Delhi District Court
State vs 1 Madan Lal Suryavanshi (A-1) on 1 July, 2015
IN THE COURT OF MANOJ JAIN: ADDL SESSIONS JUDGE
FAST TRACK COURT: NORTH-WEST DISTRICT: ROHINI
DELHI
Unique Identification No. 02404R0106052008
Sessions Case No. 107/1/10
FIR No. 808/03
PS Punjabi Bagh
U/s 147/148/149/186/353/308 IPC
& u/s 4 Prevention of Damage to Public Property Act
State Versus 1 Madan Lal Suryavanshi (A-1)
Son of late Sh. PS. Suryavanshi,
Resident of F-181 B,
Madipur Colony, Delhi.
2 Radhey Sham Meghwal (A-2)
Resident of D-798,
Madipur Colony, Delhi.
3 Bal Kishan (A-3)
Son of Sh. Joginder,
Resident of D-919, Madipur
J.J. Colony, Delhi.
(Proceedings abated)
4 Krishan @ Raju @ Handa (A-4)
Son of Sh. Madan Lal,
Resident of D-445, Madipur
J.J. Colony, Delhi.
(Declared proclaimed offender on
18.03.2015)
5 Raj Kumar @ Raju (A-5)
Son of Sh. Chandgi Ram,
Resident of B-437, Madipur
J.J. Colony, Delhi.
(Proceedings abated on 24.09.07)
6 Ganpat (A-6)
Son of Sh. Bhura Ram,
Resident of H. No. 805, Madipur
J.J. Colony, Delhi.
(Proceedings abated)
FIR No. 808/03 PS Punjabi Bagh (State Vs. Madan Lal Suryavanshi etc). Page 1 of 25
7 Ashok Kumar Dudhiya (A-7)
Son of Sh. Harmaya,
Resident of WZ-169,
Village Madipur, Delhi.
8 Ashok Kumar (A-8)
Son of Sh. Kanhiya Lal,
Resident of H. No. 762, Pocket-2,
Paschim Puri, Delhi.
9 Krishan (A-9)
Son of Sh. Mohan Lal,
Resident of F-485, Madipur,
J.J. Colony, Delhi.
10 Nand Kishore (A-10)
Son of late Sh. Ramji Singh,
Resident of WZ-335,
Village Madipur, Delhi.
11 Suresh Kumar (A-11)
Son of Sh. Amar Singh,
Resident of WZ-231,
Village Madipur, Delhi.
12 Prem (A-12)
Son of Durga Prasad,
Resident of C-281, JJ Colony,
Madipur, Delhi.
13 Kewal (A-13)
Son of Sh. Munnu Ram Singh,
Resident of E-206,
Madipur Colony, Delhi.
(Proceedings abated)
14 Roshan Lal (A-14)
Son of Sh. Ram Kishan Garg,
Resident of E-273,
Madipur Colony, Delhi.
15 Manoj (A-15)
Son of Sh. Sadhu Ram,
Resident of D-36,
Madipur Colony, Delhi.
FIR No. 808/03 PS Punjabi Bagh (State Vs. Madan Lal Suryavanshi etc). Page 2 of 25
16 Kalu Murkiwala@ Subhash(A-16)
Son of Sh. Raja Ram,
Resident of C-432,
Madipur Colony, Delhi.
17 Rajesh (A-17)
Son of Azad Singh,
Resident of E-606,
Madipur Colony, Delhi.
18 Bunty (A-18)
Son of Sh. Ram Swaroop,
Resident of C-432,
Madipur Colony, Delhi.
Date of institution in Sessions Court: 02.08.2004
Date of conclusion of arguments : 30.06.2015
Date of judgment : 01.07.2015
JUDGMENT
1 All the eighteen accused persons have been sent up to face trial by PS Punjabi Bagh for commission of offences 147/148/149/186/353/308 IPC & u/s 4 Prevention of Damage to Public Property Act 1984.
2 Case of the prosecution, briefly stated, is to the effect that on 21.10.2003, a mob of 200-250 people collected at Rohtak Road, Madipur Red Light and they were not permitting the traffic to let go. Insp. Rajender Singh, who was then posted as SHO, PS Punjabi Bagh, reached the spot along with his staff and learnt that they all were agitated because of custody death of one Sushil Kumar. All such members of mob were shouting slogans and were deflating bus tyres. Insp. Rajender Singh warned them to disperse and not to disturb the traffic movement. However, mob rather turned more aggressive. Since, situation could not be brought under control, Insp. Rajender Singh informed his seniors and sent requisition for additional force. Members of the mob, however, did not relent and started damaging various DTC buses and police motorcycles. They also hurled stones on police officials. Warning given by the police fell on deaf ears. There was mild lathi charge on such mob. Due to that, mob diverted from there but FIR No. 808/03 PS Punjabi Bagh (State Vs. Madan Lal Suryavanshi etc). Page 3 of 25 collected outside Madipur Police Chowki and indulged in damage of the property there as well. In the process, many police officials received injuries. Senior police officers including concerned DCP and ACP also reached the spot and in their presence also, members of the mob were warned to disperse but members of the mob kept on damaging the property and kept on hurling stones. Tear gas shells were also used but to no effect. Number of police officials received injuries at the hands of members of such mob and various public transport vehicles were set on fire.
3 Accordingly, FIR was registered.
4 Police carried out comprehensive investigation and it is in these circumstances that all the aforesaid accused persons were charge-sheeted in the aforesaid manner.
5 Charge-sheet was filed before the concerned Magisterial Court on 04.04.2004. It would be, however, pertinent to mention that initially six accused persons i.e. accused Ganpat (A-6), Ashok Kumar Dudhiya (A-7), Ashok Kumar (A-8), Nand Kishore (A-10), accused Suresh Kumar (A-11) and accused Prem (A-12) could be apprehended during the investigational stage. Concerned Magisterial court was also pained to take note of the fact that all the accused had not been arrested and that police had adopted pick and choose policy in this regard. It accordingly issued non-bailable warrants against the left-out accused and after securing their presence, the case was eventually committed to the Court of Sessions vide order dated 02.08.2004.
6 Arguments on charge were heard on 13.10.2009 and all the accused were ordered to be charged u/s 147/148/149 IPC, u/s 186/149 IPC, u/s 353/149 IPC, u/s 323/149 IPC, u/s 308/149 IPC and u/s 4 Prevention of Damage to Public Property Act.
7 It will be, also worthwhile to mention here that by the time said charges were ascertained, two accused i.e. Ganpat (A-6) and Ashok Kumar Dudhiya (A-7) had absconded and had been declared proclaimed offenders.
FIR No. 808/03 PS Punjabi Bagh (State Vs. Madan Lal Suryavanshi etc). Page 4 of 258 They both were also subsequently arrested and then charged for said offences on 19.03.2011 and they both also pleaded not guilty and claimed trial.
9 It will be also pertinent to mention that Raju Handa (A-4) had also been earlier declared proclaimed offender and supplementary charge-sheet qua him was also filed for commission of offence u/s 174A IPC. He was also specifically charged u/s 174A IPC vide order dated 19.10.2013. He pleaded not guilty and claimed trial.
10 Prosecution was directed to adduce evidence and has examined 19 witnesses who can be classified as under:
Eyewitness/injured
(i) PW1 Ct. Ajmer Singh.
(ii) PW2 HC Amar Chand.
(iii) PW3 HC Mehar Chand.
(iv) PW4 SI Padam Singh.
(v) PW5 ASI Ashok Kumar.
(vi) PW6 SI Virender Singh.
(vii) PW7 Insp. Virender Singh.
(viii) PW9 Ct. Devender Kumar.
(ix) PW12 HC Kanwar Pal.
(x) PW13 HC Kumher Singh.
(xi) PW15 ASI Ashwani Kumar.
(xii) PW16 HC Brij Kishore.
(xiii) PW17 HC Jai Prakash.
(xiv) PW18 ACP Sameer Singh.
(xv) PW19 SI Manmat Kumar.
DTC Bus Drivers
(i) PW10 Om Pal (DTC bus driver on Bus No. DL1PB-2795)
(ii) PW14 Veerbhan (DTC bus driver on Bus No. DL1PB-2706) Doctor
(i) PW8 Dr Sunil Kumar (doctor who examined the injured persons) Witnesses related to investigation
(i) PW11 Ct. Manikeshwar (police official who accompanied IO).
11 It will be also pertinent to mention that during trial, A-3 Bal Kishan, A-5 Rajkumar, A-6 Ganpat & A-13 Kewal expired and proceedings qua them stood abated. A-4 Raju Handa absconded again and he was declared proclaimed offender on 18.03.2015.
FIR No. 808/03 PS Punjabi Bagh (State Vs. Madan Lal Suryavanshi etc). Page 5 of 2512 Statements of remaining accused persons were recorded under Section 313 Cr.P.C. They pleaded innocence and claimed false implication.
13 A-1 Madan Lal claimed that he had contested assembly election twice and had made several complaints against senior police officials and Congress leaders and, therefore, he had been falsely implicated in the present matter under their pressure. Other accused persons, however, simply claimed that they had no role to play in the alleged incident and they had been wrongly implicated.
14 None of the accused desired to lead any evidence in defence.
15 I have heard learned Addl. P.P. and learned defence counsels and carefully perused the entire material available on record.
16 Learned Addl. P.P. has contended that prosecution has been able to prove its case beyond shadow of doubt and from the testimony of various police officials, who were trying to control the mob and who, in the process, had also received injuries, have fully supported the case of prosecution and have also identified the accused persons. He has argued that mob was in thousands and members of the mob turned violent and they started damaging the public vehicles. He has argued that it has come on record that all the accused persons were also part of mob and they had also indulged in pelting of stones and slogan shouting and they were also responsible for the damage to the various vehicles. He has argued that it really does not matter even if accused persons were not got identified during the investigation. According to Sh. Jindal, identification before the Court is also having absolute credibility and should not be suspected at all.
17 Sh. Aseem Bhardwaj, learned defence counsel for A-2, A-7, A-10, A-12, A-16, A-17 & A-18, Sh. R.K. Modi, learned defence counsel for A-14 & A-15, Sh. Yashvir Singh, learned defence counsel for A-1, Ms. Shivali Gautam, learned defence counsel for A-8, Sh. Ram Niwas, learned defence counsel for A-9 and Ms. Usha Rani, learned defence counsel for A-11 have, in one voice, contended that prosecution story is liable to rejected. It has been argued by them that all the accused persons have been falsely implicated and there is not legally FIR No. 808/03 PS Punjabi Bagh (State Vs. Madan Lal Suryavanshi etc). Page 6 of 25 admissible evidence which may show their involvement. It has been argued by them that for the reasons best known to the prosecution, no necessity was felt of holding test identification parade during investigation stage itself. It has been argued that such holding of TIP was sine qua non and the identification for the first time before the Court has no force in the eyes of law and simultaneously it has been stressed that even such identification is very shaky and should not be given any recognition. It has been contended that as per some of the prosecution witnesses, the mob had swelled to 2000 people and in such a situation, as per defence counsels, it is not possible to identify the overt act committed by all such alleged accused persons even if their presence is presumed though not admitted. It has been argued that even otherwise, their mere presence would not make them liable for want of any specific overt act attributed to them.
18 I have given my thoughtful consideration to the rival contentions and carefully perused the entire material available on record.
19 I would also like to mention that approach of the investigating agency was somewhat lackluster. Incident took place on 21.10.2003 but the charge- sheet was filed on 15.04.2004. Police could arrest only six persons and for totally unexplained reasons, twelve persons were not apprehended at all. It has been simply claimed in the charge-sheet that police made efforts to arrest them but they were not found in their respective houses and, therefore, their names were put in Column No. 2. Curiously, it is also mentioned in the charge-sheet that since Lok Sabha Election had been declared, keeping in mind the political scenario, it was thought not proper to arrest the accused persons. To me, serious matter like this should have been free from any political flavour or from any possible undercurrent of political overture and overtone more so when numbers of police officials were injured and public vehicles were burnt. Therefore, investigating agency should not have got bogged-down because of declaration of Elections and should have rather made sincere efforts to arrest all the accused at the earliest.
20 Issue of Test Identification parade (TIP) has been strenuously agitated by both the sides. I need not remind myself that test identification parade FIR No. 808/03 PS Punjabi Bagh (State Vs. Madan Lal Suryavanshi etc). Page 7 of 25 is required to be held during the investigation stage. TIP conducted during investigation is of vital importance because it furnishes to the investigating agency an assurance that the investigation is proceeding on right lines in addition to furnishing corroboration of the evidence to be given by the witness later in court at the trial. However, it needs to be assessed whether failure to hold any such TIP would, ipso fact, prove to be fatal or not. I may refer to the judgment given in the case of Salim @ Naju vs State (Crl. Appeal 976/2012 DoD : 20 September, 2013) by Hon'ble Delhi High Court where the Hon'ble Bench got an opportunity to consider the aspect related to non-holding of TIP. Relevant extract of said judgment is as under:-
"19. Since the judgment in Kanta Prashad v. Delhi Admn. AIR 1958 SC 350, it is well settled that the purpose of holding Test Identification Parade is to test the statement of a witness made in the Court. The TIP which belongs to the investigation stage is conducted to assure the investigating agency that the investigation is proceeding in the right direction. A three Judge Bench of the Supreme Court in Sheikh Hasib v. State of Bihar (1972) 4 SCC 773 reiterated that it is only the identification of the accused in the Court which is a substantive evidence and the TIP is held during investigation to minimize the chances of memory to identifying witnesses fading away due to long lapse of time. In Dana Yadav v. State of Bihar AIR 2002 SC 3325, the Supreme Court culled out certain exceptions to the ordinary rule that identification of an accused for the first time in the Court is a weak type of evidence. Relying on State of Maharashtra v. Sukhdev Singh & Anr. (1992) 3 SCC 700 and Ronny @ Ronald James Alwaris v. State of Maharashtra (1998) 3 SCC 625, the Supreme Court noticed that where the witness had a chance to interact with the accused or where the witness had an opportunity to notice the distinctive features of the accused which lends assurance to his testimony in the Court, the evidence of identification in the court for the first time by such witnesses cannot be thrown away merely because any identification parade was not held. In the latest judgment of the Supreme Court in Kunjumon @ Unni v. State of Kerala 2012 (11) SCALE 212 relied upon by the learned APP while referring to its earlier judgments in Malkhan Singh v. State of Madhya Pradesh (2003) 5 SCC 746; Vijay @ Chinee v. State of Madhya Pradesh (2010) 8 SCC 191 and State of Himachal Pradesh v. Lekh Raj & Anr. (2000) 1 SCC 247, the Hon'ble Supreme Court observed that mere failure to hold a TIP is not fatal to the prosecution case but the Trial Judge will need to be circumspect in accepting the identification of an accused by a witness in the Court if the accused is a stranger to the witness. The Supreme Court, therefore, relied upon the identification of the accused by the witness for the first time in the Court where the witness and the culprit were face to face. Paras 22 to 26 of the report are extracted hereunder:-
"22. A more useful and elaborate discussion on the subject is to be found in Malkhansingh v. State of Madhya Pradesh, (2003) 5 SCC 746 where the TIP is linked to the requirement of FIR No. 808/03 PS Punjabi Bagh (State Vs. Madan Lal Suryavanshi etc). Page 8 of 25 Section 9 of the Evidence Act, 1872 and coupled with the caution that in the absence of a TIP, the weight to be attached to the identification of the accused in Court is a matter for the courts of fact to decide.
23. Similarly, in Vijay @ Chinee v. State of Madhya Pradesh, (2010) 8 SCC 191after a discussion on the subject, it was concluded that, "... ... the test identification is a part of the investigation and is very useful in a case where the accused are not known beforehand to the witnesses. It is used only to corroborate the evidence recorded in the court. Therefore, it is not substantive evidence. The actual evidence is what is given by the witnesses in the court."
It was noted in Vijay with reference to State of Himachal Pradesh v. Lekh Raj, (2000) 1 SCC 247 that the holding of a TIP is "a rule of prudence which is required to be followed in cases where the accused is not known to the witness or complainant."
24. We have gone into some detail on this issue because of the unfortunately cursory manner in which the matter has been dealt with by the Trial Judge and the High Court.
25. The sum and substance of the various decisions referred to above and others on the same lines is that the failure to hold a TIP is not fatal to the case of the prosecution, but the Trial Judge will need to be circumspect in accepting the identification of an accused by a witness in Court if the accused is a stranger to the witness.
26. In the present case, we are not dealing with the evidence of any ordinary witness - we are dealing with a victim of a crime, someone who was directly at the receiving end of the actions of the appellant and who came face to face with the threat and intimidation by the appellant. The evidence of such a victim of a crime must be placed, in our opinion, on a somewhat higher pedestal, in terms of the credibility attached to it, than the evidence of any other witness. We need to seriously consider a partial shift in focus in the "proper administration of justice" by including not only the "life and liberty of an accused" but issues of victimology and the treatment of victims. Theories concerning criminal law and the administration of criminal justice are fast developing and we need to keep up with these developments."
20. The importance of holding TIP was highlighted by the Supreme Court in Dana Yadav relied upon by the learned counsel for the appellants. In para 6 to 8, the Supreme Court held as under:
"6. It is also well settled that failure to hold test identification parade, which should be held with reasonable dispatch, does not make the evidence of identification in court inadmissible, rather the same is very much admissible in law. Question is, what is its probative value? Ordinarily, identification of an accused for the first time in court by a witness should not be relied upon, the same being from its very nature, inherently of a weak character, unless it is corroborated by his previous identification in the test identification parade or any other evidence. The purpose of test identification parade is to test the observation, grasp, memory, capacity to recapitulate what a witness has seen earlier, strength or trustworthiness of the evidence of identification of an accused and to ascertain if it can be used as reliable corroborative evidence of the witness identifying the accused at his trial in court. If a witness identifies the accused in court for the first FIR No. 808/03 PS Punjabi Bagh (State Vs. Madan Lal Suryavanshi etc). Page 9 of 25 time, the probative value of such uncorroborated evidence becomes minimal so much so that it becomes, as a rule of prudence and not law, unsafe to rely on such a piece of evidence. We are fortified in our view by a catena of decisions of this Court in the cases of Kanta Prashad v. Delhi Admn. AIR 1958 SC 350.
7. Apart from the ordinary rule laid down in the aforesaid decisions, certain exceptions to the same have been carved out where identification of an accused for the first time in court without there being any corroboration whatsoever can form the sole basis for his conviction. In the case of Budhsen [(1970) 2 SCC 128 : 1970 SCC (Cri) 343] it was observed:
"There may, however, be exceptions to this general rule, when for example, the court is impressed by a particular witness, on whose testimony it can safely rely, without such or other corroboration."
8. In the case of State of Maharashtra v. Sukhdev Singh [(1992) 3 SCC 700 : 1992 SCC (Cri) 705] it was laid down that if a witness had any particular reason to remember about the identity of an accused, in that event, the case can be brought under the exception and upon solitary evidence of identification of an accused in court for the first time, conviction can be based. In the case of Ronny [(1998) 3 SCC 625 : 1998 SCC (Cri) 859] it has been laid down that where the witness had a chance to interact with the accused or that in a case where the witness had an opportunity to notice the distinctive features of the accused which lends assurance to his testimony in court, the evidence of identification in court for the first time by such a witness cannot be thrown away merely because no test identification parade was held. In that case, the accused concerned had a talk with the identifying witnesses for about 7/8 minutes. In these circumstances, the conviction of the accused, on the basis of sworn testimony of witnesses identifying for the first time in court without the same being corroborated either by previous identification in the test identification parade or any other evidence, was upheld by this Court. In the case of Rajesh Govind Jagesha[(1999) 8 SCC 428 : 1999 SCC (Cri) 1452] it was laid down that the absence of test identification parade may not be fatal if the accused is sufficiently described in the complaint leaving no doubt in the mind of the court regarding his involvement or is arrested on the spot immediately after the occurrence and in either eventuality, the evidence of witnesses identifying the accused for the first time in court can form the basis for conviction without the same being corroborated by any other evidence and, accordingly, conviction of the accused was upheld by this Court. In the case of State of H.P. v. Lekh Raj [(2000) 1 SCC 247 : 2000 SCC (Cri) 147] it was observed that ".....test identification is considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them. There may, however, be exceptions to this general rule, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely without such or other corroboration".
In that case, laying down the aforesaid law, acquittal of one of the accused by the High Court was converted into conviction by this Court on the basis of identification by a witness for the first time in court without the same being corroborated by any other evidence. In the case of Ramanbhai Naranbhai Patel [(2000) 1 SCC 358 : 2000 SCC (Cri) 113] it was observed:
"It, therefore, cannot be held, as tried to be submitted by learned counsel for the appellants, that FIR No. 808/03 PS Punjabi Bagh (State Vs. Madan Lal Suryavanshi etc). Page 10 of 25 in the absence of a test identification parade, the evidence of an eyewitness identifying the accused would become inadmissible or totally useless;
Whether the evidence deserves any credence or not would always depend on the facts and circumstances of each case." The Court further observed "....the fact remains that these eyewitnesses were seriously injured and they could have easily seen the faces of the persons assaulting them and their appearance and identity would well remain imprinted in their minds especially when they were assaulted in broad daylight".
In these circumstances, conviction of the accused was upheld on the basis of solitary evidence of identification by a witness for the first time in court."
21 Taking note of various afore-referred pronouncements and other related aspects on the issue of TIP, following propositions can be safely culled out:-
a) Test identification parade (TIP) is a part of the investigation and is very useful in a case where the accused are not known beforehand to the witnesses. It assures the investigating agency that the investigation is proceeding in the right direction. TIP is held during investigation to minimize the chances of memory to identifying witnesses fading away due to long lapse of time.
b) Identification of the accused in the Court is a substantive evidence. The previous identification in the test identification parade is a rule of prudence and not law. It simply acts as a check valve to the evidence of identification in court of an accused by a witness.
c) Absence of test identification parade is not ipso facto fatal.
d) If the accused is named or sufficiently described in the complaint leaving no doubt in the mind of the court regarding his involvement, such identification for the first time before court can be safely considered.
e) If an accused is well known to the prosecution witnesses from before, no test identification parade is called for and it would be meaningless and sheer waste of public time to hold the same.
f) It should be made clear by the prosecution and investigating agency, during investigation itself, that any such witness is in a position to identify any such accused. Absence of any such assertion would put the court on guard.
g) Mere failure to hold a TIP is not fatal to the prosecution case all by itself but the court will need to be circumspect in accepting the identification of an accused by a witness in the Court if the accused is a stranger to the witness.
h) Where the witness had a chance to interact with the accused or where the FIR No. 808/03 PS Punjabi Bagh (State Vs. Madan Lal Suryavanshi etc). Page 11 of 25 witness had an opportunity to notice the distinctive features of the accused which lends assurance to his testimony in the Court, the evidence of identification in the court for the first time by such witnesses cannot be thrown away merely because any identification parade was not held.
i) Substantive evidence of identification in Court after a long lapse of time may be a weak piece of evidence in absence of previous TIP. However, even such evidence can be admitted if sufficiently explained and corroborated.
j) Whether the evidence deserves any credence or not would always depend on the facts and circumstances of each case. It will be also important to see whether the incident had taken place in broad day light, fading light or in the dark.
k) A witness, who also receives injuries and who had a chance to see the faces of the offenders, would be an important aspect as identity would well remain imprinted in his mind.
22 It will be also important to mention that prosecution had cited 45 witnesses but the list of witnesses had been prepared in a very cursory manner. For the reasons best known to the prosecution, Insp. Rajender Singh, who was then SHO, PS Punjabi Bagh who had prepared the rukka and who had named some of the accused as well, was not even cited as witness. It was only at the fag end of the case when the final arguments were being heard, prosecution made a request to examine him but such request of prosecution was rejected keeping in mind the age of the case. I would also like to mention that prosecution was heavily relying on injuries suffered by some public persons including one V.K. Sharma. No necessity was felt of even citing him as one of its prime witnesses. This Court thought it appropriate to call him as witness but fact remains that prosecution failed to serve him and procure his attendance for want of his present and correct address.
23 Prosecution could not even serve around twenty witnesses for want of complete particulars and despite of grant of sufficient opportunities.
24 I would also like to highlight right here that liability of any such member of unlawful assembly may not be strictly construed as constructive liability. It is rather a case of direct liability as any person who is member of any FIR No. 808/03 PS Punjabi Bagh (State Vs. Madan Lal Suryavanshi etc). Page 12 of 25 such unlawful assembly is also equally liable and there is no requirement of proving any further overt act. If any mob indulges into rioting by using force or violence, each member of such unlawful assembly is to be held liable for rioting even if such member himself had not used any force or violence.
25 In Re: Arulanandu And Ors. vs Unknown AIR 1952 Mad 267, Hon'ble Madras High Court, taking note of rampant increase of rioting cases in the country, enunciated five fundamental principles which a Court has to observe. Those are as under:-
"The first is that notwithstanding the large number of the rioters or of the persons put up in Court for rioting, and the consequent difficulty for the prosecution to name the specific acts attributed to each of the accused the Court must see to it that all the ingredients required for unlawful assembly and rioting are strictly proved by the prosecution before convicting that particular accused. The fact that there were a thousand rioters, and 122 accused before the Sessions Judge, will not take away from the prosecution even an iota of the responsibility of proving them. It may be the misfortune of the prosecution. But the misfortune of the prosecution should never be allowed to become the misfortune of the accused. Just as the culprits in undetected crimes escape punishment, these unproved persons also must be unhesitatingly acquitted.
7. Secondly, spectators, wayfarers, etc., attracted to the scene of the rioting by curiosity, as generally happens in the country-side when a riot or affray is going on, should not be, by reason of their mere presence at the scene of rioting and with the rioters, held to be members of the unlawful assembly or rioters. But, of course, if they are proved to have marched with the rioters for a long distance, when the rioters were shouting tell-tale slogans and pelting stones, it will be for them to prove their innocence under Section 106 of the Indian Evidence Act.
8. The third is that it will be very unsafe, in the case of such large mobs of rioters to rely on the evidence of 'a single witness' speaking to the presence of an accused in that mob for convicting him, especially, when no overt act of violence, or shouting of slogans, or organising the mob, or giving orders to it, or marching in procession with it, or other similar thing is proved against him. In a big riot, like this, by hundreds of persons, it is very easy even to mistake one person for another, and implicate honestly really innocent persons, and even to mistake persons seen elsewhere as having been seen there. An ordinary rule of caution and prudence will require that an accused identified only by one witness, and not proved to have done any overt act, etc., as described above, should be acquitted, by giving him the benefit of the doubt.
9. The fourth principle to be observed in such cases is that where there are such acute factions, FIR No. 808/03 PS Punjabi Bagh (State Vs. Madan Lal Suryavanshi etc). Page 13 of 25 one based on agrarian disputes and troubles, another on political wrangling and rivalry, and a third on caste division, or the division of the haves and the have-nots, the greatest care must be exercised before believing the evidence of a particular witness belonging to one of these factions against an accused of the opposite views. This principle becomes of special importance when there are no overt acts, etc., proved and when there are only one or two witnesses speaking to the presence of the accused among the rioters, and they belong to the classes or factions opposed to the accused.
10. The fifth principle to be observed is that mere 'followers' in rioting deserve a much more lenient sentence than leaders like Natesan, who mislead them into such violent acts, by emotional appeals, slogans and cries."
26 While holding some of the accused guilty, Hon'ble High Court observed as under:-
"I now come to the remaining 48 accused. There are two or more witnesses who have spoken to the presence of each of them among the rioters that day, and I have absolutely no doubt that they were among the rioters that day. No doubt they were not proved to have themselves done any overt act of violence or shouted any slogans etc., but they were proved to be marching with the rioters when they were shouting slogans and pelting stones, It was not the case of any of them that they had gone to the spot attracted by curiosity, like a school-master, or a doctor or a lawyer or a government servant or other citizen to see impelled only by curiosity what the matter was. It is obvious that the presence of such, innocent men at the spot, not being secret, would be spoken to by a number of persons who saw them there, though it would not prove any criminal intention shared in the common with the rioters. But, where a man's case is that he went to the scene of rioting and stood there out of curiosity alone, and not with any unlawful object, but he is proved to have marched with the rioters, it is for him to state and prove his innocence as it is a matter within his special knowledge under Section 106 of the Indian Evidence Act. In my opinion, it is his duty, once the prosecution has proved his marching along with the rioters, to show that though he was found marching with the rioters he was with that group not with any unlawful common object of committing rioting, but only out of curiosity. As none of these accused did so, I confirm their convictions under Section 147, I.P.C., as there is plenty of credible evidence to show that they marched in procession with the rioters when they were shouting slogans and pelting stones, and it was up to them to prove their innocence, the prosecution FIR No. 808/03 PS Punjabi Bagh (State Vs. Madan Lal Suryavanshi etc). Page 14 of 25 having 'prima facie' proved them to be guilty under Section 147, I.P.C."
27 Section 149 IPC makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. Once the case of any such member falls within the ingredients of the section, the question that he did nothing with his own hands would be hardly material. He cannot put forward the defence that he did not with his own hand commit the offence committed in prosecution of the common object of the unlawful assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object. Everyone must be taken to have intended the probable and natural results of the combination of the acts in which he joined. It is not necessary that all the persons forming an unlawful assembly must do some overt act. When the accused persons assembled together and were party to the assault on the police, the prosecution is not obliged to prove which specific overt act was done by which of the accused. This section makes a member of the unlawful assembly responsible as a principal for the acts of each, and all, merely because he is a member of an unlawful assembly. While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under Section 149. It must be noted that the basis of the constructive guilt under Section 149 is mere membership of the unlawful assembly, with the requisite common object or knowledge. Reference in this regard be made to Lalji Vs. State of U.P. (1989) 1 SCC 437 and Subal Ghorai Vs. State of W.B. (2013) 4 SCC 607 which were referred to and approved by Apex Court in the case of Anup Lal Yadav and Anr vs State Of Bihar (Crl Appeal no. 775 of 2007: DoD 26 September, 2014) 28 Keeping in mind the aforesaid legal scenario and backdrop, it will be now appropriate to take up the testimony of all those police officials who were resisting the mob and who had also received the injuries.
29 PW1 Ct. Ajmer Singh has deposed that he was present on his duty at Madipur, Rohtak Road on 21.10.2003 where a huge crowd of people had gathered and mob had blocked the traffic due to custodial death of one Sushil Kumar which had taken place in PP Madipur. Crowd was raising slogans and FIR No. 808/03 PS Punjabi Bagh (State Vs. Madan Lal Suryavanshi etc). Page 15 of 25 pelting stones and mob had also set some motorcycles on fire. Senior police officers were trying to pacify the mob but the mob continued to do their activities and after sometime, crowd came towards PP Madipur and caused damage to some vehicles and attempted to burn scooters and motorcycles which were private as well as government. PW1 Ct. Ajmer Singh has deposed that he himself tried to make understand the crowd not to do such activities but they did not relent. He also deposed that he had also sustained injuries and was removed to Maharaja Agarsen Hospital where IO met him and recorded his statement. He also correctly identified all the persons present in court as those who were present in crowd and had pelted stones and had caused damage to private and government vehicles.
30 I have already noticed above that there is no test identification parade in the present matter. In order to understand whether such TIP was, in fact, required or not, I went through the statement of this witness recorded under Section 161 Cr.P.C. and in such statement, this witness never claimed that he could identify any such person who was part of mob and who had pelted stones on the police and who had injured him also. In his cross-examination also, he claimed that he did not remember whether he had ever claimed in his statement under Section 161 Cr.P.C. that he could identify those persons. He also does not remember whether he had stated to IO in his statement about the description, age, height and complexion of those persons. He also admits that none of the accused were known to him prior to incident. He admitted that none of the accused was arrested in his presence. He also admitted that he never asked by the police to identify any accused during investigation. Since he did not know the accused persons before hand, identification before the Court does not seem to have any real and compelling force. It rather seems to me that since all the accused were present in the Court during trial and were in the dock, he very conveniently obliged the prosecution by claiming that all these persons were the same. In such a peculiar backdrop, I am of the view that identification of the accused persons by this witness in the Court for the first time is not of much value. It rather seems simply to be a feeble attempt of improvement.
31 Similarly, PW2 HC Amar Chand has simply claimed that all the FIR No. 808/03 PS Punjabi Bagh (State Vs. Madan Lal Suryavanshi etc). Page 16 of 25 accused were part of the crowd and were pelting stone towards police post. His statement under Section 161 Cr.P.C. is very sketchy. It is running in 3-4 lines only and he also never claimed in his such statement made during investigation that he could identify anyone and again it is totally unexplained as to how he identified accused persons whom he did not know beforehand at all. He also admitted that he was never asked by IO to join any TIP. He also claimed that he did not know any accused prior to the incident. He also admitted that he had seen accused for the first time in the Court after the incident. He went on to claim that he had told the investigating officer about the age of the accused persons who had pelted stones. He was, however, confronted with such statement Ex. PW2/DA where such fact was not found recorded at all. Thus, his testimony also does not take the case of prosecution anywhere. Moreover, this witness was examined again when two of the proclaimed offenders i.e. Ganpat (A-6) and Ashok Kumar (A-7) were re-arrested and were produced before the Court. Testimony of PW2 HC Aman Chand was recorded again but in his such statement, he categorically claimed that he was unable to identify those two persons. He was, therefore, declared hostile and when he was shown those two persons, he simply claimed that they both "might be also present in the crowd". He did admit that it was correct that he had forgotten about the identity of these accused due to lapse of time. Naturally, there is no judicial TIP. Hiatus is of more than eight years and, therefore, PW2 HC Amar Chand could not identify said accused persons i.e. accused Ashok (A-7) and Ganpat (A-6). He himself admitted that due to lapse of time, he was not able to identify them. If that was being so, his identification of other accused persons is also questionable and little bit unacceptable.
32 As far as PW3 HC Mehar Chand is concerned, he has claimed that crowd was stopping vehicles and had set on fire scooter and motorcycle. He also deposed that crowd was raising slogans against police and it went towards PP Madipur and pelted stones at PP Madipur. He also claimed that accused persons present in court were present in the crowd and also pelted stones and damaged the public property. He also pointed out towards accused Madan Lal Suryavanshi (A-1) claiming that he knew him by name as well. Again no accused was arrested or apprehended in his presence. In his statement recorded under Section 161 Cr.P.C. also, he did not make even a whisper about accused Madan FIR No. 808/03 PS Punjabi Bagh (State Vs. Madan Lal Suryavanshi etc). Page 17 of 25 Lal Suryavanshi (A-1). He also failed to point out towards any particular accused who had pelted stones on him due to which he had sustained injuries. He also claimed that he could not identify accused Ganpat (A-6) and accused Ashok (A-7). He was also cross-examined by the prosecution with the permission of the Court and very interestingly, he deposed in his such cross-examination that since there was heavy crowd, he could not identify any particular person and could not say whether these two accused persons i.e. Ganpat (A-6) and Ashok (A-7) had participated in any of the activities. In the similar manner, he also failed to identify another accused i.e. Raju @ Handa (A-4). Despite cross-examination conducted by prosecution, he simply claimed that a person resembling Raju @ Handa (A-4) was there in the crowd.
33 PW6 SI Virender Singh had nowhere claimed in his statement under Section 161 Cr.P.C. that he could identify anyone. Fortunately, even in his deposition before the Court, he stuck to his stand and categorically claimed that he could not identify anyone of the crowd who had caused injuries to him and damaged the public property and vehicles. He clarified that since there was a huge crowd, he could not see anyone properly. Thus, his testimony, though seems to be truthful, does not incriminate any accused.
34 PW7 Insp. Virender Singh has identified all the accused persons but again it is not explained as to how after more than eight years, he was able to identify them when in his statement under Section 161 Cr.P.C. he never claimed so. He also did not give any description relating to physical appearance of any of the accused and, therefore, the identification before the Court for the first time does not inspire much confidence. For the same reason, I do not have any hesitation in discarding the testimony of PW9 Ct. Devender Kumar, PW12 HC Kanwar Pal.
35 Coming to the testimony of PW13 HC Kumher Singh, something unique has surfaced. He was also posted at PP Madipur on the fateful day and was present on duty. He deposed that at about 8.00 AM, crowd came towards PP Madipur and crowd was raising slogan against Delhi Police. According to him, one Ashok Kumar, Nirbhay, Swaran Kumar Lamba and Anil, who were residents FIR No. 808/03 PS Punjabi Bagh (State Vs. Madan Lal Suryavanshi etc). Page 18 of 25 of C-Block Madipur, were leading the crowd. He also deposed that Kailash Natha, Sanyasi, Ram, Pawan @ Kala and Jyoti son of Kewal Sansi, Jagbir Singh @ Jaggi, Vicky & Sunny son of Dropati Sansi were armed with pieces of bricks and stone and they started pelting stones and bricks towards police and Anil Kumar, Ashok, Nirbhay and Swaran Kumar Lamba then ran towards the mob and instigated the mob to beat the police by saying "maro policewalo ko". On this, mob became enraged and started pelting stones. He also deposed that he could identify those persons if shown to him but also clarified that persons whom he had named in his examination-in-chief were not present in the Court. He then, surprisingly, also claimed that accused persons were also present at the spot and they were also pelting stones during riot. Naturally, PW13 HC Kumher Singh has come up with a surprising twist. He has given names of various persons and he also claimed that he could identify them but the persons named by him are not accused. Prosecution has not been able to explain as to why these persons, whom prosecution witness has named and is also in a position to identify, have been exonerated.
36 For the similar reason, I also reject the testimony of PW15 ASI Ashwani Kumar and PW16 ASI Brij Kishore. Moreover, in the present case, there are two persons with the name of Ashok who are facing trial and PW13 HC Kumher Singh has nowhere explained as to which particular accused Ashok he is referring to - whether accused Ashok @ Dudhiya (A-7) or accused Ashok Kumar son of Kanhiya Lal (A-8).
37 PW18 Sameer Singh was posted as ACP Operation Cell. He has deposed about the incident. He also claimed that due to pelting of stones, he himself had also sustained injuries and was removed to hospital. He also claimed that all the accused persons present in court were part of the crowd and had indulged in pelting of stones. Again, in his statement under Section 161 Cr.P.C., he nowhere claimed that he could identify any of the accused. He did not take name of any accused persons. His examination was recorded in the year 2014 and it is really surprising as to how more than eleven years of the incident, he was able to identify fourteen accused persons.
38 Let me now switch over to the testimony of some other important FIR No. 808/03 PS Punjabi Bagh (State Vs. Madan Lal Suryavanshi etc). Page 19 of 25 police officials who named some of the accused even during investigation 39 PW4 SI Padam Singh has identified accused Radhey Shyam (A-2), Bal Kishan (A-3) and Ashok Kumar @ Dudhiya (A-7). In his statement u/s 161 Cr.P.C. also, he had named them. In his testimony before the court, he very specifically claimed that he knew them earlier and they were also pelting stones on police personnel. He also deposed that he himself had also received injuries in the incident on his hand and leg and that he was removed to Maharaja Agarsen Hospital. Undoubtedly, he was not joined in TIP but fact remains that holding of TIP, in his context, was meaningless as he knew these accused and specifically named them during investigation. His testimony could not be shaken by defence. Importantly, those accused whom he named have not even bothered to cross-examine him at all. Thus, his testimony is virtually uncontroverted.
40 PW5 ASI Ashok Kumar has deposed that crowd divided into two separate groups and became aggressive and continued pelting stones. He also took names of accused Madan Lal Suryavanshi (A-1), Bal Kishan (A-3), Radhey Shyam (A-2) and Ashok Kumar @ Dudhiya (A-7). He also claimed that he knew them before the incident as well. He also sustained injuries on his head in the incident and was rushed to same hospital. Interestingly, he also claimed that most of the other accused persons, who were present in the Court, were also there in the crowd which was pelting stones but such aspect has surfaced for the first time. In his statement during investigation, he never claimed so. Thus his testimony may be convincing qua those whom he has named but prosecution cannot be permitted to proceed the case, qua others, merely on the basis of surmises and conjectures and sort of improvement. Guess work has no role to play in a criminal trial. Those named have, however, not been able to extract anything from him in cross-examination which may suggest that deposition of said witness is not trustworthy.
41 PW17 HC Jai Prakash had also given names of five accused in his statement made under Section 161 Cr.P.C. and reiterated those names in the witness box also. He has deposed that persons from crowd were abusing and pelting stones due to which some police officials had received injuries. He also FIR No. 808/03 PS Punjabi Bagh (State Vs. Madan Lal Suryavanshi etc). Page 20 of 25 claimed that on 23.10.2003, he was called at DIU office where he revealed names of all such five persons as Ashok Kumar, Nand Kishore (A-10), Prem Chand (A-12), Suresh Kumar@ Pappu (A-11) and Ganpat (A-6). However, there are two Ashok arraigned as accused in the present case and it is not very clear as to whom he is referring to? However, for remaining four accused persons, his testimony remains virtually unimpeached.
42 PW19 SI Manmat Kumar was posted at PS Punjabi Bagh and he accompanied SHO along with other police officials and when they reached Madipur Traffic Signal. They saw public persons who were raising slogans and SHO asked them as to why they were doing so, they told that they were demonstrating because one Sushil Kumar had died in police custody. The members of the mob were deflating tyres of the vehicles and despite warning given by SHO, crowd did not relent and damaged vehicles and pelted stones on police officials. He also deposed that to control the situation, tear gas shells were thrown towards crowd. He also deposed that no one present in the crowd was known to him nor he knew the names of anyone except for accused Madan Lal Suryavanshi (A-1). He also deposed that as far as accused Madan Lal Suryavanshi (A-1) was concerned, he used to stage demonstration in their area. Interestingly, he identified all the accused during trial whereas as per his supposed version give during investigation, he named seven accused only i.e. Madan Lal (A-1), Radhey Shyam (A-2), Ashok Kumar Dudhiya (A-7), Bal Kishan (A-3), Krishan (A-9), Raj Kumar (A-5) and Raju @ Handa (A-4). In witness Box, he also claimed that he only knew name of one accused i.e. Madan Lal Suryavanshi (A-1). Since his version did not support the case of prosecution, he was declared hostile and was cross-examined by the prosecution with the permission of the Court but despite his such cross-examination, he claimed that he had not revealed the names of any other person to the police during investigation. Be that as it may, fact remains that his categoric identification of Madan Lal Suryavanshi (A-1), whom he had named during the investigation as well, cannot be suspected. Since he never claimed during investigation that he could identify anyone else, his accusing others in witness box does not inspire much confidence.
FIR No. 808/03 PS Punjabi Bagh (State Vs. Madan Lal Suryavanshi etc). Page 21 of 2543 It is, however, quite evident from the evidence led before the Court that crowd was agitated because of custodial death of one Sushil Kumar. A mob had accordingly collected. It was indulging in raising of slogans. It was pelting stones. It also damaged public property and also damaged various vehicles. Reference in this be also made to testimony of PW10 Om Pal (DTC bus driver) and PW14 Veerbhan (DTC bus driver). They both have deposed regarding damage caused to their respective buses by the mob. Though they are not in any position to identify the actual culprit yet their testimony lends assurance to the fact that public property was damaged by the mob. As per prosecution, several stones were also seized from the spot. In this regard reference be made to the testimony of PW11 Ct. Manikeshwar. He has categorically deposed that in his presence, Inspector Om Parkash had seized one government Bullet Motorcycle no. DL 1SJ 7787, one Hero Honda Motorcycle and one scooter in burnt condition. Memo has been proved as Ex PW11/A. He also identified all these burnt vehicles during the trial as well as Ex. P1, P2 and P3 respectively. He also identified the various stones which had been seized from the spot as Ex.P4 (Collectively). Defence has not been able to cause any dent to his testimony. Thus, it also becomes manifest that mob had set on fire public property as well.
44 Indubitably, number of police officials and public persons had received injuries in the aforesaid incident related to rioting. Prosecution has proved 30 MLCs in this regard. All the injured persons, except one, had received simple injuries which they had suffered at the hands of mob when mob was pelting stones. Reference be made to deposition of PW8 Dr. Sunil Kumar. There is nothing to discredit his testimony.
45 However, it should not be forgotten that accused persons are also facing trial for commission of offence under Section 308 IPC as well as under
Section 333 IPC. All the injured, except one, had received simple injuries. Section 333 IPC comes into play when anyone suffers grievous injuries. As far as PW1 Ct. Ajmer Singh is concerned, his MLC has been proved as Ex. PW8/A1. It reveals grievous injuries because of fracture in his right hand. However, for the purposes of proving that there was a fracture, x-ray plate should have also been placed on record along with the report of concerned expert from orthopedics.FIR No. 808/03 PS Punjabi Bagh (State Vs. Madan Lal Suryavanshi etc). Page 22 of 25
Moreover, injured Ct. Ajmer Singh has not whispered even a single word in this regard. He merely claimed that he had sustained injuries. He did not specify his injuries. He did not describe the nature thereof and the body part which had taken the blow. He did not specifically claim that he had received any fracture or grievous hurt. Therefore, I am compelled to hold that he had received simple injuries only.
46 Section 308 IPC comes into play irrespective of the infliction of injuries and, therefore, nature of injury is not the deciding and governing factor to find out whether the case is of attempt to commit culpable homicide not amounting to murder or not. It is the intention and knowledge which are the most crucial factors. Injury, on most of the occasions, takes a back seat though the nature of injury may prove to be very handy at the time of deciding quantum of sentence. Burden is on the prosecution to prove both, namely, (i) the act (actus reus) and (ii) the intention (mens rea). It is also required to be shown that the act had been done under such circumstances that if by such act the death had been caused, the offender would be guilty of culpable homicide not amounting to murder. Naturally, the intention or knowledge of such circumstances are to be gathered from the peculiar facts of any given case and there cannot be any straitjacket formula in this regard. Such part related to intention and knowledge would, therefore, depend on the facts and circumstances of each case. I have seen the nature of injuries and keeping in mind all the facts and circumstances, it will be hard to hold that mob had any intention to commit culpable homicide. Prosecution has also miserably failed to show that mob was armed with any weapon much less a deadly one. Merely pelting of stones from a distance would not make it a case falling under Section 308 IPC. Mob was agitated due to one custody death. There were warnings from the side of police officials. It has also come on record that in order to disperse the mob, there was lathi charge and tear gas shells were also thrown in large number. However, members of mob were not to take law into their own hands. They should have shown some restraint. They were free to express their anguish but not by causing extensive damage to property and police officials. Peaceful demonstration might have made some sense in a democratic country like ours which takes pride in the philosophy of non-violence propounded by Father of Nation. No one should FIR No. 808/03 PS Punjabi Bagh (State Vs. Madan Lal Suryavanshi etc). Page 23 of 25 be permitted to take law into his hands. No one should be permitted to mislead and misguide the mob and to stir up and provoke their misplaced emotions. It is touch unfortunate that whenever any such situation arises, the opposition normally sides with the mob simply to somehow destabilize the existing government. Our leaders should rather put behind them their political vendetta and unite in the moment of crisis instead of grinding their own axes.
47 I also do feel that police, in such type of matters, should rather videograph the entire episode. One should always make best use of available technology. We see such type of mob-fury virtually every other day. Property is burnt and damaged at drop of hat and police is usually seen as mere spectator. Police should rather acquire special skills in handling such type of mob so that no one plays havoc with public property and human lives. It's, after all, hard earned money of taxpayers' which is at stake. And yes, even the trial of such matters should be double quick as delayed trial may eventually give undue benefit to some mob-members due to possible non-identification.
48 Be that as it may, in view of the evidence led on record, it is evident that there was obstruction to the discharge of public duties. It is also perceptible that mob had indulged in rioting and had caused injuries to various public persons and police officials and had damaged the public property as well. There has come enough evidence on record against Madan Lal Suryavanshi (A-1), Radhey Shyam (A-2), Bal Kishan (A-3), Ganpat (A-6) Ashok Kumar Dudhiya (A-7) Krishan (A-9), Nand Kishore (A-10), Suresh Kumar@ Pappu (A-11) and Prem Chand (A-12). They all were part of the mob which went on fury. They were not mere onlookers or spectators. Onus was on them to substantiate that they were not part of mob at all. Special fact has to be adduced by them as per sec 106 of Evidence Act. They have not been able to discharge such onus. I do not find any reason to disbelieve the police officials at all. They were performing their public duties. They had no personal grudge or animus with anyone. There is absolutely no reason to imagine that they would falsely implicate anyone. The presumption that an act is done in good faith equally applies to act of official and Section 114 FIR No. 808/03 PS Punjabi Bagh (State Vs. Madan Lal Suryavanshi etc). Page 24 of 25 of Evidence Act gives seal of legality to it. The presumption that a person acts honestly applies as much in favour of a police officer as of other persons and it is not a judicial approach to distrust and suspect him without good grounds, therefore. Any contrary conclusion would only run down the prestige of the police administration.
49 However, no action can be taken against Bal Kishan (A-3), Raj Kumar (A-5) and Ganpat (A-6) who are no longer alive.
50 Accordingly, I hereby hold six accused persons viz Madan Lal Suryavanshi (A-1), Radhey Shyam (A-2), Ashok Kumar Dudhiya (A-7), Nand Kishore (A-10), Suresh Kumar@ Pappu (A-11) and Prem Chand (A-12) guilty and convict them u/s 147 IPC, 186/149 IPC, 353/149 IPC, 332/149 IPC & u/s 4 Prevention of Damage to Public Property Act 1984 read with sec 149 IPC.
51 Rest of the seven accused persons i.e. Ashok Kumar (A-8), Krishan (A-9), Roshan Lal (A-14), Manoj (A-15), Kalu @ Subhash (A-16), Rajesh (A-17) and Bunty (A-18) are acquitted and given benefit of doubt for want of sufficiently positive and conclusive evidence against them.
52 Accused Raju @ Handa (A-4) is proclaimed offender and appropriate order would be passed against him as and when he is re- arrested.
Announced in the open Court
On this 1st day of July 2015 (MANOJ JAIN)
Addl. Sessions Judge (FTC)
North-West District: Rohini: Delhi
FIR No. 808/03 PS Punjabi Bagh (State Vs. Madan Lal Suryavanshi etc). Page 25 of 25
FIR No. 808/2003
PS Punjabi Bagh
State Vs. Madan Lal Suryavanshi etc.
Thursday, July 02 2015
Present: Sh. Sanjay Jindal, learned Addl. P.P. for State.
Convicts Madan Lal Suryavanshi, Radhey Shyam, Ashok Kumar Dudhiya, Nand Kishore, Suresh Kumar @ Pappu and Prem Chand.
Sh. Yashvir Singh, learned DLSA counsel for convict A-1 Madan Lal Suryavanshi.
Sh. Aseem Bhardwaj, learned Amicus Curiae for A-2, A-10 & A-12.
1 Heard arguments on sentence.
2 Sh. Jindal has contended that convicts do not deserve any leniency as they had shown the audacity of even torching public property and had caused injuries to various police officials.
3 Defence counsels have, on the other hand, prayed for mercy. It has been argued that the incident is of the year 2003 and all the convicts have already undergone agony of trial for more than a decade. It has also been claimed that some of the convicts remained behind the bars for considerable period. It has also been claimed that none of the convicts have any previous bad antecedents either. It has also been prayed that convicts may be given benefit of probation.
4 I have given my thoughtful consideration to such contentions.
5 Period, which convicts have already spent behind the bars during the trial is as under:
S. Name of convict Period of Age of convict & Compassionate No. Custody Occupation ground cited 1 Madan Lal Suryavanshi -- 46 years Having four children and old aged mother Readymade dependent upon him.
Garment Business FIR No. 808/03 PS Punjabi Bagh (State Vs. Madan Lal Suryavanshi etc). Page 26 of 25 and running NGO 2 Radhey Shyam -- 42 years Two school going children and old age Small-time watch parents dependent mechanic upon him.
3 Ashok Dudhiya One year, four 50 years Having no relative or
months and acquaintance and,
Vagabond
sixteen days therefore, had been
released on personal
bond.
4 Nand Kishore Nineteen days 43 years Sole bread earner for
the family.
Rickshaw Puller.
One seventeen years
old daughter.
Asthmatic parents.
5 Suresh Kumar One year, six 44 years. Sole bread earner for
months and the family.
E-Rickshaw Puller
nine days
6 Prem Chand Ten days 32 years. Got married six
months back only.
Driver
Sole bread earner for
the family.
Having disorder of
lymph nod.
6 Such period has been confirmed by Sh. Jindal with the assistance of Naib
Courts.
7 All the convicts were part of the mob which indulged into rioting and they
were all part of the unlawful assembly and in furtherance of their common object, police officials were voluntarily obstructed. Police had, in order to disperse the mob, resorted to lathi charge and used tear gas shells but such warnings fell on deaf ears and resultantly a number of police officials had received injuries.
8 I, however, cannot be unmindful of the fact that the mob was furious because of one custody death which took place at Police Post Madi Pur. I can understand the reason behind the mob fury but nonetheless they had no reason whatsoever to cause injury to the police officials and to torch public property i.e. vehicles. Indubitably, no serious overt act has been attributed to any of the convicts.
FIR No. 808/03 PS Punjabi Bagh (State Vs. Madan Lal Suryavanshi etc). Page 27 of 259 Keeping in mind the overall facts and circumstances of the case, I do not find it to be a fit case where convicts should be enlarged on probation. I hereby sentence each of the convict as under:
S. Sections Simple Imprisonment
No.
1 147 IPC Six months
2 186/149 IPC Three months
3 353/149 IPC 1 year
4 332/149 IPC 1 year
5 4 Prevention of Damage to 1 year
Public Property Act 1984
Act/149 IPC
10 All the sentences would run concurrently. Since convict A-7 Ashok
Dudhiya and A-11 Suresh Kumar have spent more than one year behind the bars during pendency of the matter and keeping in mind the fact that they are living in virtual penury, I do not intend to burden them with any monetary amount. However, remaining four convicts are fined Rs. 10,000/- each under Section 4 Prevention of Damage to Public Property Act 1984. In default thereof, they all would undergo SI for a period of 20 days.
11 All the convicts would be entitled to benefit of Section 428 Cr.P.C.
12 Accordingly, there is no requirement of sending A-7 Ashok Dudhiya and A-11 Suresh Kumar to jail as they have already served out the sentence. All the remaining convicts be sent to jail under appropriate warrants.
13 A copy of the judgment and order on sentence be given free of cost to all the convicts.
14 File be consigned to Record Room and be revived as and when proclaimed offender i.e. accused Raju @ Handa is apprehended/arrested.
Announced in the open Court (MANOJ JAIN)
On this 2nd day of July 2015. Addl. Sessions Judge (FTC)
North-West District: Rohini: Delhi
FIR No. 808/03 PS Punjabi Bagh (State Vs. Madan Lal Suryavanshi etc). Page 28 of 25