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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1794 OF 2008
Lal Bahadur & Ors. … Appellant(s)
versus
State (NCT of Delhi) … Respondent(s)
J U D G M E N T
M.Y. Eqbal, J.
1. The present appeal has been filed under Section
379 of the Criminal Procedure Code, 1973 read with Section 2
of the Supreme Court (Enlargement of Criminal Appellate
Jurisdiction) Act, 1970 against the judgment and order dated
27th August, 2008 passed by the Delhi High Court in Criminal
Appeal No. 6 of 1992 reversing the order of acquittal dated 31st
October, 1990 passed by the Additional Sessions Judge, Delhi
in Sessions Case No. 12 of 1988 and convicting the appellants
under Sections 147/149/449/436/302/395/396 of the Indian
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Penal Code, 1860 and sentencing each of them to undergo
rigorous imprisonment and fine under different sections of IPC.
2. During the pendency of this appeal, appellant No. 4
Ram Lal is stated to have died on 23rd May, 2011. Therefore,
the appeal stands abated so far as he is concerned.
3. The case of the prosecution in brief is that Harjit
Kaur (PW-1), a resident of House No. RZ-1/295, Geetanjali
Park, West Sagarpur, New Delhi, apprehensive of harm to her
family because of riots which followed the assassination of late
Prime Minister Indira Gandhi on 31st October, 1984, had sent
both her daughters and a son to her father Govind Singh’s
house at BE-7, Hari Nagar, New Delhi. In her typed complaint
(Ex. PW1/A) lodged on 7th November, 1984, she stated that a
mob including appellant No. 1 Lal Bahadur alias Lal Babu along
with appellant No. 2 Surender P. Singh and Charan, who lived
in her neighbourhood, had attacked her house and looted
household articles on 1st November, 1984 at about 9/9.30 a.m.
Fearing threats of communal violence, the complainant Harjit
Kaur and her family had taken shelter at the residence of Dr.
Harbir Sharma (PW-5) who had his house opposite to that of
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the complainant and had remained there with her husband
(Rajinder Singh) and father-in-law (Sardool Singh) for 2-3 days.
On 3rd November, 1984, the appellants came to the house of
Dr. Harbir Sharma in the morning and protested for having
given shelter to the complainant’s family and threatened that if
the complainant and her family to whom shelter had been given
were not handed over to them, they would burn the house.
Thereupon, Dr. Harbir Sharma went out to get help from the
Military. At about 9.00 a.m., a mob of more than 500 persons,
including the appellants, came and attacked the house of Dr.
Harbir Sharma where the complainant was hiding with her
husband and father-in-law. The appellants were having one
cane of oil and iron sabbal and were leading the mob. As per
the complainant, her husband and father-in-law had taken
shelter in one of the room on the ground floor and locked
themselves, while the family of Dr. Harbir Sharma and she
herself had gone upstairs to the roof. At the time the mob was
assembling, the complainant was present on the roof of one of
the neighbours of Dr. Harbir Sharma whose house was in the
same row. As per complainant’s testimony, the mob was
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armed with sabbals, ballams, sariyas and lathis. She stated
that the appellants hit the door of the house with iron sabbals
but the door could not be broken open. They thereupon broke
the windowpane and entered the house and set the house on
fire. The complainant’s husband and father-in-law were burnt
alive and their half burnt bodies were put in gunny bags. The
complainant’s house was also burnt. It is the prosecution’s
case that Sushil Kumar (PW-4) (brother-in-law of Dr. Harbir
Sharma), Dr. Harbir Sharma (PW-5), Jagdish (PW-6) and
Mohar Pal (PW-7) also saw the house being set on fire and the
deceased Rajinder Singh and Sardool Singh were being
attacked with sabbals, burnt and their mortal bodies put into
gunny bags. Sushil Kumar, on first seeing Dr. Sharma’s
house being put on fire, had rushed to call Dr. Sharma who had
gone to call the police. Both of them rushed back to find the
house being burnt by the appellants and Sardoor Singh as well
as Rajinder Singh were killed. They saw the appellants using
dandas to put the bodies of the deceased in gunny bags.
However, some persons gathered there saved Dr. Sharma and
his family members and he lodged the report on 5th November,
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1984. As per the deposition of the complainant, after the
mishap, with the help of one boy she went to Hari Nagar at her
father’s house and also to police station Janakpuri and after the
help of Gorkha Regiment was provided she returned to
Sagarpur on 3rd November, 1984 but she could not get the dead
bodies of her husband and father-in-law and her entire house
was burnt and the house of Dr. Sharma was also entirely burnt
along with household articles. On 7th November, 1984, she
made a complaint in Police Station Delhi Cantt. The FIR was
registered on 9th November, 1984. On completion of the
investigation, challan was filed against the accused-appellants
and they were charged of having committed offences under
various sections of IPC. In support of its case, the prosecution
examined as many as nine witnesses. Each of the accused
denied the incriminating circumstances put to them and stated
that they have been falsely implicated because Dr. Harbir
Sharma had enmity with them. However, none of the accused
led any evidence in defence.
4. The trial court on consideration of testimony of the
witnesses held that the prosecution has failed to prove the
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charges levelled against the appellants beyond all reasonable
doubt and acquitted the accused appellants.
5. The trial court held firstly that delay in lodging the
FIR was not properly explained because the complainant (PW-
1) had gone to Police Station Janakpuri on 3rd November, 1984
and sought military help from there with a view to recover dead
bodies of her husband and father-in-law, but she had not
lodged the report on 3rd November, 1984. Similarly, the court
held that there was delay on the part of Dr. Harbir Sharma (PW-
5) in making the complaint to the police on 5th November, 1984
for the incident of 3rd November, 1984. The trial court also
noticed delay of 27 days in recording statements of PW-4, PW-
6 and PW-7. Secondly, the trial court held that the
complainant had made prevaricating statements regarding
presence of two accused persons i.e. appellant No.2 Surender
and appellant No. 3 Virender on 1st November, 1984 without
any corroboration as also regarding putting of the half burnt
dead bodies in the gunny bags on 3rd November, 1984,
inasmuch as she had not named accused–appellant No. 4
(Ram Lal) and appellant No. 3 (Virender Singh) in her complaint
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(Ex.PW1/A), though they were identified in the court by her; and
even in her statement recorded second time she had stated
that she had not seen accused-appellant No. 2 Surender and
appellant No. 3 Virender on 1st November, 1984 whereas in her
first statement recorded on 21st April, 1986 she had stated that
on 1st November, 1984 accused-appellant No. 1 Lal Bahadur,
appellant No. 3 Virender and appellant No. 4 Ram Lal were
amongst the persons who had looted her house. The trial court
further noted that in her complaint (Ex. PW1/A), the
complainant had mentioned that the half burnt bodies of her
husband and father-in-law were put in gunny bags by the
accused (Lal Babu, Surender and Charan) on 3rd November,
1984, whereas in her statement before the court she stated that
she did not actually see the accused putting burnt dead bodies
of deceased into gunny bags and she only heard saying the
accused persons `put half burnt dead bodies in the gunny
bags’. Thirdly, the trial court noticed certain contradictions in
the statements of eye-witnesses, namely, Sushil Kumar (PW-4),
Dr. Harbir Sharma (PW-5), Jagdish (PW-6) and Mohar Pal
(PW-7). The trial court noted that certain facts were not
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mentioned in the complaint (Ex.PW-5/1) by PW-5 and the
names of two accused Ram Lal and Virender also did not find
mention therein. The trial court further observed on the basis
of contradictions pointed out in the statements that PW-5 had
not come back and witnessed the burning of his house as well
as the beating and killing of deceased persons as deposed by
him. Fourthly, the trial court observed that the prosecution
witnesses PW-4, PW-6 and PW-7 were not the actual
witnesses to the occurrence because had it been so, PW-5
would definitely have mentioned their names in Ex. PW5/1 and
held that the possibility of PW-4, PW-6 and PW-7 being
procured or to have been made to depose for PW-5 cannot be
ruled out. The trial court thus held:
“……. all these circumstances that delay of 11 days
of lodging FIR Ex. PW1/A, the delay of 2 days in
lodging complaint Ex.PW5/1, non-mention of the
names of two accused Virender and Ram Lal in the
FIR as well as in the complaint along with the
element of interestedness on the part of PWs,
coupled with the fact that statements of PW4, PW6
and PW7 have been recorded after an unjustified
and long delay of 27 days, cast a suspicion upon
the wrap and woof i.e. texture in the prosecution
story and in my opinion the prosecution has not
been able to establish its case against any of the
accused beyond reasonable doubt.
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In view of my above discussion, I find that the
prosecution has failed to prove its case beyond all
shadows of doubt. Thus giving benefit of doubt, I
acquit all the accused persons for the offences they
have been charged. They are on bail, their bail
bonds are cancelled. Sureties are discharged. ….”
6. Against the judgment of the trial court, the State
preferred an appeal before the High Court. The Division
Bench reversed the above findings of the trial court and
convicted the accused-appellants under Sections
147/149/449/436/302/395/396, IPC and sentenced each of
them for the offences committed under aforementioned
sections of IPC.
7. It is in these circumstances that the present appeal
has been filed by the accused-appellants under Section 379 of
the Code of Criminal Procedure read with Section 2 of the
Supreme Court (Enlargement of Criminal Appellate Jurisdiction)
Act, 1970 against the judgment and order of the Delhi High
Court reversing the order of acquittal passed by the trial court.
8. Mr. Prasoon Kumar, learned counsel for the
appellant-accused persons assailed the impugned judgment
passéd by the High Court as being illegal and perverse in law.
Learned counsel firstly contended that the High Court has erred
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in law in appreciating the deposition of the eye-witnesses as the
deposition of eye-witnesses is not above suspicion and is full
of contradictions, inconsistencies and emblazonments and
further the deposition made by the alleged eye-witnesses
cannot be accepted as trustworthy and reliable. As per the
observation of trial court, as regards the statements of eyewitnesses, namely, Dr. Harbir Sharma (PW-5), Sushil Kumar
(PW-4), Jagdish (PW-6) and Mohar Pal (PW-7) it may be
pointed out that there are certain contradictions in the
statement of PW-5 and in his complaint Ex.PW-5/1. Learned
counsel then contended that the High Court has not
appreciated the contradictions in the deposition of PW-1 (Harjit
Kaur). As per the complaint Ex. PW1/A and statement of
PW-1, the incident had taken place on two dates i.e. on 1st
November, 1984 and 3rd November, 1984. On 1st November,
1984, the accused Lal Babu, Surender and one Charan who
has not been challaned by the police, having collected some
other persons, came to her house and looted the household
articles. In her statement, she has stated that she knew all the
four accused persons as they were the residents of her locality
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and identified them in the deck, but she has not named
accused Ram Lal and Virender in Ex.PW-1/A. PW-1 is the sole
eye-witness regarding the incident which took place on 1st
November, 1984 and other prosecution witnesses related to the
incident dated 3rd November, 1984 as they have not testified to
the incident dated 1st November, 1984. Besides this, PW-1
has not named Ram Lal and Virender in her complaint to the
police on the basis of which FIR was registered. She has also
deposed that she furnished a list of articles looted by the mob
from her house but the prosecution has neither placed any list
of looted articles as alleged by PW-1 nor any recovery from any
of the accused or from any place in respect of the looted
articles has been effected by the Investigating Officer. Thus,
there is no corroboration to the testimony of PW-1 regarding the
incident of looting/dacoity, which took place on 1st November,
1984. Further, the High Court has failed to appreciate that
ingredients of Section 390 IPC are not made out at all in the
present case. The High Court did not appreciate the facts of
the case because to convict a person in a case of dacoity, there
must be a robbery committed in the first place. Further, the
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High Court erred in law by not appreciating the
discrepancies/contradictions in the testimonies of Sushil Kumar
(PW-4), Jagdish (PW-6) and Mohar Pal (PW-7), which were
rightly appreciated by the trial court while passing the order of
acquittal. PW-4 is co-brother (Sadhu) of PW-5. He has
admitted in his cross-examination that he had worked as a
compounder. According to PW-6, he saw all the accused
persons putting the above mentioned two houses on fire,
beating and killing the deceased and also putting the dead
bodies of the deceased into gunny bags along with many other
persons who were also present. He has stated that his
statement was recorded within 4-5 days of the occurrence
whereas in fact as per the statement of I.O. (PW-9) and as per
record his statement was recorded on 30th November, 1984 i.e.
after unexplained delay of about 27 days. Learned counsel
submitted that there was no recovery of the dead bodies of
deceased, namely, Rajinder Singh and Sardool Singh.
Besides, the prosecution did not produce any vital/scientific
piece of evidence on record before the trial court that any
person was burnt alive on 3rd November, 1984 in the premises
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bearing No. RZ-3/295, Gitanjali Park, Sagarpur, New Delhi.
The prosecution had ample opportunities to collect evidence
from the place of alleged occurrence like ashes, blood stains
etc. to prove the alleged killing and burning of two persons
alive. Learned counsel further contended that the High Court
did not appreciate the fact that there was a delay of 07 days in
lodging the FIR, as the alleged incident had taken place on two
different dates i.e. 1st November, 1984 and 3rd November, 1984.
As per the version of PW-1, Harjit Kaur, she went to call the
police/military assistance on 3rd November, 1984 and she was
present in Police Station Janakpuri, but it is an admitted fact
that FIR was not lodged by her on 3rd November, 1984 itself. It
was further submitted that the High Court also erred in not
appreciating that the explanation as a reasoning for
justification of delay is not only unjustified but also improper and
imaginary one. The reason given by the High Court regarding
delay in lodging the FIR is wrong and perverse to the facts and
circumstances of the case. It is an admitted fact that PW-1
Harjit Kaur went to call the police and she came back from the
police station in a military truck along with officials of Gorkha
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Regiment, she had enough time to narrate the whole incident to
the police, so the denial of PW-1 that she did not narrate the
whole incident to the police on 3rd November, 1984 is
unbelievable and cannot be accepted in any manner
whatsoever. Further contention is that the High Court failed to
appreciate that the statement of eye-witnesses, PW-4, PW-6
and PW-7 were recorded after the unexplained delay of 27
days which is fatal to the prosecution case. This fact was
meticulously considered by the trial court while acquitting the
appellants from all the charges.
9. Per contra, Mr. Rakesh Khanna, learned Additional
Solicitor General, firstly contended that the findings of fact
recorded by the trial court and the conclusion arrived at are
perverse in law and, therefore, the High Court in exercise of
appellate power has rightly reversed the findings of the trial
court. Learned ASG drew our attention to the testimonies of
the prosecution witnesses and submitted that except minor
discrepancies the prosecution has been able to prove the guilt
of the accused beyond all reasonable doubts. On the question
of appreciation of evidence and the consequence of non-
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recovery of dead bodies, the learned ASG relied upon the
decisions of this Court in Govindaraju vs. State of Karnataka,
(2009) 14 SCC 236, Lokeman Shah & Anr. vs. State of West
Bengal, (2001) 5 SCC 235 and Ramanand & Ors. vs. State
of H.P., (1981) 1 SCC 511. Learned ASG also put reliance on
the decision of this Court in the case of Delhi Administration
vs. Tribhuvan Nath & Ors., (1996) 8 SCC 250 which case also
related to the some instance of 1984 when Sikh communities
were attacked and murdered, but the dead bodies were not
recovered.
10. We have carefully considered the submissions of
learned counsel on either side and analysed the testimonies of
the witnesses. The various decisions relied upon by the
counsel have also been considered by us.
11. At the very outset, we must take notice of the fact
that the instant incident as alleged is not the solitary incident,
but such incidents took place in almost all parts of the country,
especially in Delhi where many innocent persons of one
community had been murdered and their properties had been
looted because of the assassination of the Prime Minister of
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this country, which took place on 31st October, 1984. After
hearing the shocking news of assassination of the Prime
Minister, thousands of people forming a mob in different areas
and localities committed atrocities to the Sikh communities and
they were murdered and set ablazed. Therefore, the evidence
has to be appreciated carefully without going into the minor
discrepancies and contradictions in the evidence.
12. The High Court on the first issue regarding delay in
filing of FIR held that the circumstances of the present case are
extraordinary as the country was engulfed in communal riots,
curfew was imposed, Sikh families were being targeted by
mobs of unruly and fanatic men who did not fear finishing
human life, leave alone destroying/burning property. As
regards recording of the statements of witnesses by the police
on 30th November, 1984 after a delay of 27 days, the High
Court observed that the city was in turmoil and persons having
witnessed crimes would naturally be apprehensive and afraid in
coming forward to depose against the perpetrators, till things
settled down; that the State machinery was overworked; and in
such circumstances, delay in recording the statements of
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witnesses cannot be a ground to reduce its evidentiary value or
to completely ignore it. The High Court further found that the
witnesses prior to the incident were the residents of the same
area and knew the assailants and it was not the case of the
appellants that the delay could have resulted in wrong
identification of the accused.
13. As regards contradictions in the testimony of
various witnesses, the High Court observed as under :
“19. ……. Harjit Kaur had mentioned that her house
was looted by a mob comprising, inter alia, of Lal
Babu and Surinder. Her subsequent mentioning of
names of other respondents does not appear to be
an improvement of such importance that her entire
eye witness account which finds corroboration by
other witnesses can be overlooked. At best here a
doubt may arise only with regard to complicity of
Virender and Ram Lal (it seems to have mistakenly
typed as Surinder in ….. trial court judgment)
because later she had identified the other
respondents Virender and Ram Lal also as having
participated in looting her house.
xxx xxx xxx
23. It is no doubt true that the entire case of the
prosecution hinges upon the neighbours and the
widow of the victim, who may be interested in
securing conviction of the accused persons but no
rule of law prescribes that conviction cannot be
based on the testimony of such witnesses. The
only requirement of law is that the testimony of
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those witnesses must be cogent and credible. Here
it is apposite to extract the substance of the
testimony of PWs. …….
xxx xxx xxx
27. On reading of the evidence of above witnesses,
we find that the testimonies of the witnesses are
trustworthy. This we say so on account of the fact
that their evidence has been consistent and they
have also remained unshaken during their cross
examination. Thus, we do not find any reason to
discard the evidence of these witnesses in totality.
They do not vary in any manner on any material fact
and if there are any discrepancies, the same are
trivial, immaterial and could not be made the basis
of the acquittal.”
We fully endorse the view expressed by the High Court and
reject the contentions raised by the appellants.
14. On the contention of the appellants that dead
bodies were never recovered and found and as such there is no
evidence with regard to the fact that they were ever killed and
that too by the accused, the High Court referring to Rama Nand
& Ors. vs. State of H.P., (1981) 1 SCC 511 and Ram Bahadur
@ Denny vs. State, 1996 Crl.L.J. 2364, observed that it is well
settled law that in a murder case to substantiate the case of the
prosecution it is not required that dead bodies must have been
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made available for the identification and discovery of dead body
is not sine qua non for applicability of Section 299 of IPC.
15. As regards independence of witnesses or their
procurement or their interestedness, the High Court observed
that the factors pointed out by the trial court merely bring out a
relation of doctor patient or pupil association but do not show
that all witnesses had colluded against the accused with some
ulterior motives. With regard to the allegation of enmity, no
evidence was found to have been led. The High Court on this
issue found that “there is no suggestion of animosity or inimical
relationship with Harjit Kaur. There would be no reason for Dr.
Harbir Sharma to procure the witnesses for Harjit Kaur. The
only interest of Dr. Harbir Sharma could have been to claim
compensation for the burning of the house, which was available
in any case as the burning of the house was an admitted
position. Besides this, each one of them was resident of the
same area and they were natural witnesses and not planted
ones. The High Court while allowing the appeal of the State
thus observed:
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“40. …… we are of the view that the evidence of
even one eye witness was sufficient in itself to
implicate the respondents, namely, Surinder,
Virender, Ram Lal and Lal Bahadur for the crime
committed by them on 01.11.1984 & 03.11.1984.
Here, we have four eye witnesses, who have seen,
with their own eyes, the gruesome murder of the
deceased persons.
41. We are also not convinced that the delay in
filing FIR or delay in recording the statements of
PW4, PW6 and PW7 has vitiated the trial. Mere
delay in examination of the witnesses for few days
cannot in all cases be termed to be fatal so far as
the prosecution case is concerned when the delay
is explained. There may be several reasons.
Admittedly, the instant case relates to the riots,
which took place on account of the assassination of
late Mrs. Indira Gandhi, which led to the complete
breakdown of the law and order machinery. Chaos
and anarchy permeated every nook and corner of
the city. In the above circumstances, we feel that
the delay has been satisfactorily explained.
Whatever be the length of delay, the court can act
on the testimony of the witnesses if it is found to be
reliable. Further, the allegations of nonindependent witnesses and animosity of Dr. Sharma
with the respondents cannot cast doubts on the
eyewitness account of Harjit Kaur.”
xxx xxx xxx
43. It is not an ordinary routine case of murder,
loot and burning. It is a case where the members of
one particular community were singled out and were
murdered and their properties were burnt and
looted. Such lawlessness deserved to be sternly
dealt with as has been said by the Supreme Court
in Surja Ram vs. State of Rajasthan, 1997 CRLJ 51,
the Court has also do keep in view the society’s
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reasonable expectation for appropriate deterrent
punishment confining to the gravity of the offence
and consistent with the public abhorrence for the
heinous crime committed by the accused. The
sentence has to be deterrent so as to send a
message for future.
44. The crime’s punishment comes out of the
same root. The accused persons should have no
cause for complaint against it. Their sin is the seed.
The terrible terror created by them is a cause for
concern for the society. Courts are empowered by
the statute to impose effective penalties on the
accused as well as even on those who are their
partners in the commission of the heinous crime.”
16. Thus it is clear that the High Court re-appreciated
the evidence of the witnesses in detail and meticulously
examined the facts and circumstances of the case in its right
perspective and recorded a finding that the prosecution has
proved the case against the appellants.
17. The contention of Mr. Kumar, learned counsel
appearing for the appellants is that as the trial court after having
appreciated the evidence in detail acquitted the appellants, the
High Court normally should not have taken a different view. We
are unable to accept the contentions made by the learned
counsel. It is well settled proposition that in an appeal against
acquittal, the appellate court has full power to review the
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evidence upon which the order of acquittal is founded. The
High Court is entitled to re-appreciate the entire evidence in
order to find out whether findings recorded by the trial court are
perverse or unreasonable.
18. The law has been well settled by a 3-Judge Bench
judgment of this Court in the case of Sanwat Singh & Ors. vs.
State of Rajasthan AIR 1961 SC 715 (para 9), wherein this
Court observed:
“The foregoing discussion yields the following
results: (1) an appellate court has full power to
review the evidence upon which the order of
acquittal is founded; (2) the principles laid down in
Sheo Swarup’s case, 61 Ind. App 398: (AIR 1934
PC 227 (2), afford a correct guide for the appellate
court's approach to a case in disposing of such an
appeal; and (3) the different phraseology used in
the judgments of this Court, such as, (i) “substantial
and compelling reasons”, (ii) “good and sufficiently
cogent reasons”, and (iii) “strong reasons”, are not
intended to curtail the undoubted power of an
appellate court in an appeal against acquittal to
review the entire evidence and to come to its own
conclusion; but in doing so it should not only
consider every matter on record having a bearing
on the questions of fact and the reasons given by
the court below in support of its order of acquittal in
its arriving at a conclusion on those facts, but
should also express those reasons in its judgment,
which lead it to hold that the acquittal was not
justified”.
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19. So far as the contradictions and inconsistencies in
the evidence of the prosecution witnesses, as pointed out by
the counsel for the appellants, are concerned, we have gone
through the entire evidence and found that the evidence of the
witnesses cannot be brushed aside merely because of some
minor contradictions, particularly for the reason that the
evidence and testimonies of the witnesses are trustworthy. Not
only that, the witnesses have consistently deposed with regard
to the offence committed by the appellants and their evidence
remain unshaken during their cross-examination. Mere
marginal variation and contradiction in the statements of the
witnesses cannot be a ground to discard the testimony of the
eye-witness who is none else but the widow of the one
deceased. Further, relationship cannot be a factor to affect
credibility of a witness.
In the case of State of Uttar Pradesh vs. Naresh & Ors.
(2011) 4 SCC 324, this Court observed:-
“30. In all criminal cases, normal discrepancies are
bound to occur in the depositions of witnesses due
to normal errors of observation, namely, errors of
memory due to lapse of time or due to mental
disposition such as shock and horror at the time of
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occurrence. Where the omissions amount to a
contradiction, creating a serious doubt about the
truthfulness of the witness and other witnesses also
make material improvement while deposing in the
court, such evidence cannot be safe to rely upon.
However, minor contradictions, inconsistencies,
embellishments or improvements on trivial matters
which do not affect the core of the prosecution case,
should not be made a ground on which the
evidence can be rejected in its entirety. The court
has to form its opinion about the credibility of the
witness and record a finding as to whether his
deposition inspires confidence.
“9. Exaggerations per se do not render
the evidence brittle. But it can be one of
the factors to test credibility of the
prosecution version, when the entire
evidence is put in a crucible for being
tested on the touchstone of credibility.”
(Ed: As observed in Bibhuti Nath
Goswami v. Shiv Kumar Singh (2004) 9
SCC 186 p. 192.
Therefore, mere marginal variations in the
statements of a witness cannot be dubbed as
improvements as the same may be elaborations of
the statement made by the witness earlier. The
omissions which amount to contradictions in
material particulars i.e. go to the root of the
case/materially affect the trial or core of the
prosecution's case, render the testimony of the
witness liable to be discredited. [Vide State v.
Saravanan, (2008) 17 SCC 587, Arumugam v.
State (2008) 15 SCC 590, Mahendra Pratap Singh
v. State of U.P. (2009) 11 SCC 334, and Sunil
Kumar Sambhudayal Gupta (Dr.) v. State of
Maharashtra. (2010) 13 SCC 657.]
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20. Much stress has been given by the learned counsel
on the non-recovery of the dead-bodies and the looted articles
when the allegation is that after killing the persons they put the
dead bodies into gunny bags. The aforesaid plea cannot in
any way improve the case of the appellants. This Court in the
case of Delhi Administration vs. Tribhuvan Nath and Ors.,
(1996) 8 SCC 250, has considered the same issue as raised by
the appellants herein. In that case, the accused were
prosecuted for committing murder and throwing the dead body
into drains or setting it ablaze. Their properties were looted and
their houses were burnt because of the assassination of Prime
Minister in 1984. After re-appreciation of the evidence, this
Court held as under:-
“5. If the evidence of the aforesaid PWs is read
as a whole, which has to be, what we found is that
on 1-11-1984, at first around 11 a.m., a mob of
about 200 people came to Block No. P-1, Sultan
Puri, which then had 30 to 35 jhuggies. Deceased
Himmat Singh and Wazir Singh used to live in those
jhuggies. The mob which came around 11 a.m. was
said to have been armed with iron rods and sticks;
but then it was not causing any damage. Rather, it
was being advised by this mob that the persons
staying in jhuggies should get their hair cut if they
wanted to save their lives. The inmates felt inclined
to accept this advice and they were in the process
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of cutting their hair. But then another mob came
which, according to PW 11, consisted of 200-250
persons — this number has been given as 1000-
1200 by PW 2. According to PW 4 the mob
consisted of 100 persons. PW 8 did not give the
number. We are really not concerned with the
number as such. Suffice it to say that the mob was
a big one. This mob caused havoc and the
members of this mob too were armed with iron rods
and sticks. It is at the hands of this mob that,
according to the aforesaid PWs, Himmat Singh and
Wazir Singh lost their lives. Not only this, to believe
PW 4, her son Wazir Singh was burnt to death and
thrown into the adjoining nullah. PW 2 also had
stated about the mob throwing the murdered
persons in the adjoining nullah. As thousands of
persons have been so dealt with, it would be too
much to expect production of corpus delicti. We
have mentioned about this aspect at this stage itself
because one of the reasons which led the High
Court to acquit the respondents is non-production of
corpus delicti. We are afraid the High Court misread
the situation; misjudged the trauma caused.”
21. It is well settled that discovery of dead body of the
victim has never been considered as the only mode of proving
the corpus delicti in murder. In fact, there are very many cases
of such nature like the present one where the discovery of the
dead body is impossible, specially when members of a
particular community were murdered in such a violent mob
attack on Sikh community in different places and the offenders
tried to remove the dead bodies and also looted articles.
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22. As noticed above, the finding of guilt recorded by
the High Court has been challenged by the learned counsel
mainly on the basis of minor discrepancies in the evidence. So
far the instant case is concerned, those minor discrepancies
would not go to the root of the case and shake the basic
version of the witnesses when as a matter of fact important
probabilities factor echoes in favour of the version narrated by
the witnesses. This Court in the case of Bharwada
Bhoginbhai Hirjibhai vs. State of Gujarat, (1983) 3 SCC 217
held that much importance cannot be attached to minor
discrepancies on the following reasons:-
“(1) By and large a witness cannot be
expected to possess a photographic memory and to
recall the details of an incident. It is not as if a video
tape is replayed on the mental screen.
(2) Ordinarily it so happens that a witness is
overtaken by events. The witness could not have
anticipated the occurrence which so often has an
element of surprise. The mental faculties therefore
cannot be expected to be attuned to absorb the
details.
(3) The powers of observation differ from
person to person. What one may notice, another
may not. An object or movement might emboss its
image on one person's mind, whereas it might go
unnoticed on the part of another.
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(4) By and large people cannot accurately
recall a conversation and reproduce the very words
used by them or heard by them. They can only recall
the main purport of the conversation. It is unrealistic
to expect a witness to be a human tape-recorder.
(5) In regard to exact time of an incident, or
the time duration of an occurrence, usually, people
make their estimates by guess-work on the spur of
the moment at the time of interrogation. And one
cannot expect people to make very precise or
reliable estimates in such matters. Again, it depends
on the time-sense of individuals which varies from
person to person.
(6) Ordinarily a witness cannot be expected
to recall accurately the sequence of events which
takes place in rapid succession or in a short time
span. A witness is liable to get confused, or mixed up
when interrogated later on.
(7) A witness, though wholly truthful, is
liable to be overawed by the court atmosphere and
the piercing cross-examination made by counsel and
out of nervousness mix up facts, get confused
regarding sequence of events, or fill up details from
imagination on the spur of the moment. The subconscious mind of the witness sometimes so
operates on account of the fear of looking foolish or
being disbelieved though the witness is giving a
truthful and honest account of the occurrence
witnessed by him — Perhaps it is a sort of a
psychological defence mechanism activated on the
spur of the moment.”
In the case of Leela Ram (dead) through Duli Chand vs.
State of Haryana & Anr., (1999) 9 SCC 525, this Court
observed:-
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“11. The Court shall have to bear in mind
that different witnesses react differently under
different situations: whereas some become
speechless, some start wailing while some
others run away from the scene and yet there
are some who may come forward with courage,
conviction and belief that the wrong should be
remedied. As a matter of fact it depends upon
individuals and individuals. There cannot be any
set pattern or uniform rule of human reaction
and to discard a piece of evidence on the ground
of his reaction not falling within a set pattern is
unproductive and a pedantic exercise.
12. It is indeed necessary to note that
one hardly comes across a witness whose
evidence does not contain some exaggeration or
embellishment — sometimes there could even
be a deliberate attempt to offer embellishment
and sometimes in their over anxiety they may
give a slightly exaggerated account.
The court
can sift the chaff from the grain and find out the
truth from the testimony of the witnesses.
Total
repulsion of the evidence is unnecessary. The
evidence is to be considered from the point of
view of trustworthiness. If this element is
satisfied, it ought to inspire confidence in the
mind of the court to accept the stated evidence
though not however in the absence of the
same.”
23. We have re-appraised the entire evidence of the
prosecution witnesses including the eye-witnesses, namely,
PW-1 Harjit Kaur, PW-4 Sushil Kumar, PW-5 Dr. Harbir
Sharma, PW-6 Jagdish Kumar, PW-7 Mohar Pal and found
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that their testimonies have remained unshaken except some
minor discrepancies which have to be ignored.
24. In view of the aforesaid analysis of the facts and
evidence on record, we reach the inescapable conclusion that
the High Court correctly appreciated the evidence and reversed
the findings of the trial court.
25. For the reasons aforesaid, we do not find any merit in this
appeal which is accordingly dismissed.
……………………………..J.
(P. Sathasivam)
……………………………..J.
(M.Y. Eqbal)
New Delhi,
April 8, 2013.
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