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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 23 rd 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 5 th 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 7 th 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 5 th 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  eye-  

witnesses,  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  non- independent 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 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 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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