Lal Bahadur & Ors vs State(Nct Of Delhi)

2. During the pendency of this appeal, appellant No. 4 Ram Lal is stated to have died on 23rd May, 2011. Therefore, the appeal stands abated so far as he is concerned.

3. The case of the prosecution in brief is that Harjit Kaur (PW-1), a resident of House No. RZ-1/295, Geetanjali Park, West Sagarpur, New Delhi, apprehensive of harm to her family because of riots which followed the assassination of late Prime Minister Indira Gandhi on 31st October, 1984, had sent both her daughters and a son to her father Govind Singh’s house at BE-7, Hari Nagar, New Delhi. In her typed complaint (Ex. PW1/A) lodged on 7th November, 1984, she stated that a mob including appellant No. 1 Lal Bahadur alias Lal Babu along with appellant No. 2 Surender P. Singh and Charan, who lived in her neighbourhood, had attacked her house and looted household articles on 1st November, 1984 at about 9/9.30 a.m. Fearing threats of communal violence, the complainant Harjit Kaur and her family had taken shelter at the residence of Dr. Harbir Sharma (PW-5) who had his house opposite to that of the complainant and had remained there with her husband (Rajinder Singh) and father-in-law (Sardool Singh) for 2-3 days. On 3rd November, 1984, the appellants came to the house of Dr. Harbir Sharma in the morning and protested for having given shelter to the complainant’s family 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. At about 9.00 a.m., a mob of more than 500 persons, including the appellants, came and attacked the house of Dr. Harbir Sharma where the complainant was hiding with her husband and father-in-law. The appellants were having one cane of oil and iron sabbal and were leading the mob. As per the complainant, her husband and father-in-law had taken shelter in one of the room on 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, the complainant was present on the roof of one of the neighbours of Dr. Harbir Sharma whose house was in the same row. As per complainant’s testimony, the mob was armed with sabbals, ballams, sariyas and lathis. She stated that the appellants 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. The complainant’s husband and father-in-law were burnt alive and their half burnt bodies were put in gunny bags. The complainant’s house was also burnt. It is the prosecution’s case that Sushil Kumar (PW-4) (brother-in-law of Dr. Harbir Sharma), Dr. Harbir Sharma (PW-5), Jagdish (PW-6) and Mohar Pal (PW-7) also saw the house being set on fire and the deceased Rajinder Singh and Sardool Singh were being attacked with sabbals, burnt and their mortal bodies put into gunny bags. Sushil Kumar, on first seeing Dr. Sharma’s house being put on fire, had rushed to call Dr. Sharma who had gone to call the police. Both of them rushed back to find the house being burnt by the appellants and Sardoor Singh as well as Rajinder Singh were killed. They saw the appellants using dandas to put the bodies of the deceased in gunny bags. However, some persons gathered there saved Dr. Sharma and his family members and he lodged the report on 5th November, 1984. As per the deposition of the complainant, after the mishap, with the help of one boy she went to Hari Nagar at her father’s house and also to police station Janakpuri and after the help of Gorkha Regiment was provided she returned to Sagarpur on 3rd November, 1984 but she could not get the dead bodies of her husband and father-in-law and her entire house was burnt and the house of Dr. Sharma was also entirely burnt along with household articles. On 7th November, 1984, she made a complaint in Police Station Delhi Cantt. The FIR was registered on 9th November, 1984. On completion of the investigation, challan was filed against the accused-appellants and they were charged of having committed offences under various sections of IPC. In support of its case, the prosecution examined as many as nine witnesses. Each of the accused denied the incriminating circumstances put to them and stated that they have been falsely implicated because Dr. Harbir Sharma had enmity with them. However, none of the accused led any evidence in defence.

5. The trial court held firstly that delay in lodging the FIR was not properly explained because the complainant (PW-1) had gone to Police Station Janakpuri on 3rd November, 1984 and sought military help from there with a view to recover dead bodies of her husband and father-in-law, but she had not lodged the report on 3rd November, 1984. Similarly, the court held that there was delay on the part of Dr. Harbir Sharma (PW-5) in making the complaint to the police on 5th November, 1984 for the incident of 3rd November, 1984. The trial court also noticed delay of 27 days in recording statements of PW-4, PW-6 and PW-7. Secondly, the trial court held that the complainant had made prevaricating statements regarding presence of two accused persons i.e. appellant No.2 Surender and appellant No. 3 Virender on 1st November, 1984 without any corroboration as also regarding putting of the half burnt dead bodies in the gunny bags on 3rd November, 1984, inasmuch as she had not named accused–appellant No. 4 (Ram Lal) and appellant No. 3 (Virender Singh) in her complaint (Ex.PW1/A), though they were identified in the court by her; and even in her statement recorded second time she had stated that she had not seen accused- appellant No. 2 Surender and appellant No. 3 Virender on 1st November, 1984 whereas in her first statement recorded on 21st April, 1986 she had stated that on 1st November, 1984 accused-appellant No. 1 Lal Bahadur, appellant No. 3 Virender and appellant No. 4 Ram Lal were amongst the persons who had looted her house. The trial court further noted that in her complaint (Ex. PW1/A), the complainant had mentioned that the half burnt bodies of her husband and father-in-law were put in gunny bags by the accused (Lal Babu, Surender and Charan) on 3rd November, 1984, whereas in her statement before the court she stated that she did not actually see the accused putting burnt dead bodies of deceased into gunny bags and she only heard saying the accused persons `put half burnt dead bodies in the gunny bags’. Thirdly, the trial court noticed certain contradictions in the statements of eye- witnesses, namely, Sushil Kumar (PW-4), Dr. Harbir Sharma (PW-5), Jagdish (PW-6) and Mohar Pal (PW-7). The trial court noted that certain facts were not mentioned in the complaint (Ex.PW-5/1) by PW-5 and the names of two accused Ram Lal and Virender also did not find mention therein. The trial court further observed on the basis of contradictions pointed out in the statements that PW-5 had not come back and witnessed the burning of his house as well as the beating and killing of deceased persons as deposed by him. Fourthly, the trial court observed that the prosecution witnesses PW-4, PW-6 and PW-7 were not the actual witnesses to the occurrence because had it been so, PW-5 would definitely have mentioned their names in Ex. PW5/1 and held that the possibility of PW-4, PW-6 and PW-7 being procured or to have been made to depose for PW-5 cannot be ruled out. The trial court thus held:

8. Mr. Prasoon Kumar, learned counsel for the appellant- accused persons assailed the impugned judgment passéd by the High Court as being illegal and perverse in law. Learned counsel firstly contended that the High Court has erred in law in appreciating the deposition of the eye-witnesses as the deposition of eye-witnesses is not above suspicion and is full of contradictions, inconsistencies and emblazonments and further the deposition made by the alleged eye- witnesses cannot be accepted as trustworthy and reliable. As per the observation of trial court, as regards the statements of eye- witnesses, namely, Dr. Harbir Sharma (PW-5), Sushil Kumar (PW-4), Jagdish (PW-6) and Mohar Pal (PW-7) it may be pointed out that there are certain contradictions in the statement of PW-5 and in his complaint Ex.PW-5/1. Learned counsel then contended that the High Court has not appreciated the contradictions in the deposition of PW-1 (Harjit Kaur). As per the complaint Ex. PW1/A and statement of PW- 1, the incident had taken place on two dates i.e. on 1st November, 1984 and 3rd November, 1984. On 1st November, 1984, the accused Lal Babu, Surender and one Charan who has not been challaned by the police, having collected some other persons, came to her house and looted the household articles. In her statement, she has stated that she knew all the four accused persons as they were the residents of her locality and identified them in the deck, but she has not named accused Ram Lal and Virender in Ex.PW-1/A. PW-1 is the sole eye- witness regarding the incident which took place on 1st November, 1984 and other prosecution witnesses related to the incident dated 3rd November, 1984 as they have not testified to the incident dated 1st November, 1984. Besides this, PW-1 has not named Ram Lal and Virender in her complaint to the police on the basis of which FIR was registered. She has also deposed that she furnished a list of articles looted by the mob from her house but the prosecution has neither placed any list of looted articles as alleged by PW-1 nor any recovery from any of the accused or from any place in respect of the looted articles has been effected by the Investigating Officer. Thus, there is no corroboration to the testimony of PW-1 regarding the incident of looting/dacoity, which took place on 1st November, 1984. Further, the High Court has failed to appreciate that ingredients of Section 390 IPC are not made out at all in the present case. The High Court did not appreciate the facts of the case because to convict a person in a case of dacoity, there must be a robbery committed in the first place. Further, the High Court erred in law by not appreciating the discrepancies/contradictions in the testimonies of Sushil Kumar (PW-4), Jagdish (PW-6) and Mohar Pal (PW-7), which were rightly appreciated by the trial court while passing the order of acquittal. PW-4 is co-brother (Sadhu) of PW-5. He has admitted in his cross-examination that he had worked as a compounder. According to PW-6, he saw all the accused persons putting the above mentioned two houses on fire, beating and killing the deceased and also putting the dead bodies of the deceased into gunny bags along with many other persons who were also present. He has stated that his statement was recorded within 4-5 days of the occurrence whereas in fact as per the statement of I.O. (PW-9) and as per record his statement was recorded on 30th November, 1984 i.e. after unexplained delay of about 27 days. Learned counsel submitted that there was no recovery of the dead bodies of deceased, namely, Rajinder Singh and Sardool Singh. Besides, the prosecution did not produce any vital/scientific piece of evidence on record before the trial court that any person was burnt alive on 3rd November, 1984 in the premises bearing No. RZ-3/295, Gitanjali Park, Sagarpur, New Delhi. The prosecution had ample opportunities to collect evidence from the place of alleged occurrence like ashes, blood stains etc. to prove the alleged killing and burning of two persons alive. Learned counsel further contended that the High Court did not appreciate the fact that there was a delay of 07 days in lodging the FIR, as the alleged incident had taken place on two different dates i.e. 1st November, 1984 and 3rd November, 1984. As per the version of PW-1, Harjit Kaur, she went to call the police/military assistance on 3rd November, 1984 and she was present in Police Station Janakpuri, but it is an admitted fact that FIR was not lodged by her on 3rd November, 1984 itself. It was further submitted that the High Court also erred in not appreciating that the explanation as a reasoning for justification of delay is not only unjustified but also improper and imaginary one. The reason given by the High Court regarding delay in lodging the FIR is wrong and perverse to the facts and circumstances of the case. It is an admitted fact that PW-1 Harjit Kaur went to call the police and she came back from the police station in a military truck along with officials of Gorkha Regiment, she had enough time to narrate the whole incident to the police, so the denial of PW-1 that she did not narrate the whole incident to the police on 3rd November, 1984 is unbelievable and cannot be accepted in any manner whatsoever. Further contention is that the High Court failed to appreciate that the statement of eye- witnesses, PW-4, PW-6 and PW-7 were recorded after the unexplained delay of 27 days which is fatal to the prosecution case. This fact was meticulously considered by the trial court while acquitting the appellants from all the charges.

24. In view of the aforesaid analysis of the facts and evidence on record, we reach the inescapable conclusion that the High Court correctly appreciated the evidence and reversed the findings of the trial court.

25. For the reasons aforesaid, we do not find any merit in this appeal which is accordingly dismissed.