State vs Lal Bahadur And Others
2008 Latest Caselaw 1451 Del

             IN THE HIGH COURT OF DELHI AT NEW DELHI

                     Criminal appeal No.6/1992


                    Date of Decision: August 27 , 2008

     State                             ..............Appellant

                            Through: Mr.Sunil Sharma, Adv.

                            Versus

     Lal Bahadur and Ors.              ...........Respondents

                             Though: Mr.R.N.Vats, Adv.

CORAM:
HON'BLE MR.JUSTICE MANMOHAN SARIN

HON'BLE MR. JUSTICE S.L. BHAYANA

1.      Whether reporters of local paper may be allowed to see the `
        judgment? Yes

2.      To be referred to the reporter or not? Yes

3.      Whether the judgment should be reported in the Digest? Yes


                               JUDGMENT

S.L. BHAYANA, J.

The present appeal has been preferred by the State against

the judgment dated 31.10.1990, in Sessions Case No.12/1988, by

which the learned Additional Sessions Judge acquitted the

respondents herein giving benefit of doubt and holding the

prosecution to have failed to prove its case beyond all shadows of

doubt. Respondents were acquitted from charges under Sections

147/149/449/436/302/395/396 IPC in respect

of FIR No.421/1984, PS Delhi Cantt. by the learned Sessions Judge,

noticing, inter alia, delay in lodging FIR, non-mention of names of

respondents-Virender and Ram Lal in the FIR as well as in the

complaint. Further the factum of witnesses being interested

witnesses coupled with delay in recording of statements of PW-4,

PW-6 and PW-7 of 27 days. The State preferred the present appeal

and leave to appeal was granted by this Court on 15.01.1992.

2. This case is a sequel to the riots, which followed the

assassination of late Prime Minister-Indira Gandhi on 31.10.1984

wherein Rajinder Singh and Sardool Singh were reported to be

murdered. Dead bodies of both could not be found.

3. Mr.Sunil Sharma, appearing on behalf of the State, in

support of the appeal, submitted that in this case there are as many

as five eye witnesses, namely, PW-1, Harjit Kaur, PW-4, Sushil

Kumar, PW-5, Dr.Harbir Sharma, PW-6, Mr.Jagdish Kumar and PW-

7, Mr.Mohar Pal Singh. He submits that despite the testimonies of

these eyewitnesses, the Sessions Judge has chosen to acquit the

respondents.

4. The case of the prosecution is that Harjit Kaur, who was

residing at House No. RZ-1/295 Geetanjali Park, West Sagarpur,

New Delhi, apprehensive of harm to her family, had sent both her

daughters and a son to her father Shri Govind Singh's house at BE-

7, Hari Nagar, New Delhi. In her complaint lodged on 7.11.1984,

she stated that a mob including respondents Lal Bahadur alias Lal

Babu along with Surinder Pal Singh and Charan(has not been

challaned by the police), who lived in her neighbourhood, had

attacked her house and looted household articles on 01.11.1984 at

about 9/9:30 AM. Bed and sofa were left while all valuables

including cash and jewellery were looted. In her statement before

the Court, Harjit Kaur stated that she saw Lal Bahadur and Ram Lal

and Virender looting her house and also identified Surinder as part

of the mob looting her house on 01.11.1984.

5. Fearing threats of communal violence, following the

death of Smt.Indira Gandhi, Harjit Kaur and her family had taken

shelter at the residence of Dr.Harbir Singh Sharma, who was a

prominent member of the society and had his house opposite to

that of Harjit Kaur and had remained there with her husband and

father in law for 2-3 days.

6. It was further the case of the prosecution that on

03.11.1984 respondents came to the house of Dr.Sharma in the

morning and protested with Dr. Sharma for having given shelter to

the family of Harjit Kaur 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 Police. At about 9 a.m. a mob

of more than 500 persons, including the respondents came and

attacked the house of Dr.Harbir Sharma where Harjit Kaur was

hiding with her husband and father-in-law. Respondents were

having one can of oil and iron sabhal and were leading the mob. As

per Harjit Kaur, her husband and father-in-law had taken shelter in

one of the rooms in 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, Harjit Kaur was

present on the roof of one of the neighbours of Dr.Harbir Singh,

whose house was in the same row. As per her testimony, the mob

was armed with sabbals, ballams, sariyas and lathis. She stated that

respondents 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.

7. Harjit Kaur's husband and father-in-law were burnt

alive and their half burnt bodies were put in gunny bags. Harjit

Kaur, however, admits that she did not see bodies being put in

gunny bags but had heard the respondents saying that the bodies

be put in the gunny bags. This statement was made 6 years after

the date of the incident. Harjit Kaur's house was also burnt. It is the

prosecution's case that PW4-Sushil Kumar, brother-in-law of

Dr.Harbir Sharma, PW5 Dr.Sharma, PW6 Jagdish and PW7 Mohar

Pal also saw the house being set on fire and Rajinder and Sardool

Singh were being attacked with sabbals, burnt and their mortal

bodies were 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 respondents and Sardool Singh as

well as Rajinder Singh were killed. They saw the respondents using

dandas to put the bodies of Sardool Singh and Rajinder Singh in

gunny bags.

8. As per the deposition of Harjit Kaur after the mishap,

with the help of one boy, she went to Hari Nagar at her father's

house and also to police station Janak Puri and after the help of

Gorkha Regiment was provided, she returned to Sagarpur on

03.11.1984 but she could not get the dead bodies of her husband

and father-in-law and her entire house was burnt in fire. The house

of Dr. Sharma was also entirely burnt along with household articles.

9. She stated in her testimony that apart from going to PS

Janakpuri and getting military aid she did not visit any other Police

Station. On 07.11.1984, her complaint was made in PS Delhi Cantt.

She had stated that she could not make the complaint to the Police

earlier on account of loss of her husband and father-in-law as well

as all her valuables and property.

10. The aforesaid deposition and narration of events is also

supported by the testimonies of PW-5 Dr. Harbir Sharma, who had

confirmed the threats held out to him in the morning and stated that

Surinder and Lal Bahadur along with others had come to the house

and threatened him for having given shelter to Harjit Kaur and her

family. Further when he had gone to call the police Sushil Kumar

informed him that his house had been set on fire. As per his

statement, Lal Bahadur, Ram Lal, Surinder and Virender were

putting the house on fire and they were beating Rajinder Singh and

his father Sardool Singh. Their bodies were put in gunny bags

using sticks. However, some persons gathered there saved him

and his family members and he lodged the report on 05.11.1984.

11. Trial Court has acquitted the respondents primarily for

the following reasons:

(i) Delay of 2/3 days in lodging the FIR and delay of 27

days in recording statement of witnesses;

(ii) Contradictions in the evidence to the effect that the

names of Virender and Ram Lal are absent in the complaint of PW-

1 though they were identified in Court as active members

constituting the mob that committed the crime; and

(iii) Witnesses Sushil Kumar, Dr.Harbir Sharma, Jagdish

and Mohar Pal being interested witnesses having enmity with the

respondents.

12. Proceeding with each ground one by one, it may be

observed that the FIR was registered on 09.11.1984 following the

complaint lodged by PW-5 Dr. Harbir Sharma on 05.11.1984 and

PW-1 Harjit Kaur on 07.11.1984. Thus there is a delay of a few days

in registration of the case. Unexplained delay would cast doubt on

prosecution version and may even be fatal. However, the

circumstances of the present case are extraordinary. The Country

was engulfed in communal riots. Curfew was imposed. Sikh

families were being targeted by mobs of unruly and fanatic men

who did not fear finishing human life, leave alone

destroying/burning property.

13. Mr.Sunil Sharma urged that considering the situation in

which the complainant's husband and father-in-law had been burnt

and murdered and the lives of the remaining members being in

imminent danger, the environment of insecurity and terror that was

prevalent, it would be completely ignoring the ground realities to

expect that the complainant could lodge the FIR forthwith.

Mr.Sharma urges that the priority for the complainant was to save

her life and that of her children rather than to get down to

reporting the matter to the Police. Even then, the report had been

lodged as soon as possible, on 07.11.1984. He submits that

Dr.Harbir Sharma had lodged the report even earlier on

05.11.1984. Considering these circumstances, the delay in lodging

of the FIR, was marginal and of no consequence. Mr.Sharma

submitted that exhibit PW1/A, which was lodged by PW-1 Harjit

Kaur, covered both the incidents namely looting of her house on

01.11.1984 and setting her house on fire on 03.11.1984 as well as

the house of Dr.Harbir Singh Sharma and the murder of her father-

in-law and husband on 03.11.1984. Thus, this complaint was a

comprehensive one covering all the incidents while Exh. No. PW-

5/A lodged by Dr. Harbir Singh referred to the incidents of

03.11.1984 where his house was burnt and the deceased were

murdered without mentioning the incident of 01.11.1984. The

above submissions of the appellants are well founded, meritorious

and deserve to be accepted.

14. On the questions as to when Harjit Kaur visited the

police station on 03.11.1984, why did she not lodge the complaint

which was sent subsequently typewritten on 07.11.1984, Mr.

Sharma submits that the lady who was distraught and had given

information about looting of her house as also the killing of her

husband and father-in-law and was wanting to salvage whatever

she could, out of the house and seek protection. The non-recording

of her grievance or complaint by the concerned staff of the police

station cannot be converted into her fault so as to question the

credibility of her complaint. Mr. Sharma sought to attribute the

non-registration of the complaint due to prevailing chaos and

terror situation and curfew which resulted in PW-5 not lodging the

report on 03.11.1984 itself.

15. Another ground for acquittal put forth by the trial Judge

is that of a delay of 27 days in recording of the statements of PW-4,

6 & 7 by the Police. The statements were recorded on 30.11.1984.

This too in the peculiar circumstances surrounding the case is not

abnormal. The city was in turmoil and persons having witnessed

crimes would naturally be apprehensive and afraid in coming

forward to depose against the perpetrators, till things settled down.

Additionally the State machinery was over worked. In such

circumstances, delay in recording the statements of witnesses

cannot be a ground to reduce its evidentiary value or completely

ignoring it. The witnesses prior to the incident being residents of

the same area knew the assailants. It was not the case of the

respondents that the delay could have resulted in wrong

identification of the accused.

16. Mr.Sunil Sharma placed reliance on the decision of

Satyendra Dayal Khare Vs. State of Maharashtra, (2005) 12 SCC

485, wherein the Supreme Court while dealing with a case of two

days delay in filing the complaint observed:

"The complainant was working at a place where her husband or near relative were not available and naturally she should have taken some time to decide as to what course of action is to be taken and the time taken for filing the complaint is not much. The contention of the appellant is that there is much delay in filing the complaint as is sufficient to disbelieve the prosecution case, but we do not think so."

17. Reference may, in this regard, be also made to the

decision of the Supreme Court in Sahebrao & Anr. vs. State of

Maharashtra, 2006 [2] JCC 871. While dealing with the delay in

lodging FIR for the death of the new bride, the Supreme Court

noted that the settled principle of law is that delay in filing FIR by

itself cannot be a ground to doubt the prosecution case and

discard it. The delay in lodging the FIR would put the Court on its

guard to search if any plausible explanation has been offered and

if offered whether it is satisfactory. It was observed that the kith

and kin of the deceased might take some appreciable time to

regain a certain level of tranquility of mind or sedativeness of

temper for moving to the police station for the purpose of

furnishing the requisite information.

18. The second important factor that appears to have

influenced the Trial Court in acquitting the respondents is the so-

called contradictions appearing in the testimony of various

witnesses. Let us consider the contradictions, which have weighed

on the mind of the trial Judge. Harjit Kaur in her complaint has

named only respondent Lal Babu and Surinder while later she had

identified the other respondents Virender and Ram Lal also as

having participated in looting her house. The trial Judge has

recorded as under:

"This witness has thus made prevaricating statements regarding two accused persons Surinder and Virender. From this it is proved that the accused Surinder and Virender were not present on the day of the incident which took place on 1.11.1984 and making prevaricating statement by this PW regarding

complicity of the said two accused also casts aspersions on her entire testimony."

19. In this regard, it may be observed that Harjit Kaur had

mentioned that her house was looted by a mob comprising, inter

alia, of Lal Babu and Surinder. Her subsequent mentioning of

names of other respondents does not appear to be an improvement

of such importance that her entire eye witness account which finds

corroboration by other witnesses can be overlooked. At best here

a doubt may arise only with regard to complicity of Virender and

Ramlal (It seems to have mistakenly typed as Surinder in above

quoted para of trial court judgement) because later she had

identified the other respondent Virender and Ram Lal also as

having participated in looting her house.

20. Mr. R.N. Vats, on behalf of the respondents, submitted

that the complaint Exhibit PW5/A, which is said to have been made

on 5.11.1984, was received by the Delhi Cantt. Police Station as per

the stamp endorsed on 06.11.1984. Exhibit PW 5/A only mentions

the setting of the house on fire and the loss of Rs. 2 lakhs. It does

not mention the beating and killing of the deceased. Besides, it

names only two of the accused and not four.

21. Mr. Vats, commenting on the testimony of Sushil Kumar

and Dr. Harbir Singh, submitted that the respondents accept that

Sushil Kumar and Dr. Harbir Singh returned together. He submitted

that from the testimony of Sushil kumar, it would appear that the act

of beating the deceased persons and killing had already been

accomplished and the property/premises was damaged by setting

it on fire. Not only this, the dead body of deceased Surdool and

Rajinder Singh had also been taken by the accused persons. It is, at

this stage, or thereafter, that Sushil Kumar says, "when I came there,

the accused persons were present there and were causing damage to

the house of Dr. Harbir Singh."

22. Mr.Vats wishes to urge that when Dr.Sharma,came at

the spot the crime had already been committed and

accomplished, which would show that Dr. Harbir Sharma, who had

been called belatedly after the crime scene was over, he could not

have witnessed the crime. He also relied on the testimony of PW-1

to urge that Dr. Harbir Singh had not witnessed the crime. He relies

on the statement of PW-1 recorded during the trial of Surender

Kumar who had been declared as proclaimed offender. In an

answer to question in cross-examination, PW-1 Harjit Kaur stated,

"Dr.Harbir had not come back upto 11.00 AM at his house on

3/11/1984." This would show that at the time of the incident, he was

not there, since the incident is stated to have happened

immediately after 8.30.A.M.

23. It is no doubt true that entire case of the prosecution

hinges upon the neighbors and the widow of the victim, who may

be interested in securing conviction of the accused persons but no

rule of law prescribes that conviction cannot be based on the

testimony of such witnesses. The only requirement of law is that

the testimony of those witnesses must be cogent and credible.

Here it is apposite to extract the substance of the testimony of PWs.

PW-4, sushil kumar, has stated that all these accused persons had

beaten them and both of them (sardul singh and rajinder singh)

were killed. The accused persons caused damage by setting the

house on fire. The accused persons also damaged the house

No.RZ-1/295 by putting fire. The accused persons took the dead

body of the deceased Sardul Singh and Rajinder Singh away by

putting them in gunny bags.

24. Then there is a statement of PW-5, Harbir singh, who stated

that when he and Sushil Kumar reached his house No.RZ-3/295,

They saw that the accused persons Surinder, Lal Bahadur, Ram Lal

and Virender present in the court were setting his house on fire.

They were also beating S.Rajinder singh and his father Surdur

Singh and many other persons were also with them.

25. Then there is a statement of PW-6, jagdish kumar, he

too, has averred in unequivocal terms that when he went to the

house of Dr.Harbir Singh he saw all the accused person present in

the Court, they were putting fire, beating Sardar Sardul Singh and

the other family members. Son of S.Sardul Singh namely Rajinder

Singh was also killed. The dead bodies of the Sardul singh and his

son Rajinder Singh were taken away by the accused person by

putting them into gunny bag. Many other persons were also with

the accused persons. Mohar Pal and Sushil Kumar also saw the

incident.

26. Then, there is statement of PW-7, Mohar Pal, who has

categorically stated that the accused persons had participated in

killing the sikhs and setting them on fire with the help of lathies and

ballams. He know the accused persons by name. Their names are

Lal Bahadur, Virender, Surinder, and Ram Lal. The house of the

Doctor was looted. One of the deceased is Sardul Singh and the

other was his son.

27. On reading of the evidence of above witnesses, we find

that the testimonies of the witnesses are trustworthy. This we say so

on account of the fact that their evidence has been consistent and

they have also remained unshaken during their cross examination.

Thus, we do not find any reason to discard the evidence of these

witnesses in totality. They do not vary in any manner on any

material fact and if there are any discrepancies, the same are

trivial, immaterial and could not be made the basis of the acquittal.

28. Mr.Sharma further submitted that in this case, eye-

witnesses namely PW-1 Harjit Kaur, PW-4 Sushil Kumar, PW-5

Harbir Singh, PW-6 Jagdish Kumar and PW-7 Mohar Pal Singh have

all implicated the accused and their testimonies have remained

unshaken in so far as the role and the presence of the accused at

the scene of the crime is concerned. In view of the evidence in

which specific acts are attributed to these people, he submits that

minor contradictions, as they appear in the testimonies of Harjit

Kaur, which was recorded nearly four years after the arrest of

Surender Kumar, who was earlier declared as a proclaimed

offender, deserves to be ignored. Same is the position with regard

to Harjit Kaur not naming Ram Lal and Varinder in the complaint

filed as Exh. PW-1.

29. Mr.Vats, learned counsel for the respondents

submitted that circumstances have not been satisfactorily

established. Learned counsel for the respondents raised the

contention that the dead bodies of the persons alleged to have

been killed on 03.11.84 were never recovered and found. Thus,

there is no evidence with regard to the fact that they were ever

killed and that too by the respondents.

30. We are unable to agree with the said argument of

learned counsel because it is a well settled law that in a murder

case to substantiate the case of the prosecution it is not required

that dead bodies must have been made available for the

identification. Discovery of dead body is not sine qua non for

applicability of Section 299 of IPC. This was so held in the case of

Rama Nand & Ors. Vs. State of H.P., (1981) 1 SCC 511 and again

reiterated by this Court in Ram Bahadur @ Denny Vs. State, 1996

CRI. L. J. 2364, the relevant extract is reproduced below:

"We are sorry we are unable to agree with the said contention of the learned counsel. Whenever a crime is committed it is but natural that, the criminal would like to do away with the proof of the crime which is likely to implicate him in the crime. Thus, he would leave no stone unturned to destroy the proof i.e. the dead body which may show his complicity in the crime. Thus if the contention of the learned counsel is to be accepted, in that eventuality it would be very difficult to prove the cases where the dead bodies have been destroyed and as such are not traceable. To hold so would be against the spirit of the Criminal Law. Thus to substantiate the case of the prosecution we fell it is not required that the dead bodies must have been made available for the identification of the relations, if the prosecution witnesses are otherwise in a position to prove the guilt of the accused persons. The above view is substantiated by the observations of their Lordships of the Supreme Court as reported in Ram Chandra V. State of Uttar Pradesh, AIR 1957 SC 381: (1957 Cri LJ 559)....... "It is true that in law a conviction for an offence does not necessarily depend upon the corpus delictii being found. There may be reliable evidence, direct or circumstantial; of the commission of the murder though the corpus delicti are not traceable." The same view was again reiterated by the Hon‟ble Supreme Court in the case reported as Rama Nand v. State of Himachal Pradesh, (1981) 1 SCC 511 : (1981) Cri LJ 298), ... "It is true that one of the essential ingredients of the offence of culpable homicide required to be proved by the prosecution is that the accused "caused the death" of the person alleged to have been killed. But, discovery of the dead body of the victim bearing physical evidence of violence, has never been considered as the only mode of proving the corpus delicti in murder. In fact the „body‟ doctrine is merely a rule of caution and not of law. Where the dead body of the victim in a murder case is not found other cogent and satisfactory proof of homicidal death of the victim must be adduced by the prosecution. Such proof may be by the direct

ocular account of any eye-witness, or by the circumstantial evidence, or by both...."

31. The trial Court also questioned the independence of

the witnesses. Mohar Pal and Jagdish, who were alleged to be

procured witnesses of Dr.Harbir Sharma. The trial court held that

Investigating Officer admitted in his statement that Dr.Harbir

Sharma disclosed the names of Mohar Pal and Jagdish to him.

Further, these persons are stated to be his pupils. Jagdish, who

lived about a kilometer away from the scene of crime, admitted

that on 02.11.1984 and 03.11.1984 as he was sick and bed ridden,

he had visited Dr.Harbir Sharma for treatment. His family had been

getting treatment from Dr.Harbir Sharma for the last 8-10 years. He

had denied the suggestion that he was working as a compounder

with Dr.Harbir Sharma stating that he himself was holding the same

qualification of BAMS as of Dr.Harbir Sharma, in Ayurveda.

Moharpal Singh had also received medical diploma from

Allahabad Medical University and worked in the centre, which was

run by Dr. Harbir Singh.

32. To our mind, these factors merely bring out a relation

of doctor patient or pupil association but do not show that all

witnesses had colluded against the respondents with some ulterior

motives. Commenting on the alleged enmity between Dr.Sharma

and the respondents, we have asked learned counsel for the

respondents, whether any evidence with regard to such enmity or

any conduct, which demonstrates the same, had been brought

forth, there is none available. Mr. Vats referred to the deposition of

respondent Ram Lal who works as mistry, and had stated, "I am

doing the job of Mistri. Dr. Harbir asked me to work and I refused.

He further told me to see him. So I have been falsely implicated in

this case."

33. Lal Bahadur claimed that "Dr. Harbir Singh threatened

me to give up my residence in front of his house or to implicate me in

some case. There was a quarrel with regard to supply of water from

the tap." There was, however, no litigation or major quarrel arising

out of the above.

34. Reference was also invited to the statement of Surinder

Pershad Singh, where he states that he and Lal Bhadur had a joint

plot and they had, on many occasions, quarrelled with Dr. Harbir

Singh and hence he had falsely implicated him in the case.

35. Reference was also invited to the statement of Virender

Kumar, who was a tenant of Lal Bahadur, where he states that he

was called by the police in some inquiry and later on he was falsely

implicated in this case.

36. These issues over water or mistry work cannot be

considered to lead Dr.Sharma to frame a false case against the

respondents. Also, Harjit Kaur had no enmity at all and being an

eyewitness her testimony cannot be disregarded in any case. With

respect to the reasoning of the Trial Court that the witnesses were

not independent and were driven by motive, Mr.Sharma submitted

that the eyewitnesses had no motive for them to falsely implicate

the assailants at the behest of Dr.Harbir Sharma. Dr.Harbir Sharma

himself also had no enmity with any of the accused. Hence, he

submits that this was not a case where the trial court could have

ignored the accounts of the eyewitnesses and proceeded to give

benefit of doubt to the respondents. There was no reason for Harjit

Kaur to falsely implicate these assailants.

37. Mr.Sunil Sharma responding to the submissions of

Mr.R.N.Vats, that the accused have been falsely implicated by

Dr.Harbir Sharma on account of animosity and strained

relationship, submits that no specific particulars with regard to the

said strained relationship or animosity have been given. Bald

statements made under Section 313 Cr.PC statement such as - fight

over tap water, one of the persons being tenant of Lal Bahadur with

whom the relations were strained or Lal Bahadur having quarreled

with Dr. Harbir Sharma many times would be of no avail as these

were not suggested or put to the witnesses during cross-

examination. We find merit in the submission of Mr.Sunil Sharma.

The witnesses cannot be described as interested ones or their

evidence can be labelled as motivated.

38. The second suggestions of the eye witnesses being

interested witnesses since they were either the pupils, disciples or

those, who had got their diploma in Ayurveda through the

instrumentality of Dr. Harbir Sharma and were, therefore, not

creditworthy. Mr. Sharma submits that there is also the evidence of

Harjit Kaur, who was the most aggrieved person apart from these

witnesses. There is no suggestion of animosity or inimical

relationship with Harjit Kaur. There would be no reason for

Dr.Harbir Sharma to procure the witnesses for Harjit Kaur. The only

interest that Dr. Harbir Sharma could have been to claim

compensation for the burning of the house, which was available in

any case as the burning of the house was an admitted position.

39. Besides this, each one of them was resident of the same

area and they were natural witnesses and not planted ones.

40. After having gone through all the evidence available

on record, which led the trial Court to acquit the respondents, we

are of the view that the evidence of even one eye witness was

sufficient in itself to implicate the respondents, namely, Surinder,

Virender, Ram Lal & Lal Bahadur for the crime committed by them

on 01.11.1984 & 03.11.1984. Here, we have four eye witnesses, who

have seen, with their own eyes, the gruesome murder of the

deceased persons.

41. We are also not convinced that the delay in filing FIR or

delay in recording the statements of PW4, PW6 and PW7 has

vitiated the trial. Mere delay in examination of the witnesses for

few days cannot in all cases be termed to be fatal so far as the

prosecution case is concerned when the delay is explained. There

may be several reasons. Admittedly, the instant case relates to the

riots, which took place on account of the assassination of late Mrs

Indira Gandhi, which led to the complete breakdown of the law and

order machinery. Chaos and anarchy permeated every nook and

corner of the city. In the above circumstances, we feel that the

delay has been satisfactorily explained. Whatever be the length of

delay, the Court can act on the testimony of the witnesses if it is

found to be reliable. Further, the allegations of non-independent

witnesses and animosity of Dr.Sharma with the respondents cannot

cast doubts on the eyewitness account of Harjit Kaur.

42. We may observe here that the liability of the members

of the unlawful assembly who knew that an offence was likely to be

committed in prosecution of the object for which they had

assembled is equal to those who commit it. Section 149 is an

exception to the criminal law where under a person can be

convicted and sentenced for his vicarious liability only on proof of

his being a member of the unlawful assembly, sharing the common

object, notwithstanding as to whether he had actually participated

in the commission of the crime or not. [See: Yunis @ Kariya Vs. State

of Madhya Pradesh, AIR 2003 SC 539]

43. It is not an ordinary routine case of murder, loot and

burning. It is a case where the members of one particular

community were singled out and were murdered and their

properties were burnt and looted. Such lawlessness deserved to be

sternly dealt with as has been said by the Supreme Court in Surja

Ram Vs. State of Rajasthan, 1997 CRLJ 51, the Court has also to

keep in view the society‟s reasonable expectation for appropriate

deterrent punishment confining to the gravity of the offence and

consistent with the public abhorrence for the heinous crime

committed by the accused. The sentence has to be deterrent so as

to send a message for future.

44. The crime‟s punishment comes out of the same root.

The accused persons should have no cause for complaint against it.

Their sin is the seed. The terrible terror created by them is a cause

for concern for the society. Courts are empowered by the statute to

impose effective penalties on the accused as well as even on those,

who are their partners in the commission of the heinous crime.

45. Keeping in view the foregoing discussion and after

considering the seriousness and gravity of the incident, we are of

the opinion that the appeal deserves to be allowed. The impugned

judgment and order of the learned trial Court, dated 31.10.1990,

acquitting all the accused persons/respondents is set aside. All the

accused persons/respondents namely, Lal Bahadur, Virender,

Surinder and Ramlal are ordered to be convicted under Sections

147/149/449/436/302/395/396 IPC. All the accused

persons/respondents are ordered to be sentenced under Section

147 IPC to undergo RI for one year each and to pay a fine of

Rs.1,000/- each and in default of payment of fine, to further

undergo RI for two months each. All the accused

persons/respondents are further ordered to be sentenced under

Section 449 IPC read with Section 149 IPC to undergo RI for seven

years each and to pay a fine of Rs. 5,000/- each and in default of

payment of fine, to further undergo RI for six months each. All the

accused persons/respondents are further ordered to be sentenced

under Section 436 IPC read with Section 149 IPC to undergo RI for

five years each and to pay a fine of Rs. 5,000/- each and in default

of payment of fine, to further undergo RI for six months each. All

the accused persons/respondents are further ordered to be

sentenced under Section 302 IPC read with Section 149 IPC to

undergo RI for life each and to pay a fine of Rs. 10,000/- each. All

the accused persons/respondents are further ordered to be

sentenced under Section 396 IPC to undergo RI for life each and to

pay a fine of Rs. 10,000/- each. All the accused

persons/respondents are further ordered to be sentenced under

Section 395 IPC to undergo RI for five years each and to pay a fine

of Rs.5,000/- each and in default of payment of fine, to further

undergo RI for six months each. All the sentences shall run

concurrently. The respondents/accused persons are directed to

surrender before the trial court/jail Superintendent with immediate

effect to undergo the aforesaid sentences ordered against them.

46. With the aforesaid directions, the appeal stands

allowed.

S.L. BHAYANA, J.

MANMOHAN SARIN, J.

August 27, 2008 "shivani"