Mahesh @ Dabbu vs State Govt. Of Nct Of Delhi
2010 Latest Caselaw 5594 Del

          THE HIGH COURT OF DELHI AT NEW DELHI

%                     Judgment Reserved on: 26.11.2010
                      Judgment Pronounced on: 08.12.2010


+             CRL.A. No. 144/1997


MAHESH @ DABBU                                   .....Appellant


                             - versus -


STATE GOVT. OF NCT OF DELHI                     .....Respondent

Advocates who appeared in this case:

For the Appellant: Mr. Samer Nandwani with Mr. Rakesh Patiyal, Advocate.

For the Respondent: Mr. H.J.S. Ahluwalia, Spl. P.P.

CORAM:-

HON'BLE MR JUSTICE BADAR DURREZ AHMED HON'BLE MR JUSTICE V.K. JAIN

1. Whether Reporters of local papers may be allowed to see the judgment? No

2. To be referred to the Reporter or not? No

3. Whether the judgment should be reported in Digest? No

V.K. JAIN, J

1. This appeal is directed against the judgment dated

30th January 1997 and Order on Sentence dated 31 st

January 1997 whereby the appellant was convicted under

Section 148 and 397 of IPC as well as under Section 302

read with Section 149 thereof.

2. The case of the prosecution in brief is that on 1st

November 1994, late Jaswant Singh, who was an employee

of Delhi Electric Supply Undertaking (DESU), his younger

brother Jaswant Singh, brother-in-law Anokha Singh and

his colleague Satnam Singh were killed by the rioters, in the

house of Bhajan Singh, bearing No.41 in Block No.13 of

Trilok Puri, where he was residing with his family. This is

also the case of the prosecution that no FIR specifically with

respect to the aforesaid murders was registered at Police

Station Trilok Puri. Later, Smt. Vidya Kaur, widow of Sh.

Jaswant Singh filed an affidavit before Justice Rangnath

Mishra Committee in September 1985 wherein she named

four persons as the persons who were involved in the

murder, namely one Mr. Khan, a driver/constable of Delhi

Police, Mangey Ram resident of Block No.15 of Trilok Puri,

Baleshwar, sweeper of Block No.14 of Trilok Puri and the

appellant Dabbu. The affidavit was then handed over to

Justice Jain Agarwal Committee, which came to be formed

by the Government. The committee then wrote to the

Administrator, Union Territory of Delhi informing him that

the investigation in the murder of those four persons had

not been properly done. The committee was of the view that

a fresh case on the basis of affidavit of Vidya Kaur needs to

be registered. It was also pointed out in the letter that

though Smt. Vidya Kaur was examined by the police on 8 th

November 1984 in FIR No. 427/1984 of Police Station

Kalyan Puri, her statement was not recorded carefully and

in an intelligent manner. It was also pointed out in the

letter that the charge sheet submitted in FIR No. 427/1984

did not mention any of the murders committed in the area.

3. In view of the recommendations made by the

committee, a fresh FIR being FIR No.290/1991 was

registered and after investigation, charge sheet was filed

against four persons namely Mangey Ram, Amir Khan,

Baleshwar and the appellant Mahesh @ Dabbu.

4. The prosecution examined 12 witnesses, including

three eye witnesses PW-2 Vidya Kaur, PW-3 Surjit Singh

and PW-4 Kuldeep Singh. Vidya Kaur in her deposition

during trial stated that one boy Dabbu of Block No.14 was

amongst the rioters. She pointed out to the appellant

Mahesh saying that he was known as Dabbu and was

amongst the rioters when her husband and others were

killed. In her cross-examination, she first admitted that the

accused persons had not done any specific act, but later she

stated that Baleshwar and Mahesh @ Dabbu were carrying

iron rods and other instruments of assault and had

attacked her husband and other family members. PW-2

Surjit Singh did not either name or identify the appellant

Mahesh @ Dabbu. He identified only the accused

Baleshwar. PW-4 Kuldeep Singh identified only the

appellant Mahesh @ Dabbu and his co-accused Baleshwar

and stated that Mahesh @ Dabbu was having a big knife in

his hand.

5. PW-7 Mrs. Kuldeep Khera, who was working as

Oath Commissioner in Patiala House Courts in September

1985 stated that she had attested the affidavit Ex.PW-7/A of

Vidya Kaur on 9th September 1985. PW-10 Sh. S.L. Chopra,

who was working as a Secretary to Justice Jain Agarwal

Committee, identified his signature on the letter Ex.PW-

10/A, which he had sent to the Administrator, Union

Territory of Delhi, recommending registration of a fresh case

on the affidavit of Smt. Vidya Kaur.

6. In his statement under Section 313 of Cr.P.C. the

appellant Dabbu claimed that he had not gone to the house

of Jaswant Singh in 1984 and was not amongst the rioters.

7. The learned trial Judge acquitted the accused Amir

Khan and Mangey and convicted the appellant Mahesh @

Dabbu and his co-accused Baleshwar.

8. Vide order dated August 18, 2010, we directed the

prosecution to file the statement of PW-2 Vidya Kaur, which

was recorded by the police under Section 161 of Cr.P.C. on

8th November 1984 in case FIR No. 427/1984 of Police

Station Kalyan Puri. We also directed the prosecution to

produce file No.141/2342/85/JPRC/SP/1362, which was

the file number recorded on the letter Ex.PW10/A sent by

Mr. S.L. Chopra to the Administrator, Union Territory of

Delhi.

9. A perusal of the statement of Smt. Vidya Kaur, wife

of deceased Jaswant Singh recorded by SI Manohar Lal of

Police Station Kalyan Puri on 8th November 1984 shows that

not a single person was named by her in that statement. In

that statement, she alleged that on 3rd November 1984 at

about 8 PM 3-4 persons attacked her house and the crowd

killed three persons using lathis, dandas and bricks and,

thereafter, burnt them after pouring kerosene on them. She

specifically stated that she could not identify any of the

persons who had killed her husband Jaswant Singh, her

nephew Anokh Singh and the third person namely Satnam

Singh, who was working in DESU. She also stated that she

did not know the name of any of the persons who had killed

her husband and two other persons.

10. Admittedly, Smt. Vidya Kaur was cited as a

prosecution witness in the charge sheet filed by Delhi Police

in FIR No. 427/1984 of Police Station Kalyan Puri, and her

name is shown at serial No.7 in the list of witnesses

annexed to the charge sheet. A perusal of the judgment of

the trial court dated 16th December 1994 in Sessions Case

No. 61/1994 would show that Smt. Vidya Kaur was not

produced during trial and it was reported that she and some

other witnesses named in para 8 of the judgment were not

available at the given address.

11. It was thus an admitted fact that as per the

statement recorded after five days of the incident, Smt.

Vidya Kaur had claimed that she did not know any of the

assailants and could not identify any of them. The

appellant Mahesh @ Dabbu was named for the first time in

the affidavit which Smt. Vidya Kaur sworn on 9th September

1985.

12. As noted earlier, when Smt. Vidya Kaur came in

the witness box during trial, she claimed that the appellant

Mahesh @ Dabbu was previously known to her. In her

cross-examination, she specifically stated that she knew all

the three accused, namely, Mange, Baleshwar and Dabbu.

Thus, the appellant Mahesh alias Dabbu was not named in

the statement which Smt. Vidya Kaur is stated to have given

on 08th November, 1984, despite the fact that he was

previously known to her.

13. Admittedly, the statement of Smt. Vidya Kaur

recorded by police on 08th November, 1984 was not supplied

to the appellant either before or during trial. Had the

aforesaid statement been supplied to the appellant, he

would have been able to cross-examine Smt. Vidya Kaur as

to why she did not named him in the statement recorded on

08th November, 1984 and why she claimed in that statement

that none of the assailants was known to her and she could

not identify any of them. Since the prosecution is expected

to be fair and reasonable, it was imperative for it to share

the entire relevant material, including the statement of Smt.

Vidya Kaur recorded on 08th November, 1984 with the Trial

Court and supply a copy of the same to the accused

persons.

14. It is quite possible that the police officer, who

examined Smt. Vidya Kaur on 08th November, 1984 did not

correctly record her statement. But, then, it is for Smt.

Vidya Kaur to say so and the Court cannot without any

evidence in this regard presume that the police officer who

examined her on 08th November, 1984 fabricated the

statement, purporting to have been made by her or did not

correctly record the statement given by her to him. The

fact remains that the appellant has been deprived of a

valuable right to cross-examine Smt. Vidya Kaur with

respect to her previous statement recorded under Section

161 of the Code of Criminal Procedure, on account of failure

of the prosecution to supply a copy of the aforesaid

statement to him. The proviso to Section 162 of the Code of

Civil Procedure, to the extent it is relevant provides that

when any witness is called for the prosecution in such

inquiry or trial whose statement has been reduced into

writing as aforesaid, any part of his statement, if duly

proved, may be used by the accused, and with the

permission of the Court, by the prosecution, to contradict

such witness in the manner provided by section 145 of the

Indian Evidence Act, 1872. As far as the appellant is

concerned, since in the absence of a copy of the statement

dated 8th November 1989 being made available to him, he

was not aware of what exactly Smt. Vidya Kaur had told the

police officer on 08th November, 1984, there was no occasion

for him to request the Court to direct the prosecution to

supply a copy of the aforesaid statement to him.

15. It is difficult to dispute that there was an

atmosphere of terror and fear in the city on account of anti-

Sikh riots which took place in the year 1984 and not all the

witnesses of the crimes which took place during that period,

being terrified, came forward to report the incidents

witnessed by them and name the persons responsible for

the crimes. But, the fact remains that this is prosecution's

own case that Smt. Vidya Kaur was approached by a police

officer and her statement was recorded by him on 08 th

November, 1984. There is no evidence on record to suggest

that the police officer, who examined Smt. Vidya Kaur on

08th November, 1984, did not correctly record her

statement. The contention of the appellant in these

circumstances is that since the appellant Mahesh @ Dabbu

was previously known to Smt. Vidya Kaur, there was no

good reason for her not to name him when her statement

was recorded by the police officer on 08th November, 2004,

the time by which the riots had subsided in the city. He

also pointed out that for more than 10 months after the

incident, Smt. Vidya Kaur did not come forward to name the

appellant, despite his being previously known to her. This is

also is contention that no reason or notice for SI Manohar

Lal to fabricate the statement of Smt. Vidya Kaur has been

alleged by the prosecution.

16. We, therefore, are of the considered view that a

serious prejudice has been caused to the appellant Mahesh

@ Dabbu on account of failure of the prosecution to provide

a copy of the statement of Smt. Vidya Kaur recorded by SI

Manohar Lal of PS Kalyan Puri on 08th November, 1984 in

the case registered vide FIR No.427/1984 of Police Station

Kalyan Puri, since he did not get an opportunity to cross-

examine the informant and key eye witness Smt. Vidya Kaur

with respect to that previous statement of hers We,

therefore, set aside the impugned order and judgment

insofar as it relates to the appellant Mahesh @ Dabbu and

remand the case to the Trial Court for recalling Smt. Vidya

Kaur and giving only one opportunity to the appellant to

cross-examine her with respect to her statement, alleged to

have been recorded by SI Manohar Lal of Police Station

Kalyan Puri on 08 th November, 1984 in the case registered

vide FIR No.427/1984. The prosecution will supply a copy of

the aforesaid statement to the appellant within two weeks

from today, unless already supplied. If the prosecution, so

desires, it will be at liberty to examine SI Manohar Lal, who

is alleged to have recorded the statement of Smt. Vidya Kaur

on 08th November, 1984. After further cross-examination of

Smt. Vidya Kaur in terms of this order and examination of

SI Manohar Lal, if the prosecution chooses to examine him,

the Trial Court will pass a fresh judgment in respect of

appellant Mahesh @ Dabbu on the merits of the case,

without, in any manner, being influenced by the

observations made in this order.

17. The appellant will appear before the concerned

Court at 10 am on 10th January, 2011. The prosecution

will produce Smt. Vidya Kaur before the Trial Court on that

date as also on some other date which the Trial Court may

fix for her further cross-examination in terms of this order.

The Trial Court will pronounce a fresh judgment

expeditiously and preferably not later than three months of

the appellant appearing before it. The Registry is directed to

send the Trial Court Record back within one week,

alongwith a copy of this order.

(V.K. JAIN) JUDGE

(BADAR DURREZ AHMED) JUDGE

DECEMBER 08, 2010 Ag/BG