Om Prakash And Another vs State (Govt. Of Nct Of Delhi)
2009 Latest Caselaw 5014 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                              Judgment reserved on: November 13, 2009
                              Judgment delivered on: December 07, 2009


+      CRIMINAL APPEAL NO.291/1996


       OM PRAKASH AND ANOTHER                        ..... Appellants
                       Through:          Mr. Rohit Sharma, Advocate for
                                         appellant No.1.
                                         Mr. S.K. Sharma, Advocate with
                                         Mr. Dhruv Kumar, Advocate for
                                         appellant No.2.

                     Versus

       STATE (GOVT. OF NCT OF DELHI)           ..... Respondent
                         Through: Mr. Pawan Sharma, APP


       CORAM:
       HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
       HON'BLE MR. JUSTICE AJIT BHARIHOKE


1.     Whether Reporters of local papers
       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 Digest ?                              Yes


AJIT BHARIHOKE, J.

1. This appeal is directed against the impugned judgment dated

13.11.1996 in Sessions Case No.65/95 arising out of FIR No.426/84 P.S.

Kalyan Puri vide which the appellants have been convicted on charges

under Section 148 IPC and Section 302 IPC read with Section 149 IPC and

the consequent order on sentence dated 15.11.1996 sentencing the

appellants to undergo imprisonment for life and also to pay a fine of

Rs.25,000/- each, in default of payment of fine, to undergo RI for a period

of two years for the offence punishable under Section 302/149 IPC and

also to undergo RI for a period of three years and to pay a fine of

Rs.5000/- each, failing which to undergo RI for a further period of six

months for the offence punishable under Section 148 IPC.

2. Briefly put, case of the prosecution is that in the aftermath of the

assassination of Prime Minister Smt. Indira Gandhi, violent anti-Sikh riots

erupted in Delhi, which continued for a few days from 31.10.1984

onwards. On 02.11.84, at around 5:30 pm, a telephonic information was

received at Police Station Kalyan Puri through Inspector Rajesh of PCR

that the Additional Commissioner of Police Shri Nikhil Kumar had

intimated on telephone that a massacre was going on in Block No.32,

Trilok Puri and the police force may be sent there. The information was

recorded in the daily diary as DD No.12A dated 02.11.84 and the copy of

the DD report was entrusted to SI Man Phool Singh, who immediately

proceeded for the place of occurrence along with Constable Pat Ram. The

SHO and the other staff also reached Block No.32 Trilok Puri in an official

vehicle, where they found houses No.123, 124, 484 and 485, besides

many other houses, on fire. One Sucha Singh and Lacha Singh were

found there in injured condition and they were removed to the hospital.

In the meanwhile, some senior officers also reached at the spot of

occurrence with additional force and about 107 rioters were rounded up.

The women and children belonging to the Sikh community were also sent

to the Police Station. Some other injured persons, who were found at the

spot, were sent to the hospital. SI Man Phool Singh met the complainant

Rijju Singh at the spot of occurrence and recorded his statement, which

disclosed the commission of various offences punishable under Section

147/148/149/436/304/323 IPC. SI Man Phool Singh appended his

endorsement to the statement of the complainant Rijju Singh and sent it

to the Police Station for the registration of the case and on the basis of

said statement, formal FIR No.426/84 was recorded at the Police Station

Kalyan Puri. We may note the complaint of Rijju Singh was specific to the

incident relating to his family and the murder of his brother-in-law Lakha

Singh. Besides the above said specific allegations, Rijju Singh also made

general allegations pertaining to the loss of life and property caused by

the rioters to several Sikh families.

3. Statements of witnesses including Smt.Vidya Wati, PW2 were

recorded during investigation. Vidya Wati, in her statement Ex.PW2/DA

made to the police on 17.11.1984, stated that on 2.11.1984 at around

2.00 p.m., a large crowd of non-Sikhs came to Block No.32, Trilok puri and

they stabbed her husband Thakur Singh thrice and thereafter set him on

fire. They also set their three-wheeler scooter on fire. Appellants Om

Prakash and Vedi, younger brother of Om Prakash, residents of Block

No.32, Trilok Puri, and Karamat, resident of the street in which she was

living, according to her, had murdered her husband. She also stated that

the previous day, the mob had looted her belongings from her house in

the night of 1.11.1984.

4. On conclusion of the investigation, a single charge sheet in respect

of all the incidents which took place during riots at Block No.32, Trilok Puri

was submitted in the court. However, on the directions of the learned

Trial Judge, aforesaid charge sheet was split into separate charge sheets

relating to specific incidents. So far as the case under appeal is

concerned, challan was filed against the appellants Ved Prakash @ Vedi

and Om Prakash and co-accused Karamat. They were charged for the

offences punishable under Section 188 IPC, 148 IPC, 302 IPC read with

149 IPC, Section 397 IPC read with 149 IPC and 436 read with 149 IPC, to

which the appellants pleaded not guilty and claimed trial.

5. In order to bring home the guilt of the appellants and his co-accused

person, the prosecution examined 8 witnesses. PW1 Hoshiar Singh, Head

Constable has proved the curfew order Ex.PW1/A and the prohibitory

order Ex.PW1/B issued on 1.11.1984 and 31.10.1984 respectively by the

Commissioner of Police, Delhi, which are stated to have been violated by

the appellants and their co-accused. PW3 ASI Ganga Ram was duty

officer, P.S. Kalyan Puri at the relevant time and he has proved the copy

of FIR Ex.PW3/A. PW4, Sanjeev Bhalla, LDC is a formal witness. He has

proved notification of appointment of Shri Justice J.D. Jain as Chairman of

Inquiry Committee Ex.PW4/B. PW8, Chottey Lal, Sub Registrar, Birth and

Death, Shahdara has proved the death certificate of Thakur Singh,

Ex.PW8/A. PW5, Inspector Manphool Singh, PW6, Head Constable Pat

Ram, PW7, Inspector Badan Singh (retired) and Inspector Rajinder Prasad

Tyagi, who has also been given the number PW7, are the police officers

who participated in the investigation of the case.

6. PW2 Vidya Wati is the star witness of the prosecution, who narrated

the eye witness account of the occurrence. She has stated that on the

night preceding 2.11.1984, her house was looted by a large crowd of

rioters. Thereafter she and her family took shelter in the house of a

neighbor Shri Laxman Dass. In the morning of 2.11.984, a crowd of rioters

armed with ballams and lathis etc. came and dragged her husband from

the house of said neighbor and pounced upon him. Someone inflicted a

knife blow on the person of her husband and others hit him with lathis

and ballams. After killing him, the crowd set his body on fire. The

witness stated that she could identify Karamat and the appellants Om

Prakash and Vedi in the aforesaid crowd of rioters who had initiated the

attack on her husband. In her cross-examination, PW2 Vidya Wati stated

that at the relevant time, she was living in Block No.30, House No.380,

Trilok Puri and she gave the aforesaid address to the police when her

statement Ex.PW2/DA was recorded. She also stated in the cross-

examination that at the relevant time, she alongwith her husband and

children was hiding in the house of Laxman. Initially, the appellants and

the other accused person came into the house and dragged her husband

outside. She also followed them. Thereafter, her husband was killed in

her presence. She explained in the cross-examination that she could

identify accused Karamat as he was a resident of the same gali in which

she was residing and she could identify appellants Om Prakash and Ved

Prakash, resident of Block No.30, Trilok Puri as they had installed a hand

pump at her house sometime prior to the riots. She denied the

suggestion that she and her other family members had left the area on

the night of 1.11.1984 itself and she came to know about the death of her

husband through someone at the relief camp.

7. Both the appellants were examined under Section 313 Cr. P.C.

wherein they denied their presence at the time of occurrence and claimed

innocence. In defence, two witnesses namely DW1 Sohan Singh and DW2

Laxman Das were examined. DW1 Sohan Singh was examined to prove

the conduct of the appellant Om Prakash during the period of riots, who

deposed to the effect that at the relevant time, he had taken shelter in

the house of one Ganga Saran and was hiding in a "miani" (mezzanine).

He also stated that while he was hiding there on 2.11.1984, appellant Om

Prakash visited the roof of that house in order to ask about his welfare.

DW2 Laxman Das is the person in whose house PW2 Vidya Wati claims to

have taken shelter with her husband and family members. He has stated

that the deceased and his family had taken shelter in his house. Since his

wife and children were scared due to presence of Sikhs in the house, he

along with his family left his house on 01.11.1984 and went to stay with

his sister and when he returned back to his house, he did not find any

damage caused to his house.

8. On conclusion of trial, the learned Trial Judge, relying upon the sole

testimony of PW2 Vidya Wati found the appellants Om Prakash and Ved

Prakash as also their co-accused Karamat guilty of offences punishable

under Section 148 IPC and 302 IPC read with Section 149 IPC and

sentenced them accordingly for both the offences. We may note here

that the learned Trial Court has not returned any finding on charges under

Section 188 IPC as well as 397 IPC read with 149 IPC and 436 IPC read

with 149 IPC. It appears that while recording the aforesaid judgment,

those three charges escaped the attention of the Trial Judge. Be that as it

may, considering the fact that the occurrence took place 25 years ago, we

do not deem it appropriate to remand the case back to the Trial Court for

returning the findings on those charges.

9. We may note that the co-accused Karamat also preferred an appeal

against the impugned judgment being Crl.Appeal No.9/1997. He,

however, expired during the pendency of the appeal, as such his appeal

stood abated.

10. The case of the prosecution rests solely upon the testimony of PW2

Vidya Wati, wife of the deceased Thakur Singh. There is no other ocular

or circumstantial evidence to corroborate the version of Vidya Wati. The

thrust of the argument advanced on behalf of the appellant is that Vidya

Wati is not a reliable witness and even her presence at the time of

occurrence is highly doubtful, as such the learned Trial Court has erred in

returning the finding of conviction on the basis of her testimony.

11. In support of that contention, learned counsel for the appellant has

submitted that as per the testimony of PW2 Vidya Wati, her house was

looted by the mob of rioters on the night preceding 02.11.1984. Despite

that, there is neither any complaint nor FIR registered with the police in

respect of the looting incident. It was submitted that this circumstance

makes the testimony of PW2 Vidya Wati suspect and also supports the

theory that she might have left her house prior to the occurrence, leaving

her husband behind, with a view to ensure safety of self and the family.

12. We do not find merit in this contention. It is a common knowledge

that in the aftermath of the death of Prime Minister Smt.Indira Gandhi

inhuman riots erupted against the Sikh community, resulting in loss of life

and property of so many Sikh families. The fury of the riots was at the

extreme from 31.10.1984 till 02.11.1984. Under those prevailing

circumstances, it would be unreasonable to expect from the witness Vidya

Wati or anyone in her family to go to the police, at the risk of his or her

life, to lodge the report about looting of their house and belongings.

Further PW1, Hoshiar Singh, Head Constable from police headquarters

proved on record the curfew order Ex.PW1/A dated 01.11.1984, which

was issued by the Commissioner of Police, Delhi in exercise of his powers

under Section 144 Cr.P.C. Perusal of order Ex.PW1/A shows that a curfew

order prohibiting people from going outdoors with effect from 01.11.1984,

6.00 pm., was imposed in Delhi. Therefore, the witness was not expected

to go to the police station for lodging the report in violation of the curfew

order. Thus, in our view, failure on the part of PW2 or her family

members to report the looting of their house is of no consequence and it

cannot be the basis for rejecting the testimony of PW2 Vidya Wati.

13. The next submission to challenge the credibility of the testimony of

PW2 Vidya Wati is that she deposed that she had followed her husband

outside the house of their neighbor Laxman, where they were hiding,

when he was dragged out of the house by the appellants and their co-

accused Karamat. If that was true, then it is highly improbable that the

mob of rioters would have spared her. Admittedly, PW2 Vidya Wati did

not suffer any injury at the hands of the rioters, which makes her

testimony highly doubtful and a possibility cannot be ruled out that she

was not even present at the spot when the occurrence took place.

14. We are not persuaded by this argument. Understanding human

mind is a complex issue. There is no general rule as to how a person

should behave or react in a given situation. If the mob of rioters who

killed the husband of PW2 did not cause any harm to her, it cannot be

taken as a reason to doubt the credibility of the witness while assessing

the evidence of PW2. People behave differently in similar situations. One

cannot lose sight of the fact that at the very first instance, when the

statement of PW2 Vidya Wati was recorded by the police on 7.11.1984 at

the relief camp, she named the appellants and Karamat as the persons

who were the members of the unlawful assembly. There is nothing on

record to suggest that either PW2 Vidya Wati or PW7 Inspector Rajinder

Prasad Tyagi or any other police officer had any motive or reason to

falsely implicate the appellants. Therefore, we do not find any reason to

disbelieve the testimony of PW2 Vidya Wati.

15. The further submission on behalf of the appellants is that it is not

safe to place reliance upon the uncorroborated testimony of PW2 Vidya

Wati regarding the presence of the appellants and their co-accused

Karamat in the mob of rioters, particularly when admittedly it was a huge

mob and no Test Identification Parade was conducted to fix the identity of

the appellants and Karamat by calling upon PW2 Vidya Wati to identify

them from a group of persons of identical physique. It was argued that

since no TIP has been conducted much reliance cannot be placed upon

the identification done by the witness in the Court.

16. We do not find merit in the above submission. Test Identification

Parade is generally conducted to fix the identity of the accused who was

not earlier known to the witness. In the instant case, PW2 Vidya Wati was

categoric in her cross-examination that she knew the accused Karamat

since before the occurrence as he was resident of the same gali in which

she was residing. She also explained in the cross-examination that the

appellants Om Prakash and Ved Prakash were known to her since prior to

the riots as they had installed a hand pump at her house. She also stated

that they were residents of Block No.30, Trilok Puri. On the aforesaid

evidence, it is apparent that the appellants and Karamat were known to

the witness, therefore there was no requirement under law for holding a

Test Identification Parade. Thus, the Investigating Officer cannot be

faulted for not holding the Test Identification Parade or to make it a basis

for suspecting the credibility of PW2.

17. It was submitted on behalf of the appellants that the case of the

prosecution is that the deceased Thakur Singh and his family including

PW2 were hiding in the house of Laxman Dass, DW2 and that the

appellants and their co-accused Karamat had dragged the deceased from

the house of Laxman Das. Despite that neither Laxman Das, DW2, nor

any of his family members have been cited or produced on behalf of the

prosecution as witnesses. On the other hand, Laxman Das who appeared

in defence as DW2 has stated that he and his family members were not

present at his house on the date of occurrence. This circumstance,

according to learned counsel for the appellant, contradicts the version of

PW2 Vidya Wati and makes her testimony suspect.

18. The learned Trial Court has dealt with the aforesaid argument in the

following manner:-

"The witness in this case is wife of the deceased. She has very categorically stated that she, her husband and other family members on seeing the rioters spreading left their house and went into the house of Lachman Singh and took shelter in his house. This part of the testimony of witness finds corroboration in the testimony of defence witness Lachman Singh who has categorically stated that family of Thakur Singh had come to his house to take shelter and entire family of Thakur Singh had concealed itself in his house to save their life. From this testimony of Vidya Wati and Lachman Singh it stands proved that Thakur Singh, Vidya Wati and their family could not leave the area during the riots and in order to save their life they left their house together and went into the house of Lachman Singh. Murder of Thakur Singh had taken place at the house of Lachman Singh. Although Lachman Singh had stated that he left the hosue after family of Thakur Singh had taken shelter in his house and went away to block No.11 with his family, but this part of his testimony is not believable. No person would leave his entire house open in the hands of his neighbor and go away from there for days together during riots. Moreso when the rioters were all around there in the area and there was every likelihood that rioters would attack his house because of a hiding of sikh there and they may even burnt the house. Lachman Singh has not come out with the truth in the court about the killing of Thakur Singh although Thakur Singh was dragged from his house and killed then and there by the rioters. Lachman Singh is still living in the area. He is a non sikh. Thakur Singh was taking shelter in his house and was dragged out from the house. He was the most natural witness of the occurrence but in order to avoid being witness against the accused persons who are

living in his neighbourhood, he has simply stated that he left the house and returned after the riots were over. He had gone to the extent of saying that he did not come to know what happened to Thakur Singh and his family or where they had gone. However, irrespective of this testimony of Lachman Singh its stands proved that Thakur Singh and his family had taken shelter there and Thakur Singh was murdered by the rioters after being dragged from the house of Lachman Singh. This also goes to show that the thirst of blood of sikh in the minds and hearts of rioters was so high that they were searching Sikhs in the houses of non Sikhs also and dragging them out from their hiding places. There is no reason for disbelieving the testimony of Vidya Wati, wife of Thakur Singh who even according to defence witness had taken shelter along with Thakur Singh in the house of Lachman Singh. Vidya Wati, although only witness produced by the prosecution of the incident, is reliable witness and is fully creditworthy witness. She was knowing the accused persons from before."

19. We find no infirmity in the above line of reasoning adopted by the

learned Trial Judge and are of the view that the learned Trial Judge has

rightly rejected the argument.

20. Learned counsel for the appellants has further submitted that DW1

Sohan Singh stated in Court that on 02.11.1984, while he was hiding in

the mezzanine of house of one Ganga Saran, appellant Om Prakash came

on the roof of the house to ask about his welfare. It was submitted that

aforesaid conduct of Om Prakash indicates that he was a good human

being and was concerned about the safety of Sikhs who were the target of

rioters and this eliminates the possibility of his having participated in the

murder of Thakur Singh. He has urged us to infer that PW2 Vidya Wati is

not a truthful witness and extend the benefit of doubt to the appellants.

We are not convinced with the argument. The testimony of DW1, to our

mind, is not reliable, as he admittedly had also appeared as a defence

witness for Ganga Saran. Even if it is assumed that Om Prakash did go

and find out about the welfare of DW1, this would not mean that he would

show the same concern for other Sikh persons also. Thus, much

importance cannot be attached to the testimony of DW1 Sohan Singh.

21. Learned counsel for the appellants has referred to the matter of

Masalti Vs. State of U.P., (1964) 8 SCR 133, wherein the Supreme

Court held:

"(iv) It was not improper for a criminal court having a large number of offenders and victims to deal with to adopt the test that the conviction of any particular accused could be sustained only if a particular number of witnesses gave a consistent account against him. Such a test, even though mechanical, was not unreasonable."

and submitted that in this case also admittedly, a huge mob had attacked

Thakur Singh and killed him. Therefore, the rule of prudence demanded

that the Trial Court, instead of placing reliance upon sole testimony of

PW2 Vidya Wati, ought to have sought some independent corroboration

which obviously is lacking in this case and, therefore, the benefit of doubt

ought to have been extended to the appellants.

22. The above referred judgment of the Supreme Court is of no help to

the appellants as it is based upon on its own peculiar facts. In Masalti's

case, 40 persons belonging to one faction were put to trial. The

prosecution case was based upon the testimony of 12 eye witnesses. All

the accused persons denied that they had anything to do with the

offences charged. In dealing with the oral evidence adduced by the

prosecution, the High Court took note of the fact that most of the

witnesses belonged to the faction of Gayadin and must, therefore, be

regarded as partisan. It was also considered that another feature which

characterized the evidence of all the witnesses was that they gave their

account of the incident substantially in similar terms and did not assign

particular parts in respect of overt acts to any of the assailants except

Laxmi Prasad, accused no.1 of that case. The High Court thus, decided to

confirm the conviction of the accused persons against whom four or more

witnesses gave a consistent account and by application of that test,

seven accused persons were acquitted. The Supreme Court, while

dealing with the appeal against the judgment of the High Court, did not

find anything improper in the test adopted by the High Court. However,

in the instant case, there is only one eye witness, therefore, aforesaid test

is of no relevance to this case. Otherwise also, PW2, Vidya Wati has not

only named the appellants and their co-accused Karamat as a part of the

mob but she had assigned a specific role to them that they dragged her

husband out of the house when he was killed, which place this case on a

different footing.

23. Learned counsel for the appellants has also referred to State and

Others Vs. Kishori and Others, 76 (1998) DLT 209 (DB) Delhi High

Court, and also the matter of Ved Prakash & Ors. Vs. State, IV (1997)

CCR 384 (DB) Delhi High Court and submitted that those two cases also

relate to 1984 anti-Sikh riots and in those matters, the respective

coordinate Benches of this Court have found it unsafe to rely upon sole

testimony of the respective witnesses in those matters. Thus, he has

urged us to extend the same conclusion to this case.

24. In our considered view, above referred judgments of the Coordinate

Benches of this Court are based upon the peculiar facts of those matters.

In both those cases, the solitary witnesses had respectively named the

accused concerned after a period of 12 and 11 years from the occurrence

and that was the reason for concluding that it was unsafe to rely upon

such testimony. However, in the instant case, PW2 Vidya Wati had

named the appellants within five days of the date of occurrence when the

police approached her in the relief camp and recorded her statement.

Thus, in our view, the above referred judgments because of different

factual matrix are of no help to the appellants.

25. Learned counsel for the appellants has also relied upon the

judgment of Supreme Court in the matter of Lallu Manjhi and Others

Vs. State of Jharkhand, AIR 2003 SC 854, which to our mind, is of no

help to the appellants , as in the aforesaid judgment, Supreme Court has

held thus:-

"10. The Law of Evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the Court may classify the oral testimony into three categories, namely (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon testimony of a single witness."

which observation implies that the Court, when faced with the testimony

of a single witness, has to be circumspect and carefully analyse the

evidence to seek an assurance of truthfulness. In our considered view,

PW2 Vidya Wati is a truthful witness. She could have named as many

persons as she liked if she wanted to take revenge for the death of her

husband. The fact that she had named only three persons out of a huge

mob of rioters is sufficient assurance that she is telling the truth

particularly when, she had no motive to falsely implicate the appellants or

their co-accused Karamat.

26. Another judgment cited by learned counsel for the appellants is in

the matter of Chandra Shekhar Bind Vs. State of Bihar, JT 2001 (8)

SC 386. In the said judgment, it was held that when the size of the

unlawful assembly is quite large and many persons have witnessed the

event, it would be prudent to insist on at least two reliable witnesses to

vouch safe the identification of an accused as a participant in the rioting.

The ratio of above judgment is not applicable to the facts of case in hand,

which is a case having one eye witness only. There is no law requiring

that in a riot case, the prosecution must prove the case by examining

more than one eye witness to ensure corroboration of the testimony.

27. Learned counsel for the appellants further submitted that PW2

Vidya Wati has not assigned any role to the appellants or the co-accused

Karamat in the actual killing of her husband Thakur Singh and she has

stated that after her husband was dragged out of the house, someone

inflicted a knife blow to him and some other persons hit her husband with

lathis or ballams, which clearly implies that the appellants had not taken

any part in that assault which resulted in the death of Thakur Singh.

Thus, he has argued that conviction of the appellants for the offence of

murder punishable under Section 302 IPC is uncalled for.

28. The argument is devoid of merit. PW2 Vidya Wati has categorically

stated that the appellants and Karamat dragged her husband out of the

house of Laxman Singh, where he was killed by the mob. Aforesaid

testimony clearly establishes that the appellants were the members of

the unlawful assembly, who had come the house of Laxman Singh with

the unlawful object of killing the deceased who was hiding there and they

even facilitated the killing of Thakur Singh by forcibly dragging him out of

the house whereafter he was killed and set on fire. This clearly

establishes that the appellants were not only the members of the

unlawful assembly, but they shared the unlawful object of killing also, as

such, in our considered view, the Trial Court was right in invoking Section

149 IPC to convict the appellants under Section 302 IPC with the aid of

Section 149 IPC.

29. The appellants have also been convicted for the offence punishable

under Section 148 IPC. Section 148 IPC is an independent offence having

two basic ingredients: (i) that the accused was guilty of rioting (ii) that

while participating in the riots, the accused was armed with a deadly

weapon or with anything which if used as a weapon is likely to cause

death. Though from the testimony of PW2 Vidya Wati, it is established

that the appellants participated in the riot resulting in death of Thakur

Singh but there is no evidence on record to show that they were armed

with deadly weapons or with anything which if used as weapon was likely

to cause death. Thus one basic ingredient of Section 148 IPC is lacking in

this case. Therefore, in our view the conviction of the appellants under

Section 148 IPC is not sustainable. Therefore, the conviction under

Section 148 IPC is converted into conviction under Section 147 IPC, which

is a lesser offence because it is estimated from the testimony of PW2 that

the appellants were part of the unlawful assembly.

30. The appellants were also charged for the offences punishable under

Section 397 IPC read with Section 149 IPC and Section 436 IPC read with

Section 149 IPC. The learned Trial Judge has not returned any finding on

the said charges. However, on perusal of record, we find that there is no

evidence on record to show that either any robbery or dacoity was

committed or an offence of mischief by causing damage to the house or

property of Laxman Singh from where the deceased was dragged out and

killed was carried out. Therefore, in our considered view, the prosecution

has failed to establish those charges and the appellants are entitled to

acquittal on said charges.

31. The learned Trial Court has also failed to return any finding on the

charge under Section 188 IPC. Instead of remanding the case back to the

Trial Court for finding on the charge after about 25 years of the

occurrence, we deem it appropriate to consider the evidence and return a

finding on the charge under Section 188 IPC. PW1 Hoshiar Singh, Head

Constable has proved the prohibitory order Ex.PW1/B and curfew order

Ex.PW1/A, both issued by the Commissioner of Police in exercise of his

powers under Section 144 Cr.P.C. on 31.10.1984 and 01.11.1984

respectively. From the order Ex.PW1/B, it transpires that on 31.10.1984,

a prohibitory order banning the assembly of more than five persons and

carrying of arms till further orders was issued in Delhi and order Ex.PW1/A

shows that w.e.f. 1.11.1984 - 6.00 p.m., an order under Section 144

Cr.P.C. was issued by the Police Commissioner imposing a ban on

anyone in Delhi coming outdoors without the permit granted by the

Deputy Commissioner of Police of the concerned District, till further

orders. From the testimony of PW2 Vidya Wati, it is established that the

appellants did indulge in riots and came outside their houses in violation

of the curfew order Ex.PW1/A and also formed unlawful assembly with

others in violation of prohibitory order Ex.PW1/B. Therefore, it is

established on record that they had disobeyed the above said two orders

promulgated by a public servant duly authorized in that regard i.e. the

Police Commissioner of Delhi. Thus, they are guilty of having committed

an offence under Section 188 IPC. Sanction for the prosecution of the

appellants for the offence under Section 188 IPC has been granted by the

Commissioner of Police, which is proved on record as Ex.PW7/A. Thus,

under the circumstances, we hold the appellants guilty under Section 188

IPC and convict them accordingly.

32. In view of our discussion above, we partly accept the appeal. The

conviction of appellants under Section 148 IPC is set aside and is

converted into conviction under Section 147 IPC. So far as conviction 302

IPC read with Section 149 IPC is concerned, the appeal is dismissed. The

appellants are also convicted for the offence punishable under Section

188 IPC and they are acquitted of the charges under Section 397 read

with Section 149 IPC.

33. While maintaining the sentence awarded to the appellants for

offence punishable under Section 302 read with Section 149 IPC, we set

aside the sentence awarded to the appellants under Section 148 IPC. And

for the offence punishable under Section 147 IPC, we sentence the

appellants to undergo RI for the period of two years respectively. Further,

for the offence punishable under Section 188 IPC, we sentence the

appellants to undergo RI for the period of six months respectively. All the

sentences shall run concurrently.

34. The appellants are on bail. They be taken into custody and sent to

jail to complete the remaining period of sentence.

35. Appeal is disposed of accordingly.

AJIT BHARIHOKE, J.

DECEMBER 07, 2009                           SANJAY KISHAN KAUL, J.
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