State vs Mehtab Lal Etc.
2009 Latest Caselaw 4615 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI


                                      Judgment delivered on : November 12, 2009


+       CRIMINAL APPEAL NO.24/1992

        STATE                                            .... Appellant
                                      Through:     Mr. Pawan Sharma, APP

                       Versus

        MEHTAB LAL ETC.                                    ..... Respondents

                                      Through:     Mr.Surender Gandhi with Ms.
                                                   Sunita Singh, Advocates for
                                                   Respondent Nos.7 & 9 and as
                                                   Amicus Curiae for

                                                   &11.

        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?

2.      To be referred to the Reporter or not ?
3.      Whether the judgment should be reported
        in Digest ?


SANJAY KISHAN KAUL, J.(ORAL)

1. The present appeal arises from an incident in the aftermath of the

assassination of the Prime Minister Smt. Indira Gandhi. The respondents were

apprehended at Rajouri Garden and charged for the offences under Sections 147,

148, 454 read with Sections 149, 427 and 436 read with Sections 149 IPC and

Section 380 IPC read with Section 149 IPC.

2. The brief facts are that on 01.11.1984, S.I. Gurdev Singh and four

Constables of police station Rajouri Garden were patrolling in the area. At about

5.00 p.m, the police saw 50/60 persons were breaking the lock of shutter of shop

namely M/s. Kohli Electronics and when the police tried to restrain them, the mob

started pelting stones on the police party. The mob lifted shutter of shop, looted

the goods in the shop and set the shop on fire. Thereafter the mob, moved towards

shop named as M/s. Fancy Corner and broke the lock of shop and looted the

goods. S.I. Gurdev Singh informed the Police Station and requested for sending

some officer. Fire brigade was informed, but it did not come to the spot. Police

party apprehended five persons on the spot. Subsequently, five more persons

were apprehended. Case was registered under Sections

147/148/149/454/380/436/427 IPC on the statement of SI Gurdev Singh. One

Bharat Bhushan was also arrested on 13.11.1984, who made a disclosure

statement and got recovered cooking gas grill stolen from the shop of M/s. Kohli

Electronics.

3. The respondents were acquitted in terms of the impugned judgment dated

31.8.1991. The State has filed an appeal against the said judgment.

4. We may notice at the inception itself that respondent no.10 passed away

on 15.1.1999 and the appeal qua him thus stands abated. It has also been

explained by learned APP that respondent no.6 was not one of the accused who

was tried by the Trial Court and his name has been inadvertently added in the

memo of parties and in appeal. Respondent nos.7 and 9 are represented through

counsels Mr.Surender Gandhi and Ms.Sunita Singh. Since there was no conflict

of interest, we appointed Mr.Gandhi as the Amicus to assist this Court on behalf

of respondent nos.1 to 5, 8 and 11.

5. It is the case of the prosecution that on 1.11.1984 at about 5.00 p.m., the

respondents along with other persons constituted an unlawful assembly with the

common object to commit criminal house trespass, to commit mischief by setting

fire and to commit theft in the shops of various shopkeepers in the area. The

members of the mob are alleged to have been armed with deadly weapons, who

committed trespass by breaking open the locks of Shop No.D-1/161-A of M/s

Kohli Electronics, Fancy Corner at D-109 and A-7 of Anand Auto Shops, Rajouri

Garden and looted the goods lying in the shops, whereafter the shops were set on

fire. The respondents after being arrested, were charged and pleaded innocence

and claimed trial.

6. The initial information about the incident is stated to have been received

by DD No.19A that arsoning was going on in the main market Rajouri Garden and

that the shop of Ms.Kohli Electronics has been set on fire. Inspector V.P.S. Rana,

PW18, the Investigating Officer, reached the spot at about 5.30 p.m. on the receipt

of information. He recorded the statement of S.I. Gurdev Singh (Ex.PW7/A) and

on endorsement being made, sent the rukka for registration of the case at 6:15

p.m. Gurdev Singh produced before the I.O. five of the respondents namely,

Kailash Chand, Charan Singh, Said Ullah, Mehtab Lal and Ravinder. All these

five persons were arrested and their personal search was carried out. On receipt of

further information that some members of the mob had broken the lock of the

Fancy Corner, police party reached there and five more persons were stated to

have been apprehended from inside the shop, namely, Rajinder, Mohd. Shafi,

Satish, Dharmanand and Vijay and their personal searches were also carried out.

Sardar Kartar Singh, PW12, owner of Fancy Corner came to the Police Station on

5.11.1984 and is stated to have handed over a purse to the IO which contains the

diary of Mohd. Shafi respondent. The other shopkeepers also made complaint to

the IO and on 13.11.1984, respondent no.10 Bharat Bhushan was arrested, who

made a disclosure statement(Ex.PW8/B). It is in pursuance to the disclosure

statement that the cooking gas grill under the "char pai" from his house was

recovered which was identified by PW3. This is the only recovery made.

Respondent No.10 had passed away during the pendency of the appeal.

7. The testimony of the witnesses undisputedly shows that the shops were

looted and weapons were carried by other persons at the spot. The relevant fact to

note is that from none of the respondents, who are before us, was any recovery

made whether of any looted goods or of any arms or instrument of house

breaking. The respondents in their statements recorded under Section 313 Cr.P.C.

gave different explanations of their presence, but they all claimed that they were

not the part of unlawful assembly and either they were on-lookers or they were

apprehended by the police while they were passing through the spot. The case of

the defence thus is that while the police failed to apprehend any member of the

unlawful assembly who were carrying stolen goods or who actually carried out the

house break, it is innocent by-standers like the respondents who have been

arrested to complete the formalities.

8. We have examined the impugned judgment. The learned Trial Court has

acquitted respondents disbelieving the testimony of the police witnesses who were

projected as eye-witness to the occurrence. Learned APP has contended before us

that there was no reason to disbelieve police witnesses especially taking into

consideration the situation prevalent in the aftermath of the assassination of

Smt.Indira Gandhi. Learned APP has also submitted that the respondents were

arrested at the spot and there could be no motive for the police to apprehend

innocent by-standers. On the other hand, learned counsel for the respondents have

supported the impugned judgment by contending that the conclusion reached by

the learned Additional Sessions Judge cannot be faulted.

9. The Trial Court has noticed that the case of the prosecution is that the mob

was only of 50 to 60 persons. This mob was confronted by a force of five

policemen at the spot headed by PW7, S.I. Gurdev Singh at which stage the mob

is stated to have started pelting stones and brickbats on the police party. However,

no such brickbats or stones were seized and produced as exhibits. The learned

Trial Court has taken note of the situation prevalent on 1st November, 1984 when

the patrolling party was expected to be armed as they were on patrolling duty to

control the riotous situation at the ground level. The members of the mob are not

even alleged to have been armed with fire arms, laathis or dandas and thus has

concluded that it would be improbable that five armed policemen could not

control the mob of 50 to 60 persons who were unarmed and such a mob would be

permitted to break open shops, loot them and then burn them. The DD No.19A

lodged by S.I. Gurdev Singh, revealed that he did not even ask for any additional

force, but requested that some officers may be sent.

10. In our considered view, the Trial Court has rightly noticed the important

aspect of primary duty of the police at that point of time-being one to control the

mob and not to permit them to go on looting and arsoning. In such a situation, the

focus would have been to prevent the crime rather than just send a telephonic

message when no extra force was being requisitioned . Surprisingly, even the

SHO, Inspector V.P.S. Rana did not deem it appropriate to take sufficient police

force with him to prevent loss of property of citizens. Not only that, when it was

detected that the shop of M/s. Kohli Electronics was being set on fire, there would

be no occasion for the police to permit one by one the shops to be looted by the

mob. The police would be expected to prevent the occurrence rather than behave

as the by-standers watching the sequence of events.

11. Another important aspect taken note of by the Trial Court is that the case

of the prosecution is that theft and looting took place. Thus the members of the

unlawful assembly were picking up goods and running away with the same.

Naturally, the pace of such persons would be slowed down by the goods they were

carrying. No such person was apprehended, but persons without any goods were

the ones who were apprehended. This gives credence to the story of the defence

that only innocent by-standers were apprehended to complete a formality. Linked

to this aspect is the failure of the prosecution to connect the respondents to any

overt or covert act facilitating such looting and arsoning. No arm or instrument

was recovered from the respondents which could have been utilized for such

house breaking or arsoning. A mere by-stander cannot be said to be a party to the

unlawful assembly especially when the ground realities of the situation prevalent

at that time is taken into account and the propensity of persons to just stand and

watch what is happening.

12. We are fortified in our view by the judgment of the Supreme Court in

Bishambher Bhagat Vs. State of Bihar; (1972) 3 SCC 260 where the meaning

of a member of unlawful assembly with reference to Sections 142 and 147 of the

IPC has been discussed and it has been opined that mere presence of a person at

the place where members of unlawful assembly have gathered for carrying out

their illegal common object, does not incriminate him. It is, however, a question

of fact in each case whether a person happens to be innocently present at the place

of occurrence or was actually a member of the unlawful assembly.

13. If the testimony of the witnesses as to how the looting and breaking was

carried out is to be believed, then there was not much distance between the two

shops. The same shows a small time gap between the looting of the two shops.

PW18 is stated to have reached the spot at 5.30 p.m. while the rukka was sent by

him at 6.15 p.m. recorded at the spot. In the rukka, there is no mention of the

second incident of the looting of the Fancy Corner shop. This has rightly thrown

a doubt on the witnesses being eye-witness to what had happened and this factor is

rightly weighed with the Trial Court.

14. The testimony of the affected persons show that PW1 Narinder Pal Singh

has disclosed having received the information, at his residence at about 3.00 p.m.,

about looting and burning of his shop. Similarly, S. Joginder Singh, PW2,

received information at about 3.00 to 4.00 p.m. These persons are stated to have

visited the shops in the early evening and yet PW18 who is stated to have

remained at the spot for almost three hours did not meet them or record their

statements. This has cast a doubt on the time of incident.

15. Insofar as the handing over of the purse and diary lying at the shop of

Sardar Kartar Singh, PW12 is concerned, the Trial Court has taken note of the

fact that these things are not taken into possession on the same evening even

though PW12 deposed that he found the said purse Ex.P1 and diary Ex.P2 in the

shop. Thus, those items were also not seized by the SHO on 01.11.1984, but on

05.11.1984, which makes the recovery suspect.

16. In a nutshell, the reasoning of the Trial Court cannot be faulted with the

story as set up by the prosecution based on the testimony of police witnesses as

eye-witnesses not being beyond the pale of doubt and there is a grave possibility

of the police not even having witnessed as to what had transpired and coming to

the scene much later. This also gives credence that the respondents were innocent

by-standers who were apprehended to complete the formalities.

17. In view of the aforesaid, we see no reason to interfere with the impugned

judgment. Dismissed.

SANJAY KISHAN KAUL, J.

NOVEMBER 12, 2009                           AJIT BHARIHOKE, J.
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