Delhi High Court
State vs Lal Bahadur And Others on 27 August, 2008
Author: S.L. Bhayana
Bench: Manmohan Sarin, S.L. Bhayana
IN THE HIGH COURT OF DELHI AT NEW DELHI
Criminal appeal No.6/1992
Date of Decision: August 27 , 2008
State ..............Appellant
Through: Mr.Sunil Sharma, Adv.
Versus
Lal Bahadur and Ors. ...........Respondents
Though: Mr.R.N.Vats, Adv.
CORAM:
HON'BLE MR.JUSTICE MANMOHAN SARIN
HON'BLE MR. JUSTICE S.L. BHAYANA
1. Whether reporters of local paper may be allowed to see the `
judgment? Yes
2. To be referred to the reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
JUDGMENT
S.L. BHAYANA, J.
The present appeal has been preferred by the State against the judgment dated 31.10.1990, in Sessions Case No.12/1988, by which the learned Additional Sessions Judge acquitted the respondents herein giving benefit of doubt and holding the prosecution to have failed to prove its case beyond all shadows of doubt. Respondents were acquitted from charges under Sections 147/149/449/436/302/395/396 IPC in respect Crl. A. No.6/92 Page 1 of 24 of FIR No.421/1984, PS Delhi Cantt. by the learned Sessions Judge, noticing, inter alia, delay in lodging FIR, non-mention of names of respondents-Virender and Ram Lal in the FIR as well as in the complaint. Further the factum of witnesses being interested witnesses coupled with delay in recording of statements of PW-4, PW-6 and PW-7 of 27 days. The State preferred the present appeal and leave to appeal was granted by this Court on 15.01.1992.
2. This case is a sequel to the riots, which followed the assassination of late Prime Minister-Indira Gandhi on 31.10.1984 wherein Rajinder Singh and Sardool Singh were reported to be murdered. Dead bodies of both could not be found.
3. Mr.Sunil Sharma, appearing on behalf of the State, in support of the appeal, submitted that in this case there are as many as five eye witnesses, namely, PW-1, Harjit Kaur, PW-4, Sushil Kumar, PW-5, Dr.Harbir Sharma, PW-6, Mr.Jagdish Kumar and PW- 7, Mr.Mohar Pal Singh. He submits that despite the testimonies of these eyewitnesses, the Sessions Judge has chosen to acquit the respondents.
4. The case of the prosecution is that Harjit Kaur, who was residing at House No. RZ-1/295 Geetanjali Park, West Sagarpur, New Delhi, apprehensive of harm to her family, had sent both her daughters and a son to her father Shri Govind Singh's house at BE- 7, Hari Nagar, New Delhi. In her complaint lodged on 7.11.1984, Crl. A. No.6/92 Page 2 of 24 she stated that a mob including respondents Lal Bahadur alias Lal Babu along with Surinder Pal Singh and Charan(has not been challaned by the police), who lived in her neighbourhood, had attacked her house and looted household articles on 01.11.1984 at about 9/9:30 AM. Bed and sofa were left while all valuables including cash and jewellery were looted. In her statement before the Court, Harjit Kaur stated that she saw Lal Bahadur and Ram Lal and Virender looting her house and also identified Surinder as part of the mob looting her house on 01.11.1984.
5. Fearing threats of communal violence, following the death of Smt.Indira Gandhi, Harjit Kaur and her family had taken shelter at the residence of Dr.Harbir Singh Sharma, who was a prominent member of the society and had his house opposite to that of Harjit Kaur and had remained there with her husband and father in law for 2-3 days.
6. It was further the case of the prosecution that on 03.11.1984 respondents came to the house of Dr.Sharma in the morning and protested with Dr. Sharma for having given shelter to the family of Harjit Kaur and threatened that if the complainant and her family to whom shelter had been given were not handed over to them, they would burn the house. Thereupon Dr.Harbir Sharma went out to get help from the Military Police. At about 9 a.m. a mob of more than 500 persons, including the respondents came and attacked the house of Dr.Harbir Sharma where Harjit Kaur was Crl. A. No.6/92 Page 3 of 24 hiding with her husband and father-in-law. Respondents were having one can of oil and iron sabhal and were leading the mob. As per Harjit Kaur, her husband and father-in-law had taken shelter in one of the rooms in the ground floor and locked themselves, while the family of Dr. Harbir Sharma and she herself had gone upstairs to the roof. At the time the mob was assembling, Harjit Kaur was present on the roof of one of the neighbours of Dr.Harbir Singh, whose house was in the same row. As per her testimony, the mob was armed with sabbals, ballams, sariyas and lathis. She stated that respondents hit the door of the house with iron sabbals but the door could not be broken open. They thereupon, broke the windowpane and entered the house and set the house on fire.
7. Harjit Kaur's husband and father-in-law were burnt alive and their half burnt bodies were put in gunny bags. Harjit Kaur, however, admits that she did not see bodies being put in gunny bags but had heard the respondents saying that the bodies be put in the gunny bags. This statement was made 6 years after the date of the incident. Harjit Kaur's house was also burnt. It is the prosecution's case that PW4-Sushil Kumar, brother-in-law of Dr.Harbir Sharma, PW5 Dr.Sharma, PW6 Jagdish and PW7 Mohar Pal also saw the house being set on fire and Rajinder and Sardool Singh were being attacked with sabbals, burnt and their mortal bodies were put into gunny bags. Sushil Kumar, on first seeing Dr.Sharma's house being put on fire had rushed to call Dr.Sharma, Crl. A. No.6/92 Page 4 of 24 who had gone to call the Police. Both of them rushed back to find the house being burnt by the respondents and Sardool Singh as well as Rajinder Singh were killed. They saw the respondents using dandas to put the bodies of Sardool Singh and Rajinder Singh in gunny bags.
8. As per the deposition of Harjit Kaur after the mishap, with the help of one boy, she went to Hari Nagar at her father's house and also to police station Janak Puri and after the help of Gorkha Regiment was provided, she returned to Sagarpur on 03.11.1984 but she could not get the dead bodies of her husband and father-in-law and her entire house was burnt in fire. The house of Dr. Sharma was also entirely burnt along with household articles.
9. She stated in her testimony that apart from going to PS Janakpuri and getting military aid she did not visit any other Police Station. On 07.11.1984, her complaint was made in PS Delhi Cantt. She had stated that she could not make the complaint to the Police earlier on account of loss of her husband and father-in-law as well as all her valuables and property.
10. The aforesaid deposition and narration of events is also supported by the testimonies of PW-5 Dr. Harbir Sharma, who had confirmed the threats held out to him in the morning and stated that Surinder and Lal Bahadur along with others had come to the house and threatened him for having given shelter to Harjit Kaur and her Crl. A. No.6/92 Page 5 of 24 family. Further when he had gone to call the police Sushil Kumar informed him that his house had been set on fire. As per his statement, Lal Bahadur, Ram Lal, Surinder and Virender were putting the house on fire and they were beating Rajinder Singh and his father Sardool Singh. Their bodies were put in gunny bags using sticks. However, some persons gathered there saved him and his family members and he lodged the report on 05.11.1984.
11. Trial Court has acquitted the respondents primarily for the following reasons:
(i) Delay of 2/3 days in lodging the FIR and delay of 27 days in recording statement of witnesses;
(ii) Contradictions in the evidence to the effect that the names of Virender and Ram Lal are absent in the complaint of PW-
1 though they were identified in Court as active members constituting the mob that committed the crime; and
(iii) Witnesses Sushil Kumar, Dr.Harbir Sharma, Jagdish and Mohar Pal being interested witnesses having enmity with the respondents.
12. Proceeding with each ground one by one, it may be observed that the FIR was registered on 09.11.1984 following the complaint lodged by PW-5 Dr. Harbir Sharma on 05.11.1984 and PW-1 Harjit Kaur on 07.11.1984. Thus there is a delay of a few days Crl. A. No.6/92 Page 6 of 24 in registration of the case. Unexplained delay would cast doubt on prosecution version and may even be fatal. However, the circumstances of the present case are extraordinary. The Country was engulfed in communal riots. Curfew was imposed. Sikh families were being targeted by mobs of unruly and fanatic men who did not fear finishing human life, leave alone destroying/burning property.
13. Mr.Sunil Sharma urged that considering the situation in which the complainant's husband and father-in-law had been burnt and murdered and the lives of the remaining members being in imminent danger, the environment of insecurity and terror that was prevalent, it would be completely ignoring the ground realities to expect that the complainant could lodge the FIR forthwith. Mr.Sharma urges that the priority for the complainant was to save her life and that of her children rather than to get down to reporting the matter to the Police. Even then, the report had been lodged as soon as possible, on 07.11.1984. He submits that Dr.Harbir Sharma had lodged the report even earlier on 05.11.1984. Considering these circumstances, the delay in lodging of the FIR, was marginal and of no consequence. Mr.Sharma submitted that exhibit PW1/A, which was lodged by PW-1 Harjit Kaur, covered both the incidents namely looting of her house on 01.11.1984 and setting her house on fire on 03.11.1984 as well as the house of Dr.Harbir Singh Sharma and the murder of her father- Crl. A. No.6/92 Page 7 of 24 in-law and husband on 03.11.1984. Thus, this complaint was a comprehensive one covering all the incidents while Exh. No. PW- 5/A lodged by Dr. Harbir Singh referred to the incidents of 03.11.1984 where his house was burnt and the deceased were murdered without mentioning the incident of 01.11.1984. The above submissions of the appellants are well founded, meritorious and deserve to be accepted.
14. On the questions as to when Harjit Kaur visited the police station on 03.11.1984, why did she not lodge the complaint which was sent subsequently typewritten on 07.11.1984, Mr. Sharma submits that the lady who was distraught and had given information about looting of her house as also the killing of her husband and father-in-law and was wanting to salvage whatever she could, out of the house and seek protection. The non-recording of her grievance or complaint by the concerned staff of the police station cannot be converted into her fault so as to question the credibility of her complaint. Mr. Sharma sought to attribute the non-registration of the complaint due to prevailing chaos and terror situation and curfew which resulted in PW-5 not lodging the report on 03.11.1984 itself.
15. Another ground for acquittal put forth by the trial Judge is that of a delay of 27 days in recording of the statements of PW-4, 6 & 7 by the Police. The statements were recorded on 30.11.1984. Crl. A. No.6/92 Page 8 of 24 This too in the peculiar circumstances surrounding the case is not abnormal. The city was in turmoil and persons having witnessed crimes would naturally be apprehensive and afraid in coming forward to depose against the perpetrators, till things settled down. Additionally the State machinery was over worked. In such circumstances, delay in recording the statements of witnesses cannot be a ground to reduce its evidentiary value or completely ignoring it. The witnesses prior to the incident being residents of the same area knew the assailants. It was not the case of the respondents that the delay could have resulted in wrong identification of the accused.
16. Mr.Sunil Sharma placed reliance on the decision of Satyendra Dayal Khare Vs. State of Maharashtra, (2005) 12 SCC 485, wherein the Supreme Court while dealing with a case of two days delay in filing the complaint observed:
"The complainant was working at a place where her husband or near relative were not available and naturally she should have taken some time to decide as to what course of action is to be taken and the time taken for filing the complaint is not much. The contention of the appellant is that there is much delay in filing the complaint as is sufficient to disbelieve the prosecution case, but we do not think so."
17. Reference may, in this regard, be also made to the decision of the Supreme Court in Sahebrao & Anr. vs. State of Maharashtra, 2006 [2] JCC 871. While dealing with the delay in Crl. A. No.6/92 Page 9 of 24 lodging FIR for the death of the new bride, the Supreme Court noted that the settled principle of law is that delay in filing FIR by itself cannot be a ground to doubt the prosecution case and discard it. The delay in lodging the FIR would put the Court on its guard to search if any plausible explanation has been offered and if offered whether it is satisfactory. It was observed that the kith and kin of the deceased might take some appreciable time to regain a certain level of tranquility of mind or sedativeness of temper for moving to the police station for the purpose of furnishing the requisite information.
18. The second important factor that appears to have influenced the Trial Court in acquitting the respondents is the so- called contradictions appearing in the testimony of various witnesses. Let us consider the contradictions, which have weighed on the mind of the trial Judge. Harjit Kaur in her complaint has named only respondent Lal Babu and Surinder while later she had identified the other respondents Virender and Ram Lal also as having participated in looting her house. The trial Judge has recorded as under:
"This witness has thus made prevaricating statements regarding two accused persons Surinder and Virender. From this it is proved that the accused Surinder and Virender were not present on the day of the incident which took place on 1.11.1984 and making prevaricating statement by this PW regarding Crl. A. No.6/92 Page 10 of 24 complicity of the said two accused also casts aspersions on her entire testimony."
19. In this regard, it may be observed that Harjit Kaur had mentioned that her house was looted by a mob comprising, inter alia, of Lal Babu and Surinder. Her subsequent mentioning of names of other respondents does not appear to be an improvement of such importance that her entire eye witness account which finds corroboration by other witnesses can be overlooked. At best here a doubt may arise only with regard to complicity of Virender and Ramlal (It seems to have mistakenly typed as Surinder in above quoted para of trial court judgement) because later she had identified the other respondent Virender and Ram Lal also as having participated in looting her house.
20. Mr. R.N. Vats, on behalf of the respondents, submitted that the complaint Exhibit PW5/A, which is said to have been made on 5.11.1984, was received by the Delhi Cantt. Police Station as per the stamp endorsed on 06.11.1984. Exhibit PW 5/A only mentions the setting of the house on fire and the loss of Rs. 2 lakhs. It does not mention the beating and killing of the deceased. Besides, it names only two of the accused and not four.
21. Mr. Vats, commenting on the testimony of Sushil Kumar and Dr. Harbir Singh, submitted that the respondents accept that Sushil Kumar and Dr. Harbir Singh returned together. He submitted that from the testimony of Sushil kumar, it would appear that the act Crl. A. No.6/92 Page 11 of 24 of beating the deceased persons and killing had already been accomplished and the property/premises was damaged by setting it on fire. Not only this, the dead body of deceased Surdool and Rajinder Singh had also been taken by the accused persons. It is, at this stage, or thereafter, that Sushil Kumar says, "when I came there, the accused persons were present there and were causing damage to the house of Dr. Harbir Singh."
22. Mr.Vats wishes to urge that when Dr.Sharma,came at the spot the crime had already been committed and accomplished, which would show that Dr. Harbir Sharma, who had been called belatedly after the crime scene was over, he could not have witnessed the crime. He also relied on the testimony of PW-1 to urge that Dr. Harbir Singh had not witnessed the crime. He relies on the statement of PW-1 recorded during the trial of Surender Kumar who had been declared as proclaimed offender. In an answer to question in cross-examination, PW-1 Harjit Kaur stated, "Dr.Harbir had not come back upto 11.00 AM at his house on 3/11/1984." This would show that at the time of the incident, he was not there, since the incident is stated to have happened immediately after 8.30.A.M.
23. It is no doubt true that entire case of the prosecution hinges upon the neighbors and the widow of the victim, who may be interested in securing conviction of the accused persons but no Crl. A. No.6/92 Page 12 of 24 rule of law prescribes that conviction cannot be based on the testimony of such witnesses. The only requirement of law is that the testimony of those witnesses must be cogent and credible. Here it is apposite to extract the substance of the testimony of PWs. PW-4, sushil kumar, has stated that all these accused persons had beaten them and both of them (sardul singh and rajinder singh) were killed. The accused persons caused damage by setting the house on fire. The accused persons also damaged the house No.RZ-1/295 by putting fire. The accused persons took the dead body of the deceased Sardul Singh and Rajinder Singh away by putting them in gunny bags.
24. Then there is a statement of PW-5, Harbir singh, who stated that when he and Sushil Kumar reached his house No.RZ-3/295, They saw that the accused persons Surinder, Lal Bahadur, Ram Lal and Virender present in the court were setting his house on fire. They were also beating S.Rajinder singh and his father Surdur Singh and many other persons were also with them.
25. Then there is a statement of PW-6, jagdish kumar, he too, has averred in unequivocal terms that when he went to the house of Dr.Harbir Singh he saw all the accused person present in the Court, they were putting fire, beating Sardar Sardul Singh and the other family members. Son of S.Sardul Singh namely Rajinder Singh was also killed. The dead bodies of the Sardul singh and his son Rajinder Singh were taken away by the accused person by Crl. A. No.6/92 Page 13 of 24 putting them into gunny bag. Many other persons were also with the accused persons. Mohar Pal and Sushil Kumar also saw the incident.
26. Then, there is statement of PW-7, Mohar Pal, who has categorically stated that the accused persons had participated in killing the sikhs and setting them on fire with the help of lathies and ballams. He know the accused persons by name. Their names are Lal Bahadur, Virender, Surinder, and Ram Lal. The house of the Doctor was looted. One of the deceased is Sardul Singh and the other was his son.
27. On reading of the evidence of above witnesses, we find that the testimonies of the witnesses are trustworthy. This we say so on account of the fact that their evidence has been consistent and they have also remained unshaken during their cross examination. Thus, we do not find any reason to discard the evidence of these witnesses in totality. They do not vary in any manner on any material fact and if there are any discrepancies, the same are trivial, immaterial and could not be made the basis of the acquittal.
28. Mr.Sharma further submitted that in this case, eye- witnesses namely PW-1 Harjit Kaur, PW-4 Sushil Kumar, PW-5 Harbir Singh, PW-6 Jagdish Kumar and PW-7 Mohar Pal Singh have all implicated the accused and their testimonies have remained unshaken in so far as the role and the presence of the accused at the scene of the crime is concerned. In view of the evidence in Crl. A. No.6/92 Page 14 of 24 which specific acts are attributed to these people, he submits that minor contradictions, as they appear in the testimonies of Harjit Kaur, which was recorded nearly four years after the arrest of Surender Kumar, who was earlier declared as a proclaimed offender, deserves to be ignored. Same is the position with regard to Harjit Kaur not naming Ram Lal and Varinder in the complaint filed as Exh. PW-1.
29. Mr.Vats, learned counsel for the respondents submitted that circumstances have not been satisfactorily established. Learned counsel for the respondents raised the contention that the dead bodies of the persons alleged to have been killed on 03.11.84 were never recovered and found. Thus, there is no evidence with regard to the fact that they were ever killed and that too by the respondents.
30. We are unable to agree with the said argument of learned counsel because it is a well settled law that in a murder case to substantiate the case of the prosecution it is not required that dead bodies must have been made available for the identification. Discovery of dead body is not sine qua non for applicability of Section 299 of IPC. This was so held in the case of Rama Nand & Ors. Vs. State of H.P., (1981) 1 SCC 511 and again reiterated by this Court in Ram Bahadur @ Denny Vs. State, 1996 CRI. L. J. 2364, the relevant extract is reproduced below: Crl. A. No.6/92 Page 15 of 24
"We are sorry we are unable to agree with the said contention of the learned counsel. Whenever a crime is committed it is but natural that, the criminal would like to do away with the proof of the crime which is likely to implicate him in the crime. Thus, he would leave no stone unturned to destroy the proof i.e. the dead body which may show his complicity in the crime. Thus if the contention of the learned counsel is to be accepted, in that eventuality it would be very difficult to prove the cases where the dead bodies have been destroyed and as such are not traceable. To hold so would be against the spirit of the Criminal Law. Thus to substantiate the case of the prosecution we fell it is not required that the dead bodies must have been made available for the identification of the relations, if the prosecution witnesses are otherwise in a position to prove the guilt of the accused persons. The above view is substantiated by the observations of their Lordships of the Supreme Court as reported in Ram Chandra V. State of Uttar Pradesh, AIR 1957 SC 381: (1957 Cri LJ 559)....... "It is true that in law a conviction for an offence does not necessarily depend upon the corpus delictii being found. There may be reliable evidence, direct or circumstantial; of the commission of the murder though the corpus delicti are not traceable." The same view was again reiterated by the Hon‟ble Supreme Court in the case reported as Rama Nand v. State of Himachal Pradesh, (1981) 1 SCC 511 : (1981) Cri LJ 298), ... "It is true that one of the essential ingredients of the offence of culpable homicide required to be proved by the prosecution is that the accused "caused the death" of the person alleged to have been killed. But, discovery of the dead body of the victim bearing physical evidence of violence, has never been considered as the only mode of proving the corpus delicti in murder. In fact the „body‟ doctrine is merely a rule of caution and not of law. Where the dead body of the victim in a murder case is not found other cogent and satisfactory proof of homicidal death of the victim must be adduced by the prosecution. Such proof may be by the direct Crl. A. No.6/92 Page 16 of 24 ocular account of any eye-witness, or by the circumstantial evidence, or by both...."
31. The trial Court also questioned the independence of the witnesses. Mohar Pal and Jagdish, who were alleged to be procured witnesses of Dr.Harbir Sharma. The trial court held that Investigating Officer admitted in his statement that Dr.Harbir Sharma disclosed the names of Mohar Pal and Jagdish to him. Further, these persons are stated to be his pupils. Jagdish, who lived about a kilometer away from the scene of crime, admitted that on 02.11.1984 and 03.11.1984 as he was sick and bed ridden, he had visited Dr.Harbir Sharma for treatment. His family had been getting treatment from Dr.Harbir Sharma for the last 8-10 years. He had denied the suggestion that he was working as a compounder with Dr.Harbir Sharma stating that he himself was holding the same qualification of BAMS as of Dr.Harbir Sharma, in Ayurveda. Moharpal Singh had also received medical diploma from Allahabad Medical University and worked in the centre, which was run by Dr. Harbir Singh.
32. To our mind, these factors merely bring out a relation of doctor patient or pupil association but do not show that all witnesses had colluded against the respondents with some ulterior motives. Commenting on the alleged enmity between Dr.Sharma and the respondents, we have asked learned counsel for the respondents, whether any evidence with regard to such enmity or Crl. A. No.6/92 Page 17 of 24 any conduct, which demonstrates the same, had been brought forth, there is none available. Mr. Vats referred to the deposition of respondent Ram Lal who works as mistry, and had stated, "I am doing the job of Mistri. Dr. Harbir asked me to work and I refused. He further told me to see him. So I have been falsely implicated in this case."
33. Lal Bahadur claimed that "Dr. Harbir Singh threatened me to give up my residence in front of his house or to implicate me in some case. There was a quarrel with regard to supply of water from the tap." There was, however, no litigation or major quarrel arising out of the above.
34. Reference was also invited to the statement of Surinder Pershad Singh, where he states that he and Lal Bhadur had a joint plot and they had, on many occasions, quarrelled with Dr. Harbir Singh and hence he had falsely implicated him in the case.
35. Reference was also invited to the statement of Virender Kumar, who was a tenant of Lal Bahadur, where he states that he was called by the police in some inquiry and later on he was falsely implicated in this case.
36. These issues over water or mistry work cannot be considered to lead Dr.Sharma to frame a false case against the respondents. Also, Harjit Kaur had no enmity at all and being an eyewitness her testimony cannot be disregarded in any case. With Crl. A. No.6/92 Page 18 of 24 respect to the reasoning of the Trial Court that the witnesses were not independent and were driven by motive, Mr.Sharma submitted that the eyewitnesses had no motive for them to falsely implicate the assailants at the behest of Dr.Harbir Sharma. Dr.Harbir Sharma himself also had no enmity with any of the accused. Hence, he submits that this was not a case where the trial court could have ignored the accounts of the eyewitnesses and proceeded to give benefit of doubt to the respondents. There was no reason for Harjit Kaur to falsely implicate these assailants.
37. Mr.Sunil Sharma responding to the submissions of Mr.R.N.Vats, that the accused have been falsely implicated by Dr.Harbir Sharma on account of animosity and strained relationship, submits that no specific particulars with regard to the said strained relationship or animosity have been given. Bald statements made under Section 313 Cr.PC statement such as - fight over tap water, one of the persons being tenant of Lal Bahadur with whom the relations were strained or Lal Bahadur having quarreled with Dr. Harbir Sharma many times would be of no avail as these were not suggested or put to the witnesses during cross- examination. We find merit in the submission of Mr.Sunil Sharma. The witnesses cannot be described as interested ones or their evidence can be labelled as motivated.
38. The second suggestions of the eye witnesses being Crl. A. No.6/92 Page 19 of 24 interested witnesses since they were either the pupils, disciples or those, who had got their diploma in Ayurveda through the instrumentality of Dr. Harbir Sharma and were, therefore, not creditworthy. Mr. Sharma submits that there is also the evidence of Harjit Kaur, who was the most aggrieved person apart from these witnesses. There is no suggestion of animosity or inimical relationship with Harjit Kaur. There would be no reason for Dr.Harbir Sharma to procure the witnesses for Harjit Kaur. The only interest that Dr. Harbir Sharma could have been to claim compensation for the burning of the house, which was available in any case as the burning of the house was an admitted position.
39. Besides this, each one of them was resident of the same area and they were natural witnesses and not planted ones.
40. After having gone through all the evidence available on record, which led the trial Court to acquit the respondents, we are of the view that the evidence of even one eye witness was sufficient in itself to implicate the respondents, namely, Surinder, Virender, Ram Lal & Lal Bahadur for the crime committed by them on 01.11.1984 & 03.11.1984. Here, we have four eye witnesses, who have seen, with their own eyes, the gruesome murder of the deceased persons.
41. We are also not convinced that the delay in filing FIR or delay in recording the statements of PW4, PW6 and PW7 has vitiated the trial. Mere delay in examination of the witnesses for Crl. A. No.6/92 Page 20 of 24 few days cannot in all cases be termed to be fatal so far as the prosecution case is concerned when the delay is explained. There may be several reasons. Admittedly, the instant case relates to the riots, which took place on account of the assassination of late Mrs Indira Gandhi, which led to the complete breakdown of the law and order machinery. Chaos and anarchy permeated every nook and corner of the city. In the above circumstances, we feel that the delay has been satisfactorily explained. Whatever be the length of delay, the Court can act on the testimony of the witnesses if it is found to be reliable. Further, the allegations of non-independent witnesses and animosity of Dr.Sharma with the respondents cannot cast doubts on the eyewitness account of Harjit Kaur.
42. We may observe here that the liability of the members of the unlawful assembly who knew that an offence was likely to be committed in prosecution of the object for which they had assembled is equal to those who commit it. Section 149 is an exception to the criminal law where under a person can be convicted and sentenced for his vicarious liability only on proof of his being a member of the unlawful assembly, sharing the common object, notwithstanding as to whether he had actually participated in the commission of the crime or not. [See: Yunis @ Kariya Vs. State of Madhya Pradesh, AIR 2003 SC 539] Crl. A. No.6/92 Page 21 of 24
43. It is not an ordinary routine case of murder, loot and burning. It is a case where the members of one particular community were singled out and were murdered and their properties were burnt and looted. Such lawlessness deserved to be sternly dealt with as has been said by the Supreme Court in Surja Ram Vs. State of Rajasthan, 1997 CRLJ 51, the Court has also to keep in view the society‟s reasonable expectation for appropriate deterrent punishment confining to the gravity of the offence and consistent with the public abhorrence for the heinous crime committed by the accused. The sentence has to be deterrent so as to send a message for future.
44. The crime‟s punishment comes out of the same root. The accused persons should have no cause for complaint against it. Their sin is the seed. The terrible terror created by them is a cause for concern for the society. Courts are empowered by the statute to impose effective penalties on the accused as well as even on those, who are their partners in the commission of the heinous crime.
45. Keeping in view the foregoing discussion and after considering the seriousness and gravity of the incident, we are of the opinion that the appeal deserves to be allowed. The impugned judgment and order of the learned trial Court, dated 31.10.1990, acquitting all the accused persons/respondents is set aside. All the accused persons/respondents namely, Lal Bahadur, Virender, Surinder and Ramlal are ordered to be convicted under Sections Crl. A. No.6/92 Page 22 of 24 147/149/449/436/302/395/396 IPC. All the accused persons/respondents are ordered to be sentenced under Section 147 IPC to undergo RI for one year each and to pay a fine of Rs.1,000/- each and in default of payment of fine, to further undergo RI for two months each. All the accused persons/respondents are further ordered to be sentenced under Section 449 IPC read with Section 149 IPC to undergo RI for seven years each and to pay a fine of Rs. 5,000/- each and in default of payment of fine, to further undergo RI for six months each. All the accused persons/respondents are further ordered to be sentenced under Section 436 IPC read with Section 149 IPC to undergo RI for five years each and to pay a fine of Rs. 5,000/- each and in default of payment of fine, to further undergo RI for six months each. All the accused persons/respondents are further ordered to be sentenced under Section 302 IPC read with Section 149 IPC to undergo RI for life each and to pay a fine of Rs. 10,000/- each. All the accused persons/respondents are further ordered to be sentenced under Section 396 IPC to undergo RI for life each and to pay a fine of Rs. 10,000/- each. All the accused persons/respondents are further ordered to be sentenced under Section 395 IPC to undergo RI for five years each and to pay a fine of Rs.5,000/- each and in default of payment of fine, to further undergo RI for six months each. All the sentences shall run concurrently. The respondents/accused persons are directed to Crl. A. No.6/92 Page 23 of 24 surrender before the trial court/jail Superintendent with immediate effect to undergo the aforesaid sentences ordered against them.
46. With the aforesaid directions, the appeal stands allowed.
S.L. BHAYANA, J.
MANMOHAN SARIN, J.
August 27, 2008 "shivani"
Crl. A. No.6/92 Page 24 of 24