STATE Vs. KISHORI

JUDGEMENT

(1.) . Capital punishment inflicted on Kishori son of Hoshiar Singh, Abbas son of Munsif Ali and Budh Prakash Kashyap alias Dr. Lambu by the learned Additional Sessions Judge, Karkardooma Courts, Delhi in F.I.R. No.426/84, P.S. Kalyan Puri, Delhi for the offences under Section 302 read with Section 149 Indian Penal Code has given rise to the criminal reference under Section 366 of the Code of Criminal procedure (hereinafter referred to as "the Code") for the confirmation of the death sentence imposed by the Additional Sessions Judge and these three criminal appeals challenging the conviction and sentences imposed for the offences under Section 148/188/397 read with Section 149 and Section 302 read with Section 149 Indian Penal Code by the appellants/convicts.

(2.) . The prosecution case is that the assassination of late Prime Minister Smt.Indira Gandhi led to the breaking out of the riots on 1.11.1984 and thereafter in Trilok Puri area; that during these days of riots in the area of Block Nos. 30,32 and 34, Trilok Puri, thousands of Sikhs were done to death, law and order machinery having completely broken down; that during anti-sikh riots besides other persons Darshan Singh aged 24 years, Amar Singh aged 22 years and Nirmal Singh aged 18 years, three sons and one Kirpal Singh brother of one Mansa Singh were brutally killed by the violent mob of rioters, who were on rampage; that the surviving members of the family were removed to relief camps; that on the basis of the statement of one Rijju Singh to the effect that riots have taken place in the area of Block Nos. 30,32 and 34 of Trilok Puri and that many houses have been burnt, persons of sikh community killed and burnt alive, F.I.R. No.426/84, P.S. Kalyan Puri came to be registered; that the riots went on unabated for about 3 days; that on 17.11.1984 the statement of Mansa Singh was recorded in the relief camp, naming the victims and rioters whereupon a separate challan in respect of particular incident was directed to be filed by the Court wherein charge-sheet pertaining to F.I.R. No.426/84 was filed; that the police submitted the split challan without registering a separate case with practically no investigation to ascertain whether there were other eye witnesses to the occurrence or not; that the investigation was an empty formality; that the split challan was numbered as Sessions Case No.53/95 and charges were framed under Section 183, 148, 302 read with Section 149 Indian Penal Code and 397 read with Section 149 Indian Penal Code against the accused persons, namely Kishori, Ram Pal Saroj and Shabnam.

(3.) . The prosecution examined Mansa Singh on 1.2.1996. In that statement he disclosed the names of two more persons as the members of the unlawful assembly involved in the incident in question so vide order dated 1.2.1996 Budh Prakash and Mohd. Abbas were joined under Section 319 (1) of the Code and were summoned through bailable warrants to stand trial for similar offences in the case and similar charges were framed against Budh Prakash and Mohd. Abbas on 21.3.1996. Thereafter, according to the prosecution trial commenced afresh, examination-in-chief of Public Witness 3 recorded again and thereafter the cross-examination of Public Witness 3 by all the accused and evidence of the other prosecution witnesses was recorded. The statements of the accused persons under Section 313 of the code were recorded besides the defence evidence. The Additional Sessions Judge, on appreciation of the evidence found Kishori, Dr.Budh Prakash and Mohd. Abbas guilty of the offences charged and convicted each of them and sentenced each of them under Section 148 Indian Penal Code to under go Rigorous Imprisonment (R.I.) for two years, under Section 188 Indian Penal Code sentenced to under go R.I. for six months, under Section 397 read with Section 149 Indian Penal Code to under go R.I. for 10 years and a fine of Rs.20,000.00 each, in default to under go further R.I. for two years, under Section 302 read with Section 149 Indian Penal Code sentenced to death and a fine of Rs.30,000.00 , in default R.I. for two years. All the three convicts/ appellants are ordered to be hanged by neck till they are dead. All the substantive sentences are made to run concurrently. It is this finding of guilt and the sentences imposed, which have also been assailed by each of the appellant/convict.