Supreme Court of India
LAL BAHADUR & ORS.versusSTATE (NCT OF DELHI)
- Citation
- 2013 INSC 225
- Decided
- 8 April 2013
- Disposal
- Dismissed
- Bench
- P SATHASIVAM
Holding
In an appeal against acquittal, the appellate court may re‑appreciate the entire evidence and, where eye‑witness testimony is consistent and trustworthy despite minor contradictions and delays, a conviction can be sustained even without the recovery of the dead bodies.
Summary
The case arose from the 1984 anti‑Sikh riots that followed the assassination of Prime Minister Indira Gandhi, where a mob led by the appellants attacked two houses, burnt alive the husband and father‑in‑law of the complainant and looted property. The trial court acquitted the appellants, but the Delhi High Court convicted them under IPC sections 147, 149, 449, 436, 302, 395 and 396. On appeal, the Supreme Court examined whether the delay in filing the FIR and recording witness statements, the absence of recovered dead bodies, and minor contradictions in eyewitness testimony warranted overturning the conviction. It held that the extraordinary circumstances of the riots justified the delay, that the testimony of the widow and other eye‑witnesses was consistent and trustworthy despite trivial inconsistencies, and that a dead body is not essential to prove murder. The Court affirmed the High Court’s power to re‑appreciate evidence in an appeal against acquittal and dismissed the appeal, upholding the convictions.
Issues considered
- The effect of delay in filing the FIR and recording witness statements on the evidentiary value of testimonies
- Whether minor contradictions in eyewitness statements justify discarding their evidence
- Whether the non‑recovery of dead bodies precludes a conviction for murder under Section 299 IPC
- The scope of appellate court's power to re‑appreciate evidence in an appeal against acquittal
- The impact of a witness's relationship to the victim on her credibility
Legislation cited
- Code of Criminal Procedure, 1973s. 379
- Indian Penal Code, 1860s. 147, s. 149, s. 299, s. 302, s. 395, s. 396, s. 436, s. 449
- Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970s. 2
Subjects
murdercommunal riotseye‑witness testimonydelay in FIRappellate reviewcorpus delicti1984 anti‑Sikh riotsIPC sections 147,149,302,395,396
Judgment
[2013] 5 S.C.R. 744
A LAL BAHADUR & ORS.
V.
STATE (NCT OF DELHI)
(Criminal Appeal No. 1794 of 2008)
APRIL 8, 2013
B
[P. SATHASIVAM AND M.Y. EQBAL, JJ.]
Penal Code, 1860 - ss.1471149/4491436!302!395/396 -
Assassination of the Prime Minister of India - Communal riots
c - Violent mob attacks on Sikh community - Mob killing
husband and father-in-law of PW1 and also looting articles -
Acquittal .of accused-appellants - Reversal of acquittal by
High Court - Justification - Held: Justified -The witnesses
consistently deposed with regard to the offence committed by
0 the appellants and their evidence remained unshaken during
their cross-examination - Mere marginal variation and
contradiction in their statements not a ground to discard the
testimony of the eye-witness who was none else but widow of
one deceased - Further, relationship not a factor to affect
E credibility of a witness - Discovery of dead body of the victim
not 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 was
impossible, especially when members of a particular
community were murdered in such a violent mob attack on
F Sikh community in different places and the offenders tried to
remove the dead bodies and also looted articles - High Court
correctly appreciated the evidence and reversed the findings
of the trial court.
G Criminal Trial - Evidence - Appreciation -
Assassination of the Prime Minister of India - Communal riots
- Mob ki//ing husband and father-in-law of PW1 - Delay in
filing of FIR and in recording of the statements of witnesses
744
H
LAL BAHADUR & ORS. v STATE (NCT OF DELHI) 745
by the police - Held: Did not affect the prosecution case - . A
Instant incident was not solitary, such incidents took place in
almost all parls of the country - Circumstances of the case
were extraordinary - The city was in turmoil and persons
having witnessed crimes would naturally be apprehensive and
afraid in coming forward to depose against the perpetrators, B
till things settled down; the State machinery was overworked;
and in such circumstances, delay in recording the statements
of witnesses cannot be a ground to reduce its evidentiary
value or to completely ignore it - Furlher, witnesses prior to
the incident were residents of the same area and knew the c
assailants and it was not the case of the appellants that the
delay could have resulted .in wrong identification of the
accused - Penal Code, 1860 - ss.147/149/4491436130213951
396.
Appeal - Appeal against acquittal - Power of the D
appellate Court to re-appreciate evidence - Held: The
appellate courl has full power to review the evidence upon
which the order of acquittal is founded - High Coult is entitled
to re-appreciate the entire evidence in order to find out
whether findings recorded by the trial courl are perverse or E
unreasonable.
Riots followed the assassination of late Prime
Minister Indira Gandhi on 31st October, 1984. A mob
including appellant No. 1 alongwith appellant No. 2- F
allegedly attacked the house of PW1 and looted
household articles. PW1 alongwith her husband and
father-in-law took shelter at the residence of PW-5. On 3rd
November, 1984, a mob of more than 500 persons,
including and led by the appellants, came and attacked G
the house of PW-5. The appellants allegedly broke the
windowpane and entered the house and set the house
on fire. PW1 's husband and father-in-law were burnt alive
and their half burnt bodies were put in gunny bags.
PW1 's house was also burnt.
H
746 SUPREME COURT REPORTS [2013) 5 S.C.R.
A The trial court held that the prosecution failed to
prove the charges levelled against the appellants beyond
all reasonable doubt and acquitted them. The State
preferred appeal before the High Court which reversed
the findings of the trial court and convicted the accused-
B appellants under Sections 147/149/449/436/302/395/396,
IPC, and therefore the present appeal.
Dismissing the appeal, the Court
HELD:1. The instant incident as alleged is not the
C 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 this country, which
D 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
E evidence has to be appreciated carefully without going
into the minor discrepancies and contradictions in the
evidence. [Para 11] [758-D-F]
2. The High Court on the issue regarding delay in
F 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
G 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
H
LAL BAHADUR & ORS. v STATE (NCT OF DELHI) 747
settled down; that the State machinery was overworked; A
and in such circumstances, delay in recording the
statements of 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 B
the assailants and it was not the case of the appellants
that the delay could have resulted in wrong identification
of the accused. The view expressed by the High Court
is affirmed. [Paras 12, 13] [758-G-H; 759-A-C; 760-D]
3. The High Court re-appreciated the evidence of the
c
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. In an appeal against
acquittal, the appellate court has full power to review the D
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. [Paras 16,
17] [762-E-F, G-H; 763-A] E
Sanwat Singh & Ors. vs. State of Rajasthan AIR 1961 SC
715: 1961 SCR 120 - relied on.
4. The evidence of the witnesses cannot be brushed
aside merely because of some minor contradictions, F
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- G
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,
H
748 SUPREME COURT REPORTS [2013] 5 S.C.R.
A relationship cannot be a factor to affect credibility of a
witness. [Para 19] [763-G-H; 764-A-B]
State of Uttar Pradesh vs. Natesh & Ors. (2011) 4 SCC
324: 2011 (4) SCR 1176 - relied on.
B 5. Much stress has been given on behalf of the
appellants 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
C of the appellants. 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
D 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. In a murder case to substantiate/
the case of the prosecution it is not required that dead
E bodies must have been made available for the
identification and discovery of dead body is not sine qua
non for applicability of Section 299 of IPC. [Paras 14, 20,
21] [760-E-F; 765-C-D; 766-E-F]
F Delhi Administration vs. Tribhuvan Nath and Ors. (1996)
8 sec 250: 1996 (1) Suppl. SCR 184 - relied on.
Govindaraju vs. State of Kamataka (2009) 14 SCC 236;
Lakeman Shah & Anr. vs. State of West Bengal (2001} 5
SCC 235:. 2001 (2) SCR 1095; Ramanand & Ors. vs. State
G of H.P. (1981) 1 sec 511: 1981 (2) SCR 444 and Ram
Bahadur@ Denny vs. State 1996 Crl.L.J. 2364 - referred
to.
6. The finding of guilt recorded by the High Court has
H been challenged mainly on the basis of minor
LAL BAHADUR & ORS. v STATE (NCT OF DELHI) 749
discrepancies in the evidence. So far the instant case is A
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. [Para 22] [766-G-H] B
Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat
(1983) 3 SCC 217: 1983 (3) SCR 280 and Leela Ram (dead)
through Duli Chand vs. State of Haiyana & Anr. (1999) 9 SCC
525 1999 (3) Suppl. SCR 435 - relied on.
c
7. On re-appraisal of the entire evidence of the
prosecution witnesses including the eye-witnesses,
namely, PW-1, PW-4, PW-5, PW-6, PW-7 it is found that
their testimonies remained unshaken except some minor
discrepancies which have to be ignored. On analysis of D
the facts and evidence on record, it is clear that the High
Court correctly appreciated the evidence and reversed
the findings of the trial court. [Paras 23, 24] [769-B-D]
Case Law Reference:
E
(2009) 14 sec 236 referred to Para 9
2001 (2) SCR 1095 referred to Para 9
1981 (2) SCR 444 referred to Para 9
F
1996 (1) Suppl. SCR 184 relied on Para 9
1996 Crl.L.J. 2364 referred to Para 9
1961 SCR 120 relied on Para 18
2011 (4) SCR 1176 relied on Para 19 G
1996 (1) Suppl. SCR 184 referred to Para 20
1983 (3) SCR 280 relied on Para 22
1999 (3) Suppl. SCR 435 relied on Para 22 H
750 SUPREME COURT REPORTS [2013] 5 S.C.R.
A CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1794 of 2008.
From the Judgment and Order dated 27.08.2008 of the
High Court of Delhi at New Delhi in Criminal Appeal No. 6 of
B 1992.
Prasoon Kumar, Kshitij Kumar, Deepak Chanderpal, V.K.
Sidharthan for the Appellants.
Rakesh Khanna, ASG, J.S. Attri, Rashmi Malhotra,
c Sadhana Sandhu, Harsh Prabhakar, Seema Rao, Priyanka
Bharihoke, Anil Katiyar for the Respondent.
The Judgment of the Court was delivered by
M.Y. EQBAL, J. 1. The present appeal has been fifed
D 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
E 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 Penal Code, 1860 and sentencing each of them
to undergo rigorous imprisonment and fine under different
F 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.
G 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
H her daughters and a son to her father Govind Singh's house at
LAL BAHADUR & ORS. v STATE (NCT OF DELHI) .751
[M.Y. EQBAL, J.]
BE-7, Hari Nagar, New Delhi. In her typed complaint (Ex. PW1/ A
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. B
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
the complainant and had remained there with her husband
(Rajinder Singh) and father-in-law (Sardool Singh) for 2-3 days. c
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. D
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 E
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 F
the neighbours of Dr. Harbir Sharma whose house was in the
same row. As per complainant's testimony, the mob was armed
with sabba/s, ballams, sariyas and lathis. She stated that the
appellants hit the door of the house with iron sabba/s but the
door could not be broken open. They thereupon broke the G
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), H
752 SUPREME COURT REPORTS [2013] 5 S.C.R.
A 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
B 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
c persons gathered there saved Dr. Sharma and his family
members and he lodged the report on 5th November, 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
D November, 1984 but she could not get the dead bodies o.f 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
E 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
F 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.
G 4. The trial court on consideration of testimony of the
. witnesses held that the prosecution has failed to prove the
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
H
LAL aAHADUR & ORS. v STATE (NCT OF DELHI) 753
[M.Y. EQBAL, J.]
was not properly explained because the complainant (PW-1) A
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 B
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 c
accused persons i.e. appellant No.2 Surender and appellant
No. 3 Vi render. 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 D
appellant No. 3 (Virender Singh) in her complaint (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 E
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 F
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 G
'put half burnt dead bodies in the gunny bags'. Thirdly, the trial
court noticed certain contradictions in the statements of eye-
witnesses, namely, Sushi! 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 mentioned in the complaint H
754 SUPREME COURT REPORTS [2013] 5 S.C.R.
A (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
B 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 tc;> 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
c 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
D 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 PW? have been recorded after an unjustified
and long delay of 27 days, cast a suspicion upon the wrap
E 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.
In view of my above discussion, I find that the
F 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 .... ."
G 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
H committed under aforementioned sections of IPC.
LAL BAHADUR & ORS. v STATE (NCT OF DELHI) 755
[M.Y. EQBAL, J.]
7. It is in these circumstances that the present appeal has A
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. s
8. Mr. Prasoon Kumar, learned counsel for the appellant-
accused persons assailed the impugned judgment passed by
the High Court as being illegal and perverse in law. Learned
counsel firstly contended that the High Court has erred in law
in appreciating the deposition of the eye-witnesses as the C
deposition of eye-witnesses is not above suspicion and is full
of contradictions, inconsistoocies 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 eye- D
witnesses, namely, Dr. Harbir Sharma (PW-5), Sushi! 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 E
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 F
·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
and identified them in the deck, but she has not named accused G
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- H
756 SUPREME COURT REPORTS [2013) 5 S.C.R.
A 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
B 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
c 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 High Court erred in law by not appreciating the
discrepancies/contradictions in the testimonies of Sushi! Kumar
0
(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
E 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
F of 1.0. (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
G vital/scientific piece of evidence on record before the trial court
that any person was burnt alive on 3rd November, 1984 in the
j:117emises 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
H stains etc. to prove the alleged killing and burning of two
LAL BAHADUR & ORS. v STATE (NCT OF DELHI) 757
[M.Y. EQBAL, J.]
persons alive. Learned counsel further contended that the High A
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, B
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 c
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 0
of Gorkha 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 E
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.
F
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 G
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- H
758 SUPREME COURT REPORTS [2013] 5 S.C.R.
A recovery of dead bodies, the learned ASG re.lied upon the
decisions of this Court in Govindaraju vs. State of Karnataka,
(2009) 14 SCC 236, Lakeman Shah & Anr. vs. State of West
Bengal, (2001) 5 SCC 235 and Ramanand & Ors. vs. State
of H.P., (1981) 1sec511. Learned ASG also put reliance on
B 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
reco~~- ·
c 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.
D 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
E looted because of the assassination of the Prime Minister of
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
F 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
G 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
H November, 1984 after a delay of 27 days, the High Court
LAL BAHADUR & ORS. v STATE (NCT OF DELHI) 759
[M.Y. EQBAL, J.]
observed that the city was in turmoil and persons having A
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
witnesses cannot be a ground to reduce its evidentiary value B
or to completely ignore it. The High Co~rt 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. c
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 D
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 E
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. F
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 G
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 those witnesses must be cogent and credible. Here it
H
760 SUPREME COURT REPORTS [2013) 5 S.C'.R.
A is apposite to extract the substance of the testimony of
PWs ....... .
xxx xxx xxx
27. On reading of the evidence of above witnesses, we
B 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
c 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."
0 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
E 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
F been 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
G 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
H evidence was found to have been led. The High Court on this
LAL BAHADUR & ORS. v STATE (NCT OF DELHI) 761
[M.Y EQBAL, J.]
issue found that "there is no suggestion of animosity or inimical A
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 B
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:
"40 ....... we are of the view that the evidence of even one C
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 D
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 E
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 F
Mrs. Indira Gandhi, which led to the complete breakdown
of the law and order machinery. Chaos and anarchy
permeated every nook and comer of the city. In the above
circumstances, we feel that the delay has been
satisfactorily explained. Whatever be the length of delay, G
the·court can act on the testimony of the witnesses if it is
found to be reliable. Further, the allegations of non-
independent witnesses and animosity of Dr. Sharma with
the respondents cannot cast doubts on the eyewitness
account of Harjit Kaur."
H
762 SUPREME COURT REPORTS [2013] 5 S.C.R.
A 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
B
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
reasonable expectation for appropriate deterrent
punishment confining to the gravity of the offence and
c 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.
D 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
E 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
F and recorded a finding that the prosecution has proved the
case against the appeilants.
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
G 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
evidence upon which the order of acquittal is founded. The High
H Court is entitled to re-appreciate the entire evidence in order
LAL BAHADUR & ORS. v STATE (NCT OF DELHI) 763
[M.Y. EQBAL, J.]
to find out whether findings recorded by the trial court are A
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
8
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 C
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, (1) "substantial and
compelling reasons", (ii) "good and sufficiently cogent D
reasons", and (iit) "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 c0me to its own conclusion; but in doing so it should not
only consider every matter on record having a bearing on E
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". F
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 G
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
' H
764 SUPREME COURT REPORTS [2013] 5 S.C.R.
A 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
8 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
c 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 occurrence. Where the omissions
amount to a contradiction, creating a serious doubt about
D 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 riot affect the
E 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.
F "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
G in Bibhuti Nath Goswami v. Shiv Kumar Singh
(2004) 9 sec 186 p. 192.
Therefore, mere marginal variations in the statements of
a witness cannot be dubbed as improvements as the
H same may be elaborations of the statement made by the
LAL BAHADUR & ORS. v STATE (NCT OF DELHI) 765
[M.Y. EQBAL, J.]
witness earlier. The omissions which amount to A
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, B
Mahendra Pratap Singh v. State of U.P. (2009) 11 SCC
334, and Sunil Kumar Sambhudaya/ Gupta (Dr.) v. State
of Maharashtra. (2010) 13 SCC 657.]
20. Much stress has been given by the learned counsel on C
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 sec 250, has considered the same issue as raised by the D
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 E
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 F
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. G
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 of cutting their hair.
But then another mob came which, according to PW 11,
H
766 SUPREME COURT REPORTS [2013] 5 S.C.R.
A consisted of 200-250 persons - this number has been
given as 1000-1200 by PW 2. According to PW 4the 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
B 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
c 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
D
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
E 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
F attack on Sikh community in different places and the offenders
tried to remove the dead bodies and also looted articles.
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
G 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
H Court in the case of Bharwada Bhoginbhai Hirjibhai vs. State
LAL BAHADUR & ORS. v STATE (NCT OF DELHI) 767
[M.Y. EQBAL, J.]
of Gujarat, (1983) 3 SCC 217 held that much importance A
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
B
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 C
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 0
or movement might emboss its image on one person's
mind, whereas it might go unnoticed on the part of another.
(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 E
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 F
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. G
(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. 'H
768 SUPREME COURT REPORTS [2013) 5 S.C.R.
A (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.
s The sub-conscious 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
c activated on the spur of the moment."
In the case of Leela Ram (dead) through Du/i Chand vs.
State of Hatyana & Anr., (1999) 9 SCC 525, this ·court
observed:-
D "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,
E 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
F 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
G 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
H of trustworthiness. If this element is satisfied, it ought to
LAL BAHADUR & ORS. v STATE (NCT OF DELHI) 769
[M.Y EQBAL, J.]
inspire confidence in the mind of the court to accept the A
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, 8
PW-1 Harjit Kaur, PW-4 Sushil Kumar, PW-5 Dr. Harbir
Sharma, PW~ Jagdish Kumar, PW-7 Mohar Pal and found
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 C
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 o
this appeal which is accordingly dismissed.
B.B.B. Appeal dismissed.
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