Bihari Lal and Another vs State (NCT of Delhi)

S.P. Garg, J.—Appellant-Bihari Lal impugns judgment dated 04.10.1996 in Sessions Case No. 9/1996 arising out of FIR No. 426/1984 registered at Police Station Kalyan Puri by which he was convicted for committing offences punishable u/s 148 and 395 IPC read with Section 149 IPC. Vide order dated 05.10.1996 he was sentenced to undergo rigorous imprisonment for five years with total fine of Rs. 30,000/-. Allegations against the accused were that on 01.11.1984 at about 09.00 P.M. near House No. 396, Block No. 21, Trilok Puri, he, Daulat Ram, Rajjan, Mahesh, Raju and other unknown persons formed an unlawful assembly, the object of which was to kill people, loot and burn their houses and in prosecution of the said common object, they looted house of complainant-Som Singh (PW-2). They were armed with deadly weapons. The prosecution examined seven witnesses. In the statement u/s 313 Cr. P.C., the accused pleaded false implication. DW-1 (Krishan Kumar), DW-2 (Raj Karan Singh) and DW-3 (Ram Chander) appeared in defence. On appreciating the evidence and considering the rival submissions of the parties, the Trial Court by the impugned judgment convicted Bihari Lal and Rajjan for the offences described previously. Raju, Mahesh and Daulat Ram were acquitted of all the charges. Being aggrieved, Bihari Lal and Rajjan preferred the appeal. It is relevant to note that during the pendency of the appeal Rajjan expired. His death was verified and vide order dated 9th April, 2012, the appeal stood abated qua him.

Learned counsel for the appellant urged that the Trial Court did not appreciate the evidence in its real perspective and fell into grave error to base conviction on the testimonies of interested witnesses, PW-2 (Som Singh) and his wife PW-6 (Nirmal Kaur). The Trial Court ignored vital discrepancies emerging in their statements without valid reasons. No independent public witness was associated at any stage of the investigation. PWs 2 and 6 exonerated Daulat Ram, Mahesh and Raju and did not assign any role to them. The defence version was not given due weightage. Learned Special Public Prosecutor urged that PWs 2 and 6 had no extraneous consideration to implicate the accused.

I have considered the submissions of the parties and examined the record. Earlier no separate FIR was registered in respect of rioting that took place in Block No. 21, Trilok Puri. Sessions Case No. 9/1996 was filed after directions by the High Court for splitting up of challan filed in FIR 426/1984 on the basis of various incidents having taken place on different dates and on different basis. Statement of complainant-Som Singh (PW-2) was recorded and he disclosed that on 01.11.1984 at about 09.00 P.M. a crowd of rioters came to his house and broke open the door. Due to fear, he went on the first floor. His household articles were looted. His wife''s golden ear-rings were taken away by the rioters. He named Bihari Lal (Dhobi), Saleem (President of Sanjay Camp Jhuggis), Rajjan (who used to sell fish), Daulat Ram (who used to sell clothes), Pappu (fruitwala) and Mahesh (Baniya) amongst the rioters. During the course of investigation, they all were arrested. Statements of witnesses conversant with the facts were recorded.

While appearing as PW-2 (Som Singh) proved the version given to the police at the first instance without any variation. He deposed that on the next day of Mrs. Gandhi''s death at about 7.00/7.30 P.M. a crowd of rioters armed with dandas, sarias and other such like instruments came to their mohalla. The crowd was crying ''MARO, MAAR DO MAAR DO''. The crowd attacked his house and broke the door. His wife was standing at the door and they started beating her. He was able to recognize Pappu-fruitwala, Rajjan, Saleem and Bihari amongst the crowd. The crowd forcibly removed the earrings of his wife. Pappu and Saleem were foremost among the rioters in removing the earrings. Rajjan hit the door of the house. He was carrying a dragger. He ran away from the house through the back door. Neighbours gathered and told the rioters that he (Som Nath) was not a sikh and was a clean shaved person. They protected them and saved the life of his family members. PW-2 identified Rajjan and Bihari Lal. He exonerated Daulat Ram, Mahesh and Rajjan and stated that they were not seen in the crowd. In the cross-examination, he denied the suggestion that after hearing the news of riots, he had left his house for security and safety and had taken shelter in someone''s house. He elaborated that after running away from his house, he took shelter in the house of Prem Chand and did not return till the situation became normal. He was taken to a refugee camp on the third day of the riots. His family had taken shelter in some other house. His statement was recorded on 19th November, 1984. He had gone to the police station earlier to lodge report but it was not recorded. He further clarified that he had run away from the stairs which were opening inside his room and were leading to the roof and after reaching the roof, he jumped to the another roof of different house. He did not lodge any claim with the Commissioner of Claims. PW-6 (Nirmal Kaur) corroborated PW-2''s version in its entirety. She also named Saleem, Pappu, Bihari and Rajjan to be among the crowd who came to their house. They were armed with lathis, iron rods, swords and such like other striking instruments. She further deposed that Saleem and Pappu snatched her ornaments which she was wearing. She was also slapped by them and after that she became unconscious. Her husband fled after she was attacked. In the cross-examination, she stated that she was shifted to relief camp on the third day of the riots, by military people. Her two sons had taken shelter in the house of Pandits. She was not aware as to where her husband was at that time. He met her in the camp after three days. She fairly admitted that she could not see the total number of rioters outside the house. She was unable to tell who broke open the door. She fairly disclosed that except breaking open the door and snatching her ornament, no other looting was done in the house at that time.

On scrutinizing the testimony of PW-2 and PW-6, it reveals that the appellant could not elicit material discrepancies in their cross-examination to disbelieve them. PWs 2 and 6 were victims and had no ulterior motive to falsely implicate the accused. They were having no prior animosity with the accused who was residing in their neighbourhood since long. They were not expected to let the real culprit go scot free and to falsely implicate innocent persons. The accused was known to the victim prior to the occurrence and was identified beyond any doubt. He was identified by the witnesses without hesitation as one of the members of the unlawful assembly. There are no good reasons to disbelieve the cogent and reliable testimony of the victims. They were fair enough to claim that only ornaments which PW-6 was wearing were robbed by Saleem and Pappu. She even did not attribute any overt act to the present appellant Bihari Lal for breaking open the door or robbing her ornaments. She even did not state that the appellant gave any slaps to her. This makes their testimonies most reliable and trustworthy. Minor contradictions. discrepancies and improvements highlighted by the counsel do not affect the core issue and are insignificant. These are not sufficient reasons to throw away the entire testimony of the natural witnesses. In their statement u/s 313 Cr. P.C. the accused came up with the plea that he was falsely implicated as he was not ironing the clothes of the witnesses. This defence deserves outright rejection. For a trivial issue the victims are not imagined to falsely implicate him. The defence witnesses contradicted themselves in their deposition before the court. The Trial Court gave detailed reasons to discard the version given by them. It is relevant to note that the appellant has also been convicted in other similar cases.

Presence of accused as member of unlawful assembly is sufficient for conviction. He was not a mute spectator or passive witness. u/s 149 IPC even if no overt act is imputed to a particular person, the presence of the accused as a part of unlawful assembly is sufficient for conviction. He was not a passive witness. In State of U.P. Vs. Kishanpal & Ors. the Supreme Court held that once a membership of an unlawful assembly is established, it is not incumbent on the prosecution to establish whether any specific overt act has been assigned to any accused. Mere membership of the unlawful assembly is sufficient and every member of an unlawful assembly is vicariously liable for the acts done by others either in prosecution of common object or members of assembly knew were likely to be committed.

The conviction of the appellant is based on fair appraisal of the evidence and needs no interference. Regarding order on sentence plea has been made to take lenient view as the appellant has suffered trial for 25 years. He has remained in custody since long. It is not disputed that the appellant was not a beneficiary. He did not rob any gold ornaments which PW-6 was wearing. No robbed articles were recovered from his possession. He was not armed with any deadly weapon. He did not inflict any injury to the victim. He did not break open the house or caused harm to the witnesses or their family members. Considering all these mitigating circumstances, order on sentence is modified and substantive sentence of the appellant is reduced to RI for three years with fine of Rs. 5,000/- and failing to pay the fine, he shall undergo SI for three months.

The appeal stands disposed of in the above terms. Trial court record be sent back forthwith.