Bhagwan Dass & Ors. vs State
2009 Latest Caselaw 227 Del

                "REPORTABLE"
*     HIGH COURT OF DELHI AT NEW DELHI


+            CRL. APPL. No. 932/2004 & Crl. M.A.
             No. 13500-501/2006


                           Date of decision : January 23, 2009


#     BHAGWAN DASS & ORS.                       ..... Appellants
!            Through : Nemo.


                              Versus


$     STATE                                  .... Respondent
^                     Through : Mr. O.P. Saxena, APP
                                Mr. Neeraj Chaudhary, Adv.
                                for the complainant.
                                Complainant in person.
%
      CORAM:
      HON'BLE MS. JUSTICE ARUNA SURESH

     (1) Whether reporters of local paper may be
         allowed to see the judgment?

     (2) To be referred to the reporter or not?             Yes

     (3) Whether the judgment should be reported
         in the Digest ?                                    Yes

                         JUDGMENT

ARUNA SURESH, J.

1. By way of this appeal, appellant has assailed the

judgment dated 30.11.2004 and order on sentence

dated 2.12.2004 of the learned Additional Sessions

Judge passed in Sessions Case No. 54/2001, FIR

No. 3/93 under Sections 147/148/149/448/395/34

Indian Penal Code (hereinafter referred to as IPC)

registered at Police Station Bara Hindu Rao.

2. In brief the allegations of the prosecution are that

complainants Prakash Kaur and her son Jagjit

Singh were running crockery shop in premises No.

T-56 and T-57 till two or three months prior to the

riots of 1984. The accused persons were residing

in the neighbourhood of the shops of the

complainants. After the riots, complainants were

informed by one Shyam and Kaushalya that their

shops had been occupied by some persons.

Complainant Prakash Kaur visited the shop on

20.11.1984 and found lock of the shop broken as

well as goods looted and also found the accused

persons in possession of the said shops. Despite

her persistent complaints, Police did not register

any FIR about robbing of their articles from the

shop and forcible occupation of the shops by the

accused persons. When Jain Aggarwal Committee

was constituted, the complainants got an

opportunity to file their respective affidavits about

the incident. On the directions of the said

committee an FIR was registered against the

accused persons in January 1993.

3. After filing of the chargesheet, the trial court

framed charges against the accused persons under

Sections 147/395/448/34 IPC. After completion of

the trial, the Court assessed evidence of the parties

and found appellants guilty of having committed

offences of house trespass punishable under

Section 448 read with Section 34 IPC and of

committing theft under Section 379 read with

Section 34 IPC. Appellants were accordingly

sentenced to undergo one year rigorous

imprisonment and a fine of Rs. 1000/- each and in

default of payment of fine to undergo simple

imprisonment for three months for offence under

Section 448/34 IPC and three years rigorous

imprisonment and a fine of Rs. 25,000/- each and in

default of payment to undergo simple imprisonment

for a period of one year for offence under Section

379/34 IPC. Court also awarded benefit under

Section 428 Cr.P.C. to the accused persons and

also ordered the sentence to run concurrently.

Aggrieved by the said conviction and sentence, the

present appeal has been filed by the appellants.

4. The appellants have challenged the judgment of

conviction and order on sentence of the trial court

on the following grounds:

I. The conviction of the appellants is bad in

law as well as on facts on the record.

II. There was a delay of about 10 years in

lodging the FIR against the accused

persons and this fact has not been

considered by the trial court.

III. There is no eye witness in the case and

the named eye-witnesses in the affidavit

of the complainant did not appear before

the court for deposition.

IV. The accused persons were not charged

under Section 379 IPC though they have

been convicted by the trial court for

theft under Section 379 IPC and

sentenced for the same.

V. There was no recovery of the alleged

stolen goods at any time during the trial

of the case.

VI. The trial court had also not taken into

record the civil suit filed by the

complainant Inder Singh being suit No.

462/85 (old) 344/89(new) for possession

of property.

VII. The trial court had failed to appreciate

that Manmohan Singh one of the

witnesses did not support the

prosecution case and denied the

possession or ownership of the

complainant of the alleged property.

VIII. The genuineness of the affidavits filed by

the complainant before the riot

commission had not been proved as

prosecution did not bring any evidence

to show that the said affidavits were

attested on solemn affirmation and were

taken before them. The trial court failed

to give benefit of doubt to the appellants

though prayed by the counsel for the

appellants in the trial court.

IX. The trial court did not take into

consideration the cross-examination of

the witnesses and the defense witnesses.

X. The contradictions and confrontations

appearing in the statement of the

witnesses and the defence witnesses.

XI. The age of the accused persons was not

considered by the trial court and the

accused persons should have been

released on probation or convicted only

under Section 448 as per charge.

XII. The trial court has wrongly taken the

cognizance under Section 456 Cr.P.C. as

decree of the civil court existed against

the accused persons.

XIII. The police reports of Police Station Bara

Hindu Rao did not support the case of

the complainant that any incident of

riots took place in the area of

Tokriwalan, Azad Market, where the

property is situated.

5. Since appellants did not hand over the possession

of the impugned shops to the complainants, an

order was passed by this Court on 8.12.2004

directing the SHO to remove the appellants from

the premises in question in terms of the orders

passed by the trial court but would keep the

property in his custody till further orders from this

Court. Consequently the SHO got the shops

vacated and kept the possession of the said shops

with him. Since complainants succeeded in their

civil suit and obtained a decree for possession of

disputed premises besides damages and the appeal

filed against the said decree also stood dismissed,

they filed an application in this Court for

modification of the order dated 8.12.2004. The

order was accordingly modified and the SHO was

directed to hand over possession of the disputed

premises to the complainants. The SHO accordingly

handed over the possession of the impugned

property to the complainant which fact was

admitted by the complainant before this Court on

27.5.2008. In view of the complainant having

received the possession of the disputed property,

appellants settled their disputes with the

complainants towards full and final settlement of

their claims to which the complainants also agreed.

Some time was sought by the parties to record the

settlement and to pay the amount as agreed. But

the appellants failed to make any arrangement for

payment of the settled amount despite enough

opportunity being given to the appellants to make

the payment as settled between them. Appellants

made another request for making the payment of

the said amount in installments to which the

complainants did not agree and further time was

granted to the appellants on their request to pay

the said settled amount to the complainants.

Appellants, therefore, completely flouted the

undertaking given by them in their affidavits, filed

in this Court.

6. Time was given to the appellants to submit on the

appeal but again appellants failed to submit

arguments on the merits of the appeal. On

29.8.2008 none appeared on behalf of the

appellants. Under the circumstances, this Court

proceeded with hearing of arguments on behalf of

the State as well as complainant and after

conclusion of arguments reserved the orders.

Even, since thereafter, no efforts have been made

by the appellants to make the payment of the

settled amount to the complainants.

7. The incident in question took place as an aftermath

of unfortunate event of Indira Gandhi's

assassination by her own Sikh bodyguard and

chaos befell clouding the capital. The Sikh

community became the target of assault. Their

houses were looted and shops were ransacked.

The neighbours turned on their neighbours and the

Indian civilisation broke down in two separate

societies. The complainant Prakash Kaur and her

husband made complaints to the Police alleging

that appellants had looted their shops at

Tokriwalan along with details of losses incurred.

However, Police failed to take any action on the

said complaint, now registered as FIR. The Police

adopted an attitude of indifference and allowed the

agitated mob to continue to assault indulge into

incarceration, massacre, looting of properties and

forcible occupation of the various properties

belonging to the Sikh community. Under these

circumstances, Jain Aggarwal Committee was

constituted and immediately after formation of the

committee, the complainant Prakash Kaur and her

husband and her son Jagjit Singh filed affidavits

before the committee with the allegations against

appellants who all belonged to same family,

alleging that they had looted the shops at T-56 and

T-57 along with details of losses incurred. After

Jain Aggarwal Committee directed the Police

authorities to register an FIR and investigate the

matter, FIR No. 3/93 under Sections

147/395/448/149/34 IPC was registered at Police

Station Bara Hindu Rao. Under these

circumstances, delay of 10 years in lodging the FIR

against the accused persons is fully justified. If the

Police authorities were negligent and were not

ready and willing to perform their part of the

duties, complainants under these circumstances

could not be made to suffer on the plea that FIR

was got registered after about nine years of the

incident. The trial court has dealt with this issue in

a comprehensive manner in para 3 of the judgment.

Ineffectiveness of the Police might be cause of their

other primary important activities at the time of the

riots like; saving of persons, properties, picking up

the dead bodies, checking further commission of

riots, arrest of people etc. and also to ensure

restoration of normalcy in the affected areas.

8. In Apren Joseph v. State of Kerala - (1973) 3

SCC 114, it was observed:

"11..... Undue unreasonable delay in lodging the FIR, therefore, inevitably gives rise to suspicion which puts the court on guard to look for the possible motive and the explanation for the delay and consider its effect on the trustworthiness or otherwise of the prosecution version. In our opinion, no duration of time in the abstract can be fixed as reasonable for giving information of a crime to the police, the question of reasonable time being a matter

for determination by the court in each case. Mere delay in lodging the first information report with the police is, therefore, not necessarily, as a matter of law, fatal to the prosecution. The effect of delay in doing so in the light of the plausibility of the explanation forthcoming for such delay accordingly must fall for consideration on all the facts and circumstances of a given case."

9. In State of Himachal Pradesh v. Gian Chand -

(2001) 6 SCC 71, the Supreme Court observed:

"12. Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the court on its guard to search if any explanation has been offered for the delay, and if ordered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case....."

10. In the present case the delay in lodging the FIR has

been reasonably and satisfactorily explained by the

prosecution and therefore, the delay cannot by

itself be a ground for disbelieving and discarding

the entire prosecution case.

11. Under the circumstances in which the offences

were committed by the appellants, there could not

have been any eye-witness to the incident. The

trial court while considering the submissions of the

appellants that there was no eye-witness to the

incident, in the right perspective observed in

paragraph 4 of its judgment that the witnesses

whose shops were looted and forcibly occupied by

trespassing were not present at the time when the

incident of rioting or breaking open the locks of the

shops had taken place. The trial court observed:

"4. At the very outset it may be stated that the witnesses including those whose shops have been looted and forcibly occupied after trespassing were not present at the time when the incident of rioting or breaking open of the lock of shop had taken place, so they had not testified against the

accused persons as far as formation of unlawful assembly and riots is concerned, however, their testimony is in respect of forcible occupation of the shop no. T-56 and T-57 by the accused persons and removal of the goods, stock lying in the shop by the accused persons.

The defence taken by the accused persons is that complainant was not in possession of the shop in question at the time of riots and it was accused persons who were in possession of the premises. It is not in dispute that shop no. T-56 and T-57 are in possession of Udai Ram, Munni Devi and Bhagwan Dass."

12. The trial court assessed the circumstantial

evidence as well as evidence adduced on the record

regarding possession of the complainants in the

premises in dispute, which were trespassed by

breaking open the locks by the appellants, who also

looted the shops after trespassing them.

13. The trial court has discussed and assessed the

entire evidence of the prosecution as well as that of

the appellants in a comprehensive manner. I do

not find any infirmity in the assessment of the

evidence, made by the trial court. As regards PW7,

Dr. Manmohan Singh Grover is concerned, to say

that he did not support the prosecution case and

denied the possession and ownership of the

complainants in respect of the disputed shops

would be incorrect. He happened to be brother of

Inder Singh and the only testimony he gave was

that there was a family settlement and a

compromise deed was executed between the family

members regarding the property in dispute which

was also signed by him. Therefore, this witness in

no manner can be considered as hostile to the

prosecution case.

14. True, that appellants were not charged for offences

under Section 379 IPC, though they have been

convicted by the trial court for having committed

theft under Section 379 IPC and sentenced

accordingly. FIR was registered against the

appellants under Section 395 IPC i.e. looting of the

impugned shops by the appellants. Offence under

Section 395 IPC is heinous in nature and if the

Court was of the opinion that a lesser offence was

found to had been committed by the offender, the

Court was within its right to convict the offender

for the lesser offence. For that purpose there is no

requirement of law to amend the charges, as no

prejudice could be said to have been caused to the

appellants for having been convicted for offence

under Section 379 IPC instead of under Section

395 IPC.

15. Recovery of alleged stolen goods is not a pre-

requisite for convicting an offender for an offence

under Section 379 IPC. Affidavits filed by the

complainants before the Riot Commission were

proved to have been filed by PW1 Inspector B.S.

Patwal, PW2 S.L. Chopra, retired IAS, PW3 Rajesh

Arora, Advocate who attested the affidavit of Inder

Singh Grover, PW5 S.P. Singh Advocate who

attested the affidavit of Prakash Kaur Ex. PW5/A

and PW15 Inspector Ram Kishan Malik who had

made endorsement on the affidavit. None of these

witnesses were cross-examined on behalf of the

appellants. Therefore, the genuineness of the

affidavits, filed by the complainants before the Riot

Commission, stood duly proved by the prosecution

in the trial court.

16. The trial court also took into consideration certified

copies of the court proceedings and the statements

recorded before the civil court in a suit for

possession filed by Inder Singh Grover, the

husband of the complainant Prakash Kaur, against

the appellants Uday Ram, Kishori, Smt. Assi and

Sh. Bhagwan Dass. The trial court also took into

consideration the judgment of the civil court dated

31.5.2001 upholding the claim of Inder Singh that

he was in possession of the property before riots

and appellants Uday Ram, Assi and Bhagwan Dass

were unlawful and illegal occupants and

trespassers. Appeal against the said judgment and

decree was also dismissed by the learned ADJ vide

his judgment dated 19.3.2005. Except that the

quantum of damages awarded to the complainants

by the trial court were modified.

17. The trial court did consider the evidence adduced

by the parties if any carnage had taken place in

Tokriwalan to come to the conclusion that since no

riot had taken place in their Mohalla, it was

obvious that no other rioter had looted the shop

and it was the appellants who had taken benefit of

riot going on in Delhi and looted the shop of the

complainants on which they were having eyes and

occupied them forcibly.

18. The trial court was within its powers to pass an

order under Section 456 Cr.P.C. directing the

appellants to hand over possession of the premises

No. T-56 and T-57, Tokriwalan to the complainants

Inder Singh, Prakash Kaur and Jagjit Singh within

three weeks with further directions to the SHO,

Police Station Bara Hindu Rao, to remove the

appellants from the said property.

19. The trial court rightly refused to release the

appellants on probation keeping in mind the

circumstances in which the appellants took forcible

possession of the shops in question and looted

them. The Court observed:

"2. The accused persons were living in the neighbourhood of the complainant. The complainant family shifted from the area and left these two shops locked. The accused persons took benefit of the riots and broke open the lock in

November 1984 and took possession of the shop as well as the property lying in the shop. They are in possession of the shop since 1984. The possession of the shop was not handed over despite decree of Civil court and appeal has been preferred against the judgment of civil court. Taking any lenient view against the accused persons shall amount to putting premium on the crime. If a person takes forcible possession of the premises and continues using it for decades and the trial takes very long time because the cases are not registered against the accused persons due to police apathy, I consider that the court must give exemplary punishment in such cases so that people are discouraged from grabbing the property and doing riots and taking forcible possession of the properties of others. I therefore, sentence 1 year RI u.s. 448 IPC with fine of Rs.1000/- to each accused in default of payment of find to further undergo SI for 3 months. I sentence accused persons to RI for 3 years u.s.379IPC and fine of Rs.

25,000/- each in default of payment of fine to further undergo SI for one year. Both sentences shall run concurrently. Benefit of section 428 Cr.P.C. shall be given to the accused persons.

20. I find no merits in the present appeal. There is no

infirmity or illegality in the impugned judgment

dated 30.11.2004 and order on sentence dated

2.12.2004 of the trial court. Appeal is accordingly

dismissed. The appellants shall surrender before

the trial court within one week from the date of this

order to suffer the sentence inflicted upon them

failing which the trial court shall proceed in

accordance with law to ensure the arrest of the

appellants and make them to undergo the sentence

inflicted by it in this case.

Attested copy of the order be sent to the trial court

as well as to the State.

( ARUNA SURESH ) JUDGE January 23, 2009 jk