurdered were alive on the date of the incident and that thereafter in fact their where abouts are not known and they were in fact dead as they were killed. The prosecution has not also produced on record any material to show that there was in fact the destruction of the evidence of murder. The prosecution has notproduced any evidence to show that in fact the houses of the prosecution witnesses were set on fire. The prosecution has not produced any material on record to show that what properties were looted. The prosecution has not produced any material witness to support the case of the prosecution namely the police officers who were present at the time of the incident as per the evidence of the prosecution witnesses examined in the Trial Court.
(17) No doubt the accused are not in a position to give any specific reason asto why the prosecution witnesses who have deposed in the Court were deposing against them but merely because the accused have not given any reasons as to why the prosecution witnesses were deposing against them could not be a ground to hold that their evidence must necessarily be accepted. In view of the fact that the prosecution witnesses have in fact suffered in the incident in question they may bethinking that the present appellants who were from the said locality might be responsible for the atrocities committed against them and because of that thinking the prosecution witnesses may be deposing against them. The deposition by the prosecution witnesses against the accused may be due to the said thinking of them.Therefore, merely because the accused have not given any explanation as to whythe prosecution witnesses were deposing against them it could not be said that their evidence must be accepted as trustworthy. The prosecution has thus failed to prove its case against the present appellants.
(18) The Trial Court was not at all justified in accepting the evidence of the prosecution witnesses which was quite contrary to their first version and that the same was not getting the corroboration from the other circumstantial evidence which ought to have been produced by the prosecution. The present appellants are in view of the above circumstances entitled to get the benefit of doubt and we are in least hesitation to give them the same. We, therefore, hold that the present appeal will have to be allowed.
(19) Thus we allow the appeals and set aside the order of conviction and sentence passed against the appellants in Session's Case No. 38/90. The appellantsare acquitted of the offences with which they were charged. Their bail bonds are cancelled and they are directed to be set at liberty forthwith if not required to be detained in any other case. The intimation be sent to the jail authorities.