Bihari Lal & Anr. vs State (Nct Of Delhi)
2013 Latest Caselaw 1215 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                RESERVED ON : February 18, 2013
                                DECIDED ON : March 12, 2013

+                         CRL.A.227/1996

       BIHARI LAL & ANR.
                                                       ..... Appellants
                          Through : Mr.R.K.Bali, Advocate.

                          versus

       STATE (NCT OF DELHI)
                                                       ..... Respondent
                          Through : Mr.H.J.S.Ahluwalia, Spl.P.P. for the
                                    State.

        CORAM:
        MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Appellant-Bihari Lal impugns judgment dated 04.10.1996 in

Sessions Case No.9/1996 arising out of FIR No.426/1984 registered at

Police Station Kalyan Puri by which he was convicted for committing

offences punishable under Section 148 and 395 IPC read with Section 149

IPC. Vide order dated 05.10.1996 he was sentenced to undergo rigorous

imprisonment for five years with total fine of `30,000/-.

2. Allegations against the accused were that on 01.11.1984 at

about 09.00 P.M. near House No.396, Block No.21, Trilok Puri, he,

Daulat Ram, Rajjan, Mahesh, Raju and other unknown persons formed an

unlawful assembly, the object of which was to kill people, loot and burn

their houses and in prosecution of the said common object, they looted

house of complainant-Som Singh (PW-2). They were armed with deadly

weapons. The prosecution examined seven witnesses. In the statement

under Section 313 Cr.P.C., the accused pleaded false implication. DW-1

(Krishan Kumar), DW-2 (Raj Karan Singh) and DW-3 (Ram Chander)

appeared in defence. On appreciating the evidence and considering the

rival submissions of the parties, the Trial Court by the impugned judgment

convicted Bihari Lal and Rajjan for the offences described previously.

Raju, Mahesh and Daulat Ram were acquitted of all the charges. Being

aggrieved, Bihari Lal and Rajjan preferred the appeal. It is relevant to

note that during the pendency of the appeal Rajjan expired. His death was

verified and vide order dated 9th April, 2012, the appeal stood abated qua

him.

3. Learned counsel for the appellant urged that the Trial Court

did not appreciate the evidence in its real perspective and fell into grave

error to base conviction on the testimonies of interested witnesses, PW-2

(Som Singh) and his wife PW-6 (Nirmal Kaur). The Trial Court ignored

vital discrepancies emerging in their statements without valid reasons. No

independent public witness was associated at any stage of the

investigation. PWs 2 and 6 exonerated Daulat Ram, Mahesh and Raju and

did not assign any role to them. The defence version was not given due

weightage. Learned Special Public Prosecutor urged that PWs 2 and 6

had no extraneous consideration to implicate the accused.

4. I have considered the submissions of the parties and

examined the record. Earlier no separate FIR was registered in respect of

rioting that took place in Block No.21, Trilok Puri. Sessions Case

No.9/1996 was filed after directions by the High Court for splitting up of

challan filed in FIR 426/1984 on the basis of various incidents having

taken place on different dates and on different basis. Statement of

complainant-Som Singh (PW-2) was recorded and he disclosed that on

01.11.1984 at about 09.00 P.M. a crowd of rioters came to his house and

broke open the door. Due to fear, he went on the first floor. His

household articles were looted. His wife's golden ear-rings were taken

away by the rioters. He named Bihari Lal (Dhobi), Saleem (President of

Sanjay Camp Jhuggis), Rajjan (who used to sell fish), Daulat Ram (who

used to sell clothes), Pappu (fruitwala) and Mahesh (Baniya) amongst the

rioters. During the course of investigation, they all were arrested.

Statements of witnesses conversant with the facts were recorded.

5. While appearing as PW-2 (Som Singh) proved the version

given to the police at the first instance without any variation. He deposed

that on the next day of Mrs.Gandhi's death at about 7.00/7.30 P.M. a

crowd of rioters armed with dandas, sarias and other such like instruments

came to their mohalla. The crowd was crying 'MARO, MAAR DO

MAAR DO'. The crowd attacked his house and broke the door. His wife

was standing at the door and they started beating her. He was able to

recognize Pappu-fruitwala, Rajjan, Saleem and Bihari amongst the crowd.

The crowd forcibly removed the earrings of his wife. Pappu and Saleem

were foremost among the rioters in removing the earrings. Rajjan hit the

door of the house. He was carrying a dragger. He ran away from the

house through the back door. Neighbours gathered and told the rioters

that he (Som Nath) was not a sikh and was a clean shaved person. They

protected them and saved the life of his family members. PW-2

identified Rajjan and Bihari Lal. He exonerated Daulat Ram, Mahesh and

Rajjan and stated that they were not seen in the crowd. In the cross-

examination, he denied the suggestion that after hearing the news of riots,

he had left his house for security and safety and had taken shelter in

someone's house. He elaborated that after running away from his house,

he took shelter in the house of Prem Chand and did not return till the

situation became normal. He was taken to a refugee camp on the third

day of the riots. His family had taken shelter in some other house. His

statement was recorded on 19th November, 1984. He had gone to the

police station earlier to lodge report but it was not recorded. He further

clarified that he had run away from the stairs which were opening inside

his room and were leading to the roof and after reaching the roof, he

jumped to the another roof of different house. He did not lodge any claim

with the Commissioner of Claims. PW-6 (Nirmal Kaur) corroborated

PW-2's version in its entirety. She also named Saleem, Pappu, Bihari and

Rajjan to be among the crowd who came to their house. They were armed

with lathis, iron rods, swords and such like other striking instruments. She

further deposed that Saleem and Pappu snatched her ornaments which she

was wearing. She was also slapped by them and after that she became

unconscious. Her husband fled after she was attacked. In the cross-

examination, she stated that she was shifted to relief camp on the third day

of the riots, by military people. Her two sons had taken shelter in the

house of Pandits. She was not aware as to where her husband was at that

time. He met her in the camp after three days. She fairly admitted that she

could not see the total number of rioters outside the house. She was

unable to tell who broke open the door. She fairly disclosed that except

breaking open the door and snatching her ornament, no other looting was

done in the house at that time.

6. On scrutinizing the testimony of PW-2 and PW-6, it reveals

that the appellant could not elicit material discrepancies in their cross-

examination to disbelieve them. PWs 2 and 6 were victims and had no

ulterior motive to falsely implicate the accused. They were having no

prior animosity with the accused who was residing in their neighbourhood

since long. They were not expected to let the real culprit go scot free and

to falsely implicate innocent persons. The accused was known to the

victim prior to the occurrence and was identified beyond any doubt. He

was identified by the witnesses without hesitation as one of the members

of the unlawful assembly. There are no good reasons to disbelieve the

cogent and reliable testimony of the victims. They were fair enough to

claim that only ornaments which PW-6 was wearing were robbed by

Saleem and Pappu. She even did not attribute any overt act to the present

appellant Bihari Lal for breaking open the door or robbing her ornaments.

She even did not state that the appellant gave any slaps to her. This makes

their testimonies most reliable and trustworthy. Minor contradictions.

discrepancies and improvements highlighted by the counsel do not affect

the core issue and are insignificant. These are not sufficient reasons to

throw away the entire testimony of the natural witnesses. In their

statement under Section 313 Cr.P.C. the accused came up with the plea

that he was falsely implicated as he was not ironing the clothes of the

witnesses. This defence deserves outright rejection. For a trivial issue the

victims are not imagined to falsely implicate him. The defence witnesses

contradicted themselves in their deposition before the court. The Trial

Court gave detailed reasons to discard the version given by them. It is

relevant to note that the appellant has also been convicted in other similar

cases.

7. Presence of accused as member of unlawful assembly is

sufficient for conviction. He was not a mute spectator or passive witness.

Under Section 149 IPC even if no overt act is imputed to a particular

person, the presence of the accused as a part of unlawful assembly is

sufficient for conviction. He was not a passive witness. In State of U.P.

Vs.Kishanpal & Ors. the Supreme Court held that once a membership of

an unlawful assembly is established, it is not incumbent on the

prosecution to establish whether any specific overt act has been assigned

to any accused. Mere membership of the unlawful assembly is sufficient

and every member of an unlawful assembly is vicariously liable for the

acts done by others either in prosecution of common object or members of

assembly knew were likely to be committed.

8. The conviction of the appellant is based on fair appraisal of

the evidence and needs no interference. Regarding order on sentence plea

has been made to take lenient view as the appellant has suffered trial for

25 years. He has remained in custody since long. It is not disputed that

the appellant was not a beneficiary. He did not rob any gold ornaments

which PW-6 was wearing. No robbed articles were recovered from his

possession. He was not armed with any deadly weapon. He did not inflict

any injury to the victim. He did not break open the house or caused harm

to the witnesses or their family members. Considering all these mitigating

circumstances, order on sentence is modified and substantive sentence of

the appellant is reduced to RI for three years with fine of `5,000/- and

failing to pay the fine, he shall undergo SI for three months.

9. The appeal stands disposed of in the above terms.

10. Trial court record be sent back forthwith.

(S.P.GARG) JUDGE March 12, 2013 sa