Mr. S. D. Pandit, J. ( 1 ) SHAKTI Singh s/o Bhagwana, Ashok Kumar s/o Bhagwana,both residents of A2/50-51, Sultan Puri, Delhi and Zile Singh s/o Sardare residentof A2/273 Sultanpuri, Delhi stand convicted by the Additional Sessions Judge ofdelhi in Session s Case No. 38/90 for the offences punishable under Sections 147,148,188 and 302 read with Sections 149,201 read with Sections 149,395 read withsection 149 and 395 read with Section 149. Each of them is sentenced to sufferrigorous imprisonment for one year under Section 147, rigorous imprisonment fortwo years under Section 148, rigorous imprisonment for three months undersection 188, rigorous imprisonment for three years under Section 201 read withsection 149, rigorous imprisonment for five years and to pay a fine of Rs. 12,000each and in default of payment of fine further rigorous imprisonment for 2 yearsunder Section 395 read with Section 149 of the Indian Penal Code. ( 2 ) THE appellants were challaned in FIR No. 254/84 on the allegations that on 2/11/1984 at about 6. 30 A. M. they and other 37-47 persons had formedan unlawful assembly with the common object of looting and murdering and at thattime they were armed with deadly weapons and in the prosecution of the saidcommon object they committed murders of Inder Singh, Hardeep Singh, Dalipsngh, Prabhu Singh, Paitu Singh, Shanti Kaur, Sangat Singh and Badam Singh andthey further destroyed the evidence of murder by burning the dead bodies of thosepersons and that they had looted the houses of those persons and had also set onfire the houses of those persons. ( 3 ) THE charge was framed against the appellants on 30/05/1987 foroffences punishable under Sections 147, 148, 188, 201 read with Section 149,395read with Section 149 and 302 read with Section 149 for which the appellants hadpleaded not guilty of the charge. Their evidence is of total denial and falseimplication. According to them as a matter of fact they were the neighbours of thevictims and they had gone to save them and that they have been falsely implicatedat the instance of the police. ( 4 ) IN order to prove its case against the present appellants, prosecution hasexamined in all 15 witnesses. Their evidence is of total denial and falseimplication. According to them as a matter of fact they were the neighbours of thevictims and they had gone to save them and that they have been falsely implicatedat the instance of the police. ( 4 ) IN order to prove its case against the present appellants, prosecution hasexamined in all 15 witnesses. Out of those 15 witnesses P. W. 2 Narangi Kaur, P. W. 3bindo Kaur, P. W. 5 Vaijanti Kaur, P. W. 6 Durjan Kaur, P. W. 7 Basanti Kaur, P. W. 8kaur Bai, P. W. 9 Jit Kaur, P. W. 10 Chal Kaur, P. W. 12 Rajni Kaur are examined asdirect eye witnesses to the incident in question. Accused had examined twowitnesses in support of their defence. The learned Additional Sessions Judge foundfavour with the evidence of the said eye witnesses and he preferred the evidenceof those eye witnesses to that of defence witnesses examined by the appellantsnamely, D. W. 1 Vidya and D. W. 2 Malkeet Kaur. He, therefore, held the appellantsguilty of the offences with which they were charged and convicted and sentencedthem as stated earlier. ( 5 ) BEING felt aggrieved by the said decision the appellants have come in appealbefore us. It is submitted before us by the learned Counsel for the appellants thatthe prosecution has failed to prove the fact that the persons who are stated to havebeen murdered and killed were in fact murdered and killed and as a matter of factone of those persons namely, Badam Singh was alive on the date of the trial as wellas on the date of the conviction. Therefore, that facts shows that the claim of theprosecution could not be accepted beyond doubt. It is further contended that thefirst version given by the prosecution witnesses was that the persons who hadcommitted the rioting, looting and killing were not from their vicinity and that theywere unknown persons and therefore, their belated version before the Court oughtnot to have been accepted. It is also further contended that there is no properidentification of the present three appellants and as there was no proper identification parade of the present appellants the Trial Court ought not to have accepted theevidence against the appellants. It is also further contended that there is noindependent evidence to corroborate the version put up by the prosecution againstthe present appellants. It is also further contended that there is noindependent evidence to corroborate the version put up by the prosecution againstthe present appellants. He also contended that the prosecution has not put beforethe Court the cogent, clear and sufficient evidence to support the prosecution claimagainst the present appellants. Therefore, in these circumstances, the appellantsare entitled to get the benefit of doubt and that they deserve to be acquitted. ( 6 ) AS against this the learned Counsel for the State vehemently urged beforeus that the prosecution witnesses are true and natural witnesses to the incident inquestion. There was no animosity or ill will towards the present appellants. In viewof the situation then prevailing the delay caused in collecting the evidence shouldnot be taken into consideration. She further contended that merely because one ofthe persons said to have been murdered has been proved to be alive at the date ofthe conviction even could not be taken into consideration for rejecting whole of theprosectuion case. She contended that merely because the prosecution has notproduced positive evidence regarding the death, the claim of the prosecutionwitnesses who are wife, mother and daughter in law of the victims should not berejected. ( 7 ) IT is an admitted fact that the incident in question has taken place after theriots which took place in Delhi after the assassination of Smt. Indira Gandhi. Theprosecution has examined P. W. 2 Narangi Kaur, P. W. 3 Bindo Kaur, P. W. 5 Vaijantikaur, P. W. 6 Durjan Kaur, P. W. 7 Basanti Kaur, P. W. 8 Kaur Bai, P. W. 9 Jit Kaur,p. W. 10 Chal Kaur and P. W. 12 Rajni Kaur as eye witnesses to the incident inquestion. Out of these witnesses P. W. 2 Narangi Kaur, P. W. 5 Vaijanti Kaur, P. W. 9jit Kaur, P. W. 8 Kaur Bai and P. W. IO Chal Kaur had given a statement under Section161 on 16/11/1984. The said witnesses have clearly stated in theirstatements of 16/11/1984 that the rioters were not from their locality, theywere outsiders and they were not in a position to identify and name those rioters. No doubt when these persons have entered the witness box they have tried toidentify the present three appellants and they had also deposed about the certainacts committed by the three appellants. No doubt when these persons have entered the witness box they have tried toidentify the present three appellants and they had also deposed about the certainacts committed by the three appellants. But when it is their first version that therioters were not from their locality and that the rioters were not known to them andthat the rioters were not identified by them, their belated identification of thosepersons on the date of trial in the Trial Court could not be believed and acceptedwithout any hesitation of mind. It must also be further mentioned here that firststatements of P. Ws. 2,3 and 5 were recorded on 15/11/1984 and they hadmade supplementary statements on 25/01/1985. It is very pertinent to notethat in these supplementary statements of 25/01/1985 they had not claimedthat they were afraid of those persons and because of the fear of those persons -the present accused persons - they were not in aposition to identify the presentappellants and to name the present appellants. Even in those statements of 2 5/01/1985 they had not stated any specific acts committed by the presentappellants for being responsible for the incident in question. Therefore, in thesecircumstances when the five witnesses examined by the prosecution had not statedabout the participation of the present appellants in their earlier version before thepolice, their statements in the Court could not be believed and accepted withoutany hesitation of mind. ( 8 ) THERE are only three witnesses P. W. 6 Durjan Kaur, P. W. 7 Basanti Kaur andp. W. 12 Rajni Kaur whose statements are recorded on 25/02/1985. Out ofthese three witnesses only P. W- 6 Durjan Kaur is the witness who has not made aprevious statement as per the record put up by the police. If her statement beforethe Court is seen then it would be quite clear that according to her the police cameto her on 2-4 times and had made inquiries from her about 3-4 days after theincident in question. Therefore, if that version given by her in her examination inchief is considered then it would be quite clear that she was interrogated by thepolice and police had recorded her statement about 3-4 days after the incident inquestion. But no such statement is coming forth. Therefore, if that version given by her in her examination inchief is considered then it would be quite clear that she was interrogated by thepolice and police had recorded her statement about 3-4 days after the incident inquestion. But no such statement is coming forth. Therefore, it will have to beobserved that that statement of her is being suppressed and the suppression of herstatement makes her claim made by her before the Trial Court doubtful particularlyin view of the fact that all other witnesses had made their statements mentioningtherein that the persons who had committed the acts of rioting, arsoning, murdering and looting were not from their locality and they were not known to them. Itmust also be further mentioned here that as per her testimonies she had come backto her residence about 15-16days after the incidentin question. If she was availableto the police after a fortnight to the incident in question the police ought to haverecorded her statement and her delayed statement which is recorded after morethan 3 months i. e. on 23/02/1985 could not be said to be her real versionof the incident in question. ( 9 ) IT must be further mentioned here that out of the persons who are said tohave been murdered, P. W. 12 Rajni Kaur s husband Badam Singh is proved to bealive on the date of the trial as well as on the date of conviction. As a matter of facthe died on 1/01/1993. This fact is brought on record during the pendencyof the appeal by moving an application in this Court. The fact that he was alive on 1/11/1984 is an admitted fact and it is stated on behalf of the State that asa matter of fact on the day of incident he was in the tempo lying in unconsciouscondition and when he regained conscious he escaped from the tempo that is howhe was alive. Thus it was known to this witness P. W. 12 Rajni Kaur as well asprosecution that he was alive on the date of trial and inspite of this when theprosecution has pressed for the trial of his murder and led evidence before thecourt for his alleged murder, it becomes very difficult to accept the claim of theprosecution without any hesitation of mind. No doubt the prosecution witnessesare the wives and daughter-in-laws of the alleged deceased persons but there isabsolutely no evidence collected by the prosecution to show that as a matter of factthe alleged killed persons were alive on the date of the alleged incident. Merelybecause the prosecution witnesses are coming before the Court and saying that sixpersons are dead and particularly when one of the persons whom they claim tohave been killed and murdered on the day is proved to be alive on the day ofincident, the claim of the prosecution that six persons who are said to have beenmurdered were in fact alive could not be accepted without any hesitation of mind. It is very pertinent to know that every witness is speaking about her relation salleged killing and is not referring to any other alleged killing. Documents, likeration card or voter s list could be proved to show that those persons were alive onthe date of occurrence. ( 10 ) IF the evidence of prosecution witnesses is considered then it would bequite clear that as per their evidence these three appellants were the residents of thesame locality where they were residing and they were known to them. If that wasthe real situation then we have failed to understand as to what prevented themfrom naming those persons in their first statement before the police. No doubt oneof them has stated that they were afraid and out of fear they had not named theappellants but that is not the explanation coming in her subsequent statements andstatements of other witnesses and it is also not stated by the witnesses that theywere in fact knowing the real assailants but out of fear they were not ready todisdose their names. On the contrary they have made a positive statement thatpersons who had attacked them. were not from their locality and they wereoutsiders and they were not identified by them. In the circumstances the claimmade on their behalf by the learned Counsel for the State that they must not havenamed the present appellants out of fear could not be accepted and believed. ( 11 ) IT is vehemently urged by the learned Counsel for the appellants that theprosecution had not held a prior identification parade and in the absence of theprior identification parade the evidence of identification by the witnesses in thecourt ought not to have been accepted. ( 11 ) IT is vehemently urged by the learned Counsel for the appellants that theprosecution had not held a prior identification parade and in the absence of theprior identification parade the evidence of identification by the witnesses in thecourt ought not to have been accepted. But if the material on record is taken intoconsideration then this contention raised by Mr. Sud could not be accepted becauseit is the claim of all those witnesses that they are residents of the locality where thepresent appellants are residing and because of the same they were knowing thepresent appellants. The appellants had also suggested in the cross examination ofall those witnesses that as the appellants were their neighbours and the appellantswere known to them so they were naming them falsely. Then it is quite clear thatthe claim of the witnesses that the appellants were known to them and they werein a position to identify them prior to the incident in question was not in disputeduring the trial or during the investigation. When it is the claim of the appellantsthemselves that they were known to the prosecution witnesses as they wereneighbours the prosecution witnesses have falsely named them, their contentionthat there ought to have been an identification parade for their identification beforethe trial in question could not be accepted. ( 12 ) THE appellants have taken a specific defence that as a matter of fact theywere trying to save the Sikhs who were residing in their locality and for thatpurpose they were moving in the area and in order to prove the said claim they haveexamined two defence witnesses. Now apart from those two witnesses, P. W. 7basanti Kaur had admitted in her cross examination that the accused were amongthose persons who had come to rescue them. No doubt she had again tried to goaway from the said admission given by her by saying that in fact accused had killedher husband. But her claim could not be accepted in view of the material on recordand the admission given by her, in her cross examination that the appellants hadcome to save them. It is very pertinent to note that none of the witnesses areattributing any specific act to any of the appellants. They are merely saying that theappellants were in that mob. But her claim could not be accepted in view of the material on recordand the admission given by her, in her cross examination that the appellants hadcome to save them. It is very pertinent to note that none of the witnesses areattributing any specific act to any of the appellants. They are merely saying that theappellants were in that mob. Therefore the possibility of appellants persuading themob not to attack Sikhs as deposed by two Sikh women - defence witnesses -could not be ruled out. ( 13 ) THE evidence of P. W. 6 Durjan Kaur and two other witnesses show that asa matter of fact when the incident in question had taken place police officers werepresent there. But no police officer has come before the Court to depose about theincident in question. If the version given by P. W. 6 Durjan Kaur was true andcorrect one then in the natural course of event the police officers would have comeforward as prosecution witnesses to depose in favour of the prosecution and tosupport the testimony of P. W. 6 Durjan Kaur. The failure of the prosecution toexamine the police witnesses who were present as per the claim of this prosecutionwitness also makes the case of the prosecution very doubtful. ( 14 ) THE prosecution has alleged that the accused had committed the offencesof dacoity, robbery and arsoning but if the evidence led before the Court is seenthen it would be quite clear that the prosecution has absolutely produced noevidence to support that charge against the present appellants. The prosecutionhas not produced any evidence on record to show that which houses were burnt. The witnesses have deposed that they had given a list of the articles which wererobbed and the articles which were taken away after looting of their houses butthose lists which are said to have been supplied by the witnesses to the investigating officer are not on record. No memorandums regarding the burning of houses,no memorandums regarding the causing of damages to the houses as well as theremoval of the articles from the houses of the witnesses were produced on record. As a matter of fact the investigating officer who has entered the witness box had notmade a statement that they had visited the houses of the witnesses and had in factverified the burning of those houses and looting of those houses. As a matter of fact the investigating officer who has entered the witness box had notmade a statement that they had visited the houses of the witnesses and had in factverified the burning of those houses and looting of those houses. ( 15 ) IF the investigation in this case is seen then it would be quite dear that theinvestigating officers have made only a farce of investigation. They have not takenthe proper steps to carry out the proper and correct investigation in this case. Theyhave not collected any material to show that the persons who were said to havebeen murdered were alive on the date of incident and that in fact they are not aliveand that their dead bodies were burnt and destroyed. They have not tried to collectthe statements of the witnesses immediately when the witnesses were available. They have not visited the houses and prepared the memorandums regarding thesituation of the houses in order to show that there was burning of the houses as wellas looting of houses. They have not also taken prompt steps to arrest the accusedand to recover the property from the accused. They have merely recorded veryshort statements of the witnesses without asking them any details regarding theincident as well as their conduct. The whole investigation carried out by theinvestigating officers clearly shows that they were not really interested in pickingthe real culprits and to see that the real culprits are convicted. They have merelymade a farce pretence of interrogation to show that they had taken steps and theyhad sent somebody for trial and that the trial has taken place and that thereby theyhave fulfilled their duties. ( 16 ) THOUGH the learned Counsel for the appellants as well as for the State havecited before us various case law in support of their legal submissions, we do notthink it necessary to refer to each of the case or any of the case cited by them in viewof the peculiar facts of the present case. We have found that the prosecutionwitnesses have not initially named the present appellants as the participants and onthe contrary they have made a positive statement that the rioters and looters werenot from their locality and they were not identified by them. We have found that the prosecutionwitnesses have not initially named the present appellants as the participants and onthe contrary they have made a positive statement that the rioters and looters werenot from their locality and they were not identified by them. The prosecution hasnot led positive evidence to show that the persons who were alleged to have beenmurdered were alive on the date of the incident and that thereafter in fact theirwhereabouts are not known and they were in fact dead as they were killed. Theprosecution has not also produced on record any material to show that there wasin fact the destruction of the evidence of murder. The prosecution has notproduced any evidence to show that in fact the houses of the prosecution witnesseswere set on fire. The prosecution has not produced any material on record to showthat what properties were looted. The prosecution has not produced any materialwitness to support the case of the prosecution namely the police officers who werepresent at the time of the incident as per the evidence of the prosecution witnessesexamined in the Trial Court. ( 17 ) NO doubt the accused are not in a position to give any specific reason asto why the prosecution witnesses who have deposed in the Court were deposingagainst them but merely because the accused have not given any reasons as to whythe prosecution witnesses were deposing against them could not be a ground tohold that their evidence must necessarily be accepted. In view of the fact that theprosecution witnesses have in fact suffered in the incident in question they may bethinking that the present appellants who were from the said locality might beresponsible for the atrocities committed against them and because of that thinkingthe prosecution witnesses may be deposing against them. The deposition by theprosecution witnesses against the accused may be due to the said thinking of them. Therefore, merely because the accused have not given any explanation as to whythe prosecution witnesses were deposing against them it could not be said that theirevidence must be accepted as trustworthy. The prosecution has thus failed toprove its case against the present appellants. ( 18 ) THE Trial Court was not at all justified in accepting the evidence of theprosecution witnesses which was quite contrary to their first version and that thesame was not getting the corroboration from the other circumstantial evidencewhich ought to have been produced by the prosecution. The prosecution has thus failed toprove its case against the present appellants. ( 18 ) THE Trial Court was not at all justified in accepting the evidence of theprosecution witnesses which was quite contrary to their first version and that thesame was not getting the corroboration from the other circumstantial evidencewhich ought to have been produced by the prosecution. The present appellants arein view of the above circumstances entitled to get the benefit of doubt and we arein least hesitation to give them the same. We, therefore, hold that the present appealwill have to be allowed. ( 19 ) THUS we allow the appeals and set aside the order of conviction andsentence passed against the appellants in Session s Case No. 38/90. The appellantsare acquitted of the offences with which they were charged. Their bail bonds arecancelled and they are directed to be set at liberty forthwith if not required to be detained in any other case. The intimation be sent to the jail authorities.