Smt.Kaushalya @ Tilla vs The State
2009 Latest Caselaw 5017 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                              Judgment reserved on: November 16, 2009
                              Judgment delivered on: December 07, 2009


+      CRIMINAL APPEAL NO.26/1997


       SMT. KAUSHALYA @ TILLA                       ..... Appellant
                        Through:         Mr. K.B. Andley, Senior Advocate
                                         with Mohd. Shamikh, Advocate

                   Versus

       THE STATE                                   ..... 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

16.12.1996 in Sessions Case No.63/95 arising out of FIR No.426/84 Police

Station Kalyan Puri vide which the appellant has been convicted on

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

IPC and the consequent order on sentence dated 17.12.1996 sentencing

the appellant to undergo imprisonment for life and also to pay a fine of

Rs.25,000/-, 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.5,000/-,

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 general allegations pertaining to the loss of life and

property caused by the rioters to several Sikh families.

3. Statements of several witnesses including Gopi Bai, PW2 were

recorded on 7.11.84 at the relief camp. Gopi Bai, PW2, in her statement

to the police stated that in the evening of 01.11.84, a mob of rioters led

by one Ram Pal Saroj, resident of Block No.32, Trilok Puri killed her

husband Badshah Singh and nephew Hakam Singh by setting them on fire

and when she tried to save her husband and nephew, her right hand got

fractured. She also stated that rioters looted her house and took away

their belongings. Though the police tried to save them, they failed to

succeed as the crowd started pelting stones at the police. Later on, she

and her family members were taken by the police to the Police Station

Kalyan Puri for their safety.

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 one Ram Pal Saroj (since expired),

who was charged for the offences punishable under Section 188 IPC, 148

IPC, 302 IPC read with 149 IPC and Section 397 IPC read with 149 IPC, to

which he pleaded not guilty and claimed trial.

5. PW2, Gopi Bai appeared on 02.02.96 as a witness in the Court.

Apart from deposing that the accused Ram Pal Saroj was leading the pack

of rioters, she also named the appellant Kaushalya @ Tilla, one Draupadi

and one Jagdish @ Jagga being the members of the unlawful assembly of

the rioters. The learned Additional Sessions Judge, in view of the

statement of Gopi Bai, PW2 invoked Section 319 Cr.P.C. and summoned

the appellant, Draupadi and Jagdish @ Jagga to be tried along with the

charge sheeted accused Rampal Saroj. All three of them were also

charged for the offences punishable under Section 188 IPC, Section 148

IPC, Section 302 IPC read with Section 149 IPC and Section 397 IPC read

with Section 149 IPC. On 15.04.96, they all pleaded not guilty and

claimed to be tried.

6. At the outset, we may note that out of the four charged accused,

only the appellant Kaushalya @ Tilla survives. The co-accused Rampal

Saroj and Draupadi died during trial, as such trial against them abated.

Jagdish @ Jagga died during the pendency of the appeal No.46/97, as

such his appeal also stood abated.

7. On the conclusion of trial, the learned trial Court found the appellant

Kaushalya @ Tilla and her co-accused Jagdish @ Jagga guilty of the

offences punishable under Sections 148 IPC and 302 IPC read with Section

149 IPC. The conviction rests solely on the eye-witness account given by

PW2 Gopi Bai, who alone was produced as the eye-witness to the

occurrence.

8. PW2 Gopi Bai has stated in the Court that on the fateful evening, a

huge crowd of rioters armed with swords and lathis etc. visited their

house No.32/82, Trilokpuri, Delhi. Accused Rampal Saroj (since expired)

was leading the pack. The rioters dragged her husband Badshah Singh

and nephew Hakam Singh out of the house and killed them. They

sprinkled some powder on their dead bodies and set them on fire. She

also stated that when she requested Rampal Saroj to spare the life of her

husband and nephew, he struck her with a lathi, resulting in the fracture

of her hand. According to her, the appellant Kaushalya @ Tilla, Draupadi

(since deceased) and one Jagdish @ Jagga (since deceased) were also in

the mob and she recognized them because they were the residents of

same block No.32, Trilokpuri. During cross-examination, she denied the

suggestion that in her statement given to the police she did not name the

appellant, Jagdish @ Jagga and Draupadi as the members of the group of

rioters involved in the killing of her husband and nephew. She also

denied the suggestion that she had stated to the police that the rioters

were a group of Muslim persons who had attacked their house. She was

also confronted with her statement made to the police Ex.PW2/DA,

wherein she had not stated that when she requested the accused Rampal

Saroj to spare the lives of her husband and nephew, he struck her with a

lathi, resulting in fracture of her hand, which was later on put under

plaster. If aforesaid version of PW2, Gopi Bai is to be believed, then the

police had not been honest in recording her statement under Section 161

Cr.P.C.

9. Learned counsel for the appellant has assailed the impugned

judgment, firstly, on the ground that the learned trial Court, while

appreciating the evidence has given a complete go-by to the settled

principles of appreciation of evidence. He totally ignored that the

testimony of PW2 Gopi Bai against the appellant made in the Court is an

improvement upon her earlier version Ex.PW2/DA given to the police in

her statement recorded under Section 161 Cr.P.C., wherein she had not

named the appellant, Draupadi and Jagdish @ Jagga. It is submitted on

behalf of the appellant that the trial Court did not even consider that the

alleged incident took place in November, 1984 and the name of the

appellant as a part of the unlawful assembly surfaced for the first time

almost 12 years later in the testimony of PW2 Gopi Bai given in the Court

on 02.02.96 during the trial of Ram Pal Saroj. That fact by itself,

according to learned counsel for the appellant, entitles the appellant at

least to the benefit of doubt. It was further submitted, no doubt the

police administration in Delhi had almost failed during first few days after

the assassination of the Prime Minister Smt.Indira Gandhi, but the fact

remains that thereafter several NGOs and public spirited groups became

active to ensure justice to the victims of riots. This possibility cannot be

ruled out that because of persuasion of some over-zealous activists, the

witness might have falsely named the appellant as one of the rioters.

Thus, it was contended that it is not safe to place reliance on the

uncorroborated testimony of PW2 Gopi Bai.

10. Secondly, it was argued that there was no basis for convicting the

appellant under Section 148 IPC or for the offence under Section 302 IPC

with the aid of Section 149 IPC, because in order to invoke Section 148 or

Section 149 IPC the prosecution was required to prove beyond doubt that

the appellant was a member of the unlawful assembly. The prosecution,

according to learned counsel for the appellant, has failed to adduce

evidence to establish that the appellant committed any overt or covert

act during the occurrence which could justify the inference that she was a

member of the unlawful assembly involved in killing of Badshah Khan and

Hakam Singh or the looting of the house of PW2, Gopi Bai.

11. Thirdly, it was submitted that there was no basis for conviction of

the appellant under Section 148 IPC as there was no evidence on record

to show that the appellant, even if it is assumed that she participated in

the riot, was armed with a deadly weapon or anything, which if used as a

weapon of offence, would have caused death.

12. Fourthly, it was argued that the learned Additional Sessions Judge,

in his anxiety to do justice to the victims, has ignored the law of evidence

and he brought in his personal information derived from extraneous

sources to conclude that appellant Kaushalya @ Tilla was a known

history-sheeter of Police Station Kalyan Puri, Trilok Puri and Farsh Bazar.

13. In effect, the argument of the appellant is that the prosecution has

failed to prove the guilt of the appellant and she is entitled to the

acquittal.

14. Learned counsel for the State, on the other hand, has canvassed in

support of the impugned judgment. He has submitted that learned trial

Court was right in taking judicial notice of the fact that the law and order

machinery during the anti-Sikh riots in the aftermath of the assassination

of the Prime Minister Smt.Indira Gandhi had failed and the police

authorities, instead of coming to the rescue of the unfortunate Sikh

families, encouraged the rioters either by their inaction to prevent the

crime or by failing to conduct proper investigation, and in the context of

such background atmosphere, rightly relied upon the testimony of PW2

Gopi Bai, who had no reason to falsely implicate the appellant.

15. We have considered the submissions made on behalf of the

respective parties and gone through the evidence on record.

16. At the outset, we are constrained to note, though the appellant was

also tried for the charges under Section 188 IPC and 397 IPC, the trial

Judge has not returned any finding one way or the other on those

charges. It appears that while recording the judgment, aforesaid two

charges escaped the attention of the trial Judge. Be that as it may,

considering the fact that the incident took place 25 years ago, we do not

deem it appropriate to remand the case back to the trial Court for

returning the finding on those charges.

17. Learned counsel for the appellant has submitted that PW2, Gopi Bai

is not a reliable witness because she has made substantial improvement

in her testimony in Court over her earlier statement Ex.PW2/DA made to

the police during investigation by introducing the name of the appellant

as one of the rioters for the first time after 12 years in the year 1996.

Thus, he has urged us to reject her testimony against the appellant as

unreliable and set aside the order of conviction.

18. Case of the prosecution rests on the eye witness account given by

the witness Gopi Bai, PW2. The witness has deposed that the appellant,

Draupadi and Jagdish @ Jagga were also the part of the unlawful

assembly of rioters. In her entire testimony, Gopi Bai, PW2 has not

assigned any overt or covert act to the appellant. She has not stated that

the appellant actually took active part in killing of Badshah Singh and

Hakam Singh or the looting of her house. There is not even a whisper in

the testimony of PW2 that the appellant was carrying any deadly weapon

or an implement, which if used as a weapon would have caused death.

Thus, the sole question for determination is whether or not appellant

Kaushalya Devi was present at the time of occurrence? And if so, whether

she was only a curious onlooker or she actually was the member of the

unlawful assembly indulging in murder and arson?

19. Admittedly, the testimony of Gopi Bai, PW2 is at variance with her

statement under Section 161 Cr.P.C., Ex.PW2/DA, made to the police so

far as the presence of the appellant at the place of occurrence is

concerned. The learned trial Judge has declined to place any emphasis on

the aforesaid variance/improvement, taking note of extraordinary

situation prevailing in Delhi in the aftermath of death of Prime Minister

Smt. Indira Gandhi. He recorded in the impugned judgment that law and

order machinery had completely failed with effect from 31.10.1984 till

02.11.84 and the police authorities, instead of coming to the rescue of the

victim of riots, turned a blind eye and even covertly encouraged the riots.

Under these circumstances, learned trial Judge drew an inference that the

statement of Gopi Bai Ex.PW2/DA was not correctly recorded by the

police. In support, the learned trial Judge highlighted in the impugned

judgment that the recording of statement of the witness was entrusted to

a trainee officer Inspector Rajender Prasad, which reflects upon the

seriousness of the investigation. Learned trial Court also made a

reference to the report of Rangnath Mishra Commission and Justice Jain

and Aggarwal Committee, which were constituted to conduct inquiry into

the riot cases and the role of the police and observed that following

conclusions were arrived at by the Commission and the Committee:

"(1) That the Admn. was not at all interested that the rioters should be prosecuted.

(2) 72 police officials listed by Kusum Lata Mittal Committee were directly or indirectly involved in the riots.

(3) The investigation of the riot cases was deliberately not done properly. No recovery of arms was made from any of the accused persons. The recovery of looted articles was shown as abandoned articles on the roads and announcements were made that those who have looted the articles should deposit the same on the roads and police would pick them up as abandoned articles and would not say anything to the looters.

(4) FIRs were not regd. on the basis of statements of victims where there should have been more than 100 FIRs of the separate incidents of rioting having taken place in different blocks and different places within the blocks of Trilok Puri. Only one FIR was regd.

(5) Whenever the name of any influential person or police person was taken by the victims either the statement was not at all recorded or the statement was distorted and the names of such persons would be dropped.

(6) No interest was taken by the prosecution or the Admn. for speedier trial of these cases and the attempt of the prosecution and the Admn. was to linger and prolong the trial as far as possible."

20. Taking note of the above referred observations, the learned trial

Court arrived at a conclusion that the statement of Gopi Bai Ex.PW2/DA

was not the honest recording of her version and it appears to be

concoction and forgery.

21. Appreciation of evidence in a criminal trial is a serious exercise

concerning the life and liberty of the accused. A slight error in

appreciation of evidence on the part of the Court can have disastrous

consequences for the accused. The Evidence Act does not provide for a

tailor made formula to conclude which statement of a witness should be

believed or should not be believed. The answer to the question depends

upon so many circumstances and it is difficult to lay down a precise

formula to assess the credibility of the witness. These matters have been

left to the sound discretion of the Court. The testimony of the witness is

to be assessed in its entirety, in the light of the surrounding

circumstances and other evidence, to arrive at a conclusion whether said

testimony gives an assurance of truthfulness and credibility. In the

instant case, the name of the appellant as one of the rioters surfaced for

the first time 12 years after the incident when PW2 Gopi Bai appeared in

the witness box in the year 1996. There is no cogent explanation as to

why she was not named earlier. The explanation that the Investigating

Officer might not have correctly recorded her statement is not acceptable

particularly when the appellant, obviously being a member of the lower

strata of the society, was not an influential person so as to wield influence

over the police authorities. There is nothing on record to show that she

had any equation with the Investigating Officer or Inspector Rajender

Prasad PW8, who recorded her statement which could have persuaded

them to exclude her name from the statement of PW2, Gopi Bai. The

justification given in the impugned judgment for relying on

uncorroborated sole testimony of PW2 Gopi Bai is that the witness could

not have known about the mischief played by the police authorities in not

correctly recording her statement and that on the very first opportunity

when she appeared in the Court, she named the appellant as a member

of the unlawful assembly. To our mind, aforesaid reasoning on the part of

the trial Judge is misguided and it seems to be the result of suspicion

against the role of investigating agency based upon the conclusion of

Ranganath Mishra Commission and Jain and Aggarwal Committee.

22. It is well known that due publicity was given to the inquiry

conducted by the Ranganath Mishra Commission. Even the complaint

and affidavits against inaction or improper investigation by the Police

were invited from the victims of said riots. There is nothing on record to

suggest that PW2 Gopi Bai or anyone on her behalf approached the

Commission to complain against the ineffective or faulty investigation by

the Police in respect of the incident in question. No evidence has been

produced to show that Police investigation relating to this case was held

to be faulty or biased by the Commission. In absence of any evidence to

that effect, we find it most unsafe to rely upon uncorroborated testimony

of PW2 Gopi Bai, who suddenly implicated the appellant after a lapse of

12 years while she appeared as a witness in trial against Ram Pal Saroj.

Though one may have a suspicion about the involvement of the appellant

in the crime because of the circumstances which prevailed at the relevant

time when the law and order machinery had more or less collapsed, the

fact remains that suspicion is no substitute for the proof in a criminal

prosecution. Thus, we are of the view that the prosecution has failed to

establish beyond doubt that the appellant was the part of the unlawful

assembly or that she was even present at the spot as a onlooker.

23. In order to bring home the guilt of the appellant under Section 148

IPC, the prosecution was required to prove that the appellant was the part

of an unlawful assembly and she was armed with a deadly weapon or

anything which, if used as a weapon, was likely to cause death. In view of

our discussion above, the prosecution has failed to prove the presence of

the appellant in the unlawful assembly. Even otherwise there is no

evidence on record to suggest that the appellant was armed with a

deadly weapon or anything which if used as a weapon was likely to cause

death. Thus, both the requisite ingredients of Section 148 IPC are missing

in this case, as such the conviction under Section 148 IPC cannot be

sustained.

24. Coming to the charge under Section 302 read with Section 149 IPC,

Gopi Bai, PW2 has nowhere stated that the appellant Kaushyala was in

any way directly involved in the murder of her husband and the nephew.

Learned trial Court has convicted the appellant under Section 302 IPC

with the aid of Section 149 IPC. Section 149 IPC can be invoked only if

the accused is proved to be one of the members of the unlawful

assembly. In view of our discussion above, since the presence of the

appellant at the time of occurrence as a part of unlawful assembly is not

established beyond doubt, the conviction of the appellant under Section

302 read with Section 149 IPC is not sustainable.

25. Though charges under Section 188 IPC and Section 397 read with

Section 149 IPC were framed against the appellant, learned trial Court has

not returned any finding on those charges. Once it is concluded that the

prosecution has failed to prove the presence of the appellant at the spot

of occurrence, which is the bed rock of the above charges, the appellant

is entitled to acquittal on the aforesaid count also.

26. In view of the aforesaid discussion, we accept the appeal and set

aside the impugned judgment of conviction and the consequent order on

sentence. The appellant is acquitted of charges under Section 148 IPC

and for the offence under Section 302 IPC with the aid of Section 149 IPC,

giving her benefit of doubt.

27. Appellant is on bail. Her bail and surety bond are cancelled and

discharged.

AJIT BHARIHOKE, J.

DECEMBER 07, 2009                        SANJAY KISHAN KAUL, J.
pst/gm/ks