Kishori vs State (Nct Of Delhi)
2001 Latest Caselaw 675 Del

ORDER

Usha Mehra, J.

1. Kishori, the appellant has been found guilty under Section 148 and under Section 302 IPC by the learned Additional Sessions Judge. Accordingly, he has been sentenced to three years rigorous imprisonment under Section 148 IPC and a fine of Rs.5,000/-, and in default of payment of fine he shall further undergo one year's rigorous imprisonment. He has been awarded life imprisonment under Section 302 IPC and fine of Rs.25,000/-, in case of default of payment of fine, to further undergo rigorous imprisonment for two years. Of course, he has been granted the benefit of Section 428 Cr.P.C.

2. The Sessions Case No.55/95 had part of the main riot case bearing FIR No.426/84. On the basis of the statement of Raj Bai, the complainant, a case was registered for rioting, unlawful assembly and for the murder of her sons in which the challan was filed against one Ram Pal Saroj, the accused. Per the statement of Raj Bai dated 25th January, 1985, on 1st November, 1984 around 6.00/7.00 P.M. in the evening a big crowd of rioters came and dragged out her son Darshan Singh aged 20 years and then struck him with lathi and iron rods and then sprinkled kerosene oil over him and then set him ablaze. The rioters burnt her house and looted her articles. According to her, it was accused Ram Pal Saroj who was getting all these things done. He was stating that the names of the Sikhs should be erased from Delhi. On the basis of this statement of Smt. Raj Bai, charge was framed against Ram Pal Saroj under Section 188/148/302/397/436 IPC read with Section 149 IPC. Ram Pal Saroj pleaded not guilty and, therefore, claimed trial. In her statement under Section 161 Cr.P.C. she only accused Ram Pal Saroj. She did not name any other person as accused. However, when Raj Bai appeared in the witness box as PW-2 on 15th January, 1996, she stated that in November, 1984 she was living at house no.32/70, Trilok Puri, Delhi along with her three sons Raju Singh, Punu Singh and Darshan Singh along with her husband, daughters and daughters-in-law. On 1st November, 1984 the riot started in the morning at 10.00 A.M. The Sikhs and non-Sikhs were pitched against each other. At about 3.00 P.M., two police persons came at the spot and told Sikhs that they should go to their respective houses. Those police persons assured the Sikhs that they would deal with the rioters and make them go away to their houses. On this assurance of the police people, Sikhs came to their houses. She along with her sons, daughters-in-law and daughters was sitting in her house when at about 4.00 P.M. a large number of rioters attacked her house. They were armed with "lathies" and "barchhas". Out of those rioters she could identify one Kishori. According to her these rioters killed her three sons. Her husband ran away from the house. Her sons were beaten and thereafter the rioters sprinkled petrol on them and set them on fire.

3. On the basis of this statement made by her in the court, the learned Addl.Sessions Judge came to the conclusion that accused Ram Pal Saroj was not the accused but in fact it was Kishori. Kishori was the accused as identified by the witness. Learned Addl. Sessions Judge acquitted and discharged Ram Pal Saroj because he found that there was no other public witness cited by the prosecution. The appellant Kishori was summoned to face trial. After Kishori was summoned charges were framed against him. The witness was recalled after framing the charge. Raj Bai re-appeared as PW-2. Her statement was recorded on 15th April, 1996 wherein she reiterated her earlier statement and stated that she could identify Kishori to be the person who killed her sons. She admitted in cross examination that beside giving the name of Ram Pal Saroj as accused she also gave the name of Kishori in her complaint to police under Section 161 Cr.P.C.

4. The challenge in this appeal is whether the learned Addl. Sessions Judge could summon the appellant on the basis of the statement made by the complainant in the court particularly when she had not named the appellant but named one Ram Pal Saroj as the accused. The learned Addl. Sessions Judge while summoning this appellant did not assign any reason. He passed a very cryptic order which is apparent from the perusal of the proceedings dated 15th March, 1996 which are reproduced as under:-

"Pr: SPP for the State Accused on bail.

Raj Bai, witness has been examined. Witness during her statement deposed that it was Kishori who was among the rioters and her three sons were killed by rioters including Kishori. She has not named Ram Pal Saroj as the accused so Ram Pal Saroj is acquitted in this case and left Kishori be summoned to face the trial. Issue B/W of Kishori to the tune of Rs.5000/- for 26.3.96."

5. By the time the above order was passed the appellant Kishori was not before the Court nor any particulars of identification of the said Kishori were furnished on the basis of which summon was ordered to be issued to the appellant.

6. The learned Additional Sessions Judge could deal with the sessions case on the basis of accused named in the charge-sheet. However, the only other provision which the learned Addl. Sessions Judge could invoke for summoning a person other than named in the charge sheet in Section 319 Cr.P.C. which is reproduced as under:-

"Section 319. Power to proceed against other persons appearing to be guilty of offence.

(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the court may proceed against such person for the offence which he appears to have committed.

(2) Where such person is not attending the court he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

(3) Any person attending the court although not under arrest or upon a summons, may be detained by such court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.

(4) Where the court proceeds against any person under sub-section (1) then-

(a) the proceedings in respect of such person shall be commenced afresh, and witnesses re-heard:

(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the court took cognizance of the offence upon which the inquiry or trial was commenced."

7. In order to apply the provisions of Section 319 Cr.P.C., it essential that the need to proceed against the person other than the person charged, appearing to be guilty of offence arises only on evidence recorded in the course of enquiry or trial. In this case the evidence of Ran Bai was recorded and, therefore, summons were issued. But what we have to see is whether before issuing summons under Section 319 Cr.P.C. did the Addl. Sessions Judge came to a conclusion that there was sufficient material before him to summon the appellant. Admittedly an accused cannot be summoned by a cryptic order like the one passed in this case by the learned Addl. Sessions Judge and as reproduced above.

8. Admittedly Kishori, the appellant was not named by the complainant when her statement under Section 161 Cr.P.C. was recorded. As per learned Trial Court's observations there was no other public witness cited by the prosecution nor available who had named Kishori to be the accused. In similar circumstances a Division Bench of this Court in case State Vs. Kishori. Murder Reference No.4/96 decided on 24th October, 1997 observed that:-

"The power under Section 319 Cr.P.C. is not to be exercised in routine. Such a power is required to be exercised sparingly.

9. In that case also Kishori was summoned by the Court by invoking the provisions of Section 319 Cr.P.C. on the basis of the statement of the complainant Devi Bai recorded in Court in a Sessions Case. In that case also Devi Bai had not named the accused Kishori in her statement made to police under Section 161 Cr.P.C. For the first time in Court she named Kishori to be the accused. It was in this background that Division Bench observed that there were material contradictions on the vital aspect in her statement to police and made in the Court hence set aside the conviction which was based on the sole testimony of Devi Bai.

10. The observation of the Division Bench in Murder Reference No.4/96 squarely applies to the facts of this case. In the present case also the complainant in her statement to the police under Section 161 Cr.P.C. had not named Kishori even remotely. She categorically stated that it was Ram Pal Saroj at whose instance her three sons were murdered. Ram Pal Saroj was arrested and he faced the trial for nearly 12 years. At no stage she came forward and stated that it was not Ram Pal Saroj but was Kishori. It was not prosecution's case that at the first available opportunity Raj Bai named this appellant. She had not filed any affidavit before any of the Commissions set up by the Government for this purpose namely Justice Ranganath Commission and the other set up by the NCT of Delhi namely Justice Kapoor and Aggarwal Commission. It is after almost 12 years that for the first time when she stepped into the witness box on 15th March, 1996 she named Kishori to be the accused. In her cross examination recorded on 15th April, 1996, she stated that she had given the name of Kishori apart from giving the name of Ram Pal Saroj. In her own words she said:-

"I had in my statement given the name of Kishori apart from Ram Pal."

11. In spite of her admission in cross examination that she gave the name of Ram Pal Saroj as accused still the learned Addl. Sessions Judge acquitted the said Ram Pal Saroj by observing that from the statement of the victim it transpired that Ram Pal Saroj was not the person but it was Kishori. This observation is contrary to the admission made by the complainant (PW-2) herself. Moreover, the investigating officer categorically denied that the complainant named Kishori or he omitted to record his name in her statement under Section 161 Cr.P.C. According to the I.O. he correctly recorded the statement of victim Raj Bai. Therefore, on the sole testimony of Raj Bai made after 12 years in the court, it would be unjust to convict the appellant relying on the sole testimony of Raj Bai. In similar circumstances the Division Bench of this court in the case of Ved Prakash and Ors. Vs. State Volume IV (1997) CCR 384 observed that the entire prosecution case when hinges on the sole testimony of the complainant and no other witness deposed about the accused amongst the rioters then it would not be proper and just to rely on it.

12. From the above it is apparent that there was no material on record in support of the conclusion of the Additional Sessions Judge, therefore, it would be unsafe relying on the sole testimony of the complainant to convict the accused whom she named after more than 12 years of the date of the occurrence for the first time in the court.

13. For the reasons stated above we are of the view that on the facts and circumstances of this case to convict the accused for the offence under Section 302 IPC on the sole testimony of Raj Bai coming for the first time in court after almost 12 years of the occurrence would not be safe. There is no other witness produced to show that the accused, the appellant herein participated in the riots or in the unlawful assembly, therefore, on that account also the conviction under Section 148 IPC cannot be sustained. We accordingly allow this appeal, set aside the impugned conviction and sentence of the appellant under Section 148 IPC as well as under Section 302 IPC. The appellant be released forthwith unless required in any other case. Order be conveyed to the appellant in Jail through the Superintendent, Central Jail, Tihar.