Delhi High Court

Pyare Lal vs State on 16 November, 2009

Author: Mool Chand Garg

*         IN THE HIGH COURT OF DELHI AT NEW DELHI

+        Crl.App.240/1996

%                                                   Date of reserve : 27.10.2009
                                                    Date of decision : 16.11.2009

#        PYARE LAL & ANR.                                  ...Appellants
!                       Through:              Mr. S. Chakraborty, Adv.

                                        Versus

$        STATE                                            ...Respondent
^                            Through:         Mr.Arvind Kr.Gupta, APP


         CORAM:
         HON'BLE MR. JUSTICE MOOL CHAND GARG

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

2.       To be referred to Reporter or not?                              Yes

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


:        MOOL CHAND GARG, J.

1. This appeal arises out of a decision given by the ASJ on 10/11.10.1996 in

S.C.No. 2/96 arising out of the FIR no. 426/84 which has been registered on

03.11.1984 under sections 147/148/149/436/427/304/323 IPC in connection

with the riots, burning, looting of houses and murder of sikh persons and

families which took place in Trilok Puri area and were started after the

assassination of the then Prime Minister of India Smt. Indira Gandhi on

31.10.1984 by one Kehar Singh her bodyguard. The targets of this violence

were Sikhs living in various parts of Delhi.

2. The F.I.R registered by the police on the statement of one Riju Singh was

general in nature and no challan whatsoever has been filed in that connection

till such time Ranganathan Mishra commission was appointed by the Central

Government on 26.04.1985, who then invited the affidavits from the victims

of these riots so as to fix the liability and to punish the wrong doers. One such

affidavit was filed by Baljeet Kumar Mehra, who in the said affidavit has

stated that:

(AFFIDAVIT)

I, Baljeet Kumar Mehra S/o Shri Satpal aged about 24 years resident of 30/18, Trilok Puri, Delhi-91 do hereby solemnly affirm and declare on oath as under:

1. That on November, 1984 a strong mob of more than one thousand persons armed with lathis, spears, knives, Iron rods etc. came in our block. They were being led by the following person.

i. Ramesh S/o Sh. Sham Singh r/o 30/83, Trilok Puri a bad character and a known Congress (I) worker of the area.

ii. Mangal Singh r/o 30/20, Trilok Puri, an employee of the Railway and an active congress (I) worker.

                  iii.    Pyare Lal r/o 30/29, Trilok Puri an employee of
                          Railway
                  iv.     Parmanand r/o 30/27, Trilok Puri an employee of the
                          Post and Telegraph
                  v.      Tailor of 30/22, Trilok Puri
                  vi.     Sh. Bishan S/o Shri Pyare Lal, 30/29, Trilok Puri, Delhi

2. That we have a tenant S. Gulzar Singh. Before the arrival of the mob he had left the house to a safer place but his wife and daughter aged 2-3 years was in the house. The mob led by aforesaid 6 persons attacked the house of Gulzar Singh who was a tenant in occupation of the first floor of my house. They broke open his house and looted all his personal effects. His house was later on burnt completely.

3. That at the same time Pyare Lal and the tailor mentioned at sl . Nos. (3) & (5) respectively in Para (1) shouted to the other people and pointing at us that we should not be spared as we also belong to Sikh family. At their instigation my brother Amarjeet (aged 22 years) and myself were beaten up mercilessly. They started looting our house in front of us. Ramesh set our house on fire.

4. That as we are Hindus, we somehow managed to escape and sought refugee in the house of Shri Krishan Lal s/o Shri Sahib Chand r/o 30/454, Trilok Puri.

5. That I saw that Ramesh and Mangal Singh killed one Sikh by beating him mercilessly near the public latering of Block No.30, I saw this incident with my own eyes when I was staying at Krishan Lal's house.

(DEPONENT)

3. It was, thereafter, the matter was investigated and the statement of Baljeet

Kumar Mehra under Section 161 Cr.P.C. was also recorded. A separate

challan was filed on 18.01.1996 by the police, which was committed to

Sessions and was tried as S.C.No. 2/96 against Pyare Lal (appellant herein).

Thereafter, charges were framed on 09.02.96 under section

188/148/149/302/397 IPC .

4. The prosecution in order to prove its case has examined 7 witnesses.

Statement of appellant under section 313 C.r.PC was also recorded. The

appellant in his defence examined 3 witnesses. The other co-accused namely

Mangal Singh has since expired and thus, the appeal against him shall stand

abetted. Another accused Sh. Nem Singh has been acquitted by Ld. ASJ.

5. A perusal of the charge sheet goes to show that except relying upon the

statement made by Baljeet Kumar Mehra under section 161 CrPC on 09.11.85

which is Ex.PW5/DA no other evidence has been led by prosecution. Baljeet

Kumar Mehra, in his statement, stated as under:

Bayan Ajane Shri. Baljeet Kumar Mehra S/o Shri. Satpal Mehra R/o 30/18 T/puri.......on 08.1.85

"Bayan kiya ki mein punijabi hindu hun aur Defence audit office mein clerk hoon aur T/puri mein uprokt patey par rehta tha. Mere makan mein pehli manjil mein sardar guljar singh kiraye par rehta tha. 0Dinak 1.11.84 ko mein ghar mein maujood tha hindu log sikhon ko maar rahein the aur unke ghar jala rahe the. Dophaar ka samaye tha ek bada hujum mere ghar ko jalane aaye maine unko mana kiya aur gulzar singh ko maarne peetne se bachane ke liye un logon ki badi khushamad ki. Magar veh nahin mane. Gulzar Singh ne baal bhi katva diye magar veh fir bhi nahin mane. Mere kamre ko aur gulzar singh ke kamre ko logon ne loota aur aur aag laga di aur fir isi din dinak 02.11.84 ko karib 9.30 baje isiee hajoom ne Sardool Singh ke ghar makan namber 30/461 par hamla bol diya aur Sardool Singh ko Lathi, Sariyon se mara jo mauke par hi mar gaya. Is hajoom mein Pyare lal 30/29, Mangal Singh, ramesh ko mein pehchanta hun ye log mere kapde va bartan utha kar le gaye. Ueh Kapde maine pahar ganj ke ek Darji Se silvaye the."

6. The Addl. Sessions Judge sentenced the appellant to undergo RI for 3 years

under Section 148 IPC with a fine of Rs.10, 000/- and in default to undergo RI

for one year and further sentenced him to undergo RI for 8 years u/s. 397

IPC and to pay fine of Rs. 20,000 and in default to undergo RI for 1 ½ years. It

may be observed here that the appellant has been acquitted of the charge of

murder of Sardool Singh.

7. Assailing the judgment of conviction and the order on sentence it has been

submitted by the appellant that there is no admissible evidence on record

which can justify his conviction in this case. It is also submitted that except

Baljeet Kumar Mehra, who is the sole witness, only official witnesses have

been examined, who are not of much importance. Burden to prove the case

has been shifted by the prosecution on the appellant. Merely because Baljeet

Kumar Mehra has filed an affidavit in which the present appellant is also

named cannot be taken as an evidence against him because the affidavit filed

by PW1 was unnatural and false and is nothing but perjury. It is submitted

that there is nothing on record, which may prove the guilt of the appellant

under Sections 148/397 IPC. It is also submitted that Ld. ASJ was wrong in

convicting the appellant by relying upon the sole evidence of Baljeet Kumar

Mehra whose evidence about killing of one Sardool Singh has been rejected

by the same court. The relevant portion of the judgment in this regard reads

as under:

As far as assault on the house of Sardool Singh is concerned, I consider the statement of Baljit Kumar Mehra was quite vague. Baljit Kumar Mehra on his house being attacked and looted, went away from there and took shelter somewhere. According to him Sardool Singh was killed after about half an hour of the incident at his house. Moreover Baljit Kumar Mehra in his earlier statement in the case concerning Parmanand & Bishan had not

mentioned about murder of Sardool Singh being murdered by him and committed by the same rioters. There is no doubt that Sardool Singh had been murdered during the riots by the rioters. But since the different group of rioters were attacking different houses, it is not necessary that this group of rioters which had attacked the house of Baljit Kumar mehra had also attacked Sardool Singh. Trial of murder of Sardol Singh is separately proceeding before this Court and I consider that the statement of Baljit Kumar Mehra about Sardol Singh's murder is merely a guess. He, while in hiding at quite a distance from the house of Sardol Singh, would not have been able to see the rioters clearly. As the crowd consisted of large number of persons it would not have been possible for him to see the individual number of crowd for him to see the individual number of crowd for him. Baljit Kumar Mehra has also not stated that he saw these members striking Sardool Singh. He simply stated that accused persons were part of the crowd.

8. It is also stated on behalf of the appellant that the evidence of Baljeet Kumar

Mehra is highly unsafe because this witness not named the present appellant

in looting or burning his house. Even the person namely (Ram Kumar) at

whose house he took the shelter as per his statement given in this case has

also not been examined by the prosecution deliberately being aware of the

fact that while in the other case which has been registered as S.C.No.16/95,

this witness stated that he took shelter in the house of one Kishan Lal who has

not corroborated his version and therefore, the presence of PW1 at either

place is doubtful.

9. The Ld. Public prosecutor has filed written submission and has submitted

that the challan in the present case was filed on the basis of statement of Baljit

Kumar Mehra who has also filed an affidavit before the Ranganathan Mishra

commission and not against two persons named by Baljit Kumar Mehra i.e.

Perma Nand and Bishan. It is submitted that the challan against them was

filed separately of which trial started and concluded. It is however also

submitted by him that case against the present appellant, Mangal Singh and

Nem Singh against whom challan was filed along with 200 persons in FIR no.

426/1984 had not started and commenced from 18.01.96 onwards. It is also

stated by Ld. APP that according to the statement made by Baljeet Kumar

Mehra he was at his house when Hindu rioters were killing Sikh persons.

10. It is submitted that in his testimony before the court Baljeet Kumar Mehra

supported the case of prosecution wherein he has stated that:

"In November 1984 I was working in the same Deptt. and was posted in Delhi Cantt. I was living at 30/18, Trilok Puri in November 1984. On 1.11.84 I was present in my house along with other family members. A large crowd of rioters came from the side of 29 Trilok Puri and the rioters were carrying lathis, iron rod, stones and other different instruments of assault. It was about 10-11 am in the morning. In that crowd Pyare Lal & Mangal Singh accused person present in the court were there and they told the crowd of rioters that in our house one Sikh tenant was there and this house should be the target. I knew Pyare Lal and Mangal Singh from before as both these persons were living in the same area from the inception of the colony and we were also living in the same area since the colony was established.

Gulzar Singh used to live a tenant and he had been living there for one or two months prior to the crowd led by these two people surrounded out and tried to kill Gulzar Singh. In order to protect we had already got his hair cut but these persons knew that he was a Sikh so they wanted to kill hm. We were protecting him. Since accused person were living in the same Mohalla they were knowing that we have several Sikh relatives. My maternal uncles were Sikh and were considered by them as Mona Sikhs. The two accused persons told the rioters that we were also Mona Sikhs so the crowd on seeing us protecting Gulzar Singh became violent and tried to kill up also. While we were trying to argue out with the rioters Gulzar Singh finding time to escape, escaped away from there. The rioters struck at our house with the stones. My younger brother received head injury. When we saw that the riots had become violent my brother was taken away by the neighbor as he had fallen down and we also left the house and came out of the house. While we were there kerosene oil had been sprinkled all over our house and they looted out household articles. They looted all those things which were pickable and removable. Only non removable things like big box and charpai were lit, and then they set the house on fire. After burning out house the crowd went towards the house of Sardool singh who was living at 30/465 and this crowd consisting of Ramesh Kumar, Mangal Singh, Pyare Lal, Bishan surrounded Sardool Singh and hit him with lathis and Saria and then when he fell on the ground he was burnt thereby sprinkling kerosene oil and putting him on fire."

11. It is further submitted by the Ld. APP that the other witnesses cited by the

prosecution have also fully supported their case. PW2 Hoshiar Singh proved

the curfew order dated 31.10.1984 & 1.11.84. The same is Ex.PW2/A and

Ex.Pw2/B. PW4 is Inspector Manphool Singh who testified about the

registration of FIR no. 426/84. He also testified that 107 persons were

apprehended on 1.11.84 and produced them before the court on 2.11.1984.

PW5 Insp. Badan Singh testified that he arrested the accused persons namely

Pyare Lal, Mangal Singh & Nem Singh. He further stated that he recorded

those statements of riot victims. PW7 is Chottey Lal who proved the entry in

death register at S.No. 61 where death of Sardool Singh has been recorded.

12. It is also submitted by the Ld. APP that the learned judge has dealt with the

defence raised by the appellant very categorically and thereby convicted him.

He also supported his arguments with the following judgments :

A.State & Ors. Vs. Kishori & Others 76(1998)DLT 209(DB) B. K.K.Dhawan Vs. STATE (N.C.T OF DELHI) 76(1998)DLT 225 C. DHANANJOY CHATERJEE Vs. STATE OF W.B 1994(2)SCC 220 D. Duli Chand Vs. State 1997(43) DRJ (DB) E. Raj bahadur alias Danny Vs. State (Crl. App.no.75/81 of 92) F. Kishori Vs. State of Delhi 1999(1) SCC 148

13. I have heard the submissions made by the counsel for the appellant as well as

learned APP and perused the record of the case. It is observed that the main

witness in the present case is Baljeet Kumar Mehra on whose statement the

present case has been registered against the appellant and others.

14. In the present case, it is interesting to note that the statement made by Baljeet

Kumar Mehra has been accepted by the trial court half heartedly by

acquitting the appellant of charges of murder of one Sardool Singh but

accepting his statement qua burning his house. The record also shows that

the evidence given by this witness is also not in accordance with the charge

framed by the learned ASJ. The decision taken by Ld. ASJ by relying upon

the statement of PW1 is improbable inasmuch as this witness is not sure

about his presence either at his house or where he has taken shelter and

where he has stayed and all the three places are quite far away from each

other. Therefore it is difficult to rely upon such a vague statement given by

him.

15. It is also appropriate to take note of affidavit submitted by him before

Ragnathan Commission on 08.09.85 where he deposed that:

5. I saw that Ramesh and Mangal Singh killed one sikh by beating him mercilessly near the public latering of block no. 30. I saw this incident with my own eyes when I was staying at Kishan Lal's house.

16. A perusal of the aforesaid statement goes to show that what he has seen is the

killing of one Sikh by Ramesh and Mangal Singh from a place where his

presence is already doubtful. Moreover, this means if this Sikh was Sardool

Singh then Pyare Lal was not there in killing him which fact has already been

admitted by Ld. ASJ. Therefore, I am unable to understand as to how many

incidents has been witnessed by this Baljeet Kumar Mehra as at the same

time he was present in the House of one Ram Kumar, as per his own

statement, from where he saw the present incident of killing Sardool Singh.

17. In this case, the appellant was charged for committing various offences as per

the order dated 09.02.1996. The said charge reads as under:

That on 1.11.84 at 1200 noon near H.No.30/406 Trilok Puri, within the jurisdiction of P.S. Kalyan Puri, you along with several other persons disobeyed the prohibitory/Curfew orders promulgated under Cr.P.C. by the then Commissioner of Police Delhi for that area and your such disobedience caused riot in that area and thus, you thereby committed an offence punishable u/s 188 IPC and within my cognizance.

Secondly, on the same date, time and place, you along with several other persons formed an unlawful

assembly the common object of which was to kill Sikhs and loot and burn their houses and properties and at that time you were armed with deadly weapons which you used the same in committing the riot. Thus, thereby you committed an offence punishable u/s 148 IPC and within my cognizance.

Thirdly on the aforesaid date, time and place, you were the member of the aforesaid unlawful assembly in prosecution of common object killed Sh. Sardool Singh and thereby committed an offence punishable u/s 302 IPC r/w Section 149 IPC and within my cognizance.

Fourthly on the aforesaid date, time and place, you were the members of the aforesaid unlawful assembly which in prosecution of a common object looted the houses of Sikhs including the abovesaid house belonging to deceased and while committing an offence used deadly weapon and caused death of Sardool Singh and thereby committed an offence punishable u/s 397 IPC r/w S. 149 IPC and within my cognizance

And I hereby direct you to be tried by this Court on the aforesaid charges.

18. However, the statement of Baljeet Kumar Mehra shows that instead of talking

about the burning of the hosue of Sardool Singh, he is taking about the

burning of his own house which was subject matter of Sessions Case

No.16/1995 where he has not even mentioned that Pyare Lal has burnt his

house. Thus, the testimony of Baljeet Kumar Mehra is not trustworthy.

Moreover, in the other case where also the judgment dated 18/19.12.1995 has

been delivered by the same Court in the case of Perma Nand, Baljeet Kumar

Mehra has talked about burning of the house of Gulzar, who was tenant in

his house. There he also stated that he took shelter in the house of the Kishan

Lal whereas in the present case he says that he was living in the house of Ram

Kumar. Kishan Lal has not supported the case of the appellant in the

connected case, i.e., Crl.A.10/1996. This makes the testimony of Baljeet