Mahender Singh Yadav vs Central Bureau Of Investigation
1997 Latest Caselaw 1086 Del

JUDGMENT

Jaspal Singh, J.

(1) This case too relates to the riots of 1984 witnessing large scale killings of innocent members of a minority community in the wake of assassination of the then Prime Minister of the country. The learned Additional Sessions Judge, by his order dated 29th August, 1996 held that prima facie case for framing of charges was made out against all the accused persons including the two petitioners before me namely Dr. Mahender Singh Yadav and Satbir Singh. Consequently charges were framed against all the accused persons (including the petitioners) under sections 143/147/148/149/201/302/435/436/445/395 and 153A of the Indian Penal Code. The petitioners, however, feel that no prima facie case is actually made out for framing of those charges. Hence this revision petition by them.

(2) MR.SONI who appeared for the petitioners drew my attention to the statements of the prosecution witnesses recorded under section 161 and contended that none of them had said a word against the petitioners and that, consequently there was no justification for framing of the charges.

(3) Is it so?

(4) Before I proceed to deal with the contention of the petitioners let me give a resume' of the case emerging from the statements recorded under section 161 of the Code of Criminal Procedure.

(5) The prosecution alleges that on November 1, 1984 at about 9 a.m. a meeting was held which was attended by the petitioners also [See Public Witnesss Prem Kaur, Jatan Kaur and that in the said meeting Sajjan Kumar, former member of Parliament (one of the accused persons) had exhorted the audience to kill the Sikhs, burn their houses and loot their belongings, and that those belonging to the locality and present at the meeting were raising slogans like Indira Gandhi Zindabad, Sikho ko Maaro (kill the sikhs), Sikho Ke Ghar on Ko Lotto aur Jalao (loot and burn down the houses of the Sikhs). Not only this, they wanted Sikh children also to be killed. The same day at about 3 p.m. the same persons (Yahi Logon Ne) (See Public Witness Jatan Kaur) led by Sajjan Kumar set the Gurudwara building on fire, killed Jatan Kaur's husband, son and a nephew and after looting her house, set it on fire. The same persons killed the other Sikhs also after dragging them out of their houses and looted and burnt their houses (See Public Witness Jatan Kaur). Navin Singh too was dragged out of the house and was attacked with a ballam and later set ablaze (See Public Witnesss Anwar Kaur, Phota Singh and Wazir Singh). His house too was set on fire.

(6) If the statements recorded by the prosecution are read as a whole they would show that a mob had collected under the leadership of Sajjan Kumar, that the mob led by him was raising anti-Sikh slogans and wanted the Sikhs killed, and their houses looted and burnt down and that the same very mob which comprised of the petitioners also burnt a Gurudwara, looted and burnt down houses, dragged Sikhs out of their houses and brutally killed them. One of those unfortunate Sikhs happened to be Navin Singh.

(7) It is true the widow of Navin Singh has not specifically named the petitioners as being members of that unlawful assembly but then she has not ruled out their presence either. She has named a few persons specifically and has said that there were others also. That the petitioners were the members of that unlawful assembly finds support from the statements of Wazir Singh and Jatan Kaur when read together. Wazir Singh has stated in clear and unambiguous terms that Mahender Singh Yadav (who, admittedly is also known as Dr.Ganga Ram) was a member of the unlawful assembly which was raising slogans like "Sardar Logon Ko Maar Do". (Kill the Sikhs) "Kisi Bhi Sardar Purush Wa Bachhon Ko Mat Chhodo" (do not spare any grown up Sikh or Sikh children), "Khoon Ka Badla Khoon (blood to be avenged with blood) and that Sajjan Kumar was exhorting them to kill the Sikh and to burn down their houses. It is also in his statement that the same assembly of persons had started killing the Sikhs, looting their houses and burning them down and that the same "bheer" (mob) had attacked Navin Singh. Significantly, he nowhere states that Mahender Singh Yadav had left or had ceased to be a member of that "bheer" (mob).

(8) It was contended by Mr.Soni that as Wazir Singh, towards the end of the description of the events had said that : "Is Bheer Mein Sarv Shri Nathu Pradhan, Hanuman Ration-wala, Sis Ram Halwai, Gupta Tel-wala, Uddal Jaat, Peeriya Aadi Parmukh The" Therefore, it must be taken that he had excluded the presence of Mahender Singh Yadav. I think this is misreading of his statement. He first makes it clear that Mahender Singh Yadav was a member of that unlawful assembly by saying:

"PAASA ane Per Pata Challa Ki us Bheer Mein Shri Sajjan Kumar Tat kaleen Sansad Sadasya Ke Allawa Hamare Hi Mohalle Ke Kuch Log Jaise Ki Brahmanand Gupta (Gupta Tel-wala), Jai Bhagwan Gupta, Nathu Pradhan, Hanuman Ration-wala, Peeriya, Uddal, Sis Ram Halwai, Dr.Ganga Ram, Rajender, Islam Aadi The. Iske Allawa Bheer Mein Wahan Ke S.H.O. Shri Bhatia Ko Bhi Dekha Jo Ki Kafee Sakriya The" (on their (the mob) coming closer I found that besides Sajjan Kumar former member of Parliament some other persons of our Mohalla (locality) like Brahmanand Gupta (Gupta Telwala), Jai Bhagwan Gupta, Nathu Pradhan, Hanuman ration- wala, Peeriya, Uddal, Sis Ram Halwai, Dr.Ganga Ram, Rajendra, Islam etc. and the S.H.O. of the local Police Station were also quite active participants).

Thereafter Wazir Singh gives description of killings etc. by that "bheer" (mob) and then proceeds to say that that very mob (Is Bheer) then attacked Navin Singh. After describing all that, Wazir Singh said: .ls1

"IS Bheer Mein Sarv Shri Nathu Pradhan, Hanuman Ration-wala, Sis Ram Halwai, Gupta Tel-wala, Uddal Jaat, Peeriya Aadi Parmukh The " (In that very mob S/Shri Nathu Pradhan, Hanuman Ration-wala, Sri Ram Halwai, Gupta Tel-wala, Uddal jaat, Piria etc. were the leading participants.)

(9) The use of the expression "Aadi" would show that the said persons were not the only participants and that there were others also. The use of the expression "Pramukh the" also shows that Wazir Singh was not excluding others like Mahender Singh Yadav whom he had already named earlier as quite an active member of the mob. In fact what has been reproduced above only shows that he was only highlighting the roles played by the said participants also. That Mahender Singh Yadav, petitioner was a member of that unlawful assembly is further borne out from the fact that after having named Nathu Pradhan etc. as being "Pramukh", he proceeds to assert that Mahender Singh Yadav alias Dr.Ganga Ram was personally known to him. Had he not been a member of that mob there would have been no need for him to assert that Mahender Singh was known to him from before. The portion reproduced above and relied upon by Mr.Soni thus does not exclude the presence of Mahender Singh.

(10) True, Wazir Singh has not named Satbir, the second petitioner. However, Public Witness Jatan Kaur has specifically named him as a member of the unlawful assembly and clearly asserts that at about 3 p.m. "Yahi Logon Nai (These very persons) (an expression which would include Satbir, petitioner) burnt down the Gurudwara and that later the same mob (Usi Bheer) killed her husband, son and nephew, burnt down her house and thereafter killed other Sikhs and burnt down their houses. What is of significance is that she also specifically named Dr.Ganga Ram as a member of that unlawful assembly and claims to have known both of them from before.

(11) We have also the statements of other persons including the statement of the widow of Navin Singh and though they do not name the petitioners, they lend support to the prosecution version as to how anti-Sikh feelings were inflamed and how innocent Sikhs were butchered and their property was looted and burnt down with the active connivance of the local police. They, thus unfold a sordid tale of arson, loot and murders by a few. A tale that puts the entire Nation to shame.

(12) It is no stage to dissect the evidence and to analyse it critically or analytically. We have to see only as to whether a prima facie case for charge is made out against the petitioners or not and to arrive at such a conclusion the tenor of the entire evidence has to be seen and looked at from that angle and by doing so, I do feel the order framing charges against the petitioners is pre-eminently justified.

(13) It was contended by Mr.Soni that widow of Navin Singh and some other witnesses too had not named the petitioners. So what? It is but natural that the testimony of the witnesses may not be identical. What is material is whether the basic features of the occurrence have been similarly viewed in a manner which tallies with the outcome of the riot.

(14) It was also argued that no overt act is ascribed to the petitioners. How does it matter when we know that mere presence in the unlawful assembly may fasten vicarious criminal liability under section 149 of the Code? And this presence, prima facie, stands established.

(15) However, as far as the charge under section 201 of the Code is concerned, I do feel that there is no material on the record to prima facie show that the petitioners were in any way connected with the disappearance of the body of Navin Singh. Charge under section 201 as against the petitioners thus stands quashed. However, other charges stand and stand firmly. The revision petition is decided accordinly. However, nothing said in this order shall be taken as an expression of opinion on the merits of the case.