Delhi High Court

State vs Ravinder Singh & Ors. on 9 February, 2009

Author: V.B.Gupta

*      HIGH COURT OF DELHI : NEW DELHI

              Crl. Appeal No.103/1992

%             Judgment reserved on: 15th January, 2009

              Judgment delivered on: 9th February, 2009

State                                  .... Appellant

                    Through: Mr. M.N. Dudeja, Adv.

              Versus

1.Ravinder Singh s/o. Chhutkan Singh
2.Daya Shanker s/o. Chhutkan Singh
3.Raghbir Singh s/o. Sukhi Lal
4.Ram Avtar s/o. Ved Parkash
5.Ramesh So. Bansi                ..... Respondents


                    Through : Mr. Akshay Malik, Adv. for R-
                              1, 2 and 5.
                              Mr. Dhananjay Shahi, Adv. for
                              R-3 & 4.



Coram:
HON'BLE MR. JUSTICE V.B. GUPTA
HON'BLE MR.JUSTICE BADAR DURREZ AHMED

1. Whether the Reporters of local papers may
be allowed to see the judgment?                          Yes

2. To be referred to Reporter or not?                    Yes

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


Crl.A.No.103/1992                                 Page 1 of 24
 V.B. GUPTA, J.

1. State has filed the present appeal against the

acquittal of the respondents.

2. Present case was registered on the statement of

Bhan Singh, Security Guard employed at Mohan

Machine, Coca-cola Factory, situated at Okhla

Industrial Area, Phase-I. He in his statement Ex-PW

7/A, made to the police stated that on 1st November,

1984, he was posted as a security guard in the above

factory. The factory was closed due to weekly off on

Thursday. He along with Mohinder Singh, Santokh

Singh, Balkar Singh, Jit Singh, Prakash Singh, Balwant

Singh, Bachan Singh, Bhoop Singh and Ram Chander

was present on duty. At about 2.30 p.m., a crowd of

about 1500 to 2000 persons armed with lathis, saria

etc. came and they started throwing stones and

breaking glass panes of the factory and put the factory

vehicles on fire. These persons while damaging and

setting ablaze the factory, were heard saying that the

owner of the factory was a Sardar/Sikh and they would

take revenge of the death of Prime Minister in that

manner. They looted from factory, crates of Campa

Cola bottles, type writers, furniture etc. He (Bhan

Singh) and his companion saved their lives with great

difficulty by concealing themselves under the goods of

the factory and in the meantime police came and they

were taken out. This crowd had intentionally

committed riots with common object by setting the

factory on fire and looting away the goods therefrom.

3. Whereabouts of his other companions namely

Balkar Singh, Jit Singh, Rankash Singh, Balwant Singh,

Bachan Singh, Bhoop Singh and Ram Chander, who

were also on duty are not known to him. Bhan Singh in

his complaint has stated that he did not know the name

of any persons out of the crowd but he can identify

them if confronted.

4. On the basis of this statement made by the

complainant, the present case was registered and

investigated.

5. All the respondents herein were charge sheeted

by the police for offences under Sections 148/436/149,

427/149, 395 and 411 IPC.

6. After trial, the Additional Sessions Judge

acquitted all the respondents by giving them benefit of

doubt.

7. It has been contended by learned counsel for the

State that prosecution witnesses namely PW 8, Bachan

Singh, PW 9 Balwant Singh and PW 11 Santokh Singh,

who were at the scene of occurrence had named all the

respondents as culprits. Besides that, there are

statements of other witnesses namely, PW 6 K.B.

Gulati, PW 7 S.I. Ganga Sahai, (I.O), PW 10 Mohinder

Singh and PW 12 Rajbir Singh, who are the witnesses

to the recovery of stolen articles effected from the

jhuggis of the respondents in pursuance to the

disclosure statements made by them, and the same are

Ex PW7/A, E, F, G and I.

8. Another contention raised by learned counsel for

the State is that Test Identification parade was not

conducted since all the respondents were already

known to the eye-witnesses.

9. The recovery of the stolen property in this case

was effected from the jhuggis as well as outside the

jhuggis of the respondents. All the eye-witnesses are

categorical in their statements that all the respondents

were members of the mob which had set the factory on

fire and looted the property and had indulged in

rioting.

10. On the other hand, it has been contended by

learned counsel for the respondents that none of the

respondents was named in the F.I.R nor any

description was given and further, no Test

Identification parade was conducted.

11. PW1 Bhoop Singh, who is an independent witness

did not identify any of the respondents whereas, PW 8

Bachan Singh who was on duty in the factory up to

2.00 p.m. did not inform anybody regarding the

incident.

12. It is also contended that none of the eye-

witnesses were associated with the recovery of the

stolen property, as PW 9, the so-called eye-witness, in

his cross-examination has stated that he did not join

the police party to search the respondents in jhuggis.

13. Another contention is that as per statement of PW

11 Santokh Singh, the mob remained in the factory for

about 2 ½ hour and if the mob had remained there for

2 ½ hour then why not even a single rioter was caught.

14. It is further contended that statements of all the

so-called eye-witnesses were recorded after about 8-9

months and there is no explanation as to why there

was such a delay in recording their statements.

15. It is also contended that there is nothing on

record to show that the jhuggis from where the stolen

properties were recovered, belonged to the

respondents. No documentary evidence to this effect

has been placed or proved on record. No site plan of

any of the jhuggis was prepared.

16. Learned counsel also contended that there is

nothing on record to show that the articles recovered

from the jhuggis of the respondents, are owned by

Mohan Machines, Okhla, Phase-1. Moreover, as per

prosecution‟s own case, many of the articles were lying

outside the jhuggis of the respondents and as such the

articles recovered in this case have not been connected

with the respondents.

17. Lastly, it is contended that one of the respondents

namely Ravinder Singh has been implicated by the

management in connivance with police due to enmity,

since he was General Secretary of the Union and was

turned out by the management in the year 1983.

Hence, there is no evidence on record to connect the

respondents, with the commission of the offences.

18. The present appeal is against acquittal. It cannot

be forgotten that in case of acquittal, there is double

presumption in favour of the accused. Firstly, the

presumption of innocence is available to him under the

fundamental principle of criminal jurisprudence that

every person should be presumed to be innocent

unless he is proved to be guilty by a competent court of

law. Secondly, the accused having secured an

acquittal, the presumption of his innocence is certainly

not weakened but reinforced, reaffirmed and

strengthened by the trial court.

19. The dictum of the Privy Council in Sheo Swarup

v. King Emperor [1934 (61) IA 398] and various

decisions of Supreme Court have firmly established the

position that although in an appeal from an order of

acquittal the powers of the High Court to reassess the

evidence and reach its own conclusions are as

extensive as in an appeal against an order of

conviction, yet, as a rule of prudence, it should-to use

the words of Lord Russel of Killowen-„always give

proper weight and consideration to such matters as (1)

the views of the Trial Judge as to the credibility of the

witnesses (2) the presumption of innocence in favour

of the accused, a presumption certainly not weakened

by the fact that he has been acquitted at the trial; (3)

the right of the accused to the benefit of any doubt;

and (4) the slowness of an appellate Court in

disturbing a finding of fact arrived at by a Judge who

had the advantage of seeing the witnesses.‟ Where

two reasonable conclusions can be drawn on the

evidence on record, the High Court should, as a matter

of judicial caution, refrain from interfering with the

order of acquittal recorded by the Court below. In

other words, if the main grounds on which the Court

below has based its order acquitting the accused, are

reasonable and plausible, and cannot be entirely and

effectively dislodged or demolished, the high Court

should not disturb the acquittal.

20. Keeping in mind these principles, we have

carefully examined the evidence of all material

witnesses.

21. The first and foremost question which arises for

our consideration is as to how the present respondents

are connected with the commission of the offence.

None of the respondents have been named in the First

Information Report, neither the parentage of

Respondent Ravinder has been mentioned nor his

address. Same is position with regard to remaining

four respondents.

22. Bhan Singh, complainant, in his complaint, has

stated that he did not know the name of any persons in

the crowd but he can identify, if confronted. So, the

names of respondents were not known to the

complainant Bhan Singh.

23. Now let us see how the police has connected the

respondents with the crime.

24. As per statement of PW 7 Ganga Sahai, I.O., on 5th

November, 1984, he along with other police officers

was investigating the case and a secret information

was received by him that in case Ravinder Singh is

interrogated, the looted property can be recovered.

Thereafter, he apprehended Respondent Ravinder

Singh and interrogated him.

25. Thus, the prosecution case is that, after Ravinder

was apprehended, he made a disclosure statement and

disclosed the names of his accomplices, who are other

respondents in the present case. In pursuance of

disclosure made by respondent Ravinder, the property

was recovered and similarly other respondents also

made their disclosures, and got the properties

recovered.

26. We fail to understand as to how the secret

informer had come to know about the name of

respondent Ravinder, when admittedly PW Bhan Singh

in his initial complaint has categorically stated that

"he did not know the name of any persons out of

the crowd".

27. There is nothing on record to show that secret

informer had given either the description of Ravinder

or his parentage or his residential address, to the I.O.

Even if Ravinder was involved in the crime as per the

secret informer, it is not clear as to how the police

party was able to apprehend him, without his

parentage, description and residential address.

28. If the secret informer knew that Ravinder had the

looted property with him, then under those

circumstances secret informer must have seen

Ravinder committing the crime as well as looting the

property. Then in that case, this secret informer ought

to have been made as an eye witness.

29. This secret information available with the

Investigating Officer that "in case Ravinder Singh is

interrogated, the looted property can be

recovered", cannot lead to his arrest when parentage,

description or address of Ravinder Singh has not been

given.

30. Thus, the prosecution has failed to establish as to

how respondent Ravinder (who was not named in the

initial complaint), has been connected with the

commission of the present offence. If the case of

prosecution qua respondent Ravinder fails,

consequently, the arrest of other respondents, made in

pursuance of Ravinder Singh‟s disclosure statement,

also goes.

31. The next point for consideration is as to why the

Investigating Officer did not get Test Identification

Parade of respondents, when as per complaint of Bhan

Singh, he did not know the name of any of the

respondents, but could only identify, if confronted.

32. Since, respondents were not named in the First

Information Report, nor had they been apprehended

from the scene of crime, it was imperative for the

Investigating Officer to have got the Test Identification

Parade done of all the respondents.

33. It is well settled that the identification tests may

not constitute substantive evidence and these tests are

primarily meant for the purpose of helping the

investigating agency with an assurance that their

progress with the investigation into the offence is

proceeding on right lines.

34. When a party‟s identity with an ascertained

person is in issue, it may be proved or disproved not

only by direct testimony, or opinion evidence, but

presumptively by similarity or dissimilarity of

characteristics (eg, age, height, size, hair complexion,

voice, handwriting, manner, dress, distinctive marks,

faculties, or peculiarities including blood group, as

well as of residence, occupation, family relationship,

education, travel, religion, knowledge of particular

people, places or facts and other details of personal

history [See: Phipson on The Law of Evidence 9th

Ed P 137].

35. In Kanan and Others v. State of Kerala, AIR 1979

SC 1127 Supreme Court held that;

"Where a witness identifies an accused who is not known to him in the Court for the first time his evidence is absolutely valueless unless there has been a previous T.I. Parade to test his power of observations. The idea of holding a T.I. Parade under Section 9 is to test the veracity of the witness on the question of capability to identify an unknown person whom the witness may have seen only once. If no T.I. Parade is held then it will be wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in court."

36. Under these circumstances, it is not safe to rely

on the testimony of any of the so-called eye witnesses.

37. Another point which arises for consideration is

that as per initial complaint Ex PW 7/A made to the

police, there were eight other persons who were the

eye-witnesses, but none of them was associated with

the disclosure proceedings of any respondents.

Moreover, no recoveries were effected from the

respondents in presence of any of the eye witnesses.

38. PW 6 K.B. Gulati, who was working as Assistant

Purchase Officer was however, associated with the

recovery proceedings. In his statement he has stated

that at about 10.30 a.m., the police party had arrived

at the factory and he joined the police party and

thereafter, all the five respondents were apprehended

from their jhuggis and got recovered the stolen articles

from their jhuggis.

39. This witness contradicts PW 7 Ganga Sahai,

because PW 7 states that he along with other police

personnel was investigating the case, when a secret

information was received by him that in case Ravinder

is interrogated, the looted property shall be recovered.

He apprehended Respondent Ravinder from near his

jhuggi and interrogated him.

40. PW 7 Ganga Sahai, did not state about the

presence of PW 6 K.B. Gulati at that time.

41. So, this is a very material contradiction in the

case of prosecution.

42. Another version given by the I.O. in his cross-

examination is that, PW 6 K.B. Gulati was with him at

the time of apprehension of the respondents and he

(PW 6) was present in the factory at the time of the

incident. He had identified all the respondents. PW

6 K.B. Gulati had told him that respondents are some

of the rioters/culprits, who had taken part in the riots.

Whereas, PW 6 K.B. Gulati in his statement has

nowhere stated at all, that respondents are the

rioters/culprits who had taken part in the riots.

43. On the other hand, in his cross-examination PW 6

states that on 5th November, 1984, at about 10.30 a.m.,

the police came to their factory and he was deputed by

his senior officer to accompany the police for purposes

of identification of the property.

44. Defence of respondent Ravinder Singh is that

police in connivance with management concocted this

case to break the union of which he was General

Secretary and was turned out by the management in

the year 1983. He has further stated that still there is

a union in Mohan Machines and he is the Chairman of

the said union.

45. PW 11 Santokh Singh, who was working as a

security guard in the factory at the relevant time, in his

cross-examination has admitted that there was a union

of labourers in Mohan Machines and respondent

Ravinder has worked for some period in their factory,

before this incident. At that time, respondent Ravinder

was a member of union.

46. PW 14 K.L. Arora, who was working as a

Manager, Mohan Machines at that time has admitted

that respondent Ravinder had joined as a worker with

him.

47. In view of the statement of the prosecution

witness PW 11, Santokh Singh, respondent Ravinder

Singh had worked in the factory of Mohan Machines

for some period and was also member of union. So,

false implication of respondent Ravinder due to union

activities, cannot be ruled out.

48. With regard to possibility of false implication of

respondents, it would be relevant to have a glance at

the findings of Trial Court which read as under;

"The statement of the PW 11 is still worst and does not advance the case of the prosecution any further. He has named the accused persons as culprits or as the persons who were present in the mob which indulged in the act of destroying and looting the factory. But this PW. States that he did not disclose this incident to anyone out of fear. He does not know as per his own statement that who were the persons from whom he entertained fear. Besides this he remained in Police Station for 2/3 days but at the Police Station he did not disclose the name of the accused as being the members of the mob who looted

the property. Had this PW witnessed the accused persons participating in riots he would have definitely named them to the Police Officers or given their descriptions. But not doing only indicates the possibility of the false implication of the accused persons."

49. Now, coming to the recovery of the stolen

properties. The prosecution has to prove in the first

instance, that the properties which have been looted or

stolen, were owned by Mohan Machines Factory.

50. There is nothing on record to show that the

goods/articles which were recovered from the

possession of the respondents, were owned by Mohan

Machines Ltd.

51. In this respect, statement of PW 14, K.L. Arora,

who was working as a Manager of Mohan Machines

Ltd., may be referred to. He in his statement has

stated that he had given detailed list of the articles,

looted/burnt and damaged in the incident. However,

that list is not traceable on record or available with the

police.

52. In cross-examination, he has stated that the list

was made with the help of others and the same was not

made in his personal knowledge.

53. So, there is no documentary proof or otherwise

that the stolen or looted articles recovered in this case

were owned by Mohan Machines Ltd.

54. Now, coming to the recovery of the so-called

stolen articles, it has been admitted by the prosecution

witnesses that many of the articles which were

recovered in this case were lying outside the jhuggis of

the respondents.

55. Before a person can be convicted for being in

possession of stolen property, the prosecution had to

show firstly, that it is owned by someone who is the

owner of this property, secondly, the property has

been found in the conscious possession of the accused.

Both these things are missing in the present case.

56. Next point for consideration is with regard to

delay in recording the statements of the witnesses.

57. As per findings of the Trial Court, there is delay in

recording the statement of the witnesses, which read

as under;

"There is delay in recording the statement of these PWs. I.O., PW 7 and PW 13 does not remember when statement of the eye witnesses were recorded but they were not recorded immediately after the occurrence. The perusal of the zimni shows that these statements were th recorded on 11 June, 1985, over eight months of the occurrence of this case. The delay in recording the statement of the PWs coupled with the absence of T.I.P. does not stirs up confidence in me to rely on their statement that they have witnessed the occurrence."

58. In State of Punjab v. Jagir Singh, Baljit Singh

and Karam Singh, AIR 1973 SC 2407, it has been

held that;

"A criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and fantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities,

its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures".

59. In the present case since the statements of the

witnesses were recorded eight months after the

occurrence of the event, so it does not inspire

confidence.

60. Hence, from the entire material available on

record, we hold that the prosecution has miserably

failed to link the present respondents with the

commission of the alleged offences and the trial court

rightly acquitted all the respondents.

61. Before parting with, we must express our anguish

about the manner in which the present case has been

investigated by the police.