P.K. Bahri, J.
(1) The appellants namely Tribhuvan Nath @ Raju Pradhan, Sita Ram and Wazir Pradhan have come up in appeal challenging their conviction and sentences imposed on them vide judgment and order dated March 30, 1991 and April 1, 1991 of an Additional Sessions Judge, Delhi. They have been convicted of offences punishable under Sections 147, 148, 302 read with Section 149, 395 read with Section 149 and 436- read with Section 149 I.P.C. and have been sentenced to undergo rigorous imprisonment for one year each u/s 147 Indian Penal Code . and for two years each for the offence u/s 148 Indian Penal Code , rigorous imprisonment for five years each for the offence u/s 395/149 Indian Penal Code . with a fine of Rs.2,500.00 each, rigorous imprisonment for five years with a fine of Rs.2,500.00 each for the offence u/s 436/149 Indian Penal Code . and imprisonment for life each for the offence of murder u/s 302/149 Indian Penal Code . with the direction that substantive sentences shall run concurrently and the fine, if realised, shall be paid to Public Witness 2, Satnam Kaur, Public Witness 4 Smt.Rukki Kaur and Public Witness 6 Sh.Desh Singh in equal shares.
(2) This case is also an off shoot of the drastic events which took place soon after the assassination of then Prime Minister Smt.Indira Gandhi.
(3) On November 1, 1984, a Daily Diary report No.11-A was recorded at Police Station Sultan Puri, copy of which is Ex.PW3/A, mentioning that a mob had collected and was indulging in looting and arousing of the houses and shops belonging to the Sikh community and S.I.Sukhbir Singh, accompanied by Constable Mewa Singh, had reached the spot after witnessing that shops and houses of the Sikhs in the area of Police Station Sultan Puri were being looted and burnt, he got registered the case for different offences.
(4) It is the case of the prosecution that during the course of the investigation, statements of the eye witnesses were recorded which revealed that on November 1, 1984 at about 3.30 P.M, a mob which constituted unlawful assembly had come with the unlawful object of killing the Sikhs residing in Sultan Puri and also for looting their belongings from their shops and the houses and in that process the mob had killed Himmat Singh, Sunder Singh and Wazir Singh besides looting their houses and the three appellants who were residing in that locality were the part of the said mob and had shared the common unlawful objects of the mob and those appellants were charged for the various offences already mentioned above. The appellants have pleaded not guilty to the said charges.
(5) The learned Additional Sessions Judge had brought home the offences to the appellants in placing implicit faith in the oral testimony of witnesses, particularly Public Witness 1 Mohan Singh, Public Witness 2 Satnam Kaur and Public Witness 4 Smt.Rukki Kaur and had sought some corroboration from the statements of Public Witness 6 Desh Singh, Public Witness 8 Harvinder Singh and Public Witness 9 Ravinder Kaur. Public Witness 8 and Public Witness 9 are the children of Public Witness 6 Desh Singh.
(6) It is really surprising that the Additional Sessions Judge has failed to notice certain glaring inconsistencies and contradictions which have come out from the statement of the witnesses in Court as compared with their statements recorded by the police during the investigation.
(7) Before we analyze the statements of Public Witness 1 and Public Witness 2, we straightaway come to the testimony of Public Witness 4 Smt.Rukki Kaur. In Court she had deposed that she Along with her two sons was residing in a hut in Block P-1, Sultan Puri at the relevant time and her husband was a carpenter by profession but her husband was missing from her place since much before the present occurrence and she was residing only with her two young sons in that hut at the relevant time. According to her testimony, her elder son Wazir Singh aged about 17 years was killed in the said mob fury. As compared with this statement in Court, she has stated to the police in her statement, copy of which is Ex.DA, that her son aged about 10-12 years i.e. her younger son was burnt. In that statement she had not given even the name of the said son who had been killed by the said mob. She had specifically mentioned in the police statement that her husband Sunder Singh was also kilted by the said mob in the said occurrence but in Court she had not mentioned about murder of her husband at all. Rather, she had categorically stated that her husband was missing since some days prior to the date of the occurrence. It is not understood how the investigation had proceeded in this case in charging the appellants for murder of her husband Sunder Singh.
(8) In the present case, admittedly no dead bodies- of the said three persons were recovered. Corpus-delicate which is an important piece of evidence which is required to be recovered by the police in investigation in all the murder cases of course is not essential to be produced in every case where direct evidence may show that the corpus-delicate had been done away with by the accused and it is impossible to produce the Corpus-delicate. But in the present case, surprisingly, no corroborative evidence was collected by the police in shape of ration cards or any other type of evidence, may be voters list, to establish beyond shadow of any reasonable doubt that at the time of occurrence at least Sunder Singh was living in the hut in question.
(9) Merely ipse dixit statement of Smt.Rukki Kaur was accepted by the police in investigation to charge the appellants for the murder of her husband Sunder Singh who during the trial was found to be not murdered in the said occurrence at all and perhaps may be alive even now when his wife had deposed that her husband had been missing even prior to the occurrence.
(10) Another glaring absurdity in the case of the prosecution is that in her statement to the police, without naming as to which of her two sons had been killed in the mob fury, Smt.Rukki only mentioned that her son aged about 10/12 years old had been burnt by the mob. If that is so, then her statement before the police obviously referred to her younger son but the appellants have been charged for the murder of her elder son namely Wazir Singh. In her police statement, Ex.DA, she had not referred that her elder son aged-about 17 years Wazir Singh had been burnt. So, it is not understood how the Additional Sessions Judge has come to the conclusion from such shaky and inconsistent evidence that Wazir Singh had been killed by the said mob in the said occurrence.
(11) Now coming to the testimony of Public Witness 1 Mohan Singh, brother of deceased Himmat Singh, it has come out that in the early part of the day of November 1, 1984, the appellants had come along with certain other neighbours and had asked Public Witness 1 Mohan Singh to cut his hair so that he could be saved from any untoward incident which may take place because the mobs have already started roaming the streets for taking the revenge against the Sikhs on the ground that Smt.Indira Gandhi had been murdered by her two Sikh security persons. He had deposed in Court that while he was cutting his hair and also other Sardars were also in the process of cutting their hair that a mob comprising of 200 to 250 persons came and they were armed with iron rods and sticks and shouting slogans that the Sikhs be killed and their jhuggis be burnt and they assaulted Himmat Singh with iron rods and sticks. He, of course, deposed that Raju and Sita Ram accused were included in'' that mob but he did not refer to any overt act indulged in by the said appellants as far as assaulting of his brother was concerned.
(12) The widow of Himmat Singh coming as Public Witness 2 deposed that a mob comprising of the neighbours were found looting the shops which had not closed down and then police came and they instigated the mob to burn down the jhuggis of the Sikhs but the mob did not get instigated by the police and some persons from the mob had asked the Sardars to cut their hair as they wanted to save their lives and at that time when this process of cutting the hair was going on, about 1000 to 1200 people arrived who appeared to have roots in Haryana who were armed with iron rods and sticks and they murdered her husband after dragging him to a drain nearby where their dead bodies were thrown. She stated that the appellants were members of the said mob.
(13) In her police statement, with which she was confronted, she had not deposed that police persons were instigating the mob to burn the jhuggis of the Sardars. She has in cross- examination stated that the appellants were merely standing when the mob had assaulted at her husband.
(14) If we analyze the statement of these two material witnesses, it is clearly established that in fact the appellants who were prominent residents of the said locality and were very well known to Public Witness 1 and Public Witness 2 had come in the earlier part of the day to save the Sikhs from the mob fury as they asked them to cut their hair. It is the mob which came from outside i.e. the mob having roots in Haryana as stated by Public Witness 2 that the assault took place on the Sikhs, may be Himmat Singh was murdered in that assault and the appellants were merely seen as standing at the spot.
(15) As far as testimony of Public Witness 6 Desh Singh is concerned, he admittedly had not witnessed the occurrence with his own eyes as he kept himself hidden in his house when allegedly the mob had come. His two children PW8 and Public Witness 9 had not given any consistent version as to the visit of the mob to their house. Whereas Public Witness 8 would like us to believe that the three appellants had come with the mob for assaulting the Sikhs and the three appellants were instigating the mob, his sister Public Witness 9 does not say that three appellants were leading the mob or were instigating the mob for assaulting the Sikhs.
(16) If the appellants had come to the house of Public Witness 6, as stated by Public Witness 8 and PW9, at the first instance, it cannot be said that they were part of the mob which actually had come to assault the Sikhs because it has come out in evidence of the other witnesses discussed above that the appellants who were certain important residents of the said area, being termed as Pradhans, had come to persuade the Sikhs living in the huts to shave their hair so that they may not fall victim to the fury of the mob which was expected to come any time in that area. So, the possibility of the appellants visiting the house of Public Witness 6 for that purpose cannot be completely over-ruled in view of the above circumstances and facts.
(17) PW8 and Public Witness 9 have not uttered a word about the killing of Himmat Singh and Wazir Singh at the hands of any mob for which offences the appellants were charged. Their statements were also recorded belatedly after three months of the occurrence and no Explanation has come for ward as to why this unusual delay occurred in recording their statements. At any rate, we must say that the investigation in the present case has been completely shoddy. When the police itself had witnessed the mob fury being let loose on the Sikhs living in that area, at least the police ought to have attempted to collect the evidence promptly regarding the victims of the said mob fury and possibility of identifying the members of the said mob who indulged in such atrocious crimes in that area.
(18) The short question which arises for consideration is whether the appellants could be treated to be members of the said mob which was having the unlawful object of murdering the Sikhs and looting and arousing their shops and houses. From the testimony of Public Witness 1 and Public Witness 2, it is apparent that the appellants had come to ask the Sikhs residing in the locality to cut their hair so that they may not be noticed as Sikhs who could be the targets of the unruly mob which might come and kill the Sikhs. If that is so, it is not possible to agree with the inference drawn by the learned Additional Sessions Judge that when the actual rioting mob came at about 3.30 P.M. and assaulted the Sikhs, these appellants also became members of the mob sharing the said unlawful object of the said mob. After all, no overt act has been imputed to the appellants by Public Witness 1 and Public Witness 2 that the appellants had either instigated the mob or had led the mob or had performed any other act which could show that when the mob came, which assaulted Himmat Singh, these appellants came to share their common unlawful object of the said mob. There is no statement made by these Public Witness 1 and Public Witness 2 that the appellants had indulged in any rioting, arousing or looting of the properties and valuables of the Sikhs.
(19) Mere presence of appellants in the mob at the time the mob came, in our view, would riot lead to any inference that the appellants had become members of the said mob sharing the unlawful objects of the said mob.
(20) In
(21) Similarly in
(22) Same ratio had been repeated by the Supreme Court in case of
(23) Keeping in view the above discussion, it is not possible to hold that the prosecution had been able to prove beyond reasonable doubt that the appellants were the members of the said rioting mob which had assaulted and killed certain Sikh persons including Himmat Singh.
(24) In view of the above, we find that the judgment of conviction and the order of sentence passed by the Additional Sessions Judge cannot be sustained. We allow the appeal and set aside the conviction and sentences of the appellants and direct that they be set at liberty if not required to be detained in any other case. The fine, if any deposited by the appellants, shall be refunded to them. Appeal stands disposed of.
