Sh. Siri Ram Sharma And Others vs State
1994 Latest Caselaw 749 Del

JUDGMENT

P.K. Bahri, J.

1. S/Sh. Siri Ram Sharma, Dharam Raj, Lekh Raj, Rajpal Singh, Suresh and Man Singh Rawat have been convicted of offences punishable under sections 436 and 302 read with Section 149 I.P.C. and for offence punishable under section 147 read with Section 148 of the Indian Penal Code vide judgment dated October 25, 1988 and by an order of the even date, they have been sentenced to undergo rigorous imprisonment for life and pay a fine of Rupees 2,000/- each and in default to undergo rigorous imprisonment for three months more under section 302 read with Section 149 and to undergo rigorous imprisonment for five years and a fine of Rs. 2,000/- and in default rigorous imprisonment for three months each for the offence punishable under Section 436 read with Section 149 I.P.C. and to undergo rigorous imprisonment of two years for offence punishable under Section 147 read with Section 148 I.P.C. each with the direction that substantive sentences shall run concurrently and fine, if realised, shall be paid to the heirs of the deceased. These four appeals have been filed by the said convicts challenging their convictions and the sentences.

2. Counsel for the appellant had informed during the course of the arguments that Lekh Raj, appellant, has since died. We required the State to verify this fact. After the judgment was reserved, the State has now filed the affidavit of Head Constable Rajinder Singh who had made the enquiries and had confirmed that Lekh Raj, appellant, has since died and he has also attached copy of the Death Certificate.

3. Soon after the assassination of Smt. Indira Gandhi, the then Prime Minister of India, on October 31 1984, there had taken place horrendous and shocking wide spread incidents of killing of innocent persons belonging to Sikh religion in Delhi and also at some other places in India. Not only the demons, in the form of human beings, had killed and burnt the Sikhs but had also burnt and looted the houses and the shops of the Sikh persons in some areas of Delhi.

4. The gruesome murders of innocent persons, which took place in three days, required to be investigated seriously and with some sense of urgency so that the culprits, who had committed such heinous crimes could be brought to book. The present case pertains to murder of three young sons of Smt. Mohinder Kaur, PW-1, Wd/o Late Sh. Raghbir Singh and one Sohan Singh Pradhan. Mohinder Kaur along with her three sons namely Jasbir Singh, Sukhbir Singh and Kulvir Singh had taken up residence in House No. RZ-84, Mahavir Enclave Part-II, New Delhi, in about March, 1984. Sohan Singh was in process of constructing a house in the vicinity of the house of Mohinder Kaur and was present in the said premises on the fateful day.

5. It is the case of the prosecution that on November 1, 1984, at about 5.30 p.m. or so, a crowd of hooligans comprising about 500 to 600 persons having 'lathis' and 'sarias' had raided the locality of Mahavir Enclave and they were carrying lighted torches and they burnt houses of Sikhs, their vehicles and they not only dragged the unarmed Sikh males but brutally battered them and killed them and put them to fire and their houses were also burnt and the belongings of the Sikhs lying in the houses and the shops were looted and such a crowd is stated to have forced Sohan Singh, Jasbir Singh and Kulvir Singh to come out from the house of Sohan Singh Pradhan and had killed them and burnt them and the other son Sukhvir Singh of Mohinder Kaur, who was stated to be hiding himself in the adjacent house of a neighbour named Bhardwaj was also forced to come out and was brutally killed and burnt by the said horde of hooligans.

6. Later on Mohinder Kaur deposed in Court that one Harnam Singh, who was also present in the house of Sohan Singh Pradhan, was also killed and burnt in that very occurrence and besides that one more unknown person was killed in the similar manner who was also present in the house of Sohan Singh Pradhan.

7. On November 1, 1984, at about 9.15 a.m., a daily diary report was recorded at Police Station Delhi Cantt. which is D.D. No. 4A (Ex. PW5/A) to the effect that Ravi Shankar, S.I. has, from South Control Room, given a telephonic message that some unknown person had given a call from public telephone intimating that the hooligans were stopping the buses and were indulging in looting from the area of Janak to Nangal Raya. S.I. Suraj Prakash along with Constable Suraj Bhan is stated to have proceeded to the spot. On reaching the said area, Suraj Prakash is stated to have witnessed the hooligans in large number committing various atrocities on the properties belonging to Sikhs and also killing Sikhs and burning them. He found that the people were having sticks which had been turned into burning torches by wrapping the sticks with kerosene soaked clothes and they were burning the properties and throwing the stones at the properties of the Sikhs. He had then sent a Rukka, Ex. PW4/A, incorporating such facts for registration of a case under sections 147/148/436/427/302 I.P.C. read with Section 149 I.P.C. The Rukka was sent at about 6.15 p.m. on the basis of which a case was registered which is F.I.R. 412, copy of which is Ex. PW4/6. Thereafter, there occurred a complete slumber in the police station.

8. We do not find on the record as to what investigation was carried on in respect of this particular F.I.R. and who were the persons who were interrogated in order to find out the identity of the Sikh persons killed and the identity of the culprits. No efforts were made for taking into possession the tell-tale evidence of the havoc caused by the hooligans in the said areas. No site plans were prepared indicating the various houses and shops which were subjected to such inhuman assault by rowdy persons. No effort was made to take into custody any of such rowdies out of the big crowd in order to further investigate as to who had instigated the said crowd to indulge in such commission of heinous crimes. No effort was made to investigate the serious crimes which came to the notice of S.I. Suraj Prakash on reaching the spot. It is not shown that any effort has been made by this S.I. Suraj Prakash to control the said crowd and provide succour to the victims of the assault by such hooligans. In case there was not enough police force available for controlling the crowd, at least an attempt could be made immediately for summoning the help of the army which was available at just a phone call away but unfortunately nothing was done.

9. However, we are to deal with the case as put up by the prosecution against these appellants before the trial court and examine whether the conviction of these appellants is based on legal, cogent and convincing evidence or not.

10. Mohinder Kaur, the star witness set up by the prosecution to bring home the offences against the appellants, had taken shelter along with similarly placed victims of such assaults on their family members and on their valuables in various safe places like schools and Gurudwaras. Mohinder Kaur had taken shelter in Gurudwara Singh Sabha Hari Nagar and some public spirited persons appeared to have reached the victims and had started writing out their versions of the incidents faced by them and Mohinder Kaur gave her version which was scribed by some unknown person and was signed by Mohinder Kaur which is Ex. PW1/A.

11. As a matter of fact, this is the first version given by Mohinder Kaur in respect of the murder of her sons which came to the notice of the police and in law this should have been treated as an F.I.R. instead of showing that this evidence came while investigating the case registered vide F.I.R. No. 412. The contents of F.I.R. No. 412 do not at all indicate that the occurrence pertains to the sons of Mohinder Kaur or to the property belonging to Mohinder Kaur or to the property belonging to Sohan Singh or to the murder of Sohan Singh. Be as it may, this writing Ex. PW1/A came into existence on 14th November 1984. It appears that Mohinder Kaur had no opportunity of giving her version of the occurrence to anyone prior to this date as the circumstances existed then she along with many more persons had to take shelter in a particular place and no one had come from the police side to take their versions and get the cases registered on the basis of such versions so that some scientific investigation could be carried out for bringing home the offences to particular culprits.

12. Be as it may, in this particular writing, Mohinder Kaur mentioned that when the said hooligans wanted to kill her sons, she begged them to spare her young sons as she was a widow but no mercy was shown and they were killed and their house was also burnt and looted. She mentioned that the said crowd was accompanied by some of the persons whom she knew and who were residents of the same locality and she gave the following information in this writing about the said persons :-

1. Lekh Raj;

2. One Gorkha who was having a shop there;

3. Another person who is known as Doctor in that area;

4. Sharma, who was a cashier in a Committee; and

5. Munna, rickshaw-puller.

She mentioned further that she could recognise some persons by faces who were also members of the said crowd which killed her sons and destroyed and looted her property. This particular document is bereft of the details as to how and in what manner her three sons were killed as to whether the three sons were present in her house or were present in neighbouring houses. Even the name of Sohan Singh does not find mention in this writing.

13. The police appears to have come into action on receiving this document which was addressed to the S.H.O. of the Police Station concerned. Sh. Mahinder Singh, who was then posted in Special Investigation Team of South District, PW-8, had taken up the investigation and he prepared site plan PW8/A in respect of the house of Sohan Singh nd also took into possession certain bones and ashes lying in the compound of house No. 90 RZ, Mahavir Enclave Part-II, New Delhi and also in the street. Some other material was also seized which is of no consequence. The memo in respect of the same is Ex. PW8/B. As a routine, he had sent the case property to C.F.S.L. and reports, Ex. PW8/C and PW8/C-1 were received which were totally inconsequential and do not advance the case of prosecution to any logical ends because what was found was that there was a piece of danda, butt of gun and stone piece having human blood of 'O' group and some human hair but no opinion was obtained whether the bones were human bones or of animals surprisingly.

14. Sh. K. K. Sud, Advocate, who appeared for Siri Ram Sharma, had argued that the prosecution has not been able to prove that in fact three sons of PW-1 and Sohan Singh and one unknown person had been murdered. The other counsel appearing for the other accused has not challenged the finding of Additional Sessions Judge on this point. We do not find any merit in the contention raised by Sh. Sud. The testimony of PW-1 that she had witnessed her three sons and Sohan Singh being killed by the said crowd was not challenged in cross-examination. DW-1 also did not say that such occurrence had not taken place, although the expressed ignorance whether Mohinder Kaur had three sons or not. But he did say that Sohan Singh's house and Mohinder Kaur's house were burnt by the said crowd. As there has been no challenge to the testimony of PW-1 in cross-examination that her three sons and Sohan Singh had been murdered, we hold that Additional Sessions Judge was right in coming to the conclusion that such murders had taken place on that date at that time and at those places at the hands of unruly, may be organized, crowd.

15. The case of the prosecution is based on the sole testimony of PW-1, Mohinder Kaur, the unfortunate widow who lost her three young sons in this macabre killings. We are unable to know from the evidence led before the trial court as to how and in what manner the investigating officers had identified the appellants as the culprits with the names of the culprits appearing in the said writing of Mohinder Kaur. The said writing given by Mohinder Kaur contained five culprits who were not fully described and it was incumbent upon the prosecution to have collected sufficient evidence to link the appellants to the particulars of the culprits given in that statement of Mohinder Kaur. We agree with the reasoning of the Additional Sessions Judge that delay occurring in disclosing the names of culprits by PW-1 is quite explainable inasmuch as she must be in a trauma and she had no one to look forward for any held so that she could give her version of the events and on the first opportunity becoming available to her, she gave out her side of the story in the said particular writing.

16. PW-8, Mahinder Singh, the investigating officer, in examination-in-chief, is silent as to how he came to arrest the appellants as the culprits of this case linking with the murder of the said three young sons of Mohinder Kaur and murder of Sohan Singh Pradhan. In such a serious case of murder, keeping in view the exceptional circumstances, it was incumbent upon the prosecution at least to have conducted the case property before the trial court in eliciting all material facts from the investigator who apart from saying that he recorded the statements of the witnesses and arrested the accused did not disclose either in examination-in-chief or in cross-examination as to how he came to identify the appellants as the culprits in this case when there were no descriptions and full name of the culprits available to the police in the said writing of Mohinder Kaur.

17. No efforts have been made by the investigating officer to take resort to test identification parades in order to pin point the identity of the appellants as the culprits of whom some vague description were there in the writing of Mohinder Kaur. The test identification parade might not have been necessary if full particulars of the culprits had been given in the said writing of Mohinder Kaur but when there were no such particulars available and only vague details had been given about the culprits, it was absolutely necessary in this case that the investigation officer ought to have resorted to test identification parades of the appellants so that Mohinder Kaur could pin point the appellants if they were the same culprits whom she mentioned in her writing.

18. What we find in the present case is the testimony of Mohinder Kaur in court in identifying the appellants as culprits when some questions in cross-examination were put to her by S. Khan, who appeared for accused Lekh Raj and then she pointed out that Suresh Dariwala, was having an iron rod in his hand. Dr. Garhwali was having a 'danda' in his hand and cashier Sharma was also having an iron rod whereas Lekh Raj, Head of the colony, who was a property dealer was having a stick in his hand and Rajpal, brother in law of Suresh was having a danda in his hand and Gorkha dukaandar was having a stick. The court has recorded that she had correctly identified the appellants in Court.

19. The learned Additional Sessions Judge had placed implicit faith in the testimony of PW-1 and had convicted the appellants as noticed above. The learned Additional Sessions Judge has forgotten that in law, the witness making identification of the culprit for the first time in Court is not to be made basis for convicting the accused.

20. The Supreme Court in Budhsen v. State of U.P., 1970 Cri LJ 1149 has laid down that as a general rule the substantive evidence of a witness is a statement made in Court and the evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The evidence in order to carry conviction should ordinarily clarify as to how and under what circumstances he came to pick out the particular accused person and the details of the part which the accused played in the crime in question with reasonable particularity. It was emphasised that the purpose of test identification, therefore, is to test and strengthen the trust-worthiness of that witness and it is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who were strangers to them, in the form of earlier identification proceeding. It was further laid down that there may, however, be exceptions to this general rule when, for example, the Court is impressed by a particular witness and whose testimony it can safely rely without such or other corroboration.

21. In Hasib v. State of Bihar, 1972 Cri LJ 233 (SC), it was laid down that the purpose of test identification is to test the statement of the witness made in Court, which constitutes substantive evidence, it being the safe rule that sworn testimony of witness in Court as to the identify of the accused requires corroboration in the form of an earlier identification proceedings. It was also held that such identification parade, which belonged to the investigation stage, serve to provide the authority with material to assure themselves if the investigation is proceeding on right lines and therefore it is desirable to hold them at the earliest opportunity and a further reason is that an earlier opportunity to identify also tends to minimise the chances of the memory of identifying witnesses fading away due to long lapse of time.

22. The importance of holding test identification parade at the earliest at investigating stage where the names of the offenders are not mentioned in the first information report by the eye witness, has been also highlighted by Supreme Court in case of Ramanathan v. The State of Tamil Nadu, 1978 Cri LJ 1137.

23. In case of Kanan v. State of Kerala, , it was held that where a witness identifies an accused who is not known to him in the Court for the first time, his evidence is absolutely valueless unless there has been a previous test identification parade to test his powers of observations.

24. It has been contended on behalf of the State that Mohinder Kaur, in her writing, has mentioned that the said five persons, whose some details were given by her, were known to her as they were residents of locality and thus it was not a case where some unknown persons were being mentioned as the culprits so that the investigating officer ought to have resorted to getting the suspects identified by her in some test identification parade. There is no merit in this contention because full particulars of the culprits had not been given by Mohinder Kaur. She had only given vague particulars which had to be linked with particular culprits and for that purpose if the police had from some secret source learnt that the appellants were the said persons who matched the said particulars, then the easiest way for the investigating officer was to get these appellants identified by PW-1 in some test identification parade to ensure the fairness of the investigation that police was on the right track in identifying the culprits of this case. But unfortunately, nothing of this sort was attempted to by the Investigating officer.

25. If appears that police perhaps had got appellants identified as the culprits from PW-1 in the manner that after arresting the appellants they were shown to PW-1 at the police station and her supplementary statement is stated to have been recorded, copy of which is Ex. PW1/DB but PW-1 categorically stated that she never made any such identification of the appellants as the culprits at any time in the police station and she never gave any statement, copy of which is Ex. PW1/DB. In Ex. PW1/DB, the names of the appellants and their father's name and their addresses have been incorporated. Significantly enough, PW-8, who had allegedly got identified the appellants as culprits in this case by PW-1 and had recorded her statement, Ex. PW1/DB has not even supported this part of the prosecution case in his testimony. He has not made any reference to such facts in his testimony in Court.

26. However, in the present case, in case the prosecution had, in investigation, collected some evidence to show how PW-1 connected the appellants with the description of the culprits given in her writing dated 14th November 1984 and the said evidence had been produced in the trial, there could be then, in that case, held that perhaps the test identification parade was not required as PW-1 claimed to have known these culprits by their short names or by their holding some offices in the mohalla committees and thus, there was no need for putting the culprits in any test identification parade but in this case no such evidence has been at all collected either in investigation or produced in the trial to indicate how Mohinder Kaur came to connect the appellants with the insufficient details of the culprits given in the writing dated 14th November 1984.

27. It has been held in Mohanlal Gangaram Gehani v. State of Maharashtra, that if the accused is not known to the eye witness, then identification of such accused by the eye witness for the first time in Court is valueless and it cannot be relied upon.

28. In Ramji Surya v. State of Maharashtra, 1983 Cri LJ 1105, the Supreme Court has held that there is not doubt that even where there is only a sole eye witness of a crime, a conviction may be recorded against an accused provided the Court which hears such witness regards him as a honest and truthful but prudence requires that some corroboration should be sought from other prosecution evidence in support of testimony of a solitary witness particularly where such witness also happens to be closely related to deceased.

29. The learned Standing Counsel for the State, Mr. P. S. Sharma, contended that mere fact that PW-1 is the only witness in the case and is also relation to the deceased is no ground to discard here testimony regarding the identity of the appellants as the culprits. He has placed reliance on State of Gujarat v. Naginbhai Dhulabhai Patel, . It is held in this judgment that mere fact that witnesses were relations of the accused would not by itself be sufficient to discard their evidence straightway unless it is proved that their evidence suffers from serious infirmities which raise considerable doubt in the mind of the court.

30. As narrated above, Mohinder Kaur in her written complaint dated 14th November 1984, had only given name of Lekh Raj while had given some particulars of other culprits, whose names she perhaps did not know. It is only in Court, for the first time, that she had connected those in sufficient particulars of the culprits with the appellants. She admittedly had come to that particular locality for residing a few months prior to the occurrence and for these reasons, it was very incumbent on the prosecution to have collected more evidence to link the appellants with the said particulars of the culprits given in the written complaint by PW-1.

31. There have been made certain embellishments by PW-1 in her testimony in Court from what she had mentioned in her first complaint. There was no mention of her two sons having taken shelter in the house of Sohan Singh and her third son having hidden himself in the house of Bhardwaj in that complaint and she gave these details in Court. She also made a statement that the crowd had opened a window of the house of Sohan Singh and had thrown some inflammable material in the house for setting the house on fire. This also does not find mention in her statement made to the police. The name of Narnam Singh as one of the victim had not figured in her police statement with which she was duly confronted. In her first complaint, there is no mention about Suresh Dariwala and his brother-in-law. In Court, when she was asked to identify Dharam Raj, she pointed towards Rajpal and then again stated that he was not Dharam Raj but she did not identify Dharam Raj in Court.

32. As a matter of fact, the names of Suresh and his brother-in-law Rajpal do not figure in her first complaint. In the first complaint, she had mentioned that she could identify some more culprits from their faces. If that was the position of PW-1, it was again necessary that she should have been asked to identify the culprits in some test identification parade. In cross-examination, at one stage, she stated that she had made enquiries from the residents of the area and someone, whose name she did not recollect, told her that Suresh and his brother-in-law were also among the said crowd. It means that she is not even sure whether Suresh and Rajpal were the actual culprits or not.

33. According to prosecution, PW-1 had made some more detailed statement on 10th January 1985 wherein she had given the names of Suresh and Rajpal. Now from her testimony in Court, it appears that the gave those names to the police on the information being supplied by some other person. If that is so, it is not understood how such shaky evidence of PW-1 could be given credence for bringing home the offences to the appellants. If her testimony had been without blemish on core of the prosecution case, the Court might have been justified in placing complete reliance on such testimony of a single witness for bringing home the offences to the appellants, but, unfortunately, such is not the case here.

34. We are not satisfied that the identity of the appellants as the culprits who perpetrated the ghastly crimes has been established so as to bring home the offences to the appellants. There is no evidence that there is only one Lekh Raj in the said locality and there is only one cashier in the said locality and there is only one doctor in that locality and there is only one Munna rickshaw-puller in that locality and the appellants are known by such designations in the locality.

35. We, hence, hold that Additional Sessions Judge was not justified in convicting the appellants for the aforesaid offences on mere identification of the appellants as the culprits by PW-1 in the Court for the first time.

36. It has been also pointed out that 313 in examination under Section of Shree Ram Sharma, appellant, no question had been put to him that he was cashier of any committee and it has been held in Shivaji v. State of Maharashtra, that such material evidence appearing against the accused has to be put to the accused for his explanation when accused is examined under section 342 of the old Criminal Procedure Code which is equivalent to Section 313 of the new Criminal Procedure Code.

37. It is true that unless it is shown that some prejudice is caused to the accused for omission to put such material question to the accused under the said provision, the same would not be fatal to the prosecution case. Be as it may, keeping in view the discussion above, we come to the conclusion that prosecution had not been able to bring home the offences to the appellants beyond reasonable doubts.

38. We allow the appeals except appeal No. 122/88 of Lekh Raj & set aside the convictions and sentences of the appellants and acquit the appellants of the charges. Appellant, Lekh Raj, of Cr.A. 122/88 has died & hence his appeal is dismissed as abated. The appellants are on bail. Their bail bonds are discharged.

39. Order accordingly.