Delhi High Court
Brij Mohan Verma vs State on 21 May, 2010
Author: Ajit Bharihoke
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: April 12, 2010
Judgment delivered on: May 21, 2010
+ CRIMINAL APPEAL NO.735/2009
BHAGAT SINGH
....APPELLANT
Through: Mr. S.P.Singh Chaudhari, Advocate with
Mr. Y.R. Sharma, Advocate &
Mr. Shailendra Kumar, Advocate.
Versus
STATE .....RESPONDENT
Through: Mr. H.S. Ahluwalia, Special Public
Prosecutor with Mr. K.K.Sud, Sr.
Advocate with Ms. Kamna Vohra, Adv.
WITH
CRIMINAL APPEAL NO.816/2009
MANGAL SAIN @ BILLA ....APPELLANT
Through: Mr. Ramesh Gupta, Sr. Advocate with
Mr. Sunil Sethi, Advocate.
Versus
STATE .....RESPONDENT
Through: Mr. H.S. Ahluwalia, Special Public
Prosecutor with Mr. K.K.Sud, Sr.
Advocate with Ms. Kamna Vohra, Adv..
AND
CRIMINAL APPEAL NO.849/2009
BRIJ MOHAN VERMA ....APPELLANT
Through: Mr. Puneet Ahluwalia,
Advocate.
Versus
STATE .....RESPONDENT
Through: Mr. H.S. Ahluwalia, Special Public
Prosecutor with Mr. K.K.Sud, Sr.
Advocate with Ms. Kamna Vohra, Adv.
Crl.A.Nos.735/2009, 816/2009 & 849/2009 Page 1 of 25
CORAM:
HON'BLE MR. JUSTICE A.K. SIKRI
HON'BLE MR. JUSTICE AJIT BHARIHOKE
1. Whether Reporters of local papers
may be allowed to see the judgment? Yes
2. To be referred to the Reporter or not ? Yes
3. Whether the judgment should be
reported in Digest ? Yes
AJIT BHARIHOKE, J.
1. Above referred appeals are directed against the impugned
judgment dated 22nd August 2009 in Sessions Case No.7/2000, FIR
No.489/1984 Police Station Sarai Rohilla convicting the appellants
Mangal Sain @ Billa, Bhagat Singh and Brij Mohan Verma for the
offences punishable under Section 148 IPC, Section 395 IPC, Section
435 IPC as also Section 307 IPC all read with Section 149 IPC and the
consequent order on sentence dated 29th August 2009.
2. Briefly put, case of the prosecution is that in the aftermath of
assassination of Smt. Indira Gandhi, late Prime Minister of India
communal riots directed against the Sikh community erupted in Delhi.
3. Shastri Nagar, Delhi also witnessed riots involving a series of
attacks on Sikh population by non-Sikhs between 31st October 1984
and 3rd November 1984. On 1st November 1984, on the complaint of
one Ajaib Singh regarding arson, looting, mischief , culpable homicide
and attempt to commit murder which took place at B-1764, Shastri
Nagar, B-1638, Shastri Nagar and B-1600, Shastri Nagar, an FIR was
registered being FIR No.489/84 under Sections 147, 148, 149, 304,
308, 427, 436,452, 411 and 188 IPC. The police investigated the
matter and filed a charge sheet against 18 accused persons dated 30th
November 1984 in the court. The charge sheet related to a number of
Sikhs houses which were subjected to communal assaults by the rioters
including House No.B-1580 belonging to Joginder Singh, father of PW3
Manohar Singh, PW4 Jagmohan Singh and PW8 Gurinder Singh and the
name of Joginder Singh also appeared in the list of witnesses relied
upon by the prosecution in the said charge sheet.
4. The role of the police during the communal riots and post-
communal riots came under heavy criticism because of omission to
take steps to curb the riots and also the failure of the police machinery
to properly investigate the riot cases. Accordingly, Govt. of India
constituted a Commission of Inquiry in the year 1985 known as "Justice
Ranganath Misra Commission" to look into the role of the police and
the Government machinery during as well as post-riots. The
Commission invited affidavits from the victims of riots and
advertisements to that effect were given. Victim Joginder Singh, who
was resident of B-1580 also submitted his affidavit dated 9th September
1985 on the same day. Jagmohan Singh PW4 s/o Joginder Singh also
submitted his affidavit qua the incident which took place at their house
No.B-1580, Shastri Nagar wherein Jagmohan Singh and his brother
Gurinder Singh were seriously injured and their house was looted and
set on fire.
5. The affidavits of Joginder Singh and his son Jagmohan Singh were
referred by Justice Ranganath Misra Commission to a committee
constituted in that behalf. The said affidavits were considered initially
by Justice Jain-Potti-Rosha Committee, thereafter by Justice Jain-
Banerjee Committee and ultimately by Justice Jain-Aggarwal Committee
which Committee, vide its recommendations dated 10th August 1992
took the view that earlier investigation conducted in the case FIR
No.489/1984, Police Station Sarai Rohilla was perfunctory and directed
further investigation in the case under Section 173(8) Cr.P.C. The
Committee also directed that the investigating agency, while
undertaking further investigation, should also inform the court
concerned about the aforesaid recommendation of the Committee.
Said recommendation was followed by the order of the Lt. Governor,
Delhi issued under the signatures of Joint Secretary (Home) dated 23 rd
October 1992.
6. Pursuant to the directions, special teams were created within
Delhi Police which took up further investigation in the matter and on
conclusion of further investigation, came up with a supplementary
charge sheet dated 3rd December 1993 against 14 accused persons,
including the three appellants. Even the supplementary charge sheet
suffered from defect inasmuch as that it clubbed two separate
instances of rioting relating to house Nos.A-302, Shastri Nagar and B-
1580, Shastri Nagar. Aforesaid defect was rectified by the learned trial
court directing segregation of the charge sheets by filing
supplementary charge sheets vide order dated 8th May 2000. Pursuant
to the said direction, supplementary charge sheet was filed against the
appellants and one Radhey Shyam. The names of their co-accused
persons Om Prakash, ration wala and Mahender, Kachori wala were not
included in the list of the accused persons sent for trial as they were
allegedly not traceable.
7. We may note that in the meanwhile, the trial of the first charge
sheet submitted in FIR No. 489/1984 continued and it ultimately
resulted in acquittal of all the accused in that case vide judgment of
the concerned learned Additional Sessions Judge dated 29.03.1993.
8. The appellants including their co-accused Radhey Shyam Verma
were charged by the learned Additional Sessions Judge under Sections
148 IPC, Section 395 read with Section 149 IPC, Section 436 read with
Section 149 IPC, Section 307 read with Section 149 IPC. The appellants
as well as Radhey Shyam Verma pleaded not guilty to the charge and
claimed to be tried. During the course of trial, Radhey Shyam expired
and proceedings against him stood abated.
9. In order to bring home the guilt of the appellants, the prosecution
has examined nine witnesses in all. The case of the prosecution,
however, hinges on the testimony of the purported eye witnesses,
namely, PW3 Manohar Singh, PW4 Jagmohan Singh (injured), PW7 Smt.
Baljit Kaur, wife of Jagmohan Singh and PW8 Gurender Singh who also
allegedly sustained injury in the incident, besides the medical evidence
provided by PW5 Dr. U.C. Tyagi and PW6 Dr. Pritam Singh.
10. PW3 Manohar Singh is younger brother of the injured Jagmohan
Singh. He testified that on 01.11.84 at about 10:00 am in the morning
a crowd of people armed with lathis came to their house No.B-1580
Shastri Nagar, Delhi and started damaging the house. They burnt the
house and looted their belongings. Due to fear, he ran away and took
shelter in the house of his friend and he returned back to his house 3/4
days later. He stated that he could not properly see any of the
members of the crowd.
11. PW4 Jagmohan Singh is the star witness of the prosecution. He
has testified that on 01.11.84 at around 3/4:00 pm a crowd of 300/400
rioters armed with „lathis' visited his house. The appellants Mangal
Sain, Brij Mohan, Bhagat Singh and Radhey Shyam (since deceased)
besides „Om Prakash Ration Wala', 'Billa Ice Vendor' and „Mahender
Kachauriwala' were also present in the crowd of rioters. He deposed
that the aforesaid crowd burnt his house and looted his belongings.
Radhey Shyam hit him with a sharp weapon and Bhagat Singh also
assaulted him and the appellant Mangal Sain @ Billa and Brij Mohan
looted his household property. PW4 Jagmohan Singh also stated that
in order to escape from those rioters, he ran towards the „gurdwara'
but gate of the „gurdwara' was not open, so he turned towards the lane
where the accused persons caught hold of him and assaulted him. As a
result of beating, he became unconscious and regained consciousness
after 8 days in Hindu Rao Hospital. He produced his original discharge
slip purportedly issued by Hindu Rao Hospital as Mark A which was
subsequently exhibited as Ex.PW5/A by PW5 Dr. U.C.Tyagi, Additional
Medical Superintendent of the hospital.
12. PW7 Baljit Kaur is the wife of PW4 Jagmohan Singh. She deposed
that on 01.11.84 at about 09:00/10:00 a.m., a crowd of people armed
with „lathis' and „sarias' came to their house i.e. B-1580, Shastri Nagar.
On this, they left the house and hid themselves in the house of
Gurbachan Singh. She showed her inability to identify anyone from the
said crowd of rioters and categorically stated that none of the
appellants was seen by her in the crowd. She was declared hostile on
the request of the learned Prosecutor and in her cross-examination by
the learned Prosecutor, she stated that in the evening of 01.11.84,
when they came back to their house, she found that the house was
burnt and their belongings were damaged. She denied the suggestion
that she had deliberately refrained from supporting the case of the
prosecution to help the accused persons who were her neighbours. In
her cross-examination by the accused persons, PW7 Stated that her
husband was a „sewadar' at Bangla Sahib Gurdwara and he used to
leave for his duty at 07:00 a.m. She categorically stated that on the
relevant day also, her husband had left the house at 07:00 a.m. and he
returned back about 07:00 p.m.
13. PW8 Gurinder Singh is the other brother of PW4 Jagmohan Singh.
He stated that on 01.11.84 at about 09:00/10:00 a.m., rioters came to
their House No. B-1580, Shastri Nagar, Delhi. Those rioters included
the appellants. They had „lathis' in their hands and one of the rioters
had hit him on his head with the „lathi'. His brother Jagmohan was
beaten so badly that he appeared to be almost dead. He took his
brother to Hindu Rao Hospital in a police jeep where he remained
admitted for about 10 days. In the cross-examination, this witness
stated that PW4 Jagmohan Singh was a „sewadar' at Bangla Sahib
Gurdwara and he used to leave for duty at about 08:00 a.m. He also
stated that his father was an employee of Akali Dal and used to
participate in the activities of Akali Dal as well as „Gurdwara
Prabandhak Committee‟. According to him, they reached at the
hospital at about 04:00 p.m. and he stayed with his brother in the
hospital on the night of 01.11.84. He denied the suggestion that he
had deposed falsely against the appellants at the instance of the
leaders of Akali Dal or that his brother Jagmohan Singh was not present
at the spot of occurrence at the time of riots.
14. PW5 Dr. U.C.Tyagi, Additional Medical Superintendent, Hindu Rao
Hospital stated that on 20.07.93, he was posted as Deputy Medical
Superintendent, Hindu Rao Hospital and he issued a letter Ex.PW1/A
stating that no MLCs pertaining to the person injured in the riots were
prepared in 1984. He also proved the purported discharge slip of
injured Jagmohan as Ex.PW5/A.
15. PW6 Dr. Pritam Singh was working as Medical Officer of Guru
Harkishan Hospital, Bangla Sahib. He has certified that Jagmohan
Singh, who was admitted in Hindu Rao Hospital as a case of head injury
from 01.11.84 till 08.11.84 was having fracture on „Maxillee‟ (left side),
and his injuries were grievous in nature. He proved the certificate
issued by him as Ex.PW6/A.
16. The appellants, when examined under Section 313 Cr.P.C.,
denied the prosecution evidence and claimed that they have been
falsely implicated in this case.
17. In defence, appellants examined one Amrik Singh. He deposed
that in the year 1984, he was residing in House No.1578-D, Shastri
Nagar. He also stated that on 01.11.84, he did not hear anything
about the riot at the house of Jagmohan Singh and that after the riots
Jagmohan met him and informed that nobody from mohalla was there
in the mob involved in the riots in 1984.
18. Learned Additional Sessions Judge, relying upon the testimony of
ocular witnesses, particularly PW4 Jagmohan Singh (injured), PW8
Gurinder Singh and the medical evidence provided by PW5 Dr.
U.C.Tyagi and PW6 Dr. Pritam Singh found the appellants guilty of
offences punishable under Sections 148 IPC as well as Section 395, 436
and 307 IPC read with Section 149 IPC.
19. Shri Ramesh Gupta, Sr. Advocate on behalf of the appellant
Mangal Sain, Shri S.P.Singh Chaudhary, Advocate on behalf of the
appellant Bhagat Singh and Sh. Puneet Ahluwalia, Advocate on behalf
of the appellant Brij Mohan Verma have challenged the impugned
judgment on facts as well as law. They have argued on almost similar
pattern. We are not reproducing the specific arguments advanced on
behalf of the respective appellants for the sake of brevity.
20. Firstly, it is submitted on behalf of the appellants that this is a
peculiar case in which the appellants were put to trial on the basis of a
supplementary charge sheet filed pursuant to the FIR No.489/84, P.S.
Sarai Rohilla on 03.12.1993, ignoring the fact that the trial based on
the main charge sheet earlier filed in respect of the said FIR in
November 1984 had already concluded in acquittal of the accused
persons arrayed in the aforesaid earlier charge sheet vide judgement
dated 29.03.1993 of learned Shri S.S. Bal, Additional Sessions Judge,
Delhi. The aforesaid acquittal order had attained finality before the
filing of supplementary charge sheet as no appeal against the above
referred judgement of acquittal dated 29.03.1993 was preferred by the
State. In the above backdrop, learned counsels for the appellants
submitted that once the trial in respect of the main charge sheet based
upon the same FIR had concluded on 29.03.1993, there was no
occasion for filing of supplementary charge sheet in already concluded
case and the only option available with the police, if it wanted to
reopen or further investigate the case in relation to the incident of
rioting which purportedly took place at House No.1580-B, Shastri Nagar
was to have a fresh FIR registered with regard to said incident before
undertaking the investigation. Since this has not been done, the trial
of the appellants on the basis of the aforesaid supplementary charge
sheet is bad in law and amounts to mistrial, which in itself is sufficient
to entitle the appellants to acquittal.
21. Section 173(8) is a new provision introduced by the Code of
Criminal Procedure, 1973 (hereinafter referred to as „Code‟), which was
not there in the earlier Code. It empowers the police to further
investigate the matter even after submitting a report under Section
173 Cr.P.C. or taking cognizance of the offence by the Magistrate. A
report under Section 173 Cr.P.C. is normally the end of the
investigation. Sometimes, however, after the submission of the report,
some new evidence having bearing upon the guilt or innocence of the
accused arrayed in the charge-sheet or otherwise may crop up.
Section 173(8) of the Code is tailored precisely to meet such a situation
and empowers the police officer to further investigate the matter to
collect evidence in the interest of justice and to send the report to the
Magistrate.
22. In the instant case also, something similar has happened.
Ex.PW4/DC is the copy of the complaint filed by Joginder Singh (since
„deceased‟), father of PW4 Jagmohan Singh, to SHO, P.S. Sarai Rohilla
wherein he reported the incident of arson, looting and assault resulting
in serious injuries to his sons PW4 Jagmohan Singh and PW8 Gurinder
Singh in the incident of rioting on 1st of November, 1984 by a mob of
people in the aftermath of the assassination of Smt. Indira Gandhi,
former Prime Minister. This complaint was got proved by the
appellants in the cross-examination of PW4 Jagmohan Singh by putting
to him a suggestion in that regard. Perusal of the original charge-
sheet filed in respect of case FIR No. 489/84, P.S. Sarai Rohilla reveals
that FIR No. 489/84 was general in respect of the riots involving several
properties in B-Block, Shastri Nagar with particular reference to the
incident of rioting which took place at the house No. B-1764, Shastri
Nagar. The original charge-sheet was submitted against 14 accused
persons other than the appellants in relation to the incident of rioting
at the house of Ajaib Singh. The charge framed in that case did not
include the incident which took place at House No. 1580-B, Shastri
Nagar, Delhi, which is the subject matter of the instant appeal. From
this, it is obvious that SHO, P.S. Sarai Rohilla did not take pains to
investigate into the allegations made in the complaint Ex.PW4/DC of
Joginder Singh dated 09th November, 1984. Precisely because of the
aforesaid reason, Justice Jain-Aggarwal Committee recommended to
Government of NCT of Delhi to further investigate into the affidavits
filed by Late Joginder Singh and his son Jagmohan Singh (PW4) under
Section 173(8) Cr.P.C.
23. We may note that the Government of India, taking into account
the heavy criticism of the role played by the police and the State
machinery during 1984 Anti-Sikh riots had constituted an Inquiry
Commission known as „Justice Ranganath Misra Inquiry Commission‟.
The aforesaid Commission had invited affidavits from the victims of
riots who were not satisfied with the role played by the State agency.
Pursuant to that, hundreds of victims including Joginder Singh
(deceased) and his son Jagmohan Singh (PW4) submitted their
affidavits before the Commission. Those affidavits Ex.PW4/DD and
Ex.PW4/DA were forwarded by Justice Ranganath Misra Commission to
Justice Jain-Aggarwal Committee, specifically constituted in this regard
for consideration and recommending the required necessary action.
The Committee, on consideration of those affidavits found that the
investigation conducted into FIR No. 489/84, P.S. Sarai Rohilla by the
police was perfunctory and recommended further investigation into the
allegations made in those affidavits. The recommendation was sent by
the Secretary of the Committee to the Lieutenant Governor of NCT of
Delhi vide letter Ex.PW9/B alongwith the relevant affidavits. Pursuant
to that recommendation, the Government of NCT of Delhi directed
further investigation into the affidavits of Joginder Singh and Jagmohan
Singh, which direction was communicated to the Commissioner of
Police, Delhi by Joint Secretary (Home) vide letter Ex.PW9/A dated 23rd
October, 1992. Accordingly, further investigation under Section 173(8)
of the Code was taken up by the police, which culminated into the
supplementary charge-sheet, which is the subject matter of this
appeal. We may also note that we have perused the record pertaining
to the main charge-sheet and on perusal of the case diaries dated
18.02.1993, we find that intimation pertaining to decision to further
investigate the matter was conveyed by the Investigating Officer to the
concerned Additional Sessions Judge in writing by Assistant
Commissioner of Police (Headquarter), Riot Cell, New Delhi through the
Senior Public Prosecutor. Thus, it is clear that before the conclusion of
the trial on the main charge-sheet, the Additional Sessions Judge was
informed about the further investigation taken up in case FIR No.
489/84, P.S. Sarai Rohilla. Thus, we do not find any illegality in the trial
of the appellants based on supplementary charge-sheet filed after the
judgment of acquittal in the main charge-sheet, particularly for the
reason that Section 173(8) clearly stipulates that nothing contained in
Section 173 of the Code shall be deemed to preclude further
investigation in respect of an offence after report under Section 173(2)
has been forwarded to the Magistrate.
24. The second limb of contention on behalf of the appellants is that
the police authorities, if they wished to take up further investigation in
the matter, should have registered a fresh FIR. Ideally, it would have
been better if the police had registered an independent FIR on the
basis of the allegations made in the complaint dated 09.11.84 of
Joginder Singh but the failure of the police authorities to register an FIR
on the basis of said complaint cannot be taken advantage of by the
appellants. Purpose of FIR is a principal object of FIR from the
preparation of the complainant or informant is to set the criminal law
into motion and from the point of view of the investigating agency is to
obtain the information about the commission of alleged offence so as
to collect evidence and bring the actual culprit to the book. The idea is
to obtain earlier information of alleged criminal activity to record the
circumstances before those are forgotten due to passage of time and
this also helps in eliminating possibility of distortion of facts on an
afterthought. That purpose in the instant case is already achieved
because the complaint of Joginder Singh Ex.PW4/DC records his
version, which satisfies the basic object behind insisting for the
registration of FIR. Thus, we do not find any merit in the above
contention of the appellants.
25. This brings us to the factual merits of the case. The prosecution
has examined six purported eye witnesses to bring home the guilt of
the appellants. Testimony of PW1 Gurnam Singh and PW2 Kulwant
Singh is not relevant for the purpose of this appeal as their testimony
does not relate to the incident which is the subject matter of this
appeal. Thus, we are left with the testimony of three brothers, namely,
PW3 Manohar Singh, PW4 Jagmohan Singh (injured), PW8 Gurinder
Singh (injured) and PW7 Baljit Kaur, wife of PW4 Jagmohan Singh.
26. It is submitted on behalf of the appellants that on perusal of the
impugned judgment, it appears that while appreciating the evidence of
the ocular witnesses, namely, PW3 Manohar Singh, PW4 Jagmohan
Singh, PW7 Baljit Kaur and PW8 Gurinder Singh, the learned trial Judge
was overwhelmed by the circumstances which prevailed at the time of
anti-Sikh riots which erupted in the aftermath of the assassination of
Smt. Indira Gandhi, the former Prime Minister and because of that he
returned the finding of the guilt of the appellants, ignoring the fact that
ocular as well as documentary evidence produced by the prosecution is
contradictory and unreliable. Dilating on the above argument, learned
counsels for the appellants submitted that the learned Trial Court failed
to appreciate that out of the four ocular witnesses examined by the
prosecution, PW3 Manohar Singh and PW7 Baljit Kaur have not
supported the case of the prosecution inasmuch as they have given the
time of occurrence as 10:00 am in the morning of Ist November, 1984
which is contradictory to the time of occurrence mentioned in the
charge and they have not identified either of the appellants as member
of the group of rioters who had attacked their House No.1580-B Shastri
Nagar, Delhi. It was further submitted on behalf of the appellants that
even the medical evidence to corroborate the version of PW4 and PW8
that they sustained injuries in the incident is not satisfactory. It is
argued that in view of the infirmities, it is unsafe to rely upon the
testimony of PW4 and PW8 because a possibility of introducing the
names of the appellants on an afterthought at the influence of political
groups cannot be ruled out.
27. Learned counsel for the State, on the other hand, has submitted
that the learned trial Judge has rightly relied upon the evidence on the
eye witnesses, namely, Manohar Singh (PW3), Jagmohan Singh (PW4),
Baljit Kaur (PW7) and Gurinder Singh (PW8). It is submitted that
although PW3 and PW7 have failed to identify either of the appellants
as members of the crowd of rioters, at the same time, they have
supported the case of the prosecution regarding the attack by a crowd
of rioters at their House No.1580-B, Shastri Nagar and also about the
arson and looting, which version corroborates the version of PW4
Jagmohan Singh and PW8 Gurinder Singh who are natural witnesses
and whose presence cannot be doubted as they both had sustained
injuries in the occurrence. Learned counsel for the State submitted
that much importance cannot be attached to the failure of the
prosecution to prove the treatment record pertaining to treatment of
PW4 Jagmohan Singh and PW8 Gurinder Singh at Hindu Rao Hospital
because non-production of said record is not wilful and it can safely be
attributed to the delay in investigation caused on account of inaction
on the part of the police in properly investigating the matter and
negligently filing the initial charge sheet in this case FIR No.489/84 P.S.
Sarai Rohilla on the basis of perfunctory investigation. Learned counsel
for the State has drawn our attention to the affidavit of Jagmohan
Singh Ex.PW4/DA dated 09.09.85 which was submitted before the
Justice Ranganath Misra Inquiry Commission and submitted that even
in this affidavit, which was sworn back in 1985, PW4 Jagmohan Singh
had stated that he and his brother Virender Singh (should be Gurinder
Singh) were beaten by the crowd with lathis and sarias consequent to
which they sustained several injuries and thereafter they were
admitted in Hindu Rao Hospital. In view of this, learned counsel
submitted that the learned Trial Court has rightly accepted the version
of PW4 and PW8 and the impugned judgment of conviction cannot be
faulted.
28. We have carefully considered the rival contentions. The case of
the prosecution as discussed above is based mainly upon the
purported eye witness account of the occurrence given by PW4
Jagmohan Singh and PW8 Gurinder Singh. Other two eye witnesses
examined by the prosecution are PW3 Manohar Singh and PW7 Baljit
Kaur. Manohar Singh has not supported the case of the prosecution at
all. He claimed that hundreds of rioters attacked their house in the
morning of 01.11.84 at around 10:00 am and on seeing them, he ran
away from the spot due to fear and hid himself in the house of his
friend. He has neither identified any of the rioters nor has he stated
about presence of either of his brothers, namely, PW4 Jagmohan Singh
and PW8 Gurinder Singh at the time of said attack. He was not even
cross-examined by learned APP to controvert his version regarding the
time of occurrence or to suggest to him that Jagmohan Singh and
Gurinder Singh were present at the spot or that they sustained injuries
in the aforesaid attack.
29. PW7 Baljit Kaur is the wife of PW4 Jagmohan Singh. Though she
has stated about the attack at their house by a crowd of rioters armed
with lathis and sarias, she did not identify any of the appellants as
members of that crowd. She also gave the incorrect time of attack i.e.
between 9:00 to 10:00 am in the morning. She was cross-examined by
the learned prosecutor with the permission of the court but even in the
cross-examination, she did not state anything incriminating against the
appellants. In her entire testimony, she is silent about the presence of
PW4 and PW8 at the time of occurrence or their having sustained any
injuries. In her cross-examination by learned counsel for the
appellants, she admitted that her husband Jagmohan Singh was a
sewadar at Bangla Sahib Gurudwara and on the date of occurrence, he
left the house for his duty at 7:00 am in the morning and returned back
at about 7:00 pm. If aforesaid version is to be believed, then the
presence of PW4 Jagmohan Singh at the spot of occurrence i.e. House
No.1580-B, Shastri Nagar at the relevant time is ruled out. Jagmohan
Singh in his cross-examination recorded on 23.02.2005 did try to
explain the aforesaid infirmity by stating that his wife Baljit Kaur has
deposed to that effect under pressure of the accused persons. We are
not convinced with the explanation given by PW4 Jagmohan Singh
because it has come in the testimony of PW4 as well as PW8 that
sometime after the occurrence, they shifted to Amritsar and started
living there. According to PW4 Jagmohan Singh, they shifted to
Amritsar in December, 1984 whereas, according to PW8 Gurinder
Singh, he shifted to Amritsar in 1985. Be that as it may, the fact
remains that the family of the complainant shifted to Amritsar shortly
after the occurrence. That being the case, a possibility of there being
any pressure of the accused persons on PW7 Baljit Kaur is too remote.
PW7 is the wife of PW4 Jagmohan Singh, therefore, it is highly
improbable, if not impossible, that she would depose falsely to support
the appellants against the version of her husband. Thus, we do not
find any reason to disregard the above said version of PW7 which
renders the presence of PW4 Jagmohan Singh at the time of occurrence
highly doubtful. This circumstance, by itself, raises a strong doubt that
PW4 and PW8 are not telling the truth.
30. The case of the prosecution is that both PW4 and PW8 sustained
injuries in the occurrence. On careful reading of the evidence, we find
that PW8 Gurinder Singh has claimed that he sustained one lathi blow
on his head but his brother Jagmohan Singh so was badly beaten that
he appeared to be dead and had become unconscious. He also
testified that he took PW4 Jagmohan Singh to Hindu Rao Hospital in a
police jeep on 01.11.84 where his brother was admitted for treatment,
but he was discharged after treatment on the same day. If that was
the case, there ought to have been some medical record pertaining to
the treatment of Jagmohan Singh at Hindu Rao Hospital. The
Investigating Officer, SI Jitendra Kumar Tyagi (PW9) deposed that
during the investigation, he had seized medical record pertaining to
treatment of PW4 Jagmohan Singh as well as PW8 Gurinder Singh vide
a seizure memo Ex.PW9/C. On perusal of the seizure memo Ex.PW9/C,
it transpires that copy of one OPD card pertaining to the treatment
given to Gurinder Singh was allegedly seized by the Investigating
Officer. The aforesaid OPD card has not been proved on record despite
of the fact that as per the Investigating Officer, Jagmohan Singh at the
time of seizure of those documents had assured that he would produce
the originals at the relevant stage. In absence of medical evidence to
corroborate the version of PW8 Gurinder Singh, we find it unsafe to rely
upon his testimony, particularly when the other purported eye
witnesses, namely, PW3 Manohar Singh, PW4 Jagmohan Singh and PW7
Baljit Kaur, who are closely related to PW8 Gurinder Singh, are silent
about his presence at the time of occurrence or his having sustained
injury in the incident.
31. Learned counsel for the State submitted that presence of PW4
Jagmohan Singh at the time of incident cannot be doubted as he
sustained injuries and to prove the injuries sustained by PW4 Jagmohan
Singh, the prosecution has relied upon a discharge slip Ex.PW5/A
purportedly issued by Hindu Rao Hospital. Prosecution examined PW5
Dr. U.C. Tyagi, Additional Medical Superintendent, Hindu Rao Hospital
to prove said discharge slip. Dr. U.C. Tyagi is neither the author of the
discharge slip nor a signatory. PW4 Jagmohan Singh was not under his
treatment during the relevant period i.e. from 01.11.84 to 08.11.84
mentioned in the discharge slip Ex.PW5/A. No treatment record of
Jagmohan Singh relatable to the period mentioned in the discharge slip
has been placed on record. Therefore, under the circumstances, we
find it difficult to place reliance upon the discharge slip Ex.PW5/A,
particularly when the MLC of PW4 Jagmohan Singh has not been
proved. The doubt against the contents of the discharge slip Ex.PW5/A
gets compounded by the fact that the prosecution has examined Dr.
Pritam Singh (PW6), Medical Officer Guru Harkishan Hospital, Bangla
Sahib. He has proved a certificate Ex.PW6/A purportedly issued by him
certifying that Jagmohan Singh, who was admitted in Hindu Rao
Hospital as a case of head injury on 01.11.84 and discharged on
08.11.84, was having a fracture of Maxilla (left side) and the injuries
suffered by him were grievous in nature. If this certificate is to be
believed, then Jagmohan Singh, apart from the head injury had also
sustained fracture of nasal bone i.e. Maxilla (left side) and that fracture
had still not healed when he was purportedly discharged from the
hospital. If that was true, under the natural course of circumstances,
the discharge slip ought to have mentioned about the said fracture of
Maxilla. This, however, is not the case. Otherwise also, the testimony
of PW6, if true, indicates that Jagmohan Singh after his discharge from
Hindu Rao Hospital took treatment at Guru Harkishan Hospital, Bangla
Sahib Gurudwara. Even the treatment record of the aforesaid hospital
is not proved by the prosecution. Further, Ex.PW4/DA and Ex.PW4/DD
are the respective affidavits of PW4 Jagmohan Singh and his father
Joginder Singh. In these affidavits, both of them have alleged that the
rioters had assaulted Jagmohan Singh and his brother Virender Singh
(should have been Gurinder Singh) with lathis and sarias and as a
consequence thereof, they sustained injuries. If the allegations in
those affidavits are to be believed, then both the brothers i.e. PW4 and
PW8 were assaulted by hundreds of rioters with lathis and sarias. In
that eventuality, both of them must have sustained injuries all over
their bodies, which fact is not projected in the discharge slip Ex.PW5/A
which speaks only of a head injury. This circumstance, coupled with
the circumstances discussed above, raises a strong doubt against the
genuineness of the discharge slip Ex.PW5/A and medical certificate
Ex.PW6/A produced by the prosecution in support of its case.
Aforesaid doubt is further compounded by the fact that the
Investigating Officer, Inspector J.K. Tyagi (PW9) in his cross-
examination has stated that though he seized the aforesaid copies of
medical records pertaining to the treatment of PW4 Jagmohan Singh
and PW8 Gurinder Singh, he did not make any effort to verify the
genuineness of those documents. In absence of any cogent evidence
pertaining to the injuries sustained by PW4 Jagmohan Singh and PW8
Gurinder Singh, we do not find it safe to rely upon their ocular
testimony, which is not corroborated by the other two eye witnesses,
namely, PW3 Manohar Singh and PW7 Baljit Kaur who are the members
of the same family. As noted above, the testimony of PW7 Baljit Kaur
even rules out the possibility of the presence of PW4 Jagmohan Singh
at the time of occurrence.
32. We may note that on perusal of the affidavits Ex.PW4/DA and
Ex.PW4/DD submitted by Jagmohan Singh and his father Joginder Singh
before Justice Ranganath Misra Inquiry Commission, it transpires that in
the said affidavits PW4 and his father alleged that one Master
Srikishan, member Municipal Corporation was also present at the time
of occurrence. Those affidavits admittedly were forwarded by Justice
Jain-Aggarwal Committee to Delhi Government along with their
recommendation for further investigation into the case FIR No.489/84,
P.S. Sarai Rohilla under Section 173(8) Cr.P.C. That being the case, it
was expected of the investigating agency to examine Master Srikishan
during investigation and cite him as a prosecution witness. Master
Srikishan has neither been cited as a witness nor examined by the
prosecution. This circumstance also goes against the prosecution
because the only independent eye witness of the occurrence whose
identity was available to the police has been withheld by the
prosecution. This raises a presumption that had Master Srikishan been
produced in the court, he would not have supported the case of the
prosecution.
33. The result of above discussion is that the testimony of PW4
Jagmohan Singh and PW8 Gurinder Singh is highly suspect and it is not
safe to base conviction of the appellants on the aforesaid evidence,
particularly when other two purported eye-witnesses PW3 and PW7
have not supported the prosecution case against the appellants.
Therefore, we set aside the impugned judgment of conviction and
acquit the appellants on all the counts, giving them benefit of doubt.
34. The appellants are in Jail. They be released forthwith, if not
required in any other case.
35. The appeals are accordingly disposed of.
AJIT BHARIHOKE, J.
MAY 21, 2010 A.K. SIKRI, J.
akb/pst
