Anti-Sikh Riots of 1984 - It is indeed a matter of lament that there has been no meaningful thought spared till date to usher in reforms in the judicial process to effectively deal with the cases of communal riots which are engineered, more often than not, by those who have clout or influence– of various kind.
The following to be considered for inclusion in the reforms in the criminal law response to deal with such cases:-
(i) Suitable amendments (with necessary subordinate legislation) to the Commissions of Inquiry Act, 1952 and the Protection of Human Rights Act, 1993 may be considered to entrust the responsibility of taking note of the cognizable offences committed in communal riots and for investigation in accordance with law thereinto may be through SITs specially constituted under their respective control with further responsibility to oversee the prosecution in the wake of such investigation through Special Public Prosecutor(s) (SPP) to be engaged by them.
(ii) Though the Commissions referred to above would have their own investigative machinery to carry out the necessary probe in an effective manner, they might need to avail of the assistance of Legal Service Authority (LSA) for reaching out to the victims (or witnesses), and for instilling a sense of trust and confidence, coupled with such witness-protection measures as may be deemed proper for the given situation, and also of the judicial magistracy for mandatory recording of statements of such victims, or witnesses, under Section 164 Cr.P.C. at the earliest inasmuch as provisions for this would make the effort more comprehensive and effective.
(iii). The neutral agency of the Commissions, entrusted with the added responsibility of taking such case(s) to prosecution would ensure that no charge-sheet is brought to the criminal court for taking of cognizance, or trial, unless it has been properly vetted dispassionately by those well-trained in criminal law such that it is free from any defect, inadvertent or otherwise.
(iv). The law on the subject of communal riots cannot be a complete answer to the challenge unless it also establishes special courts with suitable amendments to the general criminal law procedure as indeed the rules of evidence.
(v). Given the technological advancements that have been made and the rise of media – print and electronic – as an effective fourth pillar of the democracy, there is a strong case for utilizing as evidence the press reports, supported by photographic material or video footages put in public domain in trials of criminal cases arising out of communal riots. Such material or video coverage are generally seen to be depicting the specific role of various individuals who form part of the riotous assembly as indeed those leading or provoking such mobs. Time has come for availing of the same, may be in corroboration of oral evidence, in criminal trial process. For this, the law must mandatorily require media persons or houses to share the product of their efforts with the investigating agency in all cases of communal riots, it being also their bounden duty thereafter to prove such material at the trial.
(vi). As has been highlighted in this judgment, frequent absences from the court hearings on the part of accused persons has been one of the major causes for delay in the judicial process. There is no reason why general law of criminal trial being held in the presence of the accused be permitted to be abused. For purposes of trial, particularly at the stage of recording of evidence, in cases under Prevention of Corruption Act, 1988, there is an exception carved out by Section 22(c) which permits such witnesses as are in attendance to be examined even if the accused is absent subject, of course, to his right to seek recall for cross-examination once he re-appears. Similar rule of procedure in cases of trial in communal cases involving large number of accused would have a salutary effect.
IN THE HIGH COURT OF DELHI AT NEW DELHI
CORAM: HON'BLE MR. JUSTICE R.K.GAUBA
Pronounced on: 28th November, 2018
CRL.A. 152/1996 SHAMBIR & ORS ..... Appellant Through: Mr.
M.L.Yadav and Mr. Karan Dahiya, Advocates Versus STATE ..... Respondent
Through: Mr. H.J.S. Ahluwalia, Special PP
CRL.A. 154/1996 RAMJI LAL ..... Appellant Through: Mr. M.L.Yadav,
Advocate Versus STATE ..... Respondent Through:Mr. H.J.S. Ahluwalia, Special PP
CRL.A. 155/1996 RAM BALI ..... Appellant Through: Mr. M.L.Yadav,
Advocate Versus STATE ..... Respondent Through: Mr. H.J.S. Ahluwalia, Special
PP
CRL.A. 156/1996 and Crl.M.A.8358/2014 SHIV LAKHAN ..... Appellant Through:
Mr. M.L.Yadav, Advocate Versus STATE ..... Respondent Through: Mr. H.J.S.
Ahluwalia, Special PP
CRL.A. 157/1996 JOKHU ..... Appellant Through: Mr. M.L.Yadav, Advocate
Versus STATE ..... Respondent Through: Mr. H.J.S. Ahluwalia, Special PP
CRL.A. 158/1996 UDAY PAL SINGH ..... Appellant Through: Mr. M.L.Yadav,
Advocate Versus STATE ..... Respondent Through: Mr. H.J.S. Ahluwalia, Special
PP
CRL.A. 159/1996 RAM NATH ..... Appellant Through: Mr. M.L.Yadav,
Advocate Versus STATE ..... Respondent Through: Mr. H.J.S. Ahluwalia, Special
PP + CRL.A. 160/1996 JEET SINGH & ORS. ..... Appellants Through: Mr.
M.L.Yadav, Advocate Versus STATE ..... Respondent Through: Mr. H.J.S.
Ahluwalia, Special PP
CRL.A. 162/1996 RAM NARESH & ORS ..... Appellants Through: Mr.
M.L.Yadav, Advocate Versus STATE (DELHI ADMN.) ..... Respondent Through: Mr.
H.J.S. Ahluwalia, Special PP
CRL.A. 163/1996 GOVIND RAM @ GOPI CHAND & ORS ..... Appellants
Through: Mr. M.L.Yadav, Advocate Versus STATE ..... Respondent Through: Mr.
H.J.S. Ahluwalia, Special PP
CRL.A. 166/1996 MANGU RAM & ORS ..... Appellants Through: Mr.
M.L.Yadav, Advocate Versus STATE (DELHI ADMN.) ..... Respondent Through: Mr.
H.J.S. Ahluwalia, Special PP
CRL.A. 169/1996 BAL KISHAN ..... Appellant Through: Mr. M.L.Yadav,
Advocate Versus DELHI STATE ..... Respondent Through: Mr. H.J.S. Ahluwalia,
Special PP
CRL.A. 171/1996 BANWARI LAL ..... Appellant Through: Mr. M.L.Yadav,
Advocate Versus STATE (DELHI ADMN.) ..... Respondent Through: Mr. H.J.S.
Ahluwalia, Special PP
CRL.A. 173/1996 SHEETAL PRASAD & ORS ..... Appellants Through: Mr.
M.L.Yadav, Advocate Versus STATE OF DELHI. ..... Respondent Through: Mr. H.J.S.
Ahluwalia, Special PP
CRL.A. 176/1996 AJUDHIA PARSAD & ANR ..... Appellants Through: Mr.
M.L.Yadav, Advocate Versus STATE (NCT OF DELHI) ..... Respondent Through: Mr.
H.J.S. Ahluwalia, Special PP
CRL.A. 180/1996 SANGU ..... Appellant Through: Mr. Ram Gupta, proxy
counsel for Mr. Sudarsh Menon, Advocate Versus STATE ..... Respondent Through:
Mr. H.J.S. Ahluwalia, Special PP
CRL.A. 181/1996 PALANIVAL ..... Appellant Through: Mr. Ram Gupta, proxy
counsel for Mr. Sudarsh Menon, Advocate Versus STATE (DELHI ADMN) .....
Respondent Through: Mr. H.J.S. Ahluwalia, Special PP
CRL.A. 182/1996 BRAHM SINGH ..... Appellant Through: Mr. M.L.Yadav,
Advocate versus STATE ..... Respondent Through: Mr. H.J.S. Ahluwalia, Special
PP
CRL.A. 183/1996 GANESH TAHKUR ..... Appellant Through: Mr. M.L.Yadav,
Advocate Versus STATE ..... Respondent Through: Mr. H.J.S. Ahluwalia, Special
PP
CRL.A. 189/1996 SHIV CHARAN & ORS. ..... Appellants Through: Mr.
M.L.Yadav, Advocate Versus STATE ..... Respondent Through: Mr. H.J.S.
Ahluwalia, Special PP
CRL.A. 190/1996 SUNDERA MURTHI & ORS. ..... Appellant Through: Mr.
Ram Gupta, proxy counsel for Mr. Sudarsh Menon, Advocate Versus STATE .....
Respondent Through: Mr. H.J.S. Ahluwalia, Special PP
CRL.A. 237/1996 RAM KISHAN ..... Appellant Through: Mr. M.L.Yadav,
Advocate Versus STATE(GOVT.OF NCT OF DELHI) ..... Respondent Through: Mr.
H.J.S. Ahluwalia, Special PP
CRL.A. 270/1996 GHANSHYAM ..... Appellant Through: Mr. M.L.Yadav,
Advocate Versus STATE (GOVT.OF NCT OF DELHI) ..... Respondent Through: Mr.
H.J.S. Ahluwalia, Special PP
J U D G M E N T
1. That the criminal justice administration may falter or crumble, or lose
its potency, is no longer a distant doomsday scenario. It appears to have
arrived and stares at us in the face. The question as to whether the guilt of
the appellants for complicity in rioting and mischief by fire was correctly
concluded or not has come up for determination thirty-four years after the
crimes were committed and twenty-two years after the trial court had rendered
its decision. The whole exercise is reduced to the level of academic.
2. On 31.10.1984, Mrs. Indira Gandhi, the then Prime Minister of India,
was assassinated by her bodyguards. Riots broke out on the same day in the
capital city of Delhi and other parts of the country which, in no time, turned
communal, they being directed against the Sikh community. Carnage followed for
several days in which thousands suffered physical harm or damage to the
property. A large number perished. Semblance of law and order returned, albeit
after several days, in the wake of the armed forces being called in aid of
the civil administration.
3. The failure of the police, and the civil authorities, in controlling
the situation, or meeting the challenge, by enforcing the law has been
chronicled not only in the media reports but also found to be a fact in
decisions of the courts of law, in various cases brought at almost each level
of the judicial hierarchy, as indeed recorded in the reports of numerous
Commissions of inquiry or Committees that were set up in the decades that have
followed. The circumstances that prevailed during riots are the harsh reality
of which judicial notice may be taken.
4. The anti-Sikh riots of 1984 are indeed a dark chapter in the history of
independent India which, it is often said, this country must put behind so as
to move ahead. But, for those who suffered personal loss in the form of
killings of their near and dear ones, or destruction of their homes, there
possibly can never be a closure. The theories of politico - criminal nexus,
aided and assisted by police or civil service officials loyal to the cause,
being behind the mayhem that was wrecked, virtually with impunity or immunity,
continue to abound and haunt. There is also a contrarian view that such dark
chapters in the history of the land must never get effaced from memory since
they confront us, the civil society at large, by showing a mirror, to expose to
us the rot that lies within.
5. The communal riots of the likes of 1984 have been erupting time and
again, as a scourge, in free India, starting with the partition riots of 1947,
more often than not, fanned by socio-political leadership. Many such communal
riots have preceded, or followed, those of 1984, each leaving behind numerous
cases of mass murders, arson, loot, plunder, et al. In the present
context, the court is not concerned with what were the causes for failure of administration or of
law and order or, to go further, what reforms are required to ensure that such
break-down of administrative machinery, or rule of law, does not recur. The
court is concerned more with the enforcement of criminal law in the wake of
such serious crimes as were committed in the name of protests taking the ugly shape
of communal riots.
6. These twenty-three criminal appeals arise out of the decision of a
court of Sessions in a case (sessions case 34/95) relating to rioting
accompanied by commission of serious offences in the afternoon of 02.11.1984 in
Block no.32 of a locality known as Trilok Puri, within the territorial
jurisdiction of police station Kalyan Puri, Delhi, it being subject matter of
investigation through first information report (FIR) no.426/1984 of the said
police station. This case is one of the several cases that were registered
around that period, the grievances of the victim community, and the civil
society at large, consistently being that there was utter failure on the part
of the police in not only controlling the situation but also in bringing the
perpetrators of the crimes to justice. Allegations have been made generally and
with reference to various other cases registered during the said period, they
also being echoed in the context of the present case, that the police officials
entrusted with the responsibility of taking note of the crimes or for follow-up
action under the criminal law, instead of discharging their obligations, turned
their gaze the other way or made endeavour to ensure that those guilty could
either escape or even if brought to trial, could avoid their guilt being
proved.
7. Having heard the defence, and the prosecution, in these appeals and having subjected the trial court record to acute scrutiny, this
court finds the grievance as to apathy on the part of agencies connected to the
criminal law towards such cases to be correct and well founded. In the
considered view of this court, it is not only the police that failed in not
(promptly) registering the crimes or collecting all possible or requisite
evidence (before it was lost forever) but the other agencies including
prosecution, and the court, that also failed to rise to the occasion or live up
to the task.
8. As would be noticed in the later part of this judgment, the manner in
which the case was handled, or lingered, at the stage of committal proceedings
before the Magistrate, was designed to ensure the case would not proceed with
the promptitude it deserved. The case resulting from the first final report
under Section 173 of the Code of Criminal Procedure, 1973 (“the charge-sheet”)
which was placed before the court of the Metropolitan Magistrate (on
20.12.1985), followed by several supplementary reports, saw the committal order
being passed only on 18.04.1987. The court of Sessions where the case was
allocated had doubts as to the permissibility of joint trial of one hundred and
seven (107) persons who had been brought before it under the umbrella of one
case. It passed certain orders requiring the cases to be split up. The supplementary
charge-sheets in the wake of such directions followed, with no-one interested
in expedition. Eventually, the case was put to trial by order dated 04.12.1995
framing charge against ninety three (93) accused whose presence had been
secured, this being followed by a similar subsequent order respecting one more
who was compelled to appear with great difficulty.
9. There is abundant material available on record that a number of
neighbourhoods, within the territorial jurisdiction of police station Kalyan
Puri were on the boil, communal riots having broken out right from 31.10.1984
onwards, certain pockets of locality known as Trilok Puri being the worst
affected. As has been explained in the evidence, and at the hearing, Trilok
Puri was divided in several parts known as Blocks, each a congested
sub-locality with houses built on small plots of land, the Sikh community being
substantial in number as the local residents which, of course, also included
people following other faiths. There is substantive evidence brought on record,
and which is not disputed, that riotous mobs were moving, from Block to Block,
targeting Sikhs or their properties, the worst affected areas being Block
nos.21,30, 32, 33 and 36, they being closely located and connected by narrow
by-lanes or roads, the case at hand having been restricted to what happened in
block no.32 and around.
10. Four cases (FIRs) were registered by the police, one after the other in
police station Kalyan Puri around the period in question facts concerning which
are part of the material which the trial Judge took on board, they being FIR
no.423/1984, registered at 2.30 p.m. on 01.11.1984 at the instance of Inspector
Shoorvir Singh Tyagi (PW-7), the then Station House Officer (SHO) of police
station Kalyan Puri; FIR no.424/1984, registered at 3.20 p.m. on 01.11.1984, at
the instance of SI Roshan Lal (not examined); FIR no.425/1984, registered at
8.45 p.m. on 02.11.1984, at the instance of Mr. R.D. Malhotra (not examined),
Assistant Commissioner of Police (ACP) of the sub-division; and FIR no.426/1984 – from which the present case
arises – registered at 15:00 hours on 03.11.1984, on the basis of rukka of
SI Manphool Singh (PW-8), it, in turn, being based on the statement of Rijju
Singh (PW 2).
11. In FIR no.423/1984, the then SHO had recorded that offences under
Sections 147, 148, 149, 426, 436 of Indian Penal Code, 1860 (IPC) had been, or
were being, committed in the area under his jurisdiction, the same having come
to his notice during patrolling, assisted by other police officials including
SI Manphool Singh (PW-8) and HC Pat Ram (PW-5) in the areas of Block no.4, 5,
27, 34, 32 and 36, the aggressive crowd having indulged in stone pelting, arson
and physical assaults against persons belonging to the Sikh community, moving
from one place to the other, the riotous mobs having swelled even though police
officials, at the instance of the SHO, had fired in the air to bring it under
control.
12. In FIR no.424/1984, its first informant SI Roshan Lal recorded offences
punishable under Sections 147, 148, 149 and 436 IPC having been committed, the
same having come to his notice when he had gone for patrolling duty,
accompanied by two constables, to Block no.11 where a large crowd had gathered,
the said police team having been joined by other police officials, already
present at the scene, and they having witnessed two groups being pitted against
each other, one formed by persons from Sikh community having gone to the
rooftops of their houses to start firing with their guns at the other group,
the mob not dispersing and instead indulging in arson, beatings or damaging the
property, the firing by the police officials forcing the mob to flee away to Block no.13, the police officials having made
seizures of fire-arms, ammunition, explosive material etc. and taking certain
persons (mostly Sikhs) into custody.
13. The third case FIR no.425/1984 was registered at the instance of the
ACP of the sub-division on the basis of input received from an army officer (a
Lieutenant Colonel) from Darya Ganj about the riotous situation in Block no.34
and he (ACP) consequently having visited the place under direction of the
Deputy Commissioner of Police (DCP) to find a large number of houses of Sikhs,
and their inhabitants, having come under attack overnight, such houses having
been burnt and a large number of people killed. In this FIR, input received
from a motorcycle rider Munshi Ram about such incidents and the local
inhabitants being in need of protection by additional force to be rushed in
having been conveyed to Assistant Sub Inspector Jugti Ram, Duty Officer with no
action taken in its wake, was also mentioned. The FIR also recorded that the
SHO (PW-7) had failed to make any arrangement for protection of life or
property of the local residents or to inform his superiors or to register the
cases and consequently he (the SHO), motorcycle rider (Munshi Ram) and SI Jugti
Ram having committed offences punishable under Sections 217 and 211 IPC and
Section 60 of Delhi Police Act,1978.
14. The last in the series of the aforementioned cases would be the FIR
no.426/1984, the rukka (Ex. PW8/A-B) and the testimony of its author
Manphool Singh (PW-8) indicating that the action was initiated on the basis of
daily diary entry (DD) no.12A recorded at 5:45 PM based on a wireless message
received from police control room (PCR) about violence (“Maar Kat”) in Block nos.1 to 10. PW-8 statedly
was on some official duty in Jai Prakash Narain Hospital (JPN Hospital) in
connection with death of a riot victim. According to him, he had returned to
the police station at about 5.45 p.m. on 02.11.1984 when he was deputed to go
to Block no.32. Upon arrival, he saw several houses of block nos.30 and 32
afire. The police force which was present at the scene made the rioters who
were present move away. According to his version, the rioters were surrounded
in back-lane and 107 persons were apprehended, Rijju Singh (PW2) having been
examined, his statement forming the basis of the FIR. The FIR was registered
for investigation into offences that had been committed, they being allegedly
punishable under Sections 147, 148, 149, 427, 436, 304 IPC.
15. The initial investigation had resulted in two charge-sheets being
prepared by the SHO of police station Kalyan Puri on 28.08.1985 which were
forwarded to the court of the Metropolitan Magistrate on 03.12.1985. The case
for the prosecution, as culled out from the said charge-sheets, may be noted at
this stage. It was stated that on 02.11.1984, on receipt of information from
the PCR, recorded vide DD entry no.12A, regarding violence occurring in Block
no.32, Trilok Puri, SI Manphool Singh (PW-8) accompanied by Constable Pat Ram
(PW-5) set out and reached the place of occurrence (Block No.32), they being
joined by the then SHO Inspector Shoorvir Singh Tyagi (PW-7) and other police
staff. They found a number of houses in Block no.30 and 32 having been set on
fire, specific note being made of house nos.123, 124, 484 and 485 of Block
no.32. PCR van also reached there in which two victims named Sucha Singh and Lakha Singh
were sent to hospital for medical treatment. Senior police officers also
reached the scene and with the assistance of reinforcements that had arrived,
one hundred and seven (107) rioters were apprehended. The victims, particularly
women and children, were sent to the police station by official vehicle. Rijju
Singh (PW-2), one of the victims, also rescued from the place, was examined and
on the basis of his version, FIR no.426/1984 was registered, the prevailing
circumstances also having been taken note of. The same, as per the initial
inputs, included those punishable under Sections 147, 148, 149, 436, 427, 304,
323 IPC.
16. As per the FIR, PW-2 Rijju Singh (the first informant) was resident of
house no.124 of Block no.32, Trilok puri. He would earn his livelihood through
a small general merchant shop from a temporary shed. According to him, there
were about 300 houses of persons from Sikh community in Block nos.30, 32 and
34. At about 2.00 pm, on 01.11.1984, after the assassination of the Prime
Minister on the previous date, thousands of people had gathered near Gurudwara,
Block no.36, the said mob having moved and indulging in violence towards Block
no.32 and started threatening the Sikh community accusing them of being
responsible for the assassination. This led to a tense situation prevailing. On
02.11.1984, a mob comprising of thousands of persons had again gathered from
03.30 p.m. onwards. They had set the houses of Sikhs on fire using kerosene
oil, damaging the property by using brick-bats, indulging in physical assaults
on the persons, a large number having been killed and put into fire. Rijju Singh stated that he did not know any of the mobsters and
had somehow run away to safety to save himself, his wife Gian Devi, aged 35
years, and four children including two sons named Jeet Singh, aged 18 years and
Dileep Singh, aged about 10/11 years, besides two daughters named Pinki and
Gati Devi aged about nine and seven years respectively having gone missing. He
also informed that in the riots, his brother-in-law, Lakha Singh had also been
killed. He stated that besides those who had been apprehended by the police, he
would be able to identify some of the rioters if shown to him.
17. During the course of investigation that followed after registration of
FIR no.426/1984, a large number of dead bodies in burnt condition were gathered
from the streets or houses in Block nos.30 and 32 and arrangement made for
post-mortem examination. The charge-sheet would state that the scenes of
incident in Block nos.21, 30, 31, 32 and 36 were got photographed, certain
other victims having came up with their versions and their statements being
recorded, they including Bachu Sigh, Sadhu Singh and Gurcharan Singh.
18. The charge-sheet would further state that on the objection of the
prosecution branch, two separate charge-sheets were prepared pertaining to the
events of 01.11.1984 and 02.11.1984. The challan no.1 pertained to the events
of 02.11.1984 and was based primarily on the statements of aforementioned three
witnesses, namely Bachu Singh, Sadhu Singh and Gurcharan Singh respecting the
rioting that had begun from the afternoon of 01.11.1984 onwards besides other
witnesses named Kulwant Singh, Herbai, Ladli Bai, Gurdeep Kaur, Kamlesh, Somti Kaur, Sundri Bai, Gurmeet Kaur, Jasbir Kaur, Surender
Kaur, Surjeet Kaur, Thakri Bai, Ponti Kaur, Manichi Bai, Prem Kaur, Meera Bai,
Nanki Devi, Shanti, Manjeet Singh, Ramo Devi, Bhag Chand, Nihal Devi, Kulwinder
Kaur, Ram Pyari, Somi Bai, Barfi Bai, Hukmi Bai, Kamla Bai, Bhagwani Bai,
Chunda Singh, Charanjeet Kaur, Surender Kaur, Dalwinder Singh and Avtar Kaur,
etc. Each of the said witnesses in their respective statements under Section
161 Cr. PC narrated as to how their houses had been attacked, burnt, damaged or
destroyed, their household goods looted and their kith and kin subjected to
violence, a number of them dying in the process due to the injuries inflicted
including by fire. These witnesses attributed specific role to some of the
rioters by name.
19. As per the aforementioned first challan, household goods which were
found thrown on the streets or in public places had been taken in police
possession by proceedings recorded under Section 102 Cr. PC. As many as 108
dead bodies had been found and gathered and subjected to autopsy, some of them
having been identified. Lists of the persons who had died and lists of the
properties which had been damaged were added as Annexures „A‟ and „B‟
respectively. The charge-sheet concluded with the submission that curfew had
been proclaimed in Delhi under Section 144 Cr. PC and that the riots had taken
place in breach of the said curfew restrictions, in the course of which the
aforesaid offences including of murder had been committed, it thus seeking
prosecution for offences under Sections 147, 148, 149, 302, 201, 436, 427, 188,
452, 380, 356, and 323 IPC to be held.
20. Annexure „A‟ (Ex. PW1/P-2) appended to the first challan (Ex. PW6/E) was a list of houses that had been burnt or looted on
02.11.1984, they including five houses of Block no.21, five houses of Block
no.30, twenty two houses of Block no.32 and eleven hutments (jhuggis) of Block
no.32 and 33. Annexure „B‟ (Ex. PW4/A-1) was the list of names (and parentage)
of fifty two (52) persons who had been killed on 02.11.1984.
21. Challan no.2, which was simultaneously prepared and forwarded to the
court on 03.12.1985, carried narration of the same set of facts beginning with
lodging of DD no.12A till the stage of registration of the FIR no.426/1984 on
the basis of statement of Rijju Singh. It indicated this challan to be
respecting the incidents that had occurred on 01.11.1984, being based on the
statements of witnesses including Bachu Singh, Sadhu Singh, Gurcharan Singh,
Sadhori Bai, Darshan Kaur, Jasbir Singh, Vidya Devi, Sarbjeet Kaur, Gopi Bai,
Bhagwan Kaur, Sunita Kaur, Poora Bai, Thakri Bai, Ishwari Kaur, Hazari Singh,
Pammi Devi, Kamlesh, Ranjha Singh, Raj Rani, Prabhi Bai, Maya, Kanta Rani,
Guljar Singh, Gyan Kaur, Sugna Singh, Sunita Bai, Jamla, Chamo Bai, Som Singh,
Chija Kaur, Devi Bai, Maya Kaur, Baljeet Kumar, Bhajan Kaur, Bhagti Bai, Janki
Bai, Santokh Singh, Raj Bai, Kamla Kaur and Inderi. All these witnesses in
their respective statements under Section 161 Cr. PC also narrated the
incidents wherein the riotous mobs had attacked their respective houses causing
loot, plunder and destruction and killings of their kith, kin or acquaintance,
in their presence, the witnesses specifically identifying, by name, some of the
assailants or rioters.
22. In the second challan, reference was also made to the statements under Section 161 Cr. PC of more than ninety other witnesses who had
also narrated the sequence of events relating to riots on 01.11.1984. Alongwith
this charge-sheet (Ex. PW11/A) also, two lists were submitted, they being
Annexure „A‟ in three parts (Ex. PW6/A to C) and Annexure „B‟ (Ex. PW6/D). The
first annexure was the list of properties that had been burnt during the riots
on 01.11.1984, they including one house of Block no.21, seventeen houses of
Block no.30, two houses of Block no.31, seventy seven houses of Block no.32,
one house of Block no.33 and two houses of Block no.36, besides twenty nine
jhuggis, two Gurudwaras (one each in Block nos.32 and 36) and two shops both in
Block no.32. The second Annexure (Ex. PW6/D) was a list of the names (and parentage)
of one hundred and forty six (146) persons who had been killed in the riots on
01.11.1984. As per this charge-sheet, as in the first one, prosecution was
sought for offences punishable under Sections 147, 148, 149, 302, 201, 427,
436, 325, 326 and 188 IPC.
23. A list of about one hundred and ninety two (192) accused persons who
were sent up for trial is found in the trial court record (at page 245) - it
being partially torn at the bottom and therefore, not clear as to the actual
total number. There is no clarity on this list as to which of the two challans
it pertained. Immediately following the said list of accused, there is another
list of witnesses – ninety four (94) in number, it again not being clear as to
which of the two challans the same was part of. Mercifully, there are two more
lists in the trial court record, they appearing in the later part, one
captioned as list of accused persons – ninety one (91) in number and the other,
captioned as list of witnesses – one hundred and seventy nine (179) in number,
each indicating the same to be pertaining to challan no.2.
24. The trial court record shows that besides the statements under Sections
161 Cr. PC of various witnesses, reliance was placed, inter alia, on the
seizure memos of various looted properties which were found on roads, streets,
by-lanes or other public places under Section 102 Cr.PC (implying that no one
in particular was found to be in possession thereof), seizure memos of burnt or
damaged vehicles, dead bodies, MLCs, death reports, inquest papers and autopsy
reports in respect of various victims, quite a few of them not even having been
identified, as indeed photographs of affected properties.
25. Two separate and parallel, almost identical, proceedings were drawn by
the court of the Metropolitan Magistrate, the orders dated 20.12.1985 whereby
cognizance was taken and processes issued against the accused persons being
non-speaking and cryptic. Since the charge-sheets had sought prosecution for
far graver offences including under Section 302 IPC read with Section 149 IPC,
it has to be inferred that the order of cognizance and issue of process under
Sections 190 read with Section 204 Cr.PC was to the effect of summoning the
accused on such accusations as well. The parallel proceedings on the two
charge-sheets were similar and continued till 18.04.1987 when the two cases -
arising out of the two challans relating to the same FIR - were committed by
the Metropolitan Magistrate to the court of Sessions.
26. The proceedings anterior to the committal of the two cases would show
the Metropolitan Magistrate had difficulty in securing the presence of the accused persons who had been sent up for prosecution - undoubtedly
a large number, and therefore, undoubtedly an unwieldy task. Several of the
accused persons would not appear, some eventually absconding, some reported to
have died. The committal orders, however, lack clarity as to how many of the
total number of accused who had been sent up by the police for prosecution were
actually present before the committal Magistrate when he decided to pass on the
case to the court of Sessions for trial.
27. It is also pertinent to mention here that in the committal orders, the
Metropolitan Magistrate observed that, in his opinion, prima facie,
offences punishable under Sections 147, 148, 149, 436 IPC were made out and
since the same (assumably reference being made to the offence of Section 436
read with Section 149 IPC) were triable exclusively by the court of Sessions,
the cases were committed to the Sessions in compliance with the requirement of
Section 209 Cr. PC. The committal orders conspicuously lack clarity as to why
there was no case found made out for any graver offence particularly on the
accusations that a large number of persons had died in the violence committed
by the rioters who were members of the unlawful assembly that had also statedly
committed the offences under Section 436 read with Section 149 IPC by damaging
a large number of houses by fire.
28. Be that as it may, the two cases came up before the court of Sessions
on 16.05.1987. The record of the trial court would show that as in the case of
committal court, two parallel proceedings were drawn in each case, they being
captioned as proceedings of challan no.1 and challan no.2 respectively. Both the cases were taken up simultaneously
from one date to the other, adjournments being granted primarily because a large
number of accused persons would not appear leading to duress processes being
issued against them. The presiding Additional Sessions Judge also expressed
difficulty in various proceedings on account of paucity of space in his court
room where such large number of accused could not be accommodated. It appears
every time the cases came up, the presiding Judge had difficulty in counting
the heads and taking attendance of the accused persons, exemption being taken
by some, others disappearing or re-appearing almost at will, the issuance of
duress processes though resorted to not bringing about the requisite
discipline. The cases lingered in this manner over the years, the presiding
Judge being almost a helpless spectator.
29. On 08.09.1995, almost ten years after the filing of the two
charge-sheets and eight years after the committal, the trial Judge recorded two
identical order-sheets on the files of the two challans taking note of
applications that had been moved by the Special Public Prosecutor (SPP) about
mis-joinder of charges. The said order to the extent relevant reads thus :-
"SPP has moved an application stating that there
are misjoinder of charges in case 426/84. It is submitted that the incidents
had taken place on 01.11.1984 and 02.11.1984. The persons have been arrested
separately for the offences committed on Ist and 2nd Nov. The witnesses have
separately described the incidents of Ist and 2nd Nov. and have separately
named the accused persons for the incidents of 01.11.1984 and 02.11.1984 during
the riot period but the IO has investigated the entire incident of 01.11.1984
and 02.11.1984 together and he just filed two challans one covering all
incidents of 01.11.1984 and other covering all incidents of 02.11.1984
involving approx 200 accused persons It is submitted by the ld. SPP that the
trial of all the accused persons involved in the two challans cannot proceed
together because that would amount to mis-joinder of the charges and would
amount to trial of different persons of different incidents together resulting
into a grave illegality. Keeping in view the fact that on the night of
02.11.1984, 107 rioters were arrested by the police in breach of curfew and
they were held up under Sections 143/144 / 147/ 148 IPC read with S. 435, 436,
395 IPC etc. and later on, on the basis of evidence of witnesses, other persons
were also arrested who were involved in specific incidents of murder or looting
and burning, I consider that the prosecution should not have filed two challans
on the basis of dates the prosecution should have filed the challan on the
basis of separate incidents involving the accused persons. It is therefore
directed that ACP Riot Cell Rajeev Ranjan and SHO Kalyan Puri be summoned to
the court and directed to split the challan in accordance with the incident and
not in accordance with the date. The challan of 107 accused persons who were
rounded up at one time form the spot by the police should be filed altogether
so that trial of all these persons can proceed further. To come up for
appearance of ACP Riot Cell and SHO for 13.09.1995. Accused persons to appear
on 20.09.1995."
30. During the course of hearing on these appeals, the learned Special
Public Prosecutor was called upon to explain as to what steps had been taken in the follow-up of the directions of the trial court,
by its order dated 08.09.1995. He informed, after gathering facts from Delhi
Police Headquarters (Special Riots Cell), that about fifty-five supplementary
charge-sheets had been submitted in the wake of the afore-mentioned directions
of the trial court, they including the charge-sheet presented on 06.10.1995 on
which, as the subsequent narration would show, the trial eventually was held
against the appellants herein. He further informed the Court that subsequently,
on the recommendations of a Committee, the Special Riots Cell of Delhi Police,
which has been looking after these matters, had carried out further
investigation of FIR No. 426/1984 of police station Kalyan Puri and this had
led to filing of three more supplementary challans which too were later split
into twelve session cases, they having given rise to five more session cases
being bifurcated, the other supplementary charge-sheets (as referred to above)
being connected to separate incidents, some concerning death(s) of specific
individuals, the cases of homicidal death of seventy-three persons being
resultantly covered by such prosecutions, all arising out of FIR No. 426/1984
of police station Kalyan Puri. He also informed the court that almost all the
said cases have since reached the stage of conclusion of trial, quite a large
number of proceedings having abated on account of death(s) of the persons
arraigned as accused.
31. The subsequent order-sheets in the files of the original two
above-mentioned challans show that, after some adjournments, a fresh
charge-sheet was submitted (described as challan which had been "splitted
partly") on 06.10.1995. This fresh charge-sheet dated 06.10.1995 only referred to the contents of the FIR no.426/1984 and the
version of Rijju Singh (PW-2) forming the basis thereof and the investigative
steps that had been undertaken including in the wake of recovery of burnt dead
bodies that had been gathered and their post-mortem examination and sought
prosecution for offences under Sections 147, 148, 149, 436, 427, 302, 395, 186,
323 IPC. A list of one hundred and seven (107) persons captioned as "at
spot arrested" was added as the list of accused whose trial was
sought, the list of witnesses appended to this charge-sheet containing the
names of 15 including two public persons namely Rijju Singh (PW-2) who was the
first informant of the FIR and one Sadhu Singh son of Sukha Singh resident of
House no.32 of Block no.32 Trilok Puri who was given up by the prosecution
during the trial. The proceedings in the two Sessions cases (bearing nos.24/95
and 34/95) that had been earlier registered continued together, primarily to
secure the presence of some of the accused who were elusive.
32. Eventually, on 04.12.1995, a decade after the crimes had been
committed, the Additional Sessions Judge presiding over the proceedings took
steps to commence the trial by the following order :-
"04.12.95 Pre: Salim in J/C. All the accused
except Jai Kishan, Rajinder Singh, Shamim Mohd s/o Rehman, Naresh Pal s/o.
Shyam Singh and Hari Pal are present.
NBWs of Hari have not come back. The other accused
persons were proceeded U/s 82/83 Cr. PC. Report of the proceeding u/s 82/83 Cr.
PC has been received. On the basis of the report, all these accused persons
except Hari Pal are declared P.O. One of the accused Ram Singh s/o. Gopi Ram
was also proceeded u/s. 82/83 but he has appeared. Proceedings u/s. 82 / 83 Cr
PC are dropped against him. His surety bond be restored. As far as Hari Pal is
concerned, a large number of accused persons are involved in this case. The
trial cannot be postponed time and again for absence of only one accused Hari
Pal. Proceedings u/s. 82 / 83 Cr. PC be initiated against him. Proceedings for
charge against accused persons be started. Arguments on charge heard. Charge
framed against 93 accused persons given in the list Annexure 'A' the charge.
Accused persons have pleaded not guilty. To come up for P.E. on 04.01.1996."
33. Noticeably, the order would not reflect what was submitted by either
side. It would not show what charges were pressed by the prosecution. The
formal charges which were framed pursuant to the above mentioned order dated
04.12.1995 read thus :-
" That on 02.11.84 at 3.30 p.. at Block No.32,
Trilok Puri, within the jurisdiction of PS Kalyan Puri, you alongwith your
unknown persons disobeyed the Prohibitory / Curfew orders promulgated under r.
PC 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 under Section 188 IPC and within my cognizance. Secondly on the
aforesaid date, time and place, you alongwith unknown persons formed an unlawful
assembly a common object of which was to kill Sikhs and loot and burn their
properties and at that time you were armed with deadly weapons which you used
the same in committing the riot. Thus, thereby committed an offence punishable
under Section 148 IPC and within my cognizance. Lastly on the same date, time
and place, you alongwith unknown persons were the members of the aforesaid
unlawful assembly within the prosecution of common object to commit mischief and
in consequences to achieve that object you burnt the houses of Sikhs situated
in block no.32 and 33, Trilok Puri, and thus, you thereby committed an offence
punishable under Section 436 read with Section 149 IPC and within my
cognizance”.
34. There is no clarity in proceedings of trial court as to why no case for
charge under Section 302 or 397 IPC was found made out on available material.
35. It is interesting to note that the case against one of the accused
named Ram Asre son of Ram Roop was considered on 22.01.1996 and for the reasons
indicated in the order recorded - as quoted herein below - he was discharged :-
"Pre: Ram Asre s/o Ram Roop r/o. 30/59-60, Trilok
Puri He was apprehended by the police in FIR no.426/84 in challan No.2 filed by
the prosecution. Perusal of various statements under Section 161 on the basis
of which challans have been split and separate challans have been field
incidentwise shows that no witness has named Ram Asre r/o. Ram Roop as the
person who was involved in rioting or who was member of unlawful assembly, nor
he was arrested at the spot by the police. He was arrested later on by the
police. Under these circumstances accused Ram Asre s/o. Ram Roop is hereby
discharged."
36. The formal charges which were framed clearly show that from the evidence that was presented by the prosecution through the
charge-sheets, the trial Judge was satisfied that aside from the offence of
disobedience to the order (of curfew) prohibiting unlawful assembly that had
been duly promulgated by the Commissioner of Police, it constituting offence
under Section 188 IPC, a case was also made out for framing of charge for the
aggravated form of rioting (armed with deadly weapons) under Section 148 IPC.
Further, the trial Judge was also satisfied that on the basis of available
material, a case had been made out for invocation of the rule of vicarious
liability under Section 149 IPC vis-a-vis the offence of mischief by fire or
explosive substances to destroy the houses, shops or places of worship,
punishable under Section 436 IPC. Though the statements of various witnesses
under Section 161 Cr. PC which have been referred to earlier did indicate
specific role being attributed by a number of witnesses or victims to specific
individual accused persons, at the stage of charge it was a legitimate recourse
to Section 149 IPC for putting the accused persons on trial for the offence
under Section 436 IPC.
37. The charge-sheet(s) would refer to commission of far more serious
offences having been committed (including murder) in the wake of reported
deaths of ninety five persons in this incident.
38. For reasons that cannot, however, be gleaned, from the orders recorded
by the court of Metropolitan Magistrate at the time of taking of cognizance or
committing the case, or by the court of Sessions at the stage of framing of
charge, as to why no case was found made out for the far more serious offences
of murder atleast those not covered by supplementary challan from out of ninety five (95) persons whose
dead bodies had been found and subjected to inquest proceedings and autopsies,
material in which regard had been submitted with the first two challans.
39. The trial court recorded the evidence for prosecution starting with the
first witness examined on 22.02.1996 and concluding with the last witness
examined on 22.05.1996, they being in all, eleven in number. The witnesses
included Sub-Inspector S.L. Khurana (PW-1), who proved prohibitory orders;
Rijju Singh (PW-2), the first informant; Assistant Sub-Inspector Ganga Ram
(PW-3), who was posted as Duty Officer in the police station and had registered
the FIR; Mr. Sanjeev Bhalla (PW-4), a clerk from Home Police - II, Department
of Govt. of NCT of Delhi, who produced notifications respecting appointment of
certain committees for inquiry into the 1984 riots; Head Constable Pat Ram
(PW-5) who was with the other police personnel and deposed about the sequence
of events, inter alia, resulting in riots and the accused persons being
apprehended; Reserve Inspector Badan Singh (PW-6) who assisted in the
investigation of the case taking various steps; the then SHO Inspector Shoorvir
Singh Tyagi (PW-7), whose evidence is similar to that of PW-5; Sub-Inspector
Manphool Singh (PW-8), who is the author of the rukka, he having
recorded the statement of PW2; Inspector Davinder Singh (PW-9), who prepared
the scaled site plan to assist the investigating officer; Head Constable
Dhanvir Singh (PW-10), the photographer who took various photographs of the
scene of crimes; and, Inspector S.S. Rathi (PW-11) who had taken over as SHO
police station Trilok Puri in the wake of PW-7 being placed under suspension in the night of
2nd / 03rd November, 1984 and had handed over the investigation eventually to
Inspector Badan Singh of Special Investigation Unit (SIU) of the Vigilance branch
at Police Headquarters.
40. One of the accused named Pyare Lal son of Ram Niranjan had earlier
absconded. While the trial against the ninety three (93) other accused which
had commenced in terms of the order dated 04.12.1995 was midway, the police
apprehended Pyare Lal and filed, on 19.07.1996 a supplementary charge-sheet
dated 17.07.1996 in his respect before the court of Sessions. The question of
charge in his respect was considered on 27.07.1996 and an order similar to the
one of 04.12.1995 was passed, the formal charges framed also being on the same
lines as indicated above. The trial Judge recalled PW-1, PW-2, PW-4, PW-5,
PW-6, PW-7 and PW-8 and examined them afresh for trial of Pyare Lal (some of
them having been assigned different PW numbers). In addition, Head Constable
Hoshiar Singh was examined (as PW-3), his evidence being similar to that of SI
S.L. Khurana (PW-1).
41. The trial was thus held and out of a large number of witnesses
mentioned in the narrative only eleven were examined, a large part of the
evidence having been kept out.
42. In their respective statements, the accused persons against whom the
trial was concluded denied the evidence for the prosecution regarding their
complicity, generally pleading ignorance about the crimes that had been
committed, pleading that they had been apprehended or picked up either from
their houses or from other places and claiming to be innocent.
43. Five of the accused persons availed of opportunity to lead evidence in
defence. Eight witnesses in defence were examined on their behalf or at their
instance, the objective primarily being to prove alibi.
44. The judgment in the case was rendered on 27.08.1996 holding eighty nine
of the accused persons guilty.
45. The trial Judge believed all the said witnesses examined in defence and
consequently acquitted five of the total ninety four (94) accused who had been
put to trial, those acquitted being Prem Chand son of Sukhai, Heera Lal son of
Ram Singh; Sunil Kumar son of Lalta Prasad; Ganga Saran son of Bihari Lal; and
Om Prakash son of Roop Narayan.
46. The trial Judge returned the findings of guilty to convict the said
eighty nine (89) persons on the charge for offences punishable under Sections
188 IPC, 147 IPC and 436 IPC. By order dated 27.08.1996, the trial court
awarded to each of the eighty nine (89) convicted persons punishment in the
form of rigorous imprisonment for two years for offence under Section 147 IPC,
imprisonment for six months for the offence of violation of curfew orders (and,
therefore, for offence under Section 188 IPC) and rigorous imprisonment for
five years with fine of Rs.5,000/- each for offence under Section 436 IPC. It
further directed that in the case of default of payment of fine, the convicts
would undergo further rigorous imprisonment for three months each, all the
sentences directed to run concurrently with benefit of Section 428 Cr. PC duly
accorded.
47. Before proceeding further, it may be noted that certain observations
had been made in the judgment dated 27.08.1996 about the conduct of certain
police officers. On the application made by one of them, he having been
mentioned by name in the said judgment, correction was made deleting reference
to him by order dated 29.08.1996 of the trial court.
48. These appeals were filed assailing the said judgment, and order on
sentence, in September 1996 and have remained pending for over twenty two
years, but the hearing could not take place for one reason or the other.
49. Since these appeals have come up for final hearing so long after they
had been presented, all the appellants having been released on bail earlier,
the sentence awarded against them by the trial court suspended at initial
stages, difficulties having been faced to secure their presence, the State was
called upon to verify and confirm their status. A report dated 19.09.2018 on
behalf of Delhi Police was submitted by the Special Public Prosecutor, it
indicating that some of them have since died, the proceedings against them
consequently having abated. From the record, it is noted that reports verifying
the death of Jawala Prasad, Ram Nihore, Ikram Hussain, Mohd. Yasin, Prakash
Chand, Ram Deen and Maeenuddin (appellants in Crl.A.160/1996) were taken on
record and by virtue of orders dated 09.11.2010, 18.01.2011 and 02.11.2015, the
proceedings against them were held to have abated. Similarly, it is noted that
reports verifying death of Jai Shree, Malik, Ram Dass, Munna, Kamal Singh, Rajinder
and Jagdev (appellants in Crl.A.173/1996) were accepted and by virtue of orders dated 09.11.2010, 18.01.2011 and 30.03.2011, the
proceedings against them were found to have abated. Further, verification reports
of the deaths of Prem Kumar and Ajudhia Parsad, (appellants in Crl.A.176/1996)
were accepted and the proceedings against them were found to have abated by
orders dated 18.01.2011 and 02.11.2015. Also, as per orders passed on
30.03.2011, the appeals of Hakim Singh and Shankar (appellants in Crl.A.
No.173/1996) and of Mohd. Salim (appellant in Crl.A.189/1996) were dismissed as
they had absconded, reference in this context being made to ruling of Mukesh
vs. State, 152 (2008) DLT 201 (DB). The appeals of remaining appellants
have been heard.
50. It is appropriate at this stage to look at the evidence which has been
adduced at the trial leading to the impugned judgment being passed. The
evidence of PW-2 Rijju Singh is relevant to bring home the volatile situation
that prevailed wherein rioting was going on unabated all over, several houses
having been burnt, people having been killed and rendered shelterless, there
being no sense of security at least till 03.11.1984. His evidence corroborates
the prosecution case about a large number of dead bodies having been collected
from the area, he being a witness to two truck loads of dead bodies being
brought to the police station at the time when he was present there. His
evidence, however,
51. is of no consequence for proving the complicity of any of the
appellants in as much as he was not called upon to identify any of the
appellants as perpetrators of the crime. From the situation in which he was
placed, he cannot be termed as a witness who was withholding any information. His house had been burnt, his family had gone missing,
he had no other place to take shelter in, he had remained concealed under a cot
in a vacant room of the house of someone else till he was rescued by the police
that brought him to the police station.
52. From amongst the witnesses examined by the prosecution, the testimony
of five (PW-5 to 8 and PW-11) is material, the deposition of PW-5, PW-7 and
PW-8 being crucial, the last mentioned three being the police officials, who
statedly were involved in rounding up or apprehension of the rioters in Block
no.32 in the afternoon of 02.11.1984, particularly such action resulting in the
arrest of one hundred and seven (107) persons who were sent up for trial in the
present case.
53. PW-7, the then SHO of the police station when the rioting broke out
came to be accused of dereliction of duty. The FIR no.423/1984 which was
registered at his instance was later cancelled on recommendations of the
Vigilance Branch of Delhi Police upon the conclusion that he had created the
said record to cover up for his own lapses. He was placed under suspension on
the night of 02nd and 03rd November 1984, accusations of his active or otherwise
complicity in offences under Sections 217 and 211 IPC having been levelled in
FIR no.425/1984. The defence argues that having regard to these facts, it is
not safe to act on the testimony of PW-7, he being “interested” in
proving that he was quite pro-active in apprehending these one hundred and
seven (107) persons, thereby bringing them to book. It would be instructive to
go through his testimony to find if it can be relied upon notwithstanding such
criticism directed against him by his own superiors in the police department.
54. The narration of the prosecution case begins primarily with the
testimony of PW-8, it sought to be corroborated by testimony of PW-5, the
prosecution also placing reliance on the evidence of PW-7 to prove the
circumstances from which inference of guilt of the appellants is to be drawn
for their involvement in the offence under Section 436 IPC respecting a large
number of houses, shops, etc. of the area that were damaged or destroyed by
fire, the principle of vicarious liability under Section 149 IPC being invoked
for such purposes.
55. PW-8 testified at the trial that in November 1984 he was posted as
Sub-Inspector at the police station Kalyan Puri. The riots had started in the
said area, as per him on 01.11.1984 and he was assigned the duty to remain in
block nos.1 to 10 of Trilok Puri. A riot victim had died and he was called upon
to go to J.P.N. Hospital where he had reached late in the night around 10.50
p.m. He was able to return, on foot – there being no vehicle available from the
hospital to the police station by 5.45 p.m. on the next day i.e. 02.01.1984
and, immediately thereafter, he was told to go to block no.32, Trilok Puri, he
being accompanied at that point of time by PW-5. On the way, he received copy
of DD entry no.12A (Mark „A‟) concerning the riotous situation. He reached
block no.32 around 6.30 p.m. and by that time the van of police control room
(PCR) had already arrived. He found several houses of Sikhs in block nos.30 and
32 on fire. According to him, the rioters noticing the arrival of the police
had shifted to the back-lanes. Police reinforcements arrived and the rioters
were surrounded and apprehended from the spot, they being 107 in number.
56. PW-8 clarified that since police force was deficient in number, those
apprehended were immediately shifted to the police station where they were
formally arrested after personal search, the documents prepared in this regard
being proved by him as Ex. PW8/C-1 to C-107. The record confirms that the
arrestees included the appellants herein.
57. PW-8 is the police official who had recorded the statement of PW-2
which formed the basis of the FIR registered in terms of his endorsement (Ex.
PW8/B). The investigation of the case was entrusted to him and he testified
that he had remained in the area throughout the night and amongst the steps
taken by him, the dead bodies which were littered all over were collected - 95
in number - and carried in two municipal vans to the police station from where
they would be sent for autopsy proceedings after formal police inquiries into
the death.
58. PW-8 also testified that the household goods which were found lying on
the roads were seized and he proved the seizure memos (Ex. PW8/D-1 to D-8). He
got the area subjected to photography during the night of 2nd and 3rd November
1984 and continued with the investigation for about fifteen days in the course
of which he recorded the statements of various witnesses or victims, he being
assisted in the task by two other police officials namely SI Ran Singh and SI
Rajender Prasad Tyagi, the investigation later being made over to the
investigation team of vigilance branch, it being led by Inspector Badan Singh
(PW-6).
59. During cross-examination, PW-8 testified that he had been on duty from
the night of 31.10.1984 onwards, every police personnel being on emergency duty
on account of the riots. He stated that curfew and prohibitory orders had come
into force from late evening hours of 02.11.1984, this having been proclaimed,
for the information of people at large from loud speakers on the government
vehicles, though he was not sure as to how many vehicles had been deployed for
such purposes. He testified that he had himself heard such announcement being
made by ACP Mr. Malhotra.
60. PW-8 was questioned during cross-examination about the arrests of those
who were prosecuted (i.e. including the appellants). He stated that the area
DCP, Mr. Sewa Dass, some ACPs and certain other police personnel had assisted
in rounding up the rioters. According to him, the rioters were found in groups
of 5 to 25. He testified that he had met the SHO (PW-7) at the corner of block
no.32 where a police van was stationed. Those rounded up were brought to the
said place for being put in the pick-up van of the police, the SHO being
present at the place most of the time. He conceded that none of the arrestees
was found carrying any weapon like wooden sticks, fire arms or cutting
instruments, his assumption being that the rioters must have thrown away such
articles during chase.
61. The arrests were made from around 7.45 p.m. till about 10.45 p.m. well
before midnight, under the supervision of PW-8 and with his help, the list of
arrestees being prepared on the basis of description given by each of them. He
would also state that names and particulars of the apprehended persons were
taken down on paper at the time of they being left near the police vehicle that would carry them to the
police station, at times by him and at times by other police staff assisting
him. He was at one point of time not sure if he had sent the rukka (Ex.PW8/B)
for registration of the FIR before the list of arrestees was readied but then
asserted that the names of the apprehended persons had been noted, though not
consolidated in the form of one list, before the rukka was written and
sent to the police station through PW-5. He conceded that the list of
particulars of 107 arrestees was not sent with the rukka to the police
station, his explanation being that he had handed over the said list to the SHO
(PW-7) before starting writing the rukka. He would state that the rough
lists from which the final list of arrestees was subsequently prepared were not
preserved, the list of arrestees appended to the FIR having been prepared later
by the Moharrar (Record), he having incorporated the same in the case
diary, preparation of which task had commenced from about 8.30 p.m. on
03.11.1984 onwards.
62. Though PW-8 candidly conceded that he would not be able to orally
narrate the names of those arrested on 02.11.1984 (his statement under
cross-examination being recorded on 24.04.1996), he was able to recall some of
the names. He was not in a position to pin point as to from which particular
place in the area or which particular group, specific individuals were
apprehended. He explained that the SHO had supervised the despatch of those
arrested to the police station with the help of available staff and that he was
not able to say as to which arrestee was sent first and who were sent later. He
denied the suggestions of the defence that those arrestees were residents of
the riot affected blocks of Trilok Puri.
63. PW-8 was questioned as to the place where the arrestees were confined.
He explained that there was no lock-up (hawalat) available in the local
police station and, thus, the arrestees were kept in confinement in the police
station premises, some located in the investigating officer's room, some in veranda
and others in the backyard, under police guard. He explained that the
arrested persons were taken before the Metropolitan Magistrate on duty at Tis
Hazari courts (no Duty Magistrate being available at Shahdara) on 03.11.1984 at
about 2.30 p.m., they having been transported there in buses and further that
sufficient police force being not available, they were kept in the vehicles for
remand proceedings by the Duty Magistrate and carried accordingly from the
court to the jail.
64. PW-8 further stated, under cross-examination, that PW-5 had returned,
after getting the FIR registered, two-three hours after he had set out with the
rukka. At that time, he was pre-occupied collecting the dead bodies from
block no.32. He conceded that FIR no.423/84, in which a large number of Sikhs
had been arrested, had been later cancelled by the vigilance department. He
also confirmed that the SHO (PW-7) was suspended during the night of 02nd and
3rd November, 1984.
65. PW-5, who was with PW-8 for a long time during the police proceedings,
deposed at the trial that during his posting at police station Kalyan Puri on
02.11.1984, at the time of riots he had accompanied PW-8 to block no.32 at
about 6.00 p.m. and found some houses on fire. He spoke about taking the rukka
given to him by PW-8 to the police station where FIR was registered and about his return
and handing over copy of the FIR to PW-8.
66. During cross-examination, PW-5, also spoke of he being continuously on
duty on the said day, on 24-hours basis, though stating that he would not
remember the exact time of his presence in the police station since it was an
old matter (he was deposing in the court on 18.03.1996). He would not remember
if he had gone anywhere other than the riot affected area or about other inputs
or FIRs that may have been logged. He explained that the police station was
located in the vicinity of block nos.11 and 13 while block no.32, to which the
present case related, was about two and half kilometers away. He was unable to
specify the number of police personnel or their rank who were present in the
police station at the relevant point of time.
67. PW-5 confirmed that PW-8 had the information about rioting was received
and that as the two of them were proceeding towards block no.32, riots were
taking place. He was, however, unable to tell specific street numbers or
pockets of block no.32 which were affected. He confirmed that a large number of
persons had been found to be injured, some of whom were sent to the hospital by
PW-8, the SHO (PW-7) and PCR van having also arrived within 5/7 minutes, the
SHO having remained in the area of block no.32 for the duration he was away to
the police station for getting the FIR registered. He confirmed the continued
presence of SHO at the time of his return from the police station and stated that
he had remained there at the spot thereafter for two more hours. During
questioning under cross-examination, PW-5 confirmed that he was also involved in arrest of the
rioters from the spot, they having been brought to the police station. He
explained that first priority was to remove the injured to the hospital, his
duty being to assist them to board the vehicle meant for the purpose, it being
a police pick-up van.
68. PW-5 also stated that at the time of police proceedings at the spot, it
had fallen dark but explained later that the police proceedings (rukka)
were recorded in the light of police vehicles. He confirmed, under
cross-examination, that prior to the preparation of rukka, 107 persons
"who were rioting" had been apprehended, they having been arrested,
after chase, from different places within block no.32. He also corroborated the
word of PW-8 about curfew having been imposed and that police personnel were
chasing the rioters in order to apprehend them, reinforcements having arrived
within 5/7 minutes. This witness corroborated the word of PW-8 about the names
and addresses of the persons apprehended being duly noted during such
proceedings at the spot.
69. As mentioned earlier, PW-7 was the SHO of the police station Kalyan
Puri on the day (01.11.1984) the riots broke out in the area. Though he came to
be accused of dereliction of duty in handling the situation, some of the
actions taken by him (including registration of FIR no.423/1984) having been questioned
as motivated, his evidence cannot be wished away. After all, his presence at
the scene of riots from which the present case arose was not only natural but
also duly confirmed by other evidence including the testimonies of PW-5 and
PW-8.
70. PW-7, the SHO, testified at the trial that on 02.11.1984 at about 5.45
p.m., he had received the information on wireless network about the riots in
block no.32. At that time, he was patrolling in the area and, thus, had reached
the corner of block no.32, entering from the side of block no.36. He met PW-8
present at the scene and saw houses and hutments afire. PCR van had reached at
the spot in his presence. He testified about arranging removal of the injured
persons to the hospital with the aid and assistance of PCR and having sent
messages to fire brigade for assistance and to senior officers for police
reinforcements, the difficulty faced by him being that he had the assistance of
only two or three constables present with him while the information was of a
large number of rioters having gathered, the commotion created by them being
audible. He spoke about rescuing riot affected families and giving directions
to PW-8 and other police personnel to enter block no.32. Police reinforcements
joined after sometime.
71. PW-7 testified that with the help of additional forces, 107 rioters
were surrounded and apprehended from block nos.30 and 32, their lists having
been prepared and they being sent to the police station after arrests. He
stated that the formal documentation relating to arrests - preparation of list
and personal search (jamatalashi) – was looked after by PW-8. The
proceedings relating to the identification of the dead bodies were also taken
care of by PW-8. To a question by the court, the SHO clarified that though he
was at the corner of block no.32 and had been able to see the riot affected
area and streets upto 100 yards, noticing the dead bodies in burnt condition,
he himself had not entered block no.32. He admitted that he was placed under
suspension during the night of 02nd and 03rd November, 1984.
72. During cross-examination, PW-7 conceded that he had received
information about rioting in the area several times even on 01.11.1984, though
no public person had come to the police station for lodging a case, probably
due to fear. He was unable to give the description of the specific houses which
had been put on fire. The total strength of police personnel available to the
police station was in the region of 60 to 80, almost entire police force having
been deployed in the riot affected areas, only 5 / 7 personnel being present in
the police station, 2 / 3 being with him on patrolling duty, which had
continued from 7-8 a.m. in the morning of 02.11.1984 onwards, the area covered
being approximately 30 square kilometers which fell within his jurisdiction.
73. PW-7 corroborated the statement of PW-8 about 107 rioters apprehended
during the above mentioned action by the latter (PW-8) and other police
personnel had been brought to the place in his presence. He was unable to
indicate the exact time when curfew was promulgated in the area under his
control stating that the message received from Commissioner of Police had been
duly recorded and the entire staff had been briefed on the subject though he
was not able to clearly state if any written instructions were issued. He had
passed on the instructions by contacting police personnel at their respective
duty points in the area at the time of patrolling. He was unable to orally tell
the place of duty of different police personnel under his control. He conceded
that it had not been possible to enforce the curfew orders explaining that he did not have sufficient police force available to
him for such purposes. He confirmed that armed forces had joined in bringing
the disturbed conditions under control including by a march in the area of
Trilok Puri undertaken during the afternoon (around 2/ 2.30 p.m.) of 02.11.1984
74. PW-7 was not able to specify as to which of the arrestees were picked
up from which particular place of block no.32 or the area around. He was also
not able to narrate the sequence of the arrests or the number of persons who
were apprehended first followed by subsequent arrests. He corroborated the word
of PW-8 about all arrests having been made by 10 / 10.30 p.m. Crucially, under
cross-examination, the witness stated that riots had subsided in the wake of
arrests of 107 persons. The arrested persons were removed to the police station
sometime around midnight, the list in their regard having been prepared after
the rukka had been sent. He denied the suggestions about he not having
seen the riot affected areas or curfew not having been proclaimed insisting
that the announcement of imposition of curfew had been made in the entire area
through loudspeakers. He also denied the suggestions that the persons arrested
had been picked up from the houses or apprehended from "the public
way".
75. As mentioned earlier, PW-6, posted as Reserve Inspector in East
district at that point of time was temporarily attached to the Crime Branch on
04.12.1984 and assisted in the investigation of this case. He has testified
that he had recorded the statements of witnesses, got the burnt houses
photographed and collected information, to the extent possible, about those who had been killed. He proved list (Ex.
PW6/A) of houses found burnt or looted on 01.11.1984, list (Ex. PW6/B) of
jhuggis burnt or looted on 01.11.1984, list (Ex. PW6/C) of gurudwaras or shops
burnt on 01.11.1984 and list (Ex. PW6/D) of particulars of 146 persons who had
been killed on 01.11.1984. These documents were prepared by him and
countersigned by the SHO (PW-7). He also referred to photographs printed on
sheets (Mark „A‟ to „D‟) depicting the burnt houses, the steps taken in this
regard being confirmed by PW-10. It may be added that the trial court record
also contains 20 positive photographs depicting portions, or rows, of houses
clearly extensively damaged due to fire and of dead bodies of some of the
victims. Though it does appear that the negatives which had been exposed for
photography were not preserved or shown at the trial, the absence of formal
proof in this regard is inconsequential in view of the other sufficient
evidence available showing a large number of houses having been affected due to
arson, as corroborated by the evidence of PW-9 who depicted the extensive area
affected by destruction through fire in the scaled site plans (Ex. PW9/A-1 to
A-11), such depiction being also noted in the rough plan (Ex. PW8/E) which had
been prepared by PW-8 almost contemporaneously on 03.11.1984.
76. The charge-sheet was prepared by PW-6 and submitted in court through
PW-11 who had taken over the position of the SHO of the police station from
PW-7 on the night of 02nd and 03rd November, 1984. Affirming these facts, PW-11
also proved the complaint (Ex. PW4/A-3) which had been submitted in terms of
Section 195 Cr. PC. by the Commissioner of Police seeking prosecution of the arrestees,
including the appellants herein, for the offence under Section 188 IPC, by
their presence in the public place and by engaging themselves in rioting having
committed the breach of the prohibitory orders imposing curfew.
77. As indicated earlier, the material submitted with the charge-sheets
also comprised of MLCs (dated 02/03.11.1984) in respect of several injured
persons including Ladda Singh, Joginder Singh, Sucha Singh, Jeet Singh, Kartar
Singh, Harjit Singh, Gyan Singh as also radiologist's reports in respect of
some of them confirming grievous injuries. The material presented with the
charge-sheets also included death reports more than one hundred in number (some
in duplicate) prepared by the police in respect of a large number of victims,
identity of only some established, most of them being unknown males, all in the
age group of youth or in middle-age. It also included inquest papers concerning
the above and post-mortem examination reports issued by Department of Forensic
Medicine of Maulana Azad Medical College in respect of the dead bodies of Gyan
Singh and of nine other unknown males. No formal evidence on the basis of such
material was adduced in the trial of the case from which the present appeals
arise, statedly because no charges of culpable homicide or of voluntarily
causing hurt (simple or grievous) were framed in this case.
78. As mentioned earlier, the household goods which were lying scattered on
the roads besides the burnt vehicles which were noticed in the area had been
seized by PW-8 during the course of investigation under Section 102 Cr. PC. The
trial court record would show that a large number of such seized unclaimed articles, apparently articles
which had been looted from the riot affected houses, were released on superdari
to the rightful claimants. The persons who took over the said articles
would assumably be the persons from whose respective houses the same had been
earlier removed with dishonest intention by the rioters. None of the said
persons whose property was assumably looted were examined in this case, statedly
because no charge of theft, robbery or dacoity was framed here.
79. The learned counsel for the appellants argued that the trial court has
been swayed by extraneous material in returning the finding of guilty, it
having referred extensively to unconfirmed, unverified and unauthenticated
reports appearing in certain write-ups or depositions before Commissions of
Inquiry about the extent or effect of the mob violence that statedly occurred
in the wake of assassination of the Prime Minister of the country on
31.10.1984. It is the submission of the defence counsel that the first
informant (PW-2) having conceded that he had not been called upon to identify
any of the appellants as participants in the crimes, he being not in a position
to prove the culpability of any of them, the finding of guilty could not have
been returned on the testimony of PW-8 or, for that matter, the deposition of
PW-5 and PW-7. It is the submission of the appellants that they were picked up
from their respective homes to be falsely implicated in the present case, the
endeavour of the police being to show that they had “worked out” the
crime, the anxiety being to cover up for their administrative or other lapses.
It was also argued that the present case is founded primarily on the allegations
of “mere presence” at the scene of the crime without any overt-act indulged in by any of the
appellants being proved.
80. Per contra,
the State argued through the Additional Public Prosecutor that since the
evidence about proclamation of prohibitory and curfew orders on 01.11.1984, has
gone unimpeached, the evidence showing presence of the appellants at the scene
of arson and looting of almost all houses of block no. 32, no explanation or
justification having even been offered for such presence, the guilt of the
appellants has been properly brought home, there being no doubt as to their
participation or being member of the unlawful assembly which was running into
hundreds, if not thousands, their names having been duly recorded at the time
of apprehension from the spot as documented in the earliest formal records,
reliance in this regard being placed on judgment of the Supreme Court in Sherey
& Ors. vs. State of U.P. 1991 Supp (2) SCC 437.
81. This Court accepts the submission of the defence that the criminal
court must reach its conclusions on the basis of evidence that is adduced
before it in accordance with law. Personal knowledge or media reports –
particularly when they are not formally proved or authenticated (not even
relied upon) cannot be the basis of conclusions in a criminal trial. The
learned trial Judge has indeed made copious references in his judgment to the
narrative in private publications covering the riots of 1984 and picking up
from depositions before Inquiry Commissions. Since some of such reports were
purportedly based on eye-witness account of the author(s) of the publication
(as mentioned in the impugned judgment), the proper procedure to be followed would have been for the trial Judge to exercise suo motu his
powers under Section 311 Cr.P.C. to summon such person(s) and have their formal
testimony taken on record. That would have been a more fair procedure since it
would give an opportunity to the defence to meet the challenge of the scenario
painted by such coverage.
82. But then, inclusion of such extraneous material in the trial court‟s
judgment, cannot by itself, lead to the conclusion that the decision is wholly
unfounded. It is the duty and obligation of this Court – the final Court on
facts – to subject the evidence that was adduced on record to another scrutiny
and examine if the conviction has been properly returned.
83. The evidence of the prosecution witnesses, in general, leaves no room
for doubt that riots had broken out in various blocks of Trilok Puri,
particularly affecting, very badly, Block no.32 right from the afternoon of
31.10.1984, such conditions having continued till 03.11.1984 and, consequently,
riotous mobs prevalent in the afternoon of 02.11.1984 in Block no.32 to which
the present case relates. The evidence also clearly brings out that the civil
authorities had found the situation to be going out of control and, therefore,
prohibitory orders had been promulgated by the then Commissioner of Police on
31.10.1984 followed by curfew order issued and promulgated on 01.11.1984,
copies of the said prohibitory order (Ex. PW1/B) and curfew order (Ex. PW1/A)
having been proved by PW-1 (as indeed by PW-3 qua Pyare Lal). There is abundant
evidence available on record that the said orders were duly published for
information of people at large in various localities including the areas where
the crimes alleged in the present case were committed. By virtue of these orders, any
unauthorized presence or assembly of persons, particularly an assembly of
persons of five or more with the common object to commit an offence, would be
unlawful and liable to be treated as disobedience to the order to such effect
duly promulgated by a public servant within the mischief of the penal clause
contained in Section 188 IPC.
84. By the same logic and reasoning, it can be added here that if the
prosecution were to prove that the assembly consisted of five or more persons,
its common object being to commit an offence, particularly the offence of
mischief (by fire) with which the appellants were charged, such assembly would
be "unlawful assembly" within the meaning of the expression
defined in Section 141 IPC. The law makes, by provision of Section 142 IPC, the
act of being a member of an unlawful assembly itself an offence, it being
punishable under Section 143 IPC, provided such person joins such assembly or
continues to be a member thereof with knowledge of the facts that render it an
unlawful assembly. If a member of the unlawful assembly is armed with any
deadly weapon or with anything that can be used as a weapon of offence which is
likely to cause death, such person attracts an enhanced punishment under
Section 144 IPC.
85. Ordinarily, under the criminal law, it is the person who commits an act
that constitutes a crime punishable under the law is the one who is held
accountable. But, there are provisions which bring in vicarious liability under
the criminal law for acts of commission or omission of others. For present
purposes, reference may be made to the legal fiction created by Section 149 IPC which reads thus :-
"149. Every member of unlawful assembly guilty of
offence committed in prosecution of common object - If an offence is committed
by any member of an unlawful assembly in prosecution of the common object of
that assembly, or such as the members of that assembly knew to be likely to be
committed in prosecution of that object, every person who, at the time of the
committing of that offence, is a member of the same assembly, is guilty of that
offence."
86. In Lalji and Ors. vs. State of U.P., (1989) 1 SCC 437, the High
Court had examined as to whether any accused who was shown by the evidence to
be a member of unlawful assembly had “actively participated” in any
incriminating act. Such approach was disapproved of by the Supreme Court with
the observation that it would amount to forgetting the very nature and essence
of the offence created by Section 149 IPC. The vicarious liability principle
enshrined in Section 149 IPC was explained, thus:-
“8. Section 149 IPC provides that if an offence is
committed by any member of an unlawful assembly in prosecution of the common
object of that assembly, or such as the members of the assembly knew to be
likely to be committed in prosecution of that object, every person, who at the
time of committing of that offence is a member of the same assembly, is guilty
of that offence. … Whoever being aware of facts which render any assembly an
unlawful assembly intentionally joins that assembly, or continues in it, is
said to be a member of an unlawful assembly. … Not every person is necessarily
guilty but only those who share in the common object. The common object of the
assembly must be one of the five objects mentioned in Section 141 IPC. Common
object of the unlawful assembly can be gathered from the nature of the
assembly, arms used by them and the behaviour of the assembly at or before
scene of occurrence. It is an inference to be deduced from the facts and
circumstances of each case.
9. Section 149 makes every member of an unlawful assembly
at the time of committing of the offence guilty of that offence. Thus this
section created a specific and distinct offence. In other words, it created a
constructive or vicarious liability of the members of the unlawful assembly for
the unlawful acts committed pursuant to the common object by any other member
of that assembly. However, the vicarious liability of the members of the
unlawful assembly extends only to the acts done in pursuance of the common
objects of the unlawful assembly, or to such offences as the members of the
unlawful assembly knew to be likely to be committed in prosecution of that
object. Once the case of a person falls within the ingredients of the section
the question that he did nothing with his own hands would be immaterial. He
cannot put forward the defence that he did not with his own hand commit the
offence committed in prosecution of the common object of the unlawful assembly
or such as the members of the assembly knew to be likely to be committed in
prosecution of that object. Everyone must be taken to have intended the
probable and natural results of the combination of the acts in which he joined.
It is not necessary that all the persons forming an unlawful assembly must do
some overt act. When the accused persons assembled together, armed with lathis,
and were parties to the assault on the complainant party, the prosecution is
not obliged to prove which specific overt act was done by which of the accused.
This section makes a member of the unlawful assembly responsible as a principal
for the acts of each, and all, merely because he is a member of an unlawful
assembly. While overt act and active participation may indicate common intention
of the person perpetrating the crime, the mere presence in the unlawful
assembly may fasten vicariously criminal liability under Section 149. It must
be noted that the basis of the constructive guilt under Section 149 is mere
membership of the unlawful assembly, with the requisite common object or
knowledge.”
(emphasis supplied)
87. The scope and object of Section 149 IPC came up for consideration
before the Supreme Court in Ramachandran & Ors. Etc. vs. State of Kerala,
(2011) 9 SCC 257, and the law, on the subject as has been consistently
followed till date was summarized thus:-
“10. Section 149 IPC has essentially two ingredients
viz. (i) offence committed by any member of an unlawful assembly consisting of
five or more members, and (ii) such offence must be committed in prosecution of
the common object (under Section 141 IPC) of the assembly or members of that
assembly knew to be likely to be committed in prosecution of the common object.
11. For “common object”, it is not necessary that there should be a prior
concert in the sense of a meeting of the members of the unlawful assembly, the
common object may form on the spur of the moment; it is enough if it is adopted
by all the members and is shared by all of them. In order that the case may
fall under the first part, the offence committed must be connected immediately
with the common object of the unlawful assembly of which the accused were
members. (Vide: Bhanwar Singh & Ors. v. State of M.P. (2008) 16 SCC 657 :
(AIR 2009 SC 768).
12. Even if the offence committed is not in direct
prosecution of the common object of the assembly, it may yet fall under the
second part of Section 149 IPC if it can be held that the offence was such as
the members knew was likely to be committed. The expression “know” does not
mean a mere possibility, such as might or might not happen. For instance, it is
a matter of common knowledge that if a body of persons go armed to take
forcible possession of the land, it would be right to say that someone is
likely to be killed and all the members of the unlawful assembly must be aware
of that likelihood and would be guilty under the second part of Section 149
IPC.
13. There may be cases which would come within the second part, but not
within the first. The distinction between the two parts of Section 149 IPC
cannot be ignored or obliterated. (See Mizaji v. State of U.P. [AIR 1959 SC
572; and Gangadhar Behera v. State of Orissa [(2002) 8 SCC 381; AIR 2002 SC
3633] .)
14. However, once it is established that the unlawful assembly had
common object, it is not necessary that all persons forming the unlawful
assembly must be shown to have committed some overt act. For the purpose of
incurring the vicarious liability under the provision, the liability of other
members of the unlawful assembly for the offence committed during the
continuance of the occurrence, rests upon the fact whether the other members
knew before hand that the offence actually committed was likely to be committed
in prosecution of the common object. (See: Daya Kishan v.State of Haryana
[(2010) 5 SCC 81 : (2010) 2 SCC (Cri) 1249] ; Sikandar Singh v.State of Bihar
[(2010) 7 SCC 477 : (2010) 3 SCC (Cri) 417] and Debashis Daw v. State of W.B. [(2010)
9 SCC 111 : (2010) 3 SCC (Cri) 1158])”
(emphasis
supplied)
88. It is well settled principle that “even if no overt act is imputed
to a particular person, when the charge is under Section 149 IPC, the presence
of the accused as part of an unlawful assembly is sufficient for conviction.
The fact that the accused was a member of the unlawful assembly is sufficient
to hold him guilty.” (See: State of U.P. vs. Dan Singh & Ors., (1997) 3 SCC
747; Yunis alias Kariya vs. State of M.P., (2003) 1 SCC 425)].
89. Similarly, in Bhupendra Singh & Ors. vs. State of U.P., (2009)
12 SCC 447, it was observed that “(i)t cannot be laid down as a general
proposition of law that unless an overt act is proved against a person, who is
alleged to be a member of an unlawful assembly, it cannot be said that he is a
member of an assembly. The only thing required is that he should have
understood that the assembly was unlawful and was likely to commit any of the
acts which fall within the purview of Section 141.” In Muthulingam vs.
State, (2017) 1 SCC 477, this was reiterated with observations that “an
overt act is not always an inflexible requirement of rule of law to establish
culpability of a member of an unlawful assembly.”
90. In Kuldip Yadav vs. State of Bihar, (2011) 5 SCC 324, the law
was stated in the following words:-
“39. It is not the intention of the legislature in
enacting Section 149 to render every member of unlawful assembly liable to
punishment for every offence committed by one or more of its members. In order
to attract Section 149, it must be shown that the incriminating act was done to
accomplish the common object of unlawful assembly and it must be within the
knowledge of other members as one likely to be committed in prosecution of the
common object. If the members of the assembly knew or were aware of the
likelihood of a particular offence being committed in prosecution of the common
object, they would be liable for the same under Section 149 IPC.”
(emphasis supplied)
91. In Roy Fernandes vs. State of Goa, (2012) 3 SCC 221, it was held
that “to determine the existence of common object, the court is required to
see the circumstances in which the incident had taken place, the conduct of members of unlawful assembly as
well as the weapon of offence they carried or used on the spot.”
92. In Om Prakash vs. State of Haryana (2014) 5 SCC 753, the Supreme
Court clarified that the “common object” is to be gathered from the
circumstances, observing thus:-
“16. Common
object of an unlawful assembly can also be gathered from the nature of the
assembly, the weapons used by its members and the behaviour of the assembly at
or before the scene of occurrence. It cannot be stated as a general proposition
of law that unless an overt act is proven against the person who is alleged to
be a member of the unlawful assembly, it cannot be held that he is a member of
the assembly. What is really required to be seen is that the member of the
unlawful assembly should have understood that the assembly was unlawful and was
likely to commit any of the acts which fall within the purview of Section 141
IPC. The core of the offence is the word “object” which means the purpose or
design and in order to make it common, it should be shared by all. Needless to
say, the burden is on the prosecution. It is required to establish whether the
accused persons were present and whether they shared the common object. It is
also an accepted principle that number and nature of injuries is a relevant
fact to deduce that the common object has developed at the time of incident.”
(emphasis supplied)
93. Reiterating the above, the Supreme Court in Inder Singh & Ors.
vs. State of Rajasthan, (2015) 2 SCC 734, observed thus:-
“17. The ingredients of Section 149 IPC require
presence of an unlawful assembly which is defined under Section 141 IPC as an
assembly of five or more persons, if the common object of the persons composing
that assembly is any of the five objects fully enunciated in Section 141 IPC.
The third object is “to commit any mischief or criminal trespass, or other
offence”. The Explanation to Section 141 clarifies that an assembly which was
not unlawful when it assembled, may subsequently become an unlawful assembly.
As per Section 149, even if any one member of an unlawful assembly commits an
offence in prosecution of the common object of that assembly, every person who
at the time of committing of that offence was a member of the unlawful assembly
is guilty of that offence.”
(emphasis
supplied)
94. It is, thus, well settled that in order to attract Section 149 IPC, it
must be shown that the incriminating act was done to accomplish the common
object of the unlawful assembly and further that it must be within the
knowledge of other members of such assembly that such offence was likely to be
committed in prosecution of the common object, such knowledge or awareness
being pre-requisite for members of the assembly other than the one who actually
commits the act to be held liable. Mere presence as part of the unlawful
assembly, though with such knowledge as above, without any overt act is
sufficient. If the evidence were to show that members of the unlawful assembly
were armed and were openly indulging in acts of violence within the presence of
those who may not have committed any specific overt act, inference of knowledge
and being party to the common object may be drawn so as to attract the
vicarious liability by invocation of Section 149 IPC.
95. Seen against the backdrop of the facts brought out in the present case,
houses having been burnt all around, inflammable substances such as kerosene
oil being used, persons being killed or injured indiscriminately and household
articles being looted under duress, the persons who were indulging in such acts being in hundreds, if not
thousands, a case of unlawful assembly being present and on the move from one
place to the other has been proved and established. As is also seen from the
evidence, police forces were trying to deter those indulging in violence to
disperse including by use of force and police firing. Continuance in the
unlawful assembly of such nature after such command to disperse itself was an
offence under Section 145 IPC. Use of force or violence by such unlawful
assembly, in prosecution of its common object, renders it a case of "rioting"
defined by Section146 IPC, the punishment therefor being provided by Section
147, it being inconsequential if a member of such unlawful assembly had
individually participated in the use of force or violence or not, in as much as
it is the collective act of the unlawful assembly using force or violence which
constitutes the offence of rioting on the part of "every member of such
assembly". Rioting while armed with deadly weapon is an aggravated
offence which attracts the enhanced punishment under Section 148 IPC.
96. Generally speaking, the criminal law does not depend on quantity of
witnesses, it is the quality that matters. In cases involving offence(s)
committed by an unlawful assembly, particularly where the number of members of
such assembly is quite large, the courts have struggled to arrive at
satisfaction as to the complicity of the persons brought to trial on account of
proof showing their presence at the scene of the incident. In this context, a
bench of four Hon‟ble Judges of the Supreme Court in case reported as Masalti
vs. The State of Uttar Pradesh, AIR 1965 SC 202, had devised what has come
to be known as a “mechanical test”, the relevant observations of the court
reading thus:-
“16. … it is true that under the Evidence Act,
trustworthy evidence given by a single witness would be enough to convict an
accused person, whereas evidence given by half a dozen witnesses which is not
trustworthy would not be enough to sustain the conviction. But where a criminal
court has to deal with evidence pertaining to the commission of an offence
involving a large number of victims, it is usual to adopt the test that the
conviction could be sustained only if it is supported by two or three or more
witnesses who give a consistent account of the incident. In a sense, the test
may be described as mechanical; but it cannot be treated as irrational or
unreasonable. It is, no doubt, the quality of the evidence that matters and not
the number of witnesses who give such evidence. But sometimes it is useful to
adopt a mechanical test. ...”
17. … That the mere presence in an assembly does not make
a person, who is present, a member of an unlawful assembly unless it is shown
that he had done something or omitted to do something which would make him a
member of an unlawful assembly, or unless the case falls under Section 142 IPC
cannot be read as laying down a general proposition of law that unless an overt
act is proved against a person who is alleged to be a member of an unlawful
assembly, it cannot be said that he is a member of such an unlawful assembly.
What has to be proved against a person who is alleged to be a member of an
unlawful assembly is that he was one of the persons constituting the assembly
and he entertained long with the other members of the assembly the common
object as defined by Section 141 IPC. An assembly of five or more persons
actuated by, and entertaining one or more of the common objects specified by
the five clauses of Section 141, is an unlawful assembly. The crucial question
to determine in such a case is whether the assembly consisted of five or more
persons and whether the said persons entertained one or more of the common
objects as specified by Section 141. While determining this question, it
becomes relevant to consider whether the assembly consisted of some persons who
were merely passive witnesses and had joined the assembly as a matter of idle
curiosity without intending to entertain the common object of the assembly. In
fact, Section 149 makes it clear that if an offence is committed by any member
of an unlawful assembly in prosecution of the common object of that assembly
knew to be likely to be committed in prosecution of that object, every person
who, at the time of the committing of that offence, is a member of the same
assembly, is guilty of that offence; and that emphatically brings out the
principle that the punishment prescribed by Section 149 is in a sense vicarious
and does not always proceed on the basis that the offence has been actually
committed by every member of the unlawful assembly. …”
(emphasis supplied)
97. In Binay Kumar Singh vs. State of Bihar, (1997) 1 SCC 283, the
principles were reiterated, albeit referring to the “mechanical test”
of Masalti (supra) as one of prudence, observing thus:-
“31… There is no rule of evidence that no conviction
can be based unless a certain minimum number of witnesses have identified a
particular accused as a member of the unlawful assembly. It is axiomatic that
evidence is not to be counted but only weighed and it is not the quantity of
evidence but the quality that matters. Even the testimony of one single
witness, if wholly reliable, is sufficient to establish the identification of
an accused as a member of an unlawful assembly. All the same, when the size of
the unlawful assembly is quite large (as in this case) and many persons would
have witnessed the incident, it would be a prudent exercise to insist on at
least two reliable witnesses to vouchsafe the identification of an accused as a
participant in the rioting. …”
(emphasis
supplied)
98. In State of U.P. vs Dan Singh & Ors., (1997) 3 SCC 747, the
rule of Masalti (supra) was again followed, the challenge before the
court being summed up thus:-
“32. This brings us to the next question as to who
were the persons who were members of this unlawful assembly. It is no doubt
true that some of the villagers may have been present at the time of the
occurrence who were mere spectators and could not be regarded as being members
of the unlawful assembly. It also happens, when people are killed during a
riot, there may be a possibility of the incident being exaggerated or some
innocent persons being named as being part of the assailants' party. This may
happen wittingly or unwittingly. But just because there may be some
inconsequential contradictions or exaggeration in the testimony of the
eyewitnesses that should not be a ground to reject their evidence in its entirety.
In cases of rioting, where there are a large number of assailants and a number
of witnesses, it is but natural that the testimony of the witnesses may not be
identical. What has to be seen is whether the basic features of the occurrence
have been similarly viewed and/or described by the witnesses in a manner which
tallies with the outcome of the riot, viz., the injuries sustained by the
victims and the number of people who are attacked and killed.”
(emphasis supplied)
99. The above has been the consistent approach on the subject over the
years and for this reference may also be made to Banwari Ram & Ors. vs.
State of U.P., (1998) 9 SCC 3 and Inder Singh & Ors. vs. State of
Rajasthan, (2015) 2 SCC 734.
100. No doubt, the first informant (PW-2) is not able to identify any of the
perpetrators of the mob violence to which he was a witness. His family having gone missing, his house having been burnt out, he being
constrained to take shelter in a partly damaged house of someone else
throughout the night, till his rescue by the police, he was, in fact, in no
position – mentally, physically, emotionally or psychologically – to
immediately identify any of the perpetrators. Be that as it may, since he was
inclined to assist, it was the duty of the investigating agency to avail of his
assistance and pin down accountability on individuals who he may have seen to
be indulging in specific acts of violence or mischief. But then, given the nature
of charges which were framed in the present case, his evidence should suffice
for bringing home the large scale violence, particularly arson leading to
several houses being torched.
101. There can be no dispute as to the fact that extraordinary circumstances
existed in the area of the concerned police station, particularly for the
period of initial three days, in the wake of assassination of Mrs. Indira
Gandhi on 31.10.1984, it being a case of total breakdown of law & order and
of civil administration. The large scale rioting, mob violence, arson, plunder,
genocide and looting has been duly proved and established. In the extraordinary
circumstances that prevailed, the ordinary rules of appreciation of evidence of
the witnesses cannot sub-serve the cause of justice. As observed in Prithipal
Singh vs. State of Punjab (2012) 1 SCC 10:-
“50. Extraordinary situations demand extraordinary
remedies. While dealing with an unprecedented case, the Court has to innovate
the law and may also pass an unconventional order keeping in mind that an
extraordinary fact situation requires extraordinary measures. In B.P. Achala
Anand v. S. Appi Reddy [(2005) 3 SCC 313 : AIR 2005 SC 986] this Court
observed: (SCC p. 318, para 1) “1. Unusual fact situation posing issues for
resolution is an opportunity for innovation. Law, as administered by courts,
transforms into justice.” Thus, it is evident that while deciding the case, the
court has to bear in mind the peculiar facts, if so exist, in a given case”.
102. The presence of the appellants at the scene of riots is affirmed by
PW-8 and PW-7, duly supported by the testimony of PW-5. It may be that PW-7
(SHO) had come under a cloud but the allegations against him in the
disciplinary action to which he appears to have been subjected to by his
controlling authority related to dereliction of duty in controlling the riotous
conditions and failure to take timely or effective steps in such regard
including by prompt reporting to the superior authorities in the hierarchy. He
was placed under suspension on the night of 2nd & 3rd November,
1984. At the time of apprehension of the appellants leading to their arrests,
however, he was on duty as a public servant, there being no reason to doubt as
to his presence in the vicinity of block no.32 where the apprehended accused
were brought and from where they were taken to police station. There is also no
reason to disbelieve PW-5 and PW-8 as to their presence, similarly placed
police personnel posted in the local police station, the voluminous record
prepared contemporaneously corroborating they being on duty.
103. The apprehension of the appellants from amongst the rioters who were
members of the mob which was moving from one place to the other, at times pursued or chased by the police or paramilitary
forces, leading to their formal arrests in the late evening hours of 2.11.1984
from the riot-affected localities of block no.32, where almost all houses had
been rampaged, pillaged, damaged, destroyed or torched, has been consistently
testified to by PW-8, PW-7 and PW-5, such evidence being supported by the
personal search memos (Ex.PW8/C-1 to PW8/C-107). It may be that the narration
of events by these witnesses is not in identical phraseology. But then, had it
been so, it would have been unnatural.
104. The basic features of the incidents have been similarly described by
the above mentioned witnesses. Given the extraordinary situation that
prevailed, this must suffice. It may be that these witnesses were not able to
identify any of the accused by name at the trial. It also does appear that
these witnesses were unable to specify the order in which the arrests were
made. Non-preservation of the loose sheets of papers on which the particulars
of the arrestees may have been noted down is of no consequence. Given the
extraordinary situation that prevailed, the law and order machinery having all
but broken down, the police personnel being not sufficient in numbers to match
the challenge posed by large number of miscreants forming the unlawful
assembly, the focus of the police officials being more on bringing the
situation under control, and (assumably) to render help or assistance to such
victims as could be shifted to safety or taken for medical aid, it being
impossible for an individual to memorize the facial features of the arrestees
so that the same could be connected to specific names or particulars when
called upon to testify before the criminal court – especially when the occasion to do so would come more
than a decade after the occurrences – such inability of the witnesses cannot
result in the evidence about apprehension of the appellants being doubted.
105. The appellants, in their statements under Section 313 Cr.P.C., did not
deny the evidence about the date and time of the arrests, their only plea being
that they were picked up from elsewhere or from the public way. No evidence
worth the name in support of the plea of they being picked up from place(s)
other than block No.32 has been adduced by any of these appellants. In absence
of any material to the contrary, the evidence of the prosecution about the
arrests having been effected from the riot affected area of block no.32 sometime
after 7:45 p.m. till around 11:00 p.m. on 02.11.1984 cannot be disbelieved.
106. In the given facts and circumstances, the mechanical test of
Masalati (supra) also stands satisfied, inasmuch as evidence of PW-8 finds
sufficient corroboration from the testimony of PW-5 and PW-7 as indeed the
record of arrests of the appellants contemporaneously prepared. Since the
documents relating to arrests were prepared contemporaneously, the fact of
arrests on the date and time indicated in the earliest police proceedings not
having been challenged, such apprehension being confirmed by further evidence
about these appellants being taken for remand proceedings before the magistrate
on the next date, it must be held as proved by the prosecution that the
appellants were amongst those who were arrested against the above backdrop on
the stated date and time. [Sherey (supra)].
107. At the cost of repetition, one may say again that the areas from which the appellants were apprehended were one of the worst effected in
the riots. Almost all houses in the vicinity had been subjected to arson. The
household articles of such riot-affected homes were found scattered on public
roads and in lanes. A large number of motor vehicles were found abandoned on
roads they having been set on fire. The properties which were damaged by fire
included religious places, shops or hutments. Even while the local police –
which included PW-5, PW-7 and PW-8 – assisted by reinforcements (later joined
by paramilitary forces) were trying to bring the situation under control, the
riotous mob was moving almost with impunity. The evidence has shown
unmistakably that curfew and prohibitory orders had already been promulgated.
After such prohibitory orders had come into force, no public person was
entitled to be outside his home, not the least so as to be a part of riotous
unlawful assembly. If a public person was found to be outside his home in such
circumstances, onus would be on him to explain or justify the reasons for his
presence at such a place.
108. As noted above, the evidence has clearly brought home the case for
prosecution that the appellants were outside – part of the mobs which were
rioting. They having come up with no reason or explanation for such presence at
such place at such point of time, their guilt for disobedience of prohibitory
order lawfully promulgated by the Commissioner of Police within the mischief of
penal provision contained in Section 188 IPC has been proved.
109. As concluded above, the presence of the appellants amongst the riotous
mob has been proved. They have not come with any explanation for such presence.
It cannot be assumed, without such plea being taken, that they were idle spectators. The object of
unlawful assembly having come to their knowledge their continued presence
renders them party to its common object. The said assembly having indulged in
setting houses on fire pursuant to such common object, charge of rioting has
also been proved. Using inflammable materials (deadly weapons) to set houses on
fire amounted to offence under Section 148 IPC for which charge had been
framed. But, for reasons which are not clear the trial Judge has returned
conviction only under Section 147 IPC. There being no appeal by the State, this
court feels it would not be proper to convert the conviction for one under
Section 147 to Section 148 IPC at this stage.
110. With riots of such magnitude being underway, it called for no
imagination for a member of such unlawful assembly to know that its object was
to commit offenses, such offences clearly including damaging the houses by
setting them on fire. It is not a case where a person who was member of the unlawful
assembly could not imagine as to what offences were “likely” to be
committed. The offence of mischief by fire was being indulged in from house to
house, from one locality to the other, in clear view of everyone who was
present at the scene. Given the brazen manner in which arson was being
committed, awareness that mischief by fire would be the probable and natural
result of the acts intended to be committed has to be imputed to each members
of the unlawful assembly. In these circumstances, knowledge about the object of
the unlawful assembly will have to be imputed to everyone including the
appellants who were part of the riotous mob.
111. Since the evidence unmistakably shows that the appellants were members
of the unlawful assembly, the common object whereof was to commit offences that
included offences of mischief by fire, having regard to the magnitude of the
damage that was openly caused to a large number of houses of Sikhs in the
concerned area of Trilok Puri, there was no need for the prosecution to prove
any overt act on the part of any of them. Non-recovery of the weapon of such
offence is of no consequence. As has been explained by the witnesses, the
appellants were apprehended after pursuit and it was highly unlikely that they
would continue wielding the weapons (inflammable materials) in their hands till
being over-powered. Their accountability for offence under Section 436 IPC is
brought home by the rule of vicarious criminal liability under Section 149 IPC.
112. The trial Judge, while framing charge, had taken care to invoke the
penal clause of Section 149 IPC with the offence under Section 436 IPC. It does
appear that in the final determination, while convicting the appellants also
under Section 436 IPC, reference to Section 149 IPC came to be omitted. This
appears to be an inadvertent lapse. It cannot, however, detract from the tone
and tenor of the judgment of the trial court that the conviction of these
appellants for offence under Section 436 IPC has been recorded with the aid and
assistance of Section 149 IPC.
113. On the foregoing facts, and in the circumstances, the judgment of the
trial court returning finding of guilty convicting the appellants must be
upheld. Ordered accordingly.
114. Though, having regard to the extensive damage that was caused by the appellants to a large number of houses or other properties of
Sikh community by fire, the case merited punishment more severe than the one
meted out by the trial court, given the fact that there is no appeal seeking
enhancement of the punishment, the trial court having taken a lenient view,
there is no occasion for this court to modify the order on sentence either way.
115. The appeals are thus dismissed. The bail bonds of the appellants are
cancelled. They are directed to forthwith surrender to undergo the punishment
awarded against them. The trial court is directed to take all necessary
measures, including issuance of requisite processes to ensure due enforcement
and execution of the sentences in accordance with law. The Commissioner of
Police and officers or agencies under his control shall render all assistance
to the trial court in this duty.
116. For compliance, copies of the judgment shall be sent to all concerned
by the registry.
117. Before parting, however, this court deems it necessary and proper to
make certain further observations on two particular aspects –one concern
stemming from reasons to believe that certain part of the facts noted or
gathered by the investigating agency in the wake of FIR No.426/1984 of Police
Station Kalyanpuri may have remained uncovered; the second respecting the
inadequacy of the criminal law procedure to deal with crimes of such magnitude
and the utmost need for reforms in this regard to be ushered in.
118. As mentioned earlier, the two charge sheets which were presented
initially indicated that during the police proceedings in the wake of
registration of FIR No.426/1984 ninety-five dead bodies, all unmistakably cases of homicidal deaths, had been collected and brought
to the police station till late night of 02.11.1984. As also mentioned, along
with the said two charge sheets, a large number of documents including more
than one hundred death reports and quite a few autopsy reports of some of the
dead bodies had been submitted as part of the material upon which the
prosecution intended to rely. Again, as noted earlier, in the initial charge
sheets, the prosecution had sought trial of those arrested also for the
offences under Section 302 IPC with the aid of Section 149 IPC. Since the order
of cognizance would not say to the contrary, it has been inferred that
cognizance was accordingly taken on such initial charge-sheets including for
the offences under Section 302 IPC. When the trial Judge found it necessary to
direct splitting up of the charge sheets – incident wise – and gave certain
directions by order dated 08.09.1995 – the prosecution chose to come up with
the supplementary charge sheets, one of which resulted in the judgment that was
impugned by the present appeals, other supplementary charge sheets – more than
fifty in number – having statedly led to prosecutions of different sets of
accused vis-à-vis specific incidents.
119. But, as has already been noted, from the oral submissions of the
prosecution made in answer to the court queries, such other prosecutions
arising out of the same FIR have covered the cases of only seventy-three
homicidal deaths. Most of the death reports (or autopsy reports), which have
continued to be lying as part of the trial court record of the case from which
these appeals arise, were of unclaimed (or unidentified) dead bodies. Going by
the total number of ninety-five (95), such dead bodies having been gathered during the
night of 02/03.11.1984, to which reference was made in context of FIR
No.426/1984, it is likely that twenty-two homicidal deaths may not have seen
any criminal action initiated against anyone till date. Since the documents in
the nature of death reports, and autopsy reports, of quite a large number of
them continue to be part of the record of this case, one assumes that no agency
till date has taken pains to examine if any criminal action on basis of such
material, and the evidence in their regard which may possibly be available
elsewhere (including the statements of a large number of persons which were
reflected in the first two charge sheets) may be required to be undertaken.
120. In the foregoing facts and circumstances, this court directs the
Commissioner of Police, Delhi to have the material, and the evidence, in above
nature, re-examined by an appropriate agency for such further action under the
criminal law as may be requisite.
121. A copy of this judgment with specific reference to the above direction
shall be additionally sent to the Commissioner of Police.
122. The case at hand, as observed elsewhere in this judgment, may be
treated as a paradigm which ought not be followed in cases of such nature. The
law and order machinery had broken down. The police forces, and the civil
administration, did not take timely or effective action to prevent the riotous
conditions from spiraling out of hand. The criminal law process began, but
hesitatingly and belatedly. The fact that these cases have continued to linger
in the courts at the stage of trial or appeals or revisions till date itself is
an indicator of the reality that the response of the law has been tardy, ineffective and
highly unsatisfactory.
123. In the wake of case FIR No.426/1984, one hundred and seven persons had
been apprehended. The local police did not have the capacity to even keep them
in proper custody as a large number of arrestees were kept overnight in the verandah
or courtyard of the police station. The remand proceedings before the
magistrate were conducted with the accused persons being confined in vehicles
stationed outside the court complex. Such difficulties during the period of
riots may have been for reasons beyond the control of everyone. But, when the
charge sheets had been filed, the committal court did not have the capacity, or
the wherewithal, to conduct the proceedings. As is reflected by the record of
the trial court, the proceedings post committal of the cases were also
difficult to handle. The trial Judge was at a loss as to how to make a head
count on each date of hearing. Taking of attendance of such large number of
accused itself was not only time consuming but also unwieldy.
124. The criminal procedure, as applies generally, mandates that the
proceedings take place in the presence of the accused. This fair justice
principle of law is abused, more often than not, to cause delay. The truancy is
often seen being used as a tool to get the trial process postponed. In cases of
such nature as at hand wherein accused persons sent up for trial were in such
large number, it is easy to use the device of truancy. On each date of hearing,
some or other accused would remain absent leading to deferment. The whole
process consequently gets reduced to a mockery. The result obviously is what
the pace of progress in the present case has demonstrated.
125. On the criminal prosecution initiated through the charge sheets which
had been submitted in December 1985, the question of charge could not come up
for consideration till December 1995. The trial Judge, when he set about the
task of consideration for framing of charge, found, upon the prosecution itself
advising him to this effect, that the case as presented ten years earlier
suffered from the defect of mis-joinder (of charges and accused). The charges
were eventually framed, after splitting up of the cases, in January 1996.
Clearly, the investigating agency, and the prosecution agency had had no
co-ordination between themselves. The fact that the initial two charge sheets
presented in December, 1985 were prepared, also under the advice of the
prosecution branch, shows that the quality of the legal assistance availed of
by the State was questionable.
126. As mentioned elsewhere in this judgment, the spectre of communal riots
has been raising its ugly head in various parts of the country at regular
intervals and from time to time. The general criminal law is provenly
ill-equipped to deal with the challenge of such crimes of mammoth proportion,
particularly when they invariably are perceived to be engineered by those
holding control over certain power centers.
127. At the cost of repetition, it needs to be noted again that after each
event of communal riots, allegations of political influences having worked as
the root cause or for protection of those responsible have surfaced. There
perhaps can be no two opinions about the fact that a sense of neutrality in the
investigative and prosecution process has to be injected. And, towards this end, the possibility of
entrusting such tasks to authorities other than normal agencies of the State
needs to be explored.
128. Quite often, in cases affecting large sections of society through
crimes committed by influential persons, the courts – High Courts or Supreme
Court - have felt constrained to set up Special Investigating Teams (SITs)
which carry out probe under their supervision. Since such courts are eventually
called upon to subject the evidence to scrutiny and adjudicate upon the guilt,
recourse to this approach may not always be desirable.
129. The experience also shows that after such events Commissions of Inquiry
are generally set up, the purpose whereof is to gather evidence and probe the
causes that led to breakdown of law and order. Such Commissions invariably are
headed by retired Judges of the Supreme Court or High Courts. But, the
establishment of such Commissions, and commencing of work by them, takes some
time. During the interregnum, however, the crucial evidence comes to be lost or
destroyed. The reports of various Commissions of Inquiry also reveal that the
victims or witnesses of such riots are generally petrified or silenced by
intimidatory tactics and consequently feel disinclined to come forward with
their complaints, or testimonies, till some measures are undertaken to afford
protection to them.
130. Pursuant to the Protection of Human Rights Act, 1993, Human Rights
Commissions stand established and are in position at State and National level.
Though the objective of setting up of such Human Rights Commissions is a little
distinct, it cannot be lost sight of that such Commissions are generally seen swinging into action without much
delay in cases of communal riots. They also have the advantage of the
investigative apparatus available to them at all times.
131. One wonders if the initial task of gathering evidence or, to put it
conversely, the duty to “preserve” evidence can be entrusted to the
Human Rights Commissions, in cases of communal riot situations. Once a
Commission of Inquiry is instituted, under the Commission of Inquiry Act, 1952,
further investigative process by gathering all evidence for such cases can be
taken over by such Commissions of Inquiry. Given the non partisan and statutory
status, as indeed the confidence of people at large enjoyed by these
institutions, the possibility of vested interests negatively influencing the
process of law would stand ruled out.
132. There have been initiatives taken in the past to bring in special
legislation to cover the subject, this including in the form of Communal
Violence (Prevention, Control and Rehabilitation of Victims) Bill, 2005 and
lastly, as per the information available, Prevention of Communal and Targeted
Violence (Access to Justice and Reparations) Bill, 2011 but the same have
remained stuck at the stage of drafting. The court hopes and trusts that the
legislature will consider enactment of a special law to deal with such crimes
effectively at an early date. The court also hopes and trusts that as and when
such special legislation is put in position, it would include provisions to arm
the investigating and prosecution agencies, as indeed the criminal courts, with
requisite powers, laying down special procedure and rules of evidence for fair,
timely and effective dispensation of justice.
133. Having regard to the experience that has been gained, including by
scrutiny of the records of the present case, this court would suggest the
following to be considered for inclusion in the reforms in the criminal law
response to deal with such cases:-
(i) Suitable amendments (with necessary subordinate legislation) to the
Commissions of Inquiry Act, 1952 and the Protection of Human Rights Act, 1993
may be considered to entrust the responsibility of taking note of the
cognizable offences committed in communal riots and for investigation in
accordance with law thereinto may be through SITs specially constituted under
their respective control with further responsibility to oversee the prosecution
in the wake of such investigation through Special Public Prosecutor(s) (SPP) to
be engaged by them.
(ii) Though the Commissions referred to above would have their own
investigative machinery to carry out the necessary probe in an effective
manner, they might need to avail of the assistance of Legal Service Authority
(LSA) for reaching out to the victims (or witnesses), and for instilling a
sense of trust and confidence, coupled with such witness-protection measures as
may be deemed proper for the given situation, and also of the judicial
magistracy for mandatory recording of statements of such victims, or witnesses,
under Section 164 Cr.P.C. at the earliest inasmuch as provisions for this would
make the effort more comprehensive and effective.
(iii). The neutral agency of
the Commissions, entrusted with the added responsibility of taking such case(s)
to prosecution would ensure that no charge-sheet is brought to the criminal
court for taking of cognizance, or trial, unless it has been properly vetted
dispassionately by those well-trained in criminal law such that it is free from
any defect, inadvertent or otherwise.
(iv). The law on the subject of communal
riots cannot be a complete answer to the challenge unless it also establishes
special courts with suitable amendments to the general criminal law procedure
as indeed the rules of evidence.
(v). Given the technological advancements that have been made and the
rise of media – print and electronic – as an effective fourth pillar of the
democracy, there is a strong case for utilizing as evidence the press reports,
supported by photographic material or video footages put in public domain in
trials of criminal cases arising out of communal riots. Such material or video
coverage are generally seen to be depicting the specific role of various
individuals who form part of the riotous assembly as indeed those leading or
provoking such mobs. Time has come for availing of the same, may be in
corroboration of oral evidence, in criminal trial process. For this, the law
must mandatorily require media persons or houses to share the product of their
efforts with the investigating agency in all cases of communal riots, it being
also their bounden duty thereafter to prove such material at the trial.
(vi).
As has been highlighted in this judgment, frequent absences from the court
hearings on the part of accused persons has been one of the major causes for
delay in the judicial process. There is no reason why general law of criminal
trial being held in the presence of the accused be permitted to be abused. For
purposes of trial, particularly at the stage of recording of evidence, in cases
under Prevention of Corruption Act, 1988, there is an exception carved out by
Section 22(c) which permits such witnesses as are in attendance to be examined
even if the accused is absent subject, of course, to his right to seek recall
for cross-examination once he re-appears. Similar rule of procedure in cases of
trial in communal cases involving large number of accused would have a salutary
effect.
134. A copy of this judgment shall be sent by the registry also to Secretary
(Law, Justice and Legislative Affairs), Government of India and to the
Secretary, Law Commission of India, for their respective consideration.
135. There is no contest to the case for prosecution that the crimes alleged
here were actually committed. Thirty four long years have passed after the
crimes were committed and, yet, the victims await justice and closure. Is this
what we call a potent and effective criminal justice system? Is our judicial
apparatus at all equipped to deal with the crimes of such magnitude? Do we have lessons to be learnt from this
sordid experiment in the name of criminal law process? It is indeed a matter of
lament that there has been no meaningful thought spared till date to usher in
reforms in the judicial process to effectively deal with the cases of communal
riots which are engineered, more often than not, by those who have clout or influence–
of various kind. The manner of prosecution of the case at hand would
undoubtedly go-down in judicial history of this country as an example of
criminal law process that must never be emulated. From this perspective, and in
the expectation that those at the helm draw lessons from here, one hopes that
this case is never forgotten.
Comments
Post a Comment