Kishori vs State, Government Of National ...
1997 Latest Caselaw 920 Del

JUDGMENT

Y.K. Sabharwal, J.

(1) The Court of Sessions has held that Kishori and Ram Pal Saroj were foremost amongst the rioters mob in leading the rioters mob to the various Sikh houses and they and other rioters had common object of killing Sikhs, burning their properties and liquidating them from Block No. 32 Trilok Puri. It has also been held that Kishori and others formed unlawful assembly which was carrying deadly weapons and that Kishori is guilty of offence under Section 148 Indian Penal Code, and for offence under Section 302 read with Section 149 for the murder of Balwant Singh son-in-law of Indro Public Witness -2.

(2) Ram Pal Saroj died during the trial. Kishori for offence under Section 148 Indian Penal Code has been sentenced to undergo rigorous imprisonment for three years and a fine of Rs. 5,000.00 and in default to further undergo rigorous imprisonment for two months. For offence under Section 302 Indian Penal Code, Kishori has been awarded death sentence subject to confirmation by this Court. The death sentence is subject matter of Murder Reference No. 5/96. Kishori has challenged his conviction and sentence by preferring Criminal Appeal.

(3) Initially only Kishori was charged on 8th November, 1995 for having committed offences punishable under Sections 188, 148 and Sections 354 Indian Penal Code for having disobeyed on 1st November, 1984 the prohibatory curfew orders promulgated under Code of Criminal Procedure by Commissioner of Police, Delhi and by such disobedience the accused having caused riot near 32/67, Trilok Puri; the accused alongwith unknown persons having formed unlawful assembly the common object of which was to kill Sikhs, loot and burn their properties and that on the same date and time and place accused along with unknown persons having criminally assaulted Smt.Indro wife of Surat Singh with intent to outrage her modesty. After framing the aforesaid charge, the case was adjourned to 8th December, 1995 for prosecution evidence. On 8th December, 1995 witnesses had not been served, the case was adjourned to 10th January, 1996 for the purpose of recording prosecution evidence. On 10th January, 1996 the statement of Public Witness -1 Head Constable Hoshiar Singh was recorded. Since witness Indro had been served but she did not appear, the Court on 10th January, 1996, directed issue of bailable warrants for her presence and adjourned the case for prosecution evidence to 29th January, 1996. On 29th January, 1996 Ram Pal Saroj who was present before Sessions Court in another case was also arrayed as an accused in the present case and arguments on charge were heard and the case was adjourned to 30th January, 1996 for orders on charge. The orders passed on 29th January, 1996 read as under: 29.1.96 Pr:-Accused is present in bail Case is pending today for evidence against accused Kishori in respect of whom challan was forwarded to this Court. Before recording evidence it has come to my notice that the witness in her statement U/s 161 Criminal Procedure Code . had named two accused persons, namely, Ram Pal and Kishori as these who were among the rioters and who had committed rioting killing of Sikhs, looting of property etc. however charges have only been framed against Kishori. Ram Pal Saroj has been made accused in the challan. Ram Pal Saroj is present in the Court in another case and he is arrayed as an accused in this case also. He is facing trial in several other riot cases. He is facing trial in several other riot cases. He is also directed to face riot cases regularly. Copies given today. Arguments on charge heard. Put up for orders on charge for 30.1.96. Asj

(4) The amended charge was framed on 30th January, 1996 against Kishori. Additional charges under Section 326 read with Section 149, Section 436 read with Section 149 and under Section 397 Indian Penal Code were framed. Further it appears that charge under Section 354 Indian Penal Code framed on 8th November, 1995 was dropped since charge under that Section was not framed on 30th January, 1996. On 30th January, 1996 the case was directed to be put up for prosecution evidence on 26th February, 1996. On 26th February, 1996 Indro though served did not appear and for this reason the case was adjourned to 11th March, 1996 directing issue of bailable warrants in respect of Indro. On 11th March, 1996 the case was adjourned to 4th April, 1996 because Ram Pal Saroj had changed his counsel who was not available and further for the reason that the witnesses had also not appeared on that date. On 4th April, 1996 statement of Public Witness -2 Indro was recorded. She was cross-examined by counsel for both the accused and the case was adjourned to 15th April, 1996 since Sr.Public Prosecutor stated that he wanted to make an application for amendment of charge. On 15th April, 1996 an application for amendment of the charge was accepted and charge under Section 302 Indian Penal Code was framed. Thus the charge amended on 30th January, 1996 was further amended. On 15th April, 1996 charges were framed against the accused persons under Section 302 Indian Penal Code read with Section 149 Indian Penal Code for killing of Balwant Singh, son-in-law of Indro.

(5) The prosecution has examined 7 witnesses. The entire case of the prosecution, however, hinges upon the testimony of Public Witness -2 Smt.Indro. The other prosecution witnesses are formal.

(6) Learned counsel for the Kishori vehemently contends that the only alleged eye witness Public Witness -2 Indro is not worthy of credence since she was closely related to Balwant Singh being her mother-in-law and was thus interested in securing the conviction of his client and also that there is no corroborative evidence on record. There is, however, no bar in basing conviction on the sole testimony of an interested person so long as the testimony of such a witness is worthy of credence, trust worthy and can be safely relied upon. The testimony of such a person is required to be examined with utmost care and caution. The testimony of such an eye witness can be the basis of conviction without any corroboration. Therefore, we will examine whether there are any material contradictions or discrepancies in the testimony of Public Witness -2 on the vital aspect of case as contended by learned counsel for Kishori.

(7) As per charge framed, Balwant Singh is stated to have been killed on 1st November, 1984 but as per extracts from the Death Register Ex. 7/A the date of his death is 2nd November, 1984. Entry in the death register was made on 19th February, 1985 on the information given by Maya Kaur wife of Balwant Singh.

(8) While dealing with the contention that there are material contradictions in the testimony of Public Witness -2, learned Additional Sessions Judge says that "there are no contradictions in her testimony of 4th April and 2nd September, 1996. However there is one contradiction in the statement under Section 161 and testimony given in Court. This contradiction is only in respect of the fact that in 161 statement Balwant Singh has been shown as grievously injured, while in Court she had stated that Balwant Singh was killed". While dealing with entries in the Death Register, learned Additional Sessions Judge says "at serial No 135 the death of Balwant Singh has been registered, he has been shown to have died on 2nd November, 1984. The registration has taken place on 19th February, 1985. He has shown to have died in riots at 32/67 Trilok Puri. The entries in the death register were made on the basis of an affidavit of Maya Kaur wife of deceased. Entries are Ex.PW-7/A".

(9) The learned Additional Sessions Judge, has, however, brushed aside the aforesaid contradictions by observing that "it is not the case of the accused that Balwant Singh died sometime later and did not die during the riots. No such suggestion has been given to the witness nor the accused has sought to produce any defense evidence to show that Balwant Singh was only injured during the riots and died lateron".

(10) An elementary principle of Criminal Law is that the prosecution has to bring home the case against the accused beyond reasonable doubt and it is not for the accused to set up a case or to lead defense evidence as suggested by learned Additional Sessions Judge. There was no obligation on the accused to prove as to when Balwant Singh died or to give suggestion to the witness as held by learned Additional Sessions Judge. As already noticed, on the basis of statement made in Court for the first time in 4th April, 1996, the charge was amended to include the charge of 302 Indian Penal Code against the accused. The prosecution has not set-up the case that Public Witness -2 had ever stated prior to 4th April, 1996 about the death of Balwant Singh in the manner stated for the first time in Court after more than 11 years.

(11) Another vital discrepancy in the case of the prosecution is about non-examination of Maya Kaur on the basis of whose affidavit, entry Ex.Pw-7/A was made in the death register. It became all the more necessary to examine her in view of the fact that the learned Additional Sessions Judge had noticed that Indro in statement under Section 161 Criminal Procedure Code stated that Balwant Singh had been shown as grievously injured.

(12) Further learned Additional Sessions Judge has held that "it cannot be said that this witness (Public Witness -2) is the only and sole witness about the participation of the accused during the riots". For coming to this conclusion, learned Additional Sessions Judge has stated that the accused is facing trial of murder of several persons and the wives, mother and near relatives of those male members who have been killed, have testified about the participation of the accused in the riots and the manner in which accused went on killing spree during the riots. The evidence led by the prosecution in the present case alone can be taken into consideration for sustaining the conviction of the accused and not what witnesses may have deposed in other cases. The approach adopted by the Trial Court cannot be sustained.

(13) PW-2 had stated that her husband had received injuries and was in hospital for 7 days but she did not even enquire about his well being. The explanation given by her is that at that time she was worried about her children and was not in senses to enquire about her husband. The explanation does not appear to be satisfactory and raises doubts about the prosecution case keeping in view the facts and circumstances of the case. This is an additional reason in the present case where we think it is not safe to base conviction on sole testimony of Public Witness -2.

(14) For the aforesaid reasons, we allow the appeal, set-aside the impugned judgment and acquit the appellant. Murder Reference No. 5/96 is disposed of accordingly.

(15) The appellant, if in custody, shall be released forthwith unless wanted in any other criminal case.