Ashi Devi & Ors vs State (Nct Of Delhi)

2

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 3

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 4

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, 5

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 6

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 7

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 8

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 9

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 10

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