Mahesh @ Dabbu vs State Govt. of NCT of Delhi

V.K. Jain, J.—This appeal is directed against the judgment dated 30th January 1997 and Order on Sentence dated 31st January 1997 whereby the Appellant was convicted u/s 148 and 397 of IPC as well as u/s 302 read with Section 149 there of.

The case of the prosecution in brief is that on 1st November 1994, late Jaswant Singh, who was an employee of Delhi Electric Supply Undertaking (DESU), his younger brother Jaswant Singh, brother-in-law Anokha Singh and his colleague Satnam Singh were killed by the rioters, in the house of Bhajan Singh, bearing No. 41 in Block No. 13 of Trilok Puri, where he was residing with his family. This is also the case of the prosecution that no FIR specifically with respect to the aforesaid murders was registered at Police Station Trilok Puri. Later, Smt. Vidya Kaur, widow of Sh. Jaswant Singh filed an affidavit before Justice Rangnath Mishra Committee in September 1985 wherein she named four persons as the persons who were involved in the murder, namely one Mr. Khan, a driver/constable of Delhi Police, Mangey Ram resident of Block No. 15 of Trilok Puri, Baleshwar, sweeper of Block No. 14 of Trilok Puri and the Appellant Dabbu. The affidavit was then handed over to Justice Jain Agarwal Committee, which came to be formed by the Government. The committee then wrote to the Administrator, Union Territory of Delhi informing him that the investigation in the murder of those four persons had not been properly done. The committee was of the view that a fresh case on the basis of affidavit of Vidya Kaur needs to be registered. It was also pointed out in the letter that though Smt. Vidya Kaur was examined by the police on 8th November 1984 in FIR No. 427/1984 of Police Station Kalyan Puri, her statement was not recorded carefully and in an intelligent manner. It was also pointed out in the letter that the charge sheet submitted in FIR No. 427/1984 did not mention any of the murders committed in the area.

In view of the recommendations made by the committee, a fresh FIR being FIR No. 290/1991 was registered and after investigation, charge sheet was filed against four persons namely Mangey Ram, Amir Khan, Baleshwar and the Appellant Mahesh @ Dabbu.

The prosecution examined 12 witnesses, including three eye witnesses PW-2 Vidya Kaur, PW-3 Surjit Singh and PW-4 Kuldeep Singh. Vidya Kaur in her deposition during trial stated that one boy Dabbu of Block No. 14 was amongst the rioters. She pointed out to the Appellant Mahesh saying that he was known as Dabbu and was amongst the rioters when her husband and others were killed. In her cross-examination, she first admitted that the accused persons had not done any specific act, but later she stated that Baleshwar and Mahesh @ Dabbu were carrying iron rods and other instruments of assault and had attacked her husband and other family members. PW-2 Surjit Singh did not either name or identify the Appellant Mahesh @ Dabbu. He identified only the accused Baleshwar. PW-4 Kuldeep Singh identified only the Appellant Mahesh @ Dabbu and his co-accused Baleshwar and stated that Mahesh @ Dabbu was having a big knife in his hand.

PW-7 Mrs. Kuldeep Khera, who was working as Oath Commissioner in Patiala House Courts in September 1985 stated that she had attested the affidavit Ex.PW-7/A of Vidya Kaur on 9th September 1985. PW-10 Sh. S.L. Chopra, who was working as a Secretary to Justice Jain Agarwal Committee, identified his signature on the letter Ex.PW-10/A, which he had sent to the Administrator, Union Territory of Delhi, recommending registration of a fresh case on the affidavit of Smt. Vidya Kaur.

In his statement u/s 313 of Code of Criminal Procedure the Appellant Dabbu claimed that he had not gone to the house of Jaswant Singh in 1984 and was not amongst the rioters.

The learned trial Judge acquitted the accused Amir Khan and Mangey and convicted the Appellant Mahesh @ Dabbu and his co-accused Baleshwar.

Vide order dated August 18, 2010, we directed the prosecution to file the statement of PW-2 Vidya Kaur, which was recorded by the police u/s 161 of Code of Criminal Procedure on 8th November 1984 in case FIR No. 427/1984 of Police Station Kalyan Puri. We also directed the prosecution to produce file No. 141/2342/85/JPRC/SP/1362, which was the file number recorded on the letter Ex.PW10/A sent by Mr. S.L. Chopra to the Administrator, Union Territory of Delhi.

A perusal of the statement of Smt. Vidya Kaur, wife of deceased Jaswant Singh recorded by SI Manohar Lal of Police Station Kalyan Puri on 8th November 1984 shows that not a single person was named by her in that statement. In that statement, she alleged that on 3rd November 1984 at about 8 PM 3-4 persons attacked her house and the crowd killed three persons using lathis, dandas and bricks and, thereafter, burnt them after pouring kerosene on them. She specifically stated that she could not identify any of the persons who had killed her husband Jaswant Singh, her nephew Anokh Singh and the third person namely Satnam Singh, who was working in DESU. She also stated that she did not know the name of any of the persons who had killed her husband and two other persons.

Admittedly, Smt. Vidya Kaur was cited as a prosecution witness in the charge sheet filed by Delhi Police in FIR No. 427/1984 of Police Station Kalyan Puri, and her name is shown at serial No. 7 in the list of witnesses annexed to the charge sheet. A perusal of the judgment of the trial court dated 16th December 1994 in Sessions Case No. 61/1994 would show that Smt. Vidya Kaur was not produced during trial and it was reported that she and some other witnesses named in para 8 of the judgment were not available at the given address.

It was thus an admitted fact that as per the statement recorded after five days of the incident, Smt. Vidya Kaur had claimed that she did not know any of the assailants and could not identify any of them. The Appellant Mahesh @ Dabbu was named for the first time in the affidavit which Smt. Vidya Kaur sworn on 9th September 1985.

As noted earlier, when Smt. Vidya Kaur came in the witness box during trial, she claimed that the Appellant Mahesh @ Dabbu was previously known to her. In her cross-examination, she specifically stated that she knew all the three accused, namely, Mange, Baleshwar and Dabbu. Thus, the Appellant Mahesh alias Dabbu was not named in the statement which Smt. Vidya Kaur is stated to have given on 08th November, 1984, despite the fact that he was previously known to her.

Admittedly, the statement of Smt. Vidya Kaur recorded by police on 08th November, 1984 was not supplied to the Appellant either before or during trial. Had the aforesaid statement been supplied to the Appellant, he would have been able to cross-examine Smt. Vidya Kaur as to why she did not named him in the statement recorded on 08th November, 1984 and why she claimed in that statement that none of the assailants was known to her and she could not identify any of them. Since the prosecution is expected to be fair and reasonable, it was imperative for it to share the entire relevant material, including the statement of Smt. Vidya Kaur recorded on 08th November, 1984 with the Trial Court and supply a copy of the same to the accused persons.

It is quite possible that the police officer, who examined Smt. Vidya Kaur on 08th November, 1984 did not correctly record her statement. But, then, it is for Smt. Vidya Kaur to say so and the Court cannot without any evidence in this regard presume that the police officer who examined her on 08th November, 1984 fabricated the statement, purporting to have been made by her or did not correctly record the statement given by her to him. The fact remains that the Appellant has been deprived of a valuable right to cross-examine Smt. Vidya Kaur with respect to her previous statement recorded u/s 161 of the Code of Criminal Procedure, on account of failure of the prosecution to supply a copy of the aforesaid statement to him. The proviso to Section 162 of the Code of Civil Procedure, to the extent it is relevant provides that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872. As far as the Appellant is concerned, since in the absence of a copy of the statement dated 8th November 1989 being made available to him, he was not aware of what exactly Smt. Vidya Kaur had told the police officer on 08th November, 1984, there was no occasion for him to request the Court to direct the prosecution to supply a copy of the aforesaid statement to him.

It is difficult to dispute that there was an atmosphere of terror and fear in the city on account of anti-Sikh riots which took place in the year 1984 and not all the witnesses of the crimes which took place during that period, being terrified, came forward to report the incidents witnessed by them and name the persons responsible for the crimes. But, the fact remains that this is prosecution''s own case that Smt. Vidya Kaur was approached by a police officer and her statement was recorded by him on 08th November, 1984. There is no evidence on record to suggest that the police officer, who examined Smt. Vidya Kaur on 08th November, 1984, did not correctly record her statement. The contention of the Appellant in these circumstances is that since the Appellant Mahesh @ Dabbu was previously known to Smt. Vidya Kaur, there was no good reason for her not to name him when her statement was recorded by the police officer on 08th November, 2004, the time by which the riots had subsided in the city. He also pointed out that for more than 10 months after the incident, Smt. Vidya Kaur did not come forward to name the Appellant, despite his being previously known to her. This is also is contention that no reason or notice for SI Manohar Lal to fabricate the statement of Smt. Vidya Kaur has been alleged by the prosecution.

We, therefore, are of the considered view that a serious prejudice has been caused to the Appellant Mahesh @ Dabbu on account of failure of the prosecution to provide a copy of the statement of Smt. Vidya Kaur recorded by SI Manohar Lal of PS Kalyan Puri on 08th November, 1984 in the case registered vide FIR No. 427/1984 of Police Station Kalyan Puri, since he did not get an opportunity to cross-examine the informant and key eye witness Smt. Vidya Kaur with respect to that previous statement of hers We, therefore, set aside the impugned order and judgment insofar as it relates to the Appellant Mahesh @ Dabbu and remand the case to the Trial Court for recalling Smt. Vidya Kaur and giving only one opportunity to the Appellant to cross-examine her with respect to her statement, alleged to have been recorded by SI Manohar Lal of Police Station Kalyan Puri on 08th November, 1984 in the case registered vide FIR No. 427/1984. The prosecution will supply a copy of the aforesaid statement to the Appellant within two weeks from today, unless already supplied. If the prosecution, so desires, it will be at liberty to examine SI Manohar Lal, who is alleged to have recorded the statement of Smt. Vidya Kaur on 08th November, 1984. After further cross-examination of Smt. Vidya Kaur in terms of this order and examination of SI Manohar Lal, if the prosecution chooses to examine him, the Trial Court will pass a fresh judgment in respect of Appellant Mahesh @ Dabbu on the merits of the case, without, in any manner, being influenced by the observations made in this order.

The Appellant will appear before the concerned Court at 10 am on 10th January, 2011. The prosecution will produce Smt. Vidya Kaur before the Trial Court on that date as also on some other date which the Trial Court may fix for her further cross-examination in terms of this order. The Trial Court will pronounce a fresh judgment expeditiously and preferably not later than three months of the Appellant appearing before it. The Registry is directed to send the Trial Court Record back within one week, alongwith a copy of this order.