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                                            NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1022 OF 2009 With

CRIMINAL APPEAL NO.1023 of 2009

Ashi Devi & Ors. .. Appellant(s)  versus

State (NCT of Delhi) ..      Respondent(s)

J U D G M E N T

C. NAGAPPAN, J.  

1Both  the  appeals  have  been  preferred  against  the  

judgment and final order dated 23.1.2009 passed by  

the  High  Court  of  Delhi  at  New  Delhi  in  Criminal  

Appeal No.932 of 2004.

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2The appellants in Criminal Appeal No.1022 of 2009 Smt.  

Ashi  Devi,  Smt.  Munni  Devi  and Smt.  Sheela @ Lali  

were  accused nos.4,  8  and 10 respectively  and the  

appellants in Criminal Appeal No.1023 of 2009 Uday  

Ram, Om Prakash,  Kishan and Kishori  were accused  

nos.2, 5, 6 and 9 respectively   in the Sessions case in  

SC No.54 of  2001 on the file  of  Additional  Sessions  

Judge,  New  Delhi.  The  appellants  along  with  three  

others  were  tried  for  the  charges  under  Sections  

147/395/448 read with Section 149 IPC and the Trial  

Court found them guilty of the offence under Section  

379 read with Section 34 IPC and Section 448 read  

with  Section  34  IPC  and  convicted  and  sentenced  

them each to undergo 1 year rigorous imprisonment  

for the offence under Section 448 IPC and to pay a fine  

of  Rs.1000/-  each,  in  default  to  undergo  simple  

imprisonment  for  3  months  and  further  sentenced  

each of them to undergo rigorous imprisonment for 3  

years for the offence under Section 379 IPC and to pay

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a fine of Rs.25000/- each, in default to undergo simple  

imprisonment for 1 year and directed the sentence to  

run  concurrently.   Challenging  the  conviction  and  

sentence seven accused preferred appeal in Criminal  

Appeal No.932 of 2004 and the High Court dismissed  

the appeal by confirming the conviction and sentence  

passed by the Trial Court.  Aggrieved by the same they  

have preferred the present appeals.  

3The prosecution case in brief is that PW11 Smt. Prakash  

Kaur  and  her  son  PW9  Jagjit  Singh  were  running  

crockery  shops  in  premises  nos.  T-56  and  T-57  

Takriwalan, till two months prior to the riots of 1984  

and  the  accused  persons  were  residing  in  the  

neighbourhood of the said shops and after the riots  

they were informed that their shops had been looted  

and  some persons  are  occupying  the  same and  on  

20.11.1984 PW11 Smt. Prakash Kaur visited the shop  

and found goods looted and the accused persons in  

possession  of  the  shops  and  despite  her  persistent

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complaints police did not register any case and when  

Jain  Aggarwal  Committee  was  constituted  they  filed  

affidavits  about  the  incident  and  on  its  direction  a  

F.I.R.  was  registered  against  accused  persons  in  

January 1993 and charge sheet came to be filed.  The  

Trial  Court  found the accused guilty  of  the offences  

and convicted and sentenced them as narrated above  

and the appeal preferred came to be dismissed and  

challenging the same the present appeals have been  

filed.

4Shri  Ashok  Kumar  Panda,  learned  senior  counsel  

appearing  for  the  appellants  in  both  the  appeals,  

contended  that  there  was  delay  of  nine  years  in  

lodging the F.I.R. and there was no ocular testimony to  

the  occurrence  and  the  prosecution  has  not  proved  

the charges and the conviction and sentence imposed  

on the appellants are not sustainable and liable to be  

set aside.  Per contra, Shri K. Radhakrishnan, senior  

counsel  appearing  for  the  respondent-State,

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contended  that  the  occurrence  took  place  as  

aftermath  of  unfortunate  assassination  of  former  

Prime  Minister  Indira  Gandhi  by  her  own  Sikh  

bodyguards and Sikh community became the target of  

assault  and their  houses and shops were ransacked  

and looted and there was large scale violence and the  

Riot  Commission  conducted  enquiry  and  issued  

direction for registering the cases and thereafter the  

F.I.R. came to be registered in the present case and  

the  delay  has  been  satisfactorily  explained  by  the  

prosecution and though there is no ocular testimony  

the prosecution has proved the charges by adducing  

circumstantial  evidence  and  the  conviction  and  

sentence imposed on the accused are sustainable and  

needs no interference.

5It  is  known  fact  that  there  was  large  scale  violence  

targeting the Sikh community when the former Prime  

Minister was assassinated by her own bodyguards in  

1984.  The crockery shops run by PW11 Smt. Prakash

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Kaur and her son PW9 Jagjit Singh were also ransacked  

and in spite of their complaints to the police no F.I.R.  

was  registered  and  only  when  Jain  Aggarwal  

Committee was constituted they got an opportunity to  

file affidavits about the incident and direction came to  

be issued for registering the F.I.R. and in the process  

the  delay  of  nine  years  has  occurred.   The  Courts  

below have held that the delay has been reasonably  

and  satisfactorily  explained  by  the  prosecution  and  

delay by itself cannot be a ground for disbelieving and  

discarding  the  prosecution  case.   In  our  view  also  

there  is  satisfactory  explanation  which  deserves  

acceptance.

6The riots spearheaded at Delhi and during vandalism the  

occurrence  had  taken  place  and  there  is  no  ocular  

testimony.  The premises no.T-56 and T-57 belonged to  

PW10  Inder  Singh  and  his  wife  PW11 Smt.  Prakash  

Kaur  and  their  son  PW9  Jagjit  Singh.   They  have  

testified about the running of the crockery shops in

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the said premises.  PW12 Prem Kumar and PW14 Raj  

Pal Khurana were dealing with wholesale business of  

crockery  and  they  have  testified  about  supply  of  

crockery to M/s. Jagjit Crockery House running in the  

said  premises  and  invoice  copies  have  also  been  

marked.  It  stands established that PW9 Jagjit Singh  

and his mother PW11  Smt. Prakash Kaur were running  

crockery business in the said shops.   

7It is the testimony of PW11 Smt. Prakash Kaur that she  

visited  the  shop  on  20.11.1984  and  found  accused  

persons  in  occupation  of  the  shops  and  when  

questioned, they threatened her to go away otherwise  

she would be killed.  PWs 9 to 11 have filed individual  

affidavits  about  the  occurrence  before  the  Jain  

Aggarwal  Committee  and  have  also  deposed  in  the  

enquiry.  Copies of the affidavits and statements are  

marked as documents in the present case.  Besides  

PW10 Inder Singh also filed suit for possession of the  

said  premises  against  the  accused  and  obtained  a

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decree.  In fact the accused have squattered on the  

property  and  the  High  Court  passed  order  dated  

8.12.2004 directing the S.H.O. to remove the accused  

from the premises in terms of the order passed by the  

Trial Court and after the decree of the Civil Court the  

possession was handed over to the complainants.  The  

Trial Court found that the accused trespassed into the  

premises by breaking open the locks and looted the  

goods  and  held  them guilty  for  the  offences  under  

Section 379 and Section 448 IPC.  The said finding is  

based on proper appreciation of evidence on record as  

rightly held by the High Court.

8Taking advantage of the riots the appellants broke open  

the  locks  of  the  shops  and  looted  the  goods  and  

continued to be in illegal possession of the shops for  

nearly two decades.  The Trial Court observed that any  

lenient  view  against  the  accused  persons  in  

sentencing shall  amount to  putting premium on the  

crime and the High Court has reiterated the same.  In

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our view the conviction and sencence imposed on the  

appellants  are  correct  and  proper.  However,  the  

learned  senior  counsel  appearing  for  the  appellants  

pleaded for leniency in sentence, considering the age  

of  the  first  appellant  Smt.  Ashi  Devi,  in  Criminal  

Appeal  No.1022  of  2009.   In  the  Memorandum  of  

Appeal herein her age is mentioned as 88.  As on date  

she  is  aged  93  years.   The  jail  certificate  dated  

1.4.2009 states that she was admitted to Tihar Jail on  

5.2.2009.   This  Court  granted  bail  to  her  by  order  

dated  13.5.2009.   The  above  shows  that  she  has  

undergone a part of the sentence.  Considering her old  

age we are inclined to modify the sentence awarded  

to her

9We accordingly direct that the sentence of 3 years rigorous  

imprisonment for the conviction under Section 379 IPC  

and one year rigorous imprisonment for the conviction  

under Section 448 IPC imposed on Appellant No.1 Smt.  

Ashi  Devi  shall  stand  reduced  to  the  period  already

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undergone  by  her.  The  conviction  and  sentences  

imposed  on  other  appellants  shall  remain  unaltered.  

Criminal Appeal No.1022 of 2009 is thus allowed in part  

and to the extent indicated above.    Criminal   Appeal  

No.1023 of 2009 is dismissed.

…………………………….J. (Jagdish Singh Khehar)

……………………………J. (C. Nagappan)

New Delhi; June 9, 2014