Bihari Lal vs State Nct Of Delhi
2011 Latest Caselaw 508 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     CRL.A. 191/1996

%                                             Reserved on: 7th December, 2010

                                              Decided on: 28th January, 2011


BIHARI LAL                                                  ..... Appellant
                                Through:   Mr. R.K. Bali, Advocate.

                       versus

STATE NCT OF DELHI                                           ..... Respondent
                                Through:   Mr. H.J.S. Ahluwalia, Spl. P.P.
Coram:

HON'BLE MS. JUSTICE MUKTA GUPTA


1. Whether the Reporters of local papers may
   be allowed to see the judgment?                            Not necessary

2. To be referred to Reporter or not?                         Yes

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

MUKTA GUPTA, J.

1. By the impugned judgment the Appellant has been convicted for

offences punishable under section 148 and 436 IPC and awarded a sentence of

Rigorous Imprisonment for a period of two years for offence under Section

148 IPC and five years for offence punishable under Section 436 IPC and a

fine of `5,000/- and in default of payment of fine, to further undergo Rigorous

Imprisonment for three months in each case. The impugned judgment

disposes two Sessions Case Nos. 68/1995 and 69/1995 in FIR No. 126/1984

registered at PS Kalyanpuri under Section 148 IPC and 436 IPC read with

Section 149 IPC.

2. In the present case, the incidents relate to the Trilokpuri area in the

aftermath of the riots that took place in various parts of the city after the death

of late Mrs. Indira Gandhi, former Prime Minister of the country. Since

various incidents had taken place, separate charge-sheets were filed resulting

in different Session cases. The learned Trial Judge dealt with two of these

Sessions case Nos. 68/1995 and 69/1995 in this impugned judgment.

SESSION CASE NO. 68/1995

3. The prosecution case rests on the testimony of Complainant PW2 Jasbir

Kaur w/o Baba Singh. According to PW 2 on 1st November, 1984, riots

triggered in the area and she along with her family kept hiding in her house.

On that date one Saleem of Block No 27 threw brick bats on their house along

with other rioters and tried to set her house on fire. But the neighbours in the

gali extinguished the fire immediately. On the night of 1st November at about

11 pm when the rioters came to her house, she along with the children went to

the house of her neighbourer in the jhuggi. On 2nd November, 1984 at 10:00

a.m. once again, an attempt was made by the rioters to set her house on fire.

One Saleem was also present among those rioters. That attempt was also

frustrated by the young boys of the gali saving her and her family and their

house from the rioters. In view of the repeated attacks, her husband and

children had run away. By 12:00 mid-night on 2nd November, 1984 when boys

in the gali returned to their houses, the Appellant along with a mob of rioters

came and started abusing the Complainant and asked them to go out of the

house. The Appellant then set their house on fire. The articles lying in the

house were removed and put in the park and then he set on fire those articles.

The Complainant Jasbir Kaur identified the Appellant as he used to iron the

clothes nearby their house. In view of her statement, the learned trial court

held that prosecution has proved its case beyond reasonable doubt against the

Appellant.

4. Learned counsel for the Appellant challenging the judgment, contends

that the statement of PW2 Jasbir Kaur is full of contradictions. In her

examination-in-chief, the witness has deposed that her three daughters were in

the house and she was sitting along with other ladies outside the house when

the house was set on fire, whereas in her cross-examination she deposed that

on 1st November, 1984 when the riots started, she left her house and took

shelter in a jhuggi nearby, furthermore, from the jhuggi she could not see her

house but could see the park where the Appellant allegedly burnt the

household articles. Thus, in view of this material contradiction in her

testimony and the fact that she could not have witnessed the incident of

burning of her house from the jhuggi, there is no evidence to convict the

Appellant. The Appellant is entitled to be acquitted.

5. Learned APP on the other hand contends that there is no contradiction

in the testimony of this witness and it is clear that she was at her house when

the incident took place and the jhuggi where she was hiding was not at a far

off distance but was near her house, therefore she was able to watch her house

hiding in jhuggi. The incident has been witnessed by her from outside the

house. The testimony of this witness cannot be looked into with suspicion and

conviction of the Appellant can be based on her testimony.

6. Having heard learned counsels for the parties and perusing the records,

I find that though there is no discrepancy as sought to be created by the leaned

counsel for the Appellant in the statement of Smt. Jasbir Kaur, PW2. Her

statement is consistent and explains the sequence of events as they unfold. As

per her statement, firstly brick bats were thrown and an attempt was made to

burn her house on 1st November, 1984 by rioters in which one Saleem

participated and again on the 2nd November, 1984 at 10:00 a.m., there was

another attempt by the rioter which was frustrated by the boys in the gali.

Throughout the day the rioters were making attempt to burn and loot her

house on 2nd November, 1984. The witness has not stated anything about the

Appellant Bihari's participation in these incidents but names one Saleem. It is

thus clear that the Complainant has truthfully stated the version otherwise she

could have implicated and named the Appellant even for these incidents. She

states that both these attempts were frustrated by the young boys in the gali

and when those boys returned to their houses at the night on 2nd November,

1984, then group of rioters in which the Appellant Bihari Lal was also a

participant came and set her house on fire and removed the household articles

in the park and burnt them. In the cross examination the fact sought to be

elicited that Smt. Jasbir Kaur was hiding in the jhuggi and from the jhuggi the

house could not be seen relates to the 1st November, 1984. PW2 has stated that

her house was set on fire before her eyes and she was sitting along with other

ladies outside the house when her house was set on fire. It is a natural

conduct on her part to keep a track of what was happening at her house and to

her family. In this case, once the house was being set on fire, nothing else

remained for the PW 2 to save her property and it was thus natural that she

would have watched it as she was in the vicinity. In my opinion, the

Complainant has stood by her testimony causing no dent to the prosecution

case. Hence prosecution has proved beyond reasonable doubt that Bihari Lal

has committed the offences punishable under Sections 148 and 436 IPC in

Session Case No. 68/1995.

SESSION CASE NO. 69/1995

7. The conviction in this case is based upon the testimony of PW 2 Smt.

Gurmeet Kaur w/o Bira Singh. In her testimony before the Court she has

stated that on 1st November, 1984 when riots started in the area, the rioters

came to her house 3-4 times to attack them but every time they attempted to

set their house on fire, the neighbours helped them and extinguished the fire.

However, in the mid-night of 1st November, 1984 when the neighbours had

returned to their houses, the rioters again came back. Appellant Bihari Lal was

present in the group of rioters. They started looting the household property,

and thereafter, set the articles on fire. According to her, she did not know the

people accompanying Bihari Lal. She deposed that she remained in the house

with the daughter, though she had sent her husband and sons with her

neighbours, later on she also concealed her daughter and when the house was

being burnt, she went on the roof of the house. In the cross examination, in

response to the suggestion given to her that she has falsely implicated the

Appellant she replied that she implicated him because she had herself seen

him from the roof of the house taking out the articles from her house and also

burning the house. Nothing else could be elicited from her cross-examination.

8. Learned counsel for the Appellant has contended that the testimony of

this witness is discrepant and in view of the contradiction, no reliance can be

placed on her testimony to convict the Appellant. However, learned counsel

for the Respondent State contends that there is no discrepancy in her

statement and conviction can be based on her testimony.

9. After perusing the records, it is evident that this witness was very much

present in the house and even if she was hiding, she was on the roof. At the

time of incident since everybody in the neighbourhood had gone to retire in

their respective houses, from the roof of the house, she witnessed the group of

rioters which included Appellant Bihari Lal, creating nuisance at her house.

Thus, from the testimony of PW2 Smt. Gurmeet Kaur, the offences

punishable under Section 148 and 436 IPC in Sessions case No. 69/1995 have

been proved beyond reasonable doubt against the Appellant Bihari Lal.

10. The next issue which arises for consideration in the present appeal is

whether the Appellant can be convicted for the offence punishable under

Section 148 IPC when no other person except the Appellant has been

convicted for this offence of rioting and burning the house of two sisters-in-

law i.e. Jasbir Kaur and Gurmeet Kaur. At this stage, it would be relevant to

re-produce the Constitution Bench decision in Mohan Singh Anr. vs. State of

Punjab AIR 1963 SC 174:-

"9. In dealing with the question as to the applicability of s. 149 in such cases, it is necessary to bear in mind the several categories of cases which come before the Criminal Courts for their decision. If five or more persons are named in the charge as composing an unlawful assembly and evidence adduced by the prosecution proves that charge against all of them, that is a very clear case where s. 149 can be invoked. It is, however, not necessary that five or more persons must be convicted before a charge under s. 149 can be successfully brought home to any members of the unlawful assembly. It may be that less than five persons may be charged and convicted under s. 302/149 if the charge is that the persons before the Court along with others named constituted an unlawful assembly; the other persons so named may not be available for trial along with their companions for the reason, for instance, that they have absconded. In such a case, the fact that less than five persons are before the Court does not make section 149 inapplicable for the simple reason that both the charge and the evidence seek to prove that the persons before the court and others number more than five in all and as such, they together constitute an unlawful assembly. Therefore, in order to bring home a charge under s. 149 it is not necessary that five or more persons must necessarily be brought before the court and convicted. Similarly, less than five persons may be charged under s. 149 if the prosecution case is that the persons before the Court and others numbering in all more than five composed an unlawful assembly, these others being persons not identified and so not named. In such a case, if evidence shows that the persons before the Court along with unidentified and un-named assailants or members composed an unlawful assembly, those before the Court can be convicted under section 149 though the un-named and un- identified persons are not traced and charged. Cases may also arise where in the charge, the prosecution names five or more persons and alleges that they constituted an unlawful assembly. In such cases, if both the charge and the evidence are confined to the persons named in the charge and out of the persons so named two

or more are acquitted leaving before the court less than five persons to be tried, then S. 149 cannot be invoked. Even in such cases, it is possible that though the charge names five or more persons as composing an unlawful assembly, evidence may nevertheless show that the unlawful assembly consisted of some other persons as well who were not identified and so not named. In such cases, either the trial court or even the High Court in appeal may be able to come to the conclusion that the acquittal of some of the persons named in the charge and tried will not necessarily displace the charge under section 149 because along with the two or three persons convicted were others who composed the unlawful assembly but who have not been identified and so have not been named. In such cases, the acquittal of one or more persons named in the charge does not affect the validity of the charge under section 149 because on the evidence the court of facts is able to reach the conclusion that the persons composing the unlawful assembly nevertheless were five or more than five. It is true that in the last category of cases, the court will have to be very careful in reaching the said conclusion. But there is no legal bar which prevents the court from reaching such a conclusion. The failure to refer in the charge to other members of the unlawful assembly un-named and unidentified may conceivably raise the point as to whether prejudice would be caused to the persons before the Court by reason of the fact that the charge did not indicate that un-named persons also were members of the unlawful assembly. But apart from the question of such prejudice which may have to be carefully considered, there is no legal bar preventing the court of facts from holding that though the charge specified only five or more persons, the unlawful assembly in fact consisted of other persons who were not named and identified. That appears to be the true legal position in respect of the several categories of cases which may fall to be tried when a charge under section 149 is framed.

11. Thus, in view of the facts and circumstances discussed above and the

law laid down by the Hon'ble Supreme Court, there exists no infirmity in the

impugned judgment convicting the Appellant for the offences punishable

under Section 148 IPC and 436 IPC. Also no case for modification of the

sentence is made out.

12. The appeal is accordingly dismissed. The bail bond and surety bond are

cancelled. The Appellant be taken into custody to undergo the remaining

sentence.

(MUKTA GUPTA) JUDGE JANUARY 28, 2011 dk