Delhi District Court
State vs . (1) Shankar @ Bunty on 26 March, 2013
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII:
NORTHWEST: ROHINI COURTS: DELHI
Session Case No. 159/2011
Unique Case ID No.: 02404R0292052011
State Vs. (1) Shankar @ Bunty
S/o Lt. Sh. Shyam Lal
R/o A32, Sangam Park,
R.P. Bagh, PS Bharat Nagar,
Delhi
(Convicted)
(2) Mulla
S/o Sh. Chob Singh
R/o Jhuggi No. 77A & 538,
Sawan Park, Delhi
(Convicted)
(3) Khem Chand @ Khem
S/o Attar Singh
R/o Jhuggi No. 77A/512,
Sawan Park Extn., Delhi
Deepak
(Convicted)
(4) Deepak
S/o Baldev Raj
R/o WP165, Wazirpur Village,
PS Ashok Vihar, Delhi
(Expired)
(5) Rajender @ Gabbar
S/o Attar Singh
R/o Jhuggi No. N77/A506,
Sawan Park Extn., Delhi
(Convicted)
St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 1
(6) Naresh @ Naval
S/o Sh. Chedami Lal
R/o N77/C269,
Sawan Park Extn., Delhi
(Convicted)
(7) Rakesh
S/o Genda Lal
R/o N77B550, Sawan Park Extn.,
Delhi
(Convicted)
(8) Puran Lal
S/o Attar Singh
R/o House No. 77A/500,
Sawan Park, Delhi
(Convicted)
(9) Arjun
S/o Nem Pal
R/o A75, Swarn Park Extn.,
Bharat Nagar, Delhi
(Convicted)
(10) Tara Chand @ Kalu
S/o Bani Singh
R/o N70C480, THuts,
Sawan Park Extn., Delhi
(Convicted)
FIR No.: 22/2009
Police Station: Bharat Nagar
Under Sections: 147/148/149/186/224/307/333/334/353/34 IPC
St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 2
Date of committal to session Court: 11.11.2011
Date on which orders were reserved: 23.2.2013
Date on which judgment announced: 15.3.2013
JUDGMENT:
(1) As per allegations on 17.10.2009 at about 3:25 AM in front of Jhuggi No. N77/A/502, Sawan Park Extension, Delhi all the accused namely Shankar @ Bunty, Mulla, Khem Chand, Rajender @ Gabbar, Naresh @ Naval, Rakesh, Puran Lal, Arjun, Tara Chand @ Kale and Deepak constituted an unlawful assembly and in prosecution of common object of that assembly they used force with ASI Shadi Lal and Ct. Anil Kumar while they were discharging their public functions. It is also alleged that all the accused in prosecution of common object of that assembly committed rioting being armed with deadly weapon i.e. iron rods and voluntarily obstructed ASI Shadi Lal Ct. Anil with discharging their public functions and also voluntarily caused grievous hurt to ASI Shadi Lal with intent to prevent or deter him from discharging his duty. Further, as per the allegations all the accused in prosecution of common object intentionally offered resistance or illegal obstruction to the lawful apprehension of four persons namely Deepak, Khem Chand @ Khemu, Mulla and Rajender in order to cause their escape from lawful custody. It has also been alleged that all the accused in prosecution of common object of that assembly attempted to commit murder of ASI Shadi Lal.
St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 3 CASE OF THE PROSECUTION/ BRIEF FACTS:
(2) The case of the prosecution is that in the intervening night of 1617.10.2009 DD No. 7B was received in Police Station Bharat Nagar from Sunder Lal Jain Hospital pursuant to which at about 4:40 AM ASI Dharambir reached Sunder Lal Jain Hospital where he met ASI Shadi Lal and Ct. Anil Kumar. ASI Shadi Lal reported to ASI Dharambir that he along with Ct. Anil Kumar were on patrolling duty in the area during the night on motorcycle No. DL18H5606. According to ASI Shadi Lal at about 1:35 AM in the night he received wireless message from SHO who instructed him to reach at Mata Jai Kaur School on which he along with his companion reached at Mata Jai Kaur School where SHO with HC Mukesh Chand, HC Baljeet, Ct. Kamlesh and Ct. Abhimanyu also reached in a government gypsy near the police booth. He further reported that at around 1:50 AM reached at Jhuggi No. 77/A502, Sawan Park Extn. on foot where they apprehended 12 persons while gambling. He also informed that after completing the necessary requirement SHO instructed him and Ct. Anil Kumar to put four persons Deepak, Khema, Mulla and Rajender under their supervision whereas the SHO along with his staff left with eight of the said gamblers in the gypsy. ASI Shadi Lal further informed that soon after the leaving of the SHO, Khem Chand @ Khema exhorted and instigated his friends by saying 'Maro saloon ko ab mauka hai' on which Mula procured an iron rod from the street with which he attacked Ct. Anil Kumar separately and when he tried to save Ct. Anil Kumar, Khem Chand @ Khema attacked him on his head with iron rod. He further reported St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 4 that the third person Deepak who was standing near him brought an iron rod from some where and attacked on him pursuant to which he sustained injuries on his right hand finger. The complainant also reported that during this period the fourth person namely Rajender @ Gabbar attacked him with some iron object and in the meanwhile eightten goons from nearby attacked on them jointly after which they ran away. He also informed the police that he and Ct. Amit Kumar somehow saved their lives and reached at nearby Sunder Lal Jain Hospital. ASI Shadi Lal further reported that while fleeing away the assailants attacked them with bricks and stones.
(3) On the basis of the said statement of ASI Shadi Lal the present case was got registered on which Investigating Officer ASI Dharambir Singh visited Sunder Lal Jain Hospital where he obtained the MLCs of ASI Shadi Lal and Ct. Anil Kumar who was still admitted in the hospital. Thereafter the Investigating Officer prepared the site plan and seized the bricks, stones, blood stained uniform of police staff. On 17.10.2009 the accused Mulla was arrested and pursuant to his disclosure statement the iron rod was recovered and the names of the other accused also found figured therein. On 19.11.2009 accused Khem Chand @ Khema and Deepak had surrendered before the Court after which they were arrested in this case and during interrogation they disclosed their involvement in the present case. On 24.12.2010 the accused Naresh @ Naval and Rakesh were arrested at the instance of the injured and on interrogation they both admitted their involvement in the present case.
On 1.2.2010 the accused Rajender @ Gabbar also surrendered before the St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 5 Court of Ld. MM after which he was arrested. On 28.01.2011 the accused Arjun and Puran Lal were arrested in this case. On 3.3.2011 accused Tara Chand @ Kalu was arrested by DIU Inspector Laxmi Dubey and on 6.7.2011 the accused Shanker @ Bunty who was already arrested by the staff of NorthWest District, was also arrested in this case. On completion of investigations charge sheet was filed against all the accused persons. CHARGE:
(4) Charges under Sections 149 IPC, 147 IPC, 148 IPC, 186 r/w 149 IPC, 333 r/w 149 IPC, 224 r/w 149 IPC and 307 r/w 149 IPC were settled against all the accused persons to which they pleaded not guilty and claimed trial.
EVIDENCE:
(5) In order to prove its case the prosecution has examined as many as Twenty witnesses as under:
Injured / complainant:
(6) PW5 ASI Shadi Lal is the complainant in the present case who has deposed that on the intervening night of 1617.10.2009, he was on duty from 12.00 midnight to 5.00 AM along with Ct. Anil Kumar. According to him, at about 12.00 midnight, he alongwith Ct. Anil left the Police Station on motorcycle No. DL 1SN 5606 for patrolling the area and at about 1.35 AM St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 6 SHO instructed him on wireless set to reach at Mata Jai Kaur School on which he along with Ct. Anil reached near Mata Jai Kaur School where they found the SHO along with HC Mukesh, HC Baljeet, Ct. Kamlesh and Ct.
Abhimanyu who had reached there in a Govt. Gypsy. He has further deposed that the Gypsy and motorcycle were parked near the police booth, after which they started patrolling the area on foot. At about 1.50 AM midnight they reached the jhuggi of Sawan Park where they found about 12 persons gambling near the jhuggi No. N77/A502, Gali Sawan Park when all the said persons were apprehended there. According to him, the SHO proceeded as per law and took eight persons in their Gypsy and directed him and Ct. Anil Kumar to keep the custody of the four persons namely Deepak, Khemu, Rajender and Mulla after which SHO alongwith eight persons left the spot. The witness has testified that thereafter, accused Khemu who was residing in the Sawan Park instigated other boys by saying "maro salo ko, ab mauka hai" on which instigation accused Mulla brought an iron rod from the gali and gave iron rod blow on the person of Ct. Anil Kumar and when he (witness) tried to save Ct. Anil accused Khemu also brought an iron rod and gave an iron rod blow on his head. According to him in the meanwhile accused Deepak (expired) also brought iron rod and inflicted injuries on his person and he received injuries on his fingers and right hand and the fourth boy Rajender also inflicted injuries on his person by an iron weapon. Witness has further deposed that about eight to ten notorious persons also reached there and thereafter, they all inflicted injuries on his person as well as Ct. St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 7 Anil. The witness has further deposed that thereafter the said persons ran away from the spot and they (witness and Ct. Anil) also tried to save their life and reached Sundar Lal Jain Hospital. Witness has further deposed that the said eight to ten persons had caused injuries on them in order to save these four boys from their safe custody and have obstructed them from performance if their Govt. duty. Witness has also deposed that after receiving the injuries the blood was oozing out and fallen on the ground. He has testified that ASI Dharamvir reached in the hospital and recorded his statement which is Ex.PW5/A bearing his thumb impression because he was having injuries on his fingers as doctor bandaged the same.
(7) According to the witness, on 24.12.2010, he along with Ct. Anil joined the investigation of this case with the Investigating Officer on which they went in the area of Jhuggi of Sawan Park in search of the accused persons in a Govt. Gypsy where a secret informer met them who told them that two persons who were already arrested under Section 107/151 Cr.P.C. may be the persons who assaulted the police officials on which they returned to Police Station and came to know that the said two accused persons already taken before the court i.e. SEM Jahangir Puri. The witness has further deposed that at about 2.30 PM they all went the court of SEM, Jahangir Puri and reached there at about 3.45 PM when they found some persons coming out from the gate of the SEM court. He has testified that out of the said persons he alongwith Ct. Anil identified the two boys who were involved in the stone pelting and also gave fist and legs blow to them. Witness has further St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 8 deposed that the both boys were apprehended and they disclosed their name as Rakesh and Naresh who were thereafter arrested vide memo Ex.PW5/B and Ex.PW5/C and their personal search was conducted vide memo Ex.PW5/D and Ex.PW5/E. The witness has correctly identified accused Khemu, Mulla and Rajender in the court and also identified the accused Arjun, Puran, Tara Chand, Naresh, Rakesh and Shankar present in the court as the persons who came subsequently and started giving beatings and pelted stone on them in order to save accused Khemu, Mulla, Rajender and Deepak and also obstructed them to perform their government duties. He has proved that accused Naresh and Rakesh made their disclosure statements which are Ex.PW5/F and Ex.PW5/G. He has also deposed that on 28.01.2011, he alongwith Ct. Anil again joined the investigation during which they reached the DIU office at about 1.00 PM and at that time, accused Puran and Arjun were present there and they identified both the accused as the persons who inflicted injuries to them by fist and leg blows as well as by stone pelting. According to him their names were revealed in the DIU office and both the accused were arrested there. He has clarified that on 26.09.2011 he had joined the investigation of this case when they went to the jhuggies but no independent witness came forward. The witness has testified that on 05.07.2011 he again joined the investigation of the case and informed the Investigating Officer that he was not aware of about the parentage of accused Deepak however he told him that accused Shankar who is the BC of the area St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 9 was also present in the midnight on the date of occurrence with the assailants. The witness has also correctly identified accused Shankar in the court as the person who had inflicted injuries on his person as well as on Ct. Anil by giving fist and leg blows and also by stone pelting in order to save the accused persons who were already in their custody and also obstructed their government duty.
(8) The witness has also identified one iron rod as the same which was in the hand of accused Mulla by which the accused Mulla inflicted injuries on his person as well as on the person of Ct. Anil, which iron rod is Ex.P1. According to the witness his uniform was seized by the doctor in the hospital whereas his name plate was broken at the place of occurrence. He has identified his name plate having written Shadi Lal ASI and also having the symbol of the Delhi Police which is Ex.P2 which according to the witness fell down at the place of occurrence. He has also identified one pant and shirt uniform of Delhi Police having blood stains which are collectively Ex.P3 and the stones which were used by the accused persons on his person as well as Ct. Anil which are Ex.P4.
(9) In his cross examination by Ld. Defence counsels the witness has deposed that he remained at Police Station Bharat Nagar for about two years after the incident. He has admitted that on 24.12.2010 he alongwith Ct. Anil, alongwith Investigating Officer and police officials went to Sawan Park in search of accused Arjun, Kalu, Rakesh and Naresh. According to him, the Investigating Officer was having the knowledge of all the four names due to St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 10 the disclosure statements of accused persons who were already arrested and it was the Investigating Officer who had given these names to him. Witness has further deposed that the case property which he has identified in the Court was not seized by the Investigating Officer in his presence and he did not sign the seizure memo. He has also admitted that stones and iron rod which he identified before the court, such type of articles are easily available anywhere. According to him, in the Gypsy of the SHO there were total five police officials including Ct. Abhimanyu who was driving the said Gypsy. He has admitted that all the five police officials alongwith eight persons who were apprehended left the spot in the same Gypsy whereas four were remained in their custody. Witness has further deposed that he along with Ct. Anil reached Sundar Lal Jain hospital on foot and he did not inform to the police station about the incident because in order to save their lives they ran away towards the hospital after receiving the injuries. According to him on 23.12.2010 and 24.12.2010 he was posted at Police Station Bharat Nagar and the Lock up of Police Station Bharat Nagar is situated at Police Station Ashok Vihar therefore, he is unable to tell if the accused Naresh was present in the police station Bharat Nagar and confined in under Section 107/151 Cr.P.C. Witness has further deposed that he got confused on the name of the accused Naresh but he has correctly identified him in the court by pointing out towards him as one of the accused who was in his custody. He has also deposed that he made departure entry at the Police Station at 12.00 AM. According to him, the Government Gypsy bearing No.7426, was driven by Ct. St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 11 Abhimanyu which Gypsy can accommodate seven to eight persons. He has deposed that the SHO left the jhuggi at Sawan Park at about 2.30 AM (Midnight). According to him after about five to seven minutes when the SHO left the said jhuggi the incident of inflicting injuries took place. He has testified that they remained outside the jhuggi and did not enter the same. He is not aware if the Investigating Officer had tried to inquire about the ownership of the jhuggi. Witness has further deposed that the accused were sitting on the ground on a chadder while gambling which chaddar was not seized in his presence. According to him all the four boys which remained with them in their custody were asked to sit in the gali in the supervision of himself and Ct. Anil and they had not physically caught hold by them. The witness has further deposed that he identified the accused Rajender as Rakesh and has voluntarily explained that he had identified the accused Rajender by face and he came to know the name of the accused persons later on. He has also deposed that he was never posted as Beat Officer of jhuggi Sawan Park where the incident took place. According to him prior to the present incident he was not aware about any of the accused persons. He has deposed that he was discharged from the hospital after six to seven days. The witness has testified his statements were recorded on six to seven occasions and some of the statements were recorded in the DIU office and some statements were recorded in hospital. He has admitted that the day of incident was the night of Chhoti Diwali. He has denied the suggestion that public were burning the patakhas/ crackers and has voluntarily explained that most of the St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 12 people were sleeping as it was midnight hours. According to the witness, he came to know the names of the four accused persons who remained in their custody as he made inquiries from them whereas inquiries were also made by the other police officers at the time of apprehension along with others. He is unable to give the names of those eight boys who were taken by the SHO in his custody in the Gypsy. According to him, he is not aware if any of the accused persons were arrested in gambling Act and as to who was arrested first in this case on the same day and has voluntarily explained that he was admitted in the hospital. Witness has admitted that he used to wear spectacles for eyesight. He has further deposed that at the time of incident, he knew the names of four accused persons who were in his custody and names of the remaining assailants were not known to him at that time. He is not aware if eight to ten persons who came later on were residents of area or not at that time. Witness has further deposed that the persons who had pelted stones on them are Shankar, Rajender, Naresh, Rakesh, Puran, Arjun and Tara Chand. According to him, when the other accused persons started pelting stones at that time, the four accused persons were inflicting injuries on their person and the stones which were thrown towards them, did not inflict injuries to Mulla, Khemu, Deepak and Rajender. The witness has testified that he received visible injuries on his head and right hand finger which were inflicted by the iron rods. Witness has further deposed that he did not notice any other weapon except the iron rod and stones in the hands of the accused persons. Witness has further deposed that Ct. Anil also received injuries by St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 13 the iron rod but he is unable to tell as to how many injuries he sustained on his person. He has also deposed that the accused persons did not chase them when they were running towards the hospital after receiving the injuries and has voluntarily explained that they were pelting stones from the backside. Witness has denied the suggestion that they alongwith the members of the police party went to raid the premises of one person namely Negi who is a bad element of the area and they also went there to collect the weekly collection and when he refused to give the money an altercation took place during which he inflicted injuries on his person and they inflicted injuries on Negi. According to the witness he is not aware if any person namely Negi was lifted by the police on that day and he did not came to know the fact that the Negi was discharged from the police station. He has denied the various suggestions made by the Ld. Defence Counsels.
(10) PW9 Ct. Anil Kumar has deposed that in the intervening night of 1617.10.2009 he was posted at Police Station Bharat Nagar and on that night he was on checking duty alongwith ASI Shadi Lal from the 12.00 Midnight to 5.00AM in the area of Police Station Bharat Nagar. According to him on that night at about 1.30AM they received wireless message from the SHO Inspector Lalit Joshi that they had to reach near Mata Jai Kaur School on which he along with ASI Shadi Lal reached there where they met the SHO along with HC Mukesh, HC Baljeet, Ct. Abhimanyu and Ct. Kamlesh with the official Gypsy. He has testified that thereafter they left their motorcycle and the police Gypsy after which they all went towards the Sawan Park Jhuggies St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 14 area for patrolling duty. Witness has further deposed that when they reached near Jhuggi no. N77A/502 they found some persons gambling there with playing cards and twelve persons were apprehended by them. According to him, the SHO, HC Mukesh, HC Baljeet, Ct. Abhimanyu and Ct. Kamlesh took the custody of eight apprehended persons in the Gambling Act and went away from there whereas four persons namely Khema, Mulla, Rajender @ Gabbar and Deepak were in their custody and on the direction of the SHO he alongwith ASI Shadi Lal remained at the spot. He has also deposed that suddenly Khema shouted that "ab mauka hai, maaro saalon ko" on which immediately Mulla went away from there in the gali and came back with an iron rod and gave iron rod blows on his head. Witness has further deposed that when ASI Shadi Lal tried to save him accused Khema gave an iron rod blow on the head of ASI Shadi Lal and other accused Rajender @ Gabbar and Deepak gave fists and leg blows upon him and ASI Shadi Lal. He has testified that on hearing the shouts of accused Khema eight to ten persons also came there who started throwing the bricks and stones upon them due to which reason he and ASI Shadi Lal received injuries. The witness has also deposed that thereafter the above said four persons along with eight to ten other public persons ran away from there. Thereafter he and ASI Shadi Lal went to the Sunder Lal Jain Hospital on foot where they both were medically treated. According to him after some time SHO Inspector Lalit Joshi with his staff reached at Sunder Lal Jain Hospital. He has further testified that he received injuries on his head and other parts of the body and threefour St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 15 stitches were given on his head during medical treatment. According to the witness his police uniform was smeared with blood during the incident and the same was sealed by the doctor. Witness has further deposed that ASI Shadi Lal also received injuries on his head, hands and other parts of the body and after medical treatment he was discharged from the hospital. He has also deposed that Inspector Bahadur Singh and HC Mukesh met him in the hospital after which they reached at the spot and inspected the site where Inspector Bahadur Singh prepared the site plan at his instance. Witness has proved that bricks and stone pieces and blood stained name plate of ASI Shadi Lal were also found at the spot which name plate was taken into possession by Inspector Bahadur Singh vide seizure memo Ex.PW9/A; blood stained brick piece was seized vide seizure memo Ex.PW9/B; bricks from the spot were seized vide seizure memo Ex.PW9/C and one blood stained brick piece lying near the name plate of ASI Shadi Lal was seized vide memo Ex.PW9/D. According to the witness Inspector Bahadur Singh lifted blood stained concrete and earth and also lifted sample of concrete and earth from the spot and kept the same in separate plastic containers which were seized vide Ex.PW9/E. Witness has further deposed that thereafter they went towards the railway phatak No. 3, Sawan Park in search of the accused persons where he saw that one of the accused Mulla coming from Sangam Park Area on which the accused Mulla was apprehended by them at about 4.004.15 PM on 17.10.2009 and he identified him as the person who gave iron rod blows on his head. The witness has testified that the accused Mulla was arrested vide St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 16 memo Ex.PW9/F; his personal search was conducted vide memo Ex.PW9/G and his disclosure statement was recorded by Inspector Bahadur Singh vide memo Ex.PW9/H. He has proved that at the instance of the accused Mulla one iron rod was recovered from near the wall of Arya Bhatt Enclave, near Sawan Park which iron rod was about 2½ - 3 Ft long which was seized vide seizure memo Ex.PW9/I. According to him thereafter they returned back to the police station and Inspector Bahadur Singh deposited the recovered articles in the Malkhana and recorded his statement.
(11) He has also deposed that on 31.12.2009 on the directions of Inspector Bahadur Singh he took nine exhibits including two sample seals to FSL Rohini vide RC No. 8/21/09 Ex.PW1/A and he deposited the same at FSL Rohini and handed over receipt acknowledgment Ex.PW1/B to the MHC(M). He has proved that the case property was not tampered during the period it remained in his custody. Witness has further deposed that on 24.12.2010 Inspector Sudesh of DIU called him at Sawan Park and ASI Shadi Lal and on reaching there they came to know that two persons were already arrested by the police of Police Station Bharat Nagar on which they came at Police Station Bharat Nagar where they came to know that both persons were arrested U/s 107/151 Cr.P.C. and to be produced before the Executive Magistrate. According to the witness, thereafter they reached at SEM Court, Jahangir Puri where two arrested persons were found coming out of the court with the police and he identified both the persons as the assailants who came at the spot after shouting of Khema and had thrown bricks and stones upon St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 17 them. He has testified that the said persons disclosed their names as Naresh and Rakesh and thereafter Inspector Sudesh arrested the accused Naresh vide arrest memo Ex.PW5/B; his personal search was conducted vide memo Ex.PW5/D and his disclosure statements was recorded vide Ex.PW5/F. The witness has further proved that Inspector Sudesh also arrested accused Rakesh vide memo Ex.PW5/C; his personal search was conducted vide memo Ex.PW5/E and his disclosure statements was recorded vide Ex.PW5/G. According to him, on 28.01.2011 he alongwith ASI Shadi Lal reached at DIU Office North West District at Sector 11, Rohini to know about the status of the case where he found two persons sitting in DIU Office in front of Inspector Sudesh Kumari and he identified both the persons as the same who came at the spot after exhorting by the accused Khema and had thrown bricks and stones upon them. He has testified that the said persons disclosed their names as Arjun and Puran after which the accused Puran Lal was arrested by Inspector Sudesh Kumari vide Ex.PW9/J and accused Arjun was arrested vide Ex.PW9/K. (12) The witness has further deposed that on 03.03.2011 he again went to the DIU Office, North West District along with ASI Shadi Lal where he identified the accused Tara Chand as the person who had thrown the bricks and stones upon them at the spot. He has proved that the accused Tara Chand was arrested by Inspector Laxmi vide Ex.PW9/L. He has testified that on 05.07.2011 Inspector Bharadwaj of DIU/IO of the case called him at St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 18 Sawan Park and on reaching there Inspector Bhardwaj made enquiry from him about accused Deepak and Shanker @ Bunty.
(13) The witness has correctly identified the accused Mulla, Khem Chand @ Khema, Rajender @ Gabbar in the court. He has also identified the accused Shanker @ Bunty, Naresh, Rakesh, Puran Lal and Tara Chand by pointing out towards them as the persons who came at the spot on hearing the shouting of accused Khema and attacked upon him and ASI Shadi Lal.
(14) He has also correctly identified the case property i.e. the saria (iron rod) which is Ex.P1; name plate of ASI Shadi Lal which is Ex.P2; police uniform belonging to ASI Shadi Lal which is Ex.P3; blood stained stones lifted by the Investigating Officer from the spot which are Ex.P4 collectively; blood stained earth control and concrete which is Ex.P5; earth control and concrete which is Ex.P6 and one police uniform belonging to him and sealed by the doctor which are collectively Ex.P7. (15) In his cross examination by Ld. Defence counsels, the witness has deposed that they reached at Mata Jai Kaur School about about 5 minutes of receiving the wireless message. Witness has admitted that the checking which was being carried on the intervening night 1617.10.2009 is not carried out every day. According to him they reached near Jhuggi No. N77A Sawan Park at about 1.45AM but he does not recollect as to which accused was apprehended by which police official. He has testified that those persons St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 19 were gambling while sitting on plastic chairs and the cards were placed on a table in front of them. Witness has further deposed that he remained at the spot for about 2025 minutes and no writing work was done by the Investigating Officer in his presence at spot. He has testified that no public person was present at the spot at that time. According to the witness, there is five to seven minutes walking distance between the spot of incident and Sunder Lal Jain Hospital and his statement was recorded by Inspector Bahadur Singh at the spot. He has also deposed that the twelve persons who were gambling were inside jhuggi no. N77A when they reached the spot. He has further deposed that in his presence no investigations were made by the Investigating Officer to ascertain the ownership of the said jhuggi. According to him, there was a shutter at the gate of jhuggi and his statement was recorded by Inspector Bahadur Singh in the jhuggi Jhopri cluster while sitting on chair. He is not aware from where the chair was arranged and has stated the accused persons were apprehended from inside of the jhuggi and they were not allowed by the police party to flew away from the jhuggi. Witness has admitted that once all the twelve persons were apprehended, they were not allowed by the police party to run away. According to him all the persons including the accused and the police officials remained in the jhuggi for abut 2025 minutes.
(16) Specific questions were put to the witness by this Court during which he replied that the size of the jhuggi was around 10 x 10 feet and he was outside the jhuggi but he could see inside from the door. He has stated St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 20 that there was no window in the Jhuggi which was in the form of a shop and half of the persons were virtually outside the shop / jhuggi. (17) According to him, the jhuggi was not a running shop and has voluntarily explained that it was constructed in the form of a shop. He has further deposed that he remained in the hospital for about three to four hours and after his discharge from the hospital he again went back to the spot where he was interrogated by the Investigating Officer and he pointed out the place of incident. Witness has further deposed that he reached back to the spot from the hospital on foot but he does not recollect the time he started from the hospital and also when he reached the spot. He has testified that he remained at the spot for about 2½ hours to 3 hours and no public persons were present at the spot at that time. Witness has further deposed that he did not carry anything in his hand when he reached back to the spot but the Investigating Officer was having a bag in his hand when they were walking towards the spot. According to him HC Mukesh had also accompanied him and Inspector Bahadur Singh. He does not remember what HC Mukesh was carrying while going to the spot and has stated that from the spot they reached at Phatak No.3 at about 4.004.15 PM. Witness has also deposed that they went to Phatak No.3 on the direction of Inspector Bahadur Singh but he is unable to tell whether Investigating Officer had any information regarding presence of accused Mulla near Phatak no.3 or not. He has admitted that a large number of public persons were passing through phatak but states that Investigating Officer did not join them in the investigation. According to the witness the St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 21 writing work was done by the Investigating Officer while sitting near the phatak but he is unable to tell the details of the spot where he was doing the writing work. He is also unable to tell the exact height of Arya Bhatt Enclave and has voluntarily explained that it could be around six feet. According to the witness, the iron rod was lying in the bushes adjoining the boundary wall and there is a gate on the boundary wall but he is unable to tell whether it remains open throughout or remains closed and has voluntarily explained that when they reached at the spot, it was open. Witness has further deposed that the area is residential and people were passing from that place. Witness has denied the suggestion that is possible for anybody to throw the rod in the bushes. According to him in his presence the Investigating Officer did not join any public persons at the time when the rod was recovered from the bushes.
(18) He has further testified that on 24.12.2010 they had gone to the SEM Court in an official Gypsy and reached there at around 2.30 PM. According to the witness, the Investigating Officer did not join any public persons outside the SEM Court when the accused were allegedly apprehended. He has also deposed that no writing work was done outside the SEM Court and investigating Officer did not carry out any interrogation of the accused outside the SEM Court and has voluntarily explained that it was done in the office. The witness has denied the various suggestions put by the Ld. Defence Counsels.
St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 22 Medical witnesses:
(19) PW3 Dr. K.L. Sethi has deposed that on 17.10.2009 he was posted as Medical Officer Casualty at Sunder Lal Jain Hospital and on that day vide MLC No. 7093 Mr. Anil S/o Sh. Ramanand aged 32 years, male, came to casualty with alleged history of assault. According to him a lacerated wound of one inch, one bony deep, no under line bony injury and a swelling on occipital region was found. Witness has further deposed that the patient came by himself with another patient Shadi Lal and on examination, no other external injuries were found. He has proved that after examination he gave his observations and opinion on the MLC which is Ex.PW3/A. Witness has further deposed that the injuries on the body of the patient Anil were Simple.
According to the witness the injured Shadi Lal was also examined vide MLC Ex.PW3/B. This witness has not been crossexamined by the counsels for the accused persons and hence his testimony has gone uncontroverted. (20) PW4 Dr. Prafulla Kumar Singh has deposed that on 17.10.2009 Shadi lal S/o Kishori Lal had been brought to Sundar Lal Jain Hospital by Sh. Anil and was medically examined by him. According to the witness the injured Shadi Lal was found to be having a lacerated wound 1½ inch in occipital region, a lacerated wound of about half inch in the frontal region and there was a fracture in the right ring finger. He has proved the MLC of Shadu Lal which is Ex.PW3/B and his observations are present at point bracketed A. The witness has testified that after examining the patient St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 23 he opined the injuries as Grievous which observations alongwith his signature are present at point Mark B. This witness has not been cross examined by the counsels for the accused despite opportunity in this regard and hence his testimony has gone uncontroverted.
Forensic witness:
(21) PW6 Ms. L. Babyto Devi Senior Scientific Officer (Biology), FSL, Rohini has deposed that on 31.12.2009 seven parcels were received in their office in respect of case FIR No.22/2009, Police Station Bharat Nagar in sealed condition along with two sample seals which seals were tallied and found correct. According to the witness she has given the serial number to the parcels as 1, 2, 4, 5, 7, 8 and 9 after which the she opened the parcels and examined the exhibits. She has proved that she found blood on the exhibits 1a, 1b, 2, 4a, 4b, 5, 7, 8 & 9 and the biological examination report is Ex.PW6/A. She has also proved that she examined the above said exhibits with serological techniques and found human 'O' blood group in the exhibits 1a, 1b, 2, 4a, 4b & 5 and human blood on the exhibit 7, 8 and 9 and her serological examination report is Ex.PW6/B. This witness has not been crossexamined by the Ld. Defence Counsels despite opportunity and hence her testimony has gone uncontroverted.
Police witnesses:
(22) PW1 HC Sanjay Kumar is a formal witness being the MHCM who has been examined by way of affidavit which is Ex.PW1/1 (as per the St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 24 provisions of Section 296 Cr.P.C.). He has proved the various entries i.e. entry in register no.21 vide RC No. 08/21/09 copy of which is Ex.PW1/A, copy of FSL receipt which is Ex.PW1/B; entry No. 26 in Register No. 19 about deposit of case property by Inspector Bahadur Singh copy of which is collectively Ex.PW1/C. This witness has not been crossexamined by the Ld. Defence Counsel and hence his testimony has gone uncontroverted. (23) PW2 ASI Lakhan Singh is also a formal witness being the Duty Officer who has been examined by way of affidavit which is Ex.PW2/1 (as per the provisions of Section 296 Cr.P.C.). He has proved the copy of FIR which is Ex.PW2/A and his endorsement on rukka which is Ex.PW2/B. He has not been crossexamined by the Ld. Defence Counsels despite opportunity and hence his testimony has gone uncontroverted. (24) PW7 Ct. Rakesh, has deposed that on 17.10.2009 he was posted at Police Station Bharat Nagar as DD Writer and on that day at about 12.05 AM (midnight), he made departure DD No. 2B of Ct. Pradeep and another Ct.
Pradeep, Ct. Ram Avtar, Ct. Mukesh, Ct. Kamlesh, Ct. Kishan, HC Baljeet and Ct. Ram Bharose vide Ex.PW7/A. According to him on the same day at about 12.45AM he made departure DD No.4B of ASI Shadi Lal, Ct. Anil Kumar vide Ex.PW7/B. He has proved that at about 4.30AM Dr. K. L. Sethi of Sunder Lal Jain Hospital gave information via telephone that Shadi Lal S/o Kishori Lal and Anil S/o Ramanand were admitted in the hospital due to a quarrel on which he recorded DD No.7B which is Ex.PW7/C and informed St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 25 SI Ramesh Chand to conduct the further proceedings but thereafter on the the direction of the SHO he informed ASI Dharambir for further proceedings. He has also proved the original DD No. 2B, DD No.4B and DD No.7B dated 17.10.2009 which are Ex.PW7/D collectively (two pages). In his cross examination by Ld. Defence counsel witness has denied the suggestion that he has made above said DDs antetimed at the instance of the Investigating Officer.
(25) PW8 Ct. Dev Narain Parshad has deposed that on 01.02.2010 he was posted at police station Bharat Nagar and on that day he joined the investigations along with Insp. Vijay Kumar and he along with SI Vijay Kumar, Ct. Pardeep reached at Sawan park, since they had information that accused Rajender was hiding there. According to him they went to jhuggi No. N77/A506 Sawan Park Extn where they met the accused Rajender @ Gabbar and apprehended him and thereafter he was interrogated where he made a disclosure statement regarding his involvement in the present case and also named the accused Shankar @ Bunty. Witness has further deposed that the accused Rajender @ Gabbar was arrested vide memo Ex.PW8/A; his personal search was conducted vide memo Ex.PW8/B and his disclosure statement was recorded which is Ex.PW8/C. He has correctly identified the accused Rajender @ Gabbar in the Court.
(26) Leading questions were put to the witness by the Ld. Addl. PP for the State wherein the witness has denied the suggestion that the accused Rajender @ Gabbar had been taken by the Investigating Officer after taking St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 26 permission from the court, after which he was formally arrested by the Investigating Officer. The witness has been declared hostile by the Ld. Addl. PP for the State after which the witness was crossexamined wherein he has denied the suggestion that he has been won over by the accused and it is for this reason that he has made a false deposition with regard to the apprehension and arrest of the accused later on where as Rajender had already surrendered in the court and was taken after due permission from the court. (27) In his cross examination by the Ld. Defence Counsel, the witness has denied the suggestion that no disclosure statement was made by accused Rajender and the Investigating Officer had recorded the same of his own. Witness has also denied the suggestion that he was deposing falsely on the aspect of apprehension and arrest of the accused since the accused had himself surrendered in the court and was taken by the Investigating Officer after permission of the court. Witness has denied the suggestion that he did not join the investigations and signed all the documents while sitting in the police station later on or it is for this reason that he was unable to give the correct facts.
(28) PW10 Ct. Pardeep Singh has deposed that on 01.02.2010 he was posted at Police Station Bharat Nagar and on that day he joined the investigations along with Insp. Vijay Singh and he along with Ct. Dev Narain came to the court of the Ld. MM where Rajender @ Gabbar had surrendered. According to him the Investigating Officer took permission from the court and thereafter formally arrested the accused Rajender @ St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 27 Gabbar vide memo Ex.PW8/A; his personal search was conducted vide memo Ex.PW8/B and his disclosure statement was recorded by the Investigating Officer which is Ex.PW8/C. He has correctly identified the accused Rajender in the Court.
(29) In his cross examination by Ld. Defence counsels, witness has deposed that the disclosure statement of the accused was recorded outside the court in the corridor. Witness has admitted that there were public persons present outside the court and that large number of advocates and court staff were also available. According to him Investigating Officer did not ask any person to join the investigations at the time when the accused was interrogated. Witness has denied the suggestion that the accused did not make any disclosure statement or that the same was recorded by the Investigating Officer of his own.
(30) PW11 ASI Dharambir Singh has deposed that on 17.10.2009 he was posted at Police Station Bharat Nagar and on that day on receipt of DD No. 7B vide Ex.PW7/C he reached Sunder Lal Jain Hospital at about 4:40 AM where ASI Shadi Lal and Ct. Anil were already present and he recorded the statement of ASI Shadi Lal which is Ex.PW5/A. According to him, he thereafter reached the spot of the incident, where he converted the statement into a rukka and made his endorsement which is Ex.PW11/A. He has testified that he also met HC Mukesh Kumar at the spot and he handed over the rukka to him and directed him to go to the police station for getting the FIR registered while he remained at the spot. Witness has further deposed that St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 28 at about 7:30 AM HC Mukesh Kumar returned to the spot along with Insp. Bahadur Singh to whom the investigations had been marked and he handed over the MLC of ASI Shadi Lal and Ct. Anil Kumar to Insp. Bahadur Singh. (31) A specific question was put to the witness by the Court as to how the MLC came in his possession to which the witness has replied that he had collected the same when he reached Sunder Lal Jain Hospital. (32) In his cross examination by Ld. Defence Counsels, the witness has deposed that no other police official met him at Sunder Lal Jain hospital except ASI Shadi Lal and Ct. Anil. He has denied the suggestion that ASI Shadi Lal and Ct. Anil were injured at that time or that because ASI Shadi Lal and Ct. Anil did not has any injuries, it is for this reason he did not mention about this fact in his examination in chief. According to him Investigating Officer did not record his statement U/s 161 Cr. P.C. He has denied the suggestion that his statement U/s 161 Cr. P.C. has not been recorded by the Investigating Officer because he was not present at the spot nor he joined the investigations or that it was at a later stage that on the instructions of the senior officers, he signed the various documents while sitting in the police station. According to the witness no separate entry was made when he left the police station on receipt of DD No. 7B. He has testified that he went alone and there was no other official with him who left the police station and when he reached the spot, public persons were present there. Witness has further deposed that there were around 57 public persons present there. According to the witness he did not record the names of said public persons whom he St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 29 met at the spot and had interrogated them and also asked them their names and addresses during the interrogations but he is unable to tell their names and addresses because he does not recollect the same. The witness has also deposed that he did not make any note of the proceedings which were conducted including the interrogations of the public persons in his personal dairy/personal notes. Witness has denied the various suggestions put to him by the Ld. Defence Counsels.
(33) PW12 HC Mukesh Chand has deposed that on 17.10.2009 he was posted at police station Bharat Nagar and on that day he was on Beat Duty at Sawan Park and at about 1:50 AM (Midnight) he was patrolling in the area when SHO Insp. Lalit Joshi, HC Baljeet, Ct. Abhimanyu and two other Constables, whose name he does not recollect came near Mata Jai Kaur School, Sawan Park where he joined them. According to him Insp. Lalit Joshi send a message to ASI Shadi Lal and asked him to report at Mata Jai Kaur Public School on which ASI Shadi Lal and Ct. Anil reached there on their official motorcycle. He has testified that they thereafter parked their vehicles at Mata Jai Kaur Public School and went towards the jhuggies Sawan Park on foot and when they reached near Jhuggi No. N77/502, they found 12 persons gambling (jua khel rahe thai). According to him they apprehended all of them and while they took eight persons with them, the other four were left at the spot under the supervision of ASI Shadi Lal and Ct. Anil because it was not possible to carry all the accused together in the same vehicle. The witness has testified that he along with the other police party headed by the SHO went St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 30 to the Police Station along with the eight accused whom they left at the Police Station. He has testified that thereafter he was instructed by the SHO to report back on his patrolling duty in the area and when he reached back to the Jhuggi Sawan Park, he met ASI Dharambir who informed him that there were riots in the area as the accused who had been left behind had attacked the police officials who had been left at the spot to guard them. According to him, he was handed over one tehrir by ASI Dharambir who directed him to take the same to the police station for registration of the case. He has testified that after going to the police station, he got the FIR registered on the basis of the tehrir which was handed over to him and thereafter since the investigations were handed over to Insp. Bahadur Singh, he handed over the copy of the FIR and original tehrir to Insp. Bahadur Singh after which he accompanied Insp. Bahadur Singh to jhuggi Sawan Park/ spot where a large number of blood stained bricks and stones were lying. Witness has further deposed that they also found the name plate of ASI Shadi Lal lying at the spot and Insp. Bahadur Singh thereafter lifted the blood stained bricks and stones, name plate of ASI Shadi Lal and also the blood stained earth and about 67 separate pullandas were prepared with the help of cloth which were separately sealed with the seal of BS. He has further deposed that thereafter the Investigating Officer prepared the seizure memo of the same vide Ex.PW9/A to Ex.PW9/E and thereafter the Investigating Officer prepared the site plan on the pointing out of Ct. Anil. According to the witness thereafter they started searching for the accused persons and at about 44:15 PM when they St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 31 reached railway phatak No.3, Sangam Park where Ct. Anil Kumar pointed out towards one person namely Mulla who was standing near the phatak as the same person who had hit him on his head with a saria. He has proved that they they apprehended the said person and Investigating Officer interrogated him and his complete name was revealed as Mulla, resident of jhuggi Sawan Park extension and disclosed about his involvement in the incident. According to the witness, the accused Mulla also disclosed that the saria with which he had inflicted injuries on the head of Ct. Anil had been thrown by him at Arya Bhatt Enclave, near the boundary wall. He has proved that the accused Mulla was arrested vide Ex.PW9/F; his personal search was conducted vide memo Ex.PW9/G and his disclosure statement was recorded which is Ex.PW9/H. According to the witness they thereafter accompanied Mulla who took them at the boundary wall of Arya Bhatt Enclave from where he got recovered a saria (iron rod) which was seized by the Investigating Officer vide memo Ex.PW9/I. He has further deposed that they thereafter went to the spot along with the accused Mulla from where he (witness) was sent by the Investigating Officer to Sunder Lal Jain Hospital for collecting the exhibits. The witness has testified that he thereafter went to Sunder Lal Jain Hospital from where he collected the various sealed exhibits containing the uniform of Ct. Anil and ASI Shadi Lal, blood samples and two sample seals which he brought to the police station and handed over the same to the Investigating Officer which were seized vide memo Ex.PW12/A and Ex.PW12/B respectively.
St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 32 (34) The witness has correctly identified accused the accused Mulla, Rajender, Khem Chand @ Khemu by pointing out and also by name and also identified the accused Tara Chand by pointing out. He has correctly identified the case property i.e. the saria (iron rod) which is Ex.P 1; name plate of ASI Shadi Lal which is Ex.P2; blood stained stones lifted by the Investigating Officer from the spot which are Ex.P4 collectively; blood stained earth control and concrete as the same which was lifted by the Investigating Officer from the spot which is Ex.P5 and earth control and concrete which is Ex.P6.
(35) During his cross examination by Ld. Defence Counsels the witness has deposed that he was on night patrolling on the day of the incident from 1:00 AM onwards and was alone on his private motorcycle. According to the witness he had made his departure entry while leaving the police station but he does not recollect the details. He is unable to tell the details of the number of Gypsy in which the SHO had come and has voluntarily explained that it was official Gypsy. Witness has also deposed that he had met the SHO at about 1:40 AM and that they had no prior information regarding the gambling and it was bychance that they had found these persons gambling. He has testified that all the twelve persons were gambling together in one group outside the jhuggi while sitting on the ground. He has also deposed that the currency notes, cards were also seized and has voluntarily explained that separate case under the gambling act was registered. According to him, St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 33 in so far as he recollect a total sum of Rs.960/ was seized along with large number of playing cards whose details he does not recollect. Witness has further deposed that light was coming from a nearby electric pole. He is unable to tell the details as to which accused was handed over to which police official while taking away to the police station and states that only four police officials were sitting in the gypsy along with the eight accused which included the SHO and Ct. Abhimanyu, driver, HC Baljeet and one more Constable. He has further testified that he followed the Gypsy on his private motorcycle and no other vehicle was taken to the police station except government gypsy and motorcycle. The witness has also deposed that he reached the spot at about 3:304:00 AM and no public person was present at the spot at that time. According to him, he left the spot at about 6:30 AM while taking the rukka to the police station and reached the spot along with copy of FIR at about 8:00 AM when he met Ct. Anil at the spot. Witness has further deposed that no public person was present at the spot when the seizure memos of the case property i.e. bricks, stones, name plate etc were prepared and most of the writing work was done by Insp. Bahadur Singh but in respect of the exhibits taken from the Sunder Lal Jain Hospital, he does recollect, if it was Insp. Bahadur Singh who himself prepared the seizure memo in his handwriting or it was somebody else who prepared the same. Witness has also deposed that the entire writing work took almost the whole day and it was from the spot that they had gone in search of the accused. According to him, Railway phatak is at a distance of about 500 meters from the spot of the St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 34 incident and Insp. Bahadur Singh had some secret information regarding the presence of one of the accused at the phatak but the information was not given in his presence but he was aware of the same. Witness has also deposed that they had gone on foot to the phatak and some public persons were present at the phatak when the accused Mulla was apprehended but none of them were ready to join the investigations. According to him, Investigating Officer had informed some family member of the accused Mulla regarding his arrest but he does not recollect to whom the information was given. He has testified that Arya Bhatt enclave is hardly 600 meter from the phatak and they reached there at about 55:10 PM. He has testified that they did not meet any public persons at the boundary wall where the accused had taken them and there are large number of flats at Arya Bhatt Enclave but in his presence Investigating Officer did not join any public persons. According to him they remained at Arya Bhatt Enclave near boundary wall for about 1520 minutes and the writing work was done while standing at the spot by Insp. Bahadur Singh. (36) According to him he cannot say if the saria EX P1 is easily available in the market or that the earth control can also be taken from any where from the road.
(37) Witness has admitted that the bottles in which the blood stained earth and the earth control were lifted and seized are identical. Witness has denied the suggestion that he along with members of police party went to raid the premises of one person namely Negi who is a bad aliment of the area or that they went there to collect weekly collection and when Negi refused to pay St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 35 the same an altercation took place and Negi inflicted injuries on the police officials. Witness has further deposed that he does not know whether Negi was lifted by the police on that day nor does he aware the fact that Negi was discharged from the police station. Witness has denied the suggestion that he did not tell the actual incident before the police or that the incident is the story prepared by the Investigating Officer. He has also denied the various other suggestion put to him by the Ld. Defence Counsels.
(38) PW13 Inspector Lalit Joshi,has deposed that on 16.10.2009 he was posted as SHO Police Station Bharat Nagar and on the intervening night of 1617.10.2009 he was on patrolling alongwith HC Mukesh, Ct. Baljeet, Ct. Kamlesh and Ct. Abhimanyu. According to him when they reached near Sawan Park jhuggies cluster, he received secret information that on account of Diwali some persons were gambling in jhuggi cluster on which he forwarded this information to ASI Shadi Lal and directed him to meet him at Sawan Park Jhuggi Clusters. Witness has further deposed that thereafter ASI Shadi Lal and Ct. Anil who was with him also joined them and they thereafter went towards Mata Jai Kaur School where they left their vehicles and thereafter started patrolling on foot. According to him when they reached near jhuggi no. N77A/502 at 1.50AM they found that 1012 persons were gambling in the gali in front of the jhuggi and they surrounded them from all the sides and apprehended 12 persons from whom they recovered currency notes and playing cards. He has testified that since the number of accused was large hence they took eight accused with them while the remaining four accused St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 36 were left with ASI Shadi Lal and Ct. Anil at the spot itself to guard them after their detention. He has also deposed that thereafter he reached the police station where the eight accused after their arrest were put in the lock up. According to him at about 4.004.15 AM he received an information that there was a Jhagra and ASI Shadi Lal and Ct. Anil had been attacked by the accused Khema, Mulla, Rajender @ Gabbar (whom the witness has correctly identified in the court) and Deepak (since expired) whom they had left in their custody and their associates. Witness has further deposed that on receipt of information he reached the spot where he found that the injured had been shifted to the hospital and a large number of stones and bricks were lying at the spot. According to the witness, he thereafter reached the hospital where the injured were admitted and interrogated ASI Shadi Lal and Ct. Anil who informed him that after they had left the spot Khema, Mulla and Rajender taking the benefit of the same, called their associates and attacked them and escaped. The witness has testified that he found that the hand of the ASI Shadi Lal was fractured and both ASI Shadi Lal and Ct. Anil had received head injuries. According to the witness he thereafter made a call for extra force and Inspector Investigation Inspector Bahadur Singh came to the spot alongwith ASI Dharambir and further investigations were conducted by him. (39) In his cross examination by Ld. Defence counsels, the witness has deposed that he did not notice after the incident what clothes the injured ASI Shadi Lal and Ct. Anil were wearing. According to him, after receipt of the information about the Jhagra he sent information to the police staff St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 37 through wireless to collect at the place of the incident. He is not aware about any Badmaash of the area by the name of Negi and states that there was no such person by the name of Negi detained in the police station on that day. Witness has further deposed that it is not in his knowledge that there are cases against any Badmaash of the area by the name of Negi in their police station and has voluntarily explained that unless he was told about the full name, father's name and address of the person he will not be able to give the details. Witness has further deposed that he is not aware of the owner of the Jhuggi No. N77A/502, Sawan Park but the jhuggi is connected with accused Khema. According to the witness he was not aware of the names of the four accused persons i.e. Khema, Rajender, Mulla and Deepak prior to this incident. The witness has also deposed that at the time of incident he was having his private mobile phone and he had informed his senior officers about the incident. Witness has further deposed that when the twelve accused persons were apprehended while gambling, some other persons from the jhuggies had also come and has voluntarily explained that they did not come to the spot but were seeing from their houses. According to the witness, he did not join any public persons at the time of apprehension of twelve accused persons. He has also deposed that the distance from the main road from where they had left their vehicles to the place where the accused were apprehended is at a distance of about one furlong and from the main road it is about 70 to 80 meters and the gali where the accused were gambling was about 6 to 7 feet. Witness has denied the suggestion that ASI Shadi Lal and Ct. Anil had a St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 38 dispute with Negi (Badmash) on the issue of Diwali monthly and it was in the hands of Negi that they had sustained injuries whereas the accused have been falsely implicated only to justify and explained their injuries. (40) PW14 Inspector Sudesh has deposed that on 05.07.2010 he was posted at DIU, North West District, Delhi and on that day investigation of this case was marked to him. Witness has further deposed that on 23.12.2010 he collected FSL result Ex.PW6/A and Ex.PW6/B and on 24.12.2010 he alongwith Ct. Satender, HC V. Ramesh and Ct. Amit reached at Police Station Bharat Nagar where ASI Shadi Lal and Ct. Anil also joined investigation with them and they reached in the Sawan Park Area where one secret informer met them there who informed them that two persons from the assailants who committed offence against the police officials on the day of Diwali were taken to the police station by the police officials. According to him, they all again reached at Police Station Bharat Nagar where they came to know that accused Rakesh and Naresh were taken to the court of SEM, Jahangir Puri U/s 107/151 Cr. P. C. on which they proceeded towards the court of SEM Jahangir Puri. The witness has testified that at about 3.45PM when some persons were coming out of the SEM Court ASI Shadi Lal and Ct. Anil identified two persons as the assailants who had committed incident against them on the day of Diwali after which those two persons were apprehended by them and they disclosed their names as Rakesh and Naresh. Witness has further deposed that thereafter they all alongwith the above said two persons Rakesh and Naresh came at DIU office where he interrogated both Rakesh and Naresh in St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 39 details and they confessed about their involvement in the incident of this case after which the accused Naresh was arrested vide Ex.PW5/B and the accused Rakesh was arrested vide Ex.PW5/C. He has testified that the personal search of the accused Naresh was conducted vide Ex.PW5/D and that of accused Rakesh Ex.PW5/E. He has proved having recorded the disclosure statement of accused Naresh vide Ex.PW5/F and that of accused Rakesh vide Ex.PW5/G. The witness has further deposed that he recorded the statement of witnesses and both the accused were produced before the court on the next day and were sent to Judicial Custody. According to him on 20.01.2011 he formally arrested accused Pooran and Arjun vide Ex.PW9/J and Ex.PW9/K respectively since both had been granted anticipatory bail. He has testified that on 31.01.2011 he obtained the NBW of accused Shankar @ Bunty and thereafter he handed over the case file to the MHC(R). He has correctly identified the accused Pooran Lal, Arjun, Rakesh and Naresh in the court. (41) In his cross examination by the Ld. Defence counsel, the witness has deposed that he received secret information in the area of Jhuggi N77, Sawan Park, Bharat Nagar but he does not recollect the exact gali number where the secret informer met them. According to him the secret informer met them at around 1.001.30 PM (Noon) and remained with them for about 1015 minutes but he did not intimate to the senior officer at the police station regarding receipt of secret information. He has testified that he was travelling in TATA 407 official vehicle and immediately on receipt of the secret St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 40 information they left the spot. According to him on reaching the police station he made arrival entry but he is not aware if the Investigating Officer has filed this entry alongwith the charge sheet. He is unable to tell without refreshing his memory from the judicial record as to which constable had caught hold of which accused. According to the witness he had requested some public persons but they had refused but he is unable to tell the names and details of the public persons who had refused to join the investigation and he had not given any notice to the public persons who had refused to join the investigation. He has denied the various suggestions put to him by the Ld. Defence Counsels.
(42) PW15 Inspector Laxmi Dubey has deposed that on 07.02.2011 he was posted at DIU, North West District, Delhi and on that day investigation of this case was handed over to him on which he searched the accused Shankar @ Bunty but he could not be traced out. According to the witness on 03.03.2011 he formally arrested accused Tara Chand @ Kalu vide Ex.PW9/L as he had already been granted anticipatory bail and thereafter he handed over the case file to the Reader of ACP, DIU on 08.03.2011. He has correctly identified the accused Tara Chand in the Court. (43) In his cross examination by Ld. Defence counsels, witness has denied the suggestion that in the morning he was shown the accused outside the court by the Naib Court therefore he could identified the accused Tara Chand in the court.
St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 41 (44) PW16 Const. Sanjay has deposed that on 19.11.2009 he was posted at Police Station Bharat Nagar and on that day he alongwith Inspector Bahadur Singh came at Rohini Courts where Khem Chand and Deepak surrendered before the court. According to him accused Khem Chand and Deepak were interrogated by Inspector Bahadur Singh with the permission of the court after which Inspector Bahadur Singh arrested accused Deepak vide Ex.PW16/A and also arrested accused Khem Chand vide Ex.PW16/B. He has proved that the personal search of the accused Deepak was taken vide Ex.PW16/C and that of the accused Khem Chand was taken vide Ex.PW16/D. Witness has further deposed that disclosure statement of accused Deepak was recorded vide Ex.PW16/E and disclosure statement of accused Khem Chand was recorded vide Ex. PW16/F. He has correctly identified the accused Khem Chand in the Court. This witness has been crossexamined by the Ld. Defence Counsels but nothing much has come out of the same.
(45) PW17 Inspector Vijay Kumar has deposed that on 01.02.2010 he was posted at police station Bharat Nagar and on that day on the directions of SHO he came at Rohini Courts where accused Rajender @ Gabbar surrendered before the court and with the permission of the court he interrogated accused Rajender @ Gabbar after which he arrested him vide Ex.PW8/A and took his personal search vide Ex.PW8/B. He has proved having recorded the disclosure statement of accused Rajender vide St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 42 Ex.PW8/C. According to the witness thereafter, accused Rajender was sent to judicial custody since his application for Police Custody remand was rejected by the Court. He has deposed that he recorded the statement of Const. Dev Narain and Const. Pradeep who were present with him during the above said proceedings after which he handed over the case file to the SHO. He has correctly identified the accused Rajender @ Gabbar in the Court. This witness has been crossexamined by the Ld. Defence Counsels but nothing much has come out of the same.
(46) PW18 Inspector Bahadur Singh has deposed that on 17.10.2009 he was posted at police station Bharat Nagar and on that day at about 9:00 AM HC Mukesh handed over copy of FIR No.22/09 with original ruqqa to him for further investigation on which he along with HC Mukesh went to the place of incident at Sawan Park Extension where Const. Anil and ASI Dharmbir met him. He has proved that he inspected the scene of crime and prepared the site plan at the instance of Const. Anil which is Ex.PW18/A. The witness has further deposed that he found the blood stained name plate of ASI Shadi Lal, blood stained brick pieces, bricks - stones, blood stains bricks and blood at the spot. He has proved having seized the blood stained name plate of ASI Shadi Lal vide memo Ex.PW9/A; blood stained brick pieces vide seizure memo Ex.PW9/B; brick and stones vide seizure memo Ex.PW9/C; blood stained bricks pieces vide seizure memo Ex.PW9/D; blood stained concrete and earth and earth control of concrete and earth vide seizure memo Ex.PW9/E. According to the witness, he made inquiries from the St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 43 local person but nobody came forward and thereafter, he along with Const. Anil and HC Mukesh reached at the Sunder Lal Jain Hospital where HC Mukesh received the exhibits in respect of both injured ASI Shadi Lal and Const. Anil Kumar. Witness has further deposed that HC Mukesh handed over sealed pullanda containing blood stained police uniform of Const. Anil and one plastic container with blood sample in sealed condition with the seal of hospital with sample seal to him which he seized vide memo Ex.PW12/A. The witness has testified that HC Mukesh also handed over one pullanda containing the blood stained police uniform of the ASI Shadi Lal and one plastic container with containing blood sample of ASI Shadi Lal in sealed condition with the seal of hospital with sample seal to him and he seized the same vide Ex.PW12/B. According to him, thereafter, he alongwith HC Mukesh and Const. Anil reached at the place of incident where he received a secret information that one of the assailant was present at railway Phatak, near Sangam Park and one or two more police officials were with him. He has further deposed that thereafter, he along with HC Mukesh, Const. Anil and two more police officials reached at the above said railway phatak where he asked fourfive public persons to join the police proceedings but none agreed and left the place without informing their names and addresses on one pretext or the other. He has also deposed that one person was present near the railway phatak towards the Sangam Park and Const. Anil identified that person as one of the assailants who gave the iron rod blows on his head and also gave the iron rod blows on the hand of ASI Shadi Lal. According to the St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 44 witness, the said person was apprehended by them who disclosed his name as Mulla and thereafter arrested by him vide memo Ex.PW9/F; his personal search was taken by him vide Ex.PW9/G and the disclosure statement of accused was recorded vide Ex.PW9/H. The witness has testified that the accused Mulla disclosed that he had concealed the weapon of offence i.e. iron rod inside of the boundary wall near a tree after the gate of Arya Bhat Enclave and thereafter, at the instance of accused Mulla one iron rod looking like a Saria was recovered from the inside of the boundary wall near a tree after the gate of Arya Bhat Enclave. He has also deposed that he took the measurement of the iron rod Saria and it was three and half feet long after which it was seized vide memo Ex.PW9/I. Witness has also deposed that thereafter, they returned back to the police station where he deposited all the seized articles in the Malkhana and accused Mulla was kept in the lock up of Police Station Ashok Vihar. According to him, on the next day accused Mulla was produced before the court and was sent to Judicial Custody. The witness has further deposed that he searched for the other assailants but none could be located.
(47) He has also deposed that on 24.10.2009 he recorded the statement of ASI Shadi Lal and on 19.11.2009 he along with Const. Anil and Const. Sanjay came at Rohini Courts where accused Deepak and Khem Chand surrendered before the court. He has proved having interrogated the accused Khem Chand and Deepak with the permission of the Court and thereafter having arrested the accused Deepak vide Ex.PW16/A and also St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 45 arrested the accused Khem Chand vide Ex.PW16/B. He has also proved the personal search memo of the accused Deepak which is Ex.PW16/C; personal search memo of accused Khem Chand which is Ex.PW16/D; disclosure statement of accused Deepak which is Ex.PW16/E; disclosure statement of accused Khem Chand which is Ex.PW16/F. He has also deposed that both the accused Khem Chand and Deepak were sent to Judicial Custody and he recorded the statement of witnesses and thereafter, he searched for the other accused persons but none was arrested. According to the witness, on 31.12.2009 the exhibits of this case were sent to FSL through Const. Anil and thereafter, investigation of this case was transferred to the DIU, North West District, Delhi.
(48) The witness has correctly identified the accused Mulla and Khem Chand in the Court. He has also identified the case property i.e. one saria (iron rod) which is Ex.P1; name plate of ASI Shadi Lal which is Ex.P2; brick stones having blood stains which are Ex.P4 collectively; blood stained earth control and concrete which is Ex.P5; earth control and concrete which is Ex.P6; one brick piece which is Ex.P8 and one brick piece which is Ex.P9. (49) In his cross examination by Ld. Defence counsels, the witness has deposed that public persons were passing through near the spot when he reached there but he did not ask name of any public persons nor did he join any public persons during his investigation at the spot. He is not aware about any bad element by the name of Negi in his area. According to the witness he St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 46 has not seen any persons by the name of Negi at the spot or at the police station. He has testified that he came to know about the names of the assailants from the disclosure statement of accused Mulla and from the statement of Const. Anil at the initial stage of the investigation. Witness has denied the suggestion that he lifted the accused Mulla from his house or that obtained his signatures on a blank paper which was fabricated by him as his disclosure statement. He has denied the various suggestions put by the Ld. Defence Counsels.
(50) PW19 Sh. Jagram Singh has deposed that on 10.02.2010 he was posted as Inspector DIU (NW) and on that day the investigations of this case was handed over to him and he obtained the case file. According to him on the same day he attended the court for hearing the bail application of accused Rajender who was granted bail by the Hon'ble court. He has testified that he made efforts to trace out the coaccused Shankar @ Bunty and his associates but they could not be located. Witness has further deposed that during investigations, he obtained the permission U/s 195 Cr.P.C. from ACP Ashok Vihar to prosecute the accused persons which sanction is Ex.PW19/A running into three pages and thereafter he was transferred from the NW district to East district on promotion and therefore he handed over the case file to the reader of the ACP.
(51) In his cross examination by Ld. Defence counsels, witness has deposed that he had made a request to the Ld. ACP for grant of permission U/s 195 Cr. P.C. and he also placed the copies of the FIR, statement of St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 47 witnesses, MLCs of the injured, seizure memos of the seized articles etc along with his application. Witness has denied the suggestion that the relevant documents were never placed before the ACP or that the sanction U/s 195 Cr.P.C. was accorded by the ACP on his asking only because the alleged injured were police officers.
(52) PW20 Inspector C.L. Bhardwaj has deposed that in the month of April, 2011 he was posted at DIU North West District, Delhi and after the transfer of Insp. Laxmi Dubey investigation of this case was handed over to him. According to the witness, he obtained the process under Section 82/83 Cr.P.C. against the accused Shanker @ Bunti and he came to know that accused Shanker @ Bunti was arrested by the police in a case of dacoity of Police Station Saraswati Vihar on which he obtained the permission of Ld. M.M. for interrogation of the accused Shanker @ Bunti. The witness has testified that he conducted interrogation of the accused Shanker @ Bunti at Tihar Jail on 06.07.2011 and formally arrested accused Shanker vide Ex.PW20/A. According to him, after completion of investigations he submitted charge sheet against all the accused persons. He has correctly identified the accused Shanker @ Bunti in the Court.
(53) In his cross examination by Ld. Defence counsels, witness has admitted that no judicial TIP was conducted in respect of accused Shanker @ Bunti. Witness has denied the suggestion that accused Shanker @ Bunti has been falsely implicated in this case or that he has not conducted the investigation fairly.
St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 48 STATEMENT OF ACCUSED / DEFENCE EVIDENCE:
(54) After completion of prosecution evidence the statements of the accused persons were recorded under Section 313 Cr.P.C. wherein all the incriminating material was put to them which they have denied. The accused Shankar @ Bunty has stated that during the alleged incident he was in custody in connection with another manner and has been falsely implicated in the present case. He has stated that he is innocent and he was arrested in this case which he was running in JC in another case bearing FIR No.440/09, PS Saraswati Vihar, under Section 392/397 IPC. According to the accused, he has nothing to do with the alleged offence.
(55) The accused Mulla has stated that he is innocent and was lifted from his house after which he was falsely implicated in this case by the police. According to the accused, he has nothing to do with the alleged offence.
(56) Similarly the accused Khem Chand has stated that he is innocent and was lifted from his house after which he was falsely implicated in this case by the police. According to the accused, he has nothing to do with the alleged offence and nothing was recovered from his possession.
(57) The accused Rajender has similarly stated that he is innocent and was lifted from his house after which he was falsely implicated in this case by the police. According to the accused, he has nothing to do with the alleged offence.St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 49
(58) The accused Naresh has also stated that he is innocent and was lifted from his house after which he was falsely implicated in this case by the police. According to the accused, he has nothing to do with the alleged offence.
(59) Similarly the accused Rakesh has stated that he is innocent and was lifted from his house after which he was falsely implicated in this case by the police. According to the accused, he has nothing to do with the alleged offence.
(60) The accused Puran Lal has similarly stated that he is innocent and was lifted from his house after which he was falsely implicated in this case by the police. According to the accused, he has nothing to do with the alleged offence.
(61) The accused Arjun has stated that he is innocent and was lifted from his house after which he was falsely implicated in this case by the police. According to the accused, he has nothing to do with the alleged offence.
(62) Similarly the accused Tara Chand has stated that he is innocent and was lifted from his house after which he was falsely implicated in this case by the police. According to the accused, he has nothing to do with the alleged offence.
FINDINGS:
(63) I have heard the arguments advanced before me by the Ld. Addl.
Public Prosecutor for the State and the Ld. Defence Counsels. I have also St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 50 gone through the written synopsis of arguments filed by the parties and the evidence which has come on record. My findings are as under:
Identity of the accused:
(64) In so far as the identity of the accused Mulla, Khem Chand @ Khemu, Rajender and Deepak (expired) is concerned they have been specifically named in the complaint and also identified in the Court by the injured ASI shadi Lal and Ct. Anil Kumar. In fact the accused Khem Chand @ Khemu has been identified as the person who has exhorted and instigated the other accused Rajender, Mulla and Deepak (expired) by saying " Maro saloon ko ab mauka hai" on which Mulla, Rajender and Deepak (expired) brought iron rods and inflicted injuries on the body of ASI Shadi Lal and Ct.
Anil Kumar. The injured have also identified the other accused i.e. Shankar @ Bunty (the BC of the area), Naresh @ Naval who is also involved in other cases, Rakesh, Puran Lal, Arjun and Tara Chand as the person who in order to save Khem Chand, Rajender, Mulla and Deepak (expired) indulged into beating and stone pelting for obstructing ASI Shadi Lal and Ct. Anil Kumar from performing their lawful duties and in order to facilitate the escape of Khem Chand, Rajender, Mulla and Deepak (expired) from the lawful custody of ASI Shadi Lal and Ct. Anil Kumar. The accused persons have also been identified by the other members of the police party who had gone to the spot to apprehend them.
St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 51 (65) In view of the above, I hereby hold that the identity of all the accused persons stand established.
Medical Evidence :
(66) Dr. K.L. Sethi (PW3) has proved the MLC of the injured Ct.
Anil Kumar which MLC is Ex.PW3/A according to which a lacerated wound of one inch bony deep was found with no underline bony injury and there was a swelling on the occipital region which injuries were opined to be Simple in nature. Dr. Prafulla Kumar Singh (PW4) has proved the MLC of the injured ASI Shadi Lal which is Ex.PW4/A according to which a lacerated wound of 1½ inch in the occipital region, lacerated wound of half inch in the frontal region and fracture in the right ring finger were found which injuries were opined to be Grievous in nature. The testimonies of both the doctors have gone uncontroverted since they have not been cross examined by the defence counsels.
(67) In view of the above I hereby hold that the medical evidence is compatible to the prosecution case.
Forensic Evidence:
(68) Ms. L. Babyto Devi (PW6) Senior Scientific Officer (Biology) has duly proved the Biological report which is Ex.PW6/A and Serological report which is Ex.PW6/B in respect of the exhibits sent to the FSL. The above reports show that blood of 'O' Group was found on Ex. 1a (shirt), Ex.1b St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 52 (pants), Ex.2 (blood stained gauze cloth piece), Ex.4a (shirt), Ex.4b (pants) and Ex.5 (gauze cloth piece), which were belonging to the victims. Therefore, I hold that the forensic evidence is compatible to the prosecution case that injuries had been caused to ASI Shadi Lal and Ct. Anil Kumar.
Allegations against the accused persons:
(69) As per allegations on 17.10.2009 at about 3:25 AM in front of Jhuggi No. N77/A/502, Sawan Park Extension, Delhi all the accused namely Shankar @ Bunty, Mulla, Khem Chand, Rajender @ Gabbar, Naresh @ Naval, Rakesh, Puran Lal, Arjun, Tara Chand @ Kale and Deepak constituted an unlawful assembly and in prosecution of common object of that assembly they used forced with ASI Shadi Lal and Ct. Anil Kumar while they were discharging their public functions. It is also alleged that all the accused in prosecution of common object of that assembly committed rioting being armed with deadly weapon i.e. iron rods and voluntarily obstructed ASI Shadi Lal Ct. Anil with discharging their public functions and voluntarily caused grievous hurt to ASI Shadi Lal with intent to prevent or deter him from discharging his duty. Further, as per the allegations all the accused in prosecution of common object intentionally offered resistance or illegal obstruction to the lawful apprehension of four persons namely Deepak, Khem Chand @ Khemu, Mulla and Rajender in order to escape them from lawful custody. It has also been alleged that all the accused in prosecution of common object of that assembly attempted to commit murder of ASI Shadi St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 53 Lal.
(70) In support of their case the prosecution has examined as many as twenty witnesses which include both the injured ASI Shadi Lal (PW5) and Ct.
Anil Kumar (PW9) who have proved that on the intervening night of 1617.10.2009 they were on patrolling vide DD No. 4B which is Ex.PW7/B and on the same night, which was the night of Choti Diwali i.e. one day prior to Diwali, they received an information from the SHO at about 1:35 AM to reach at Mata Jai Kaur School and on reaching there he found the SHO along with HC Mukesh, HC Baljeet, Ct. Kamlesh and Ct. Abhimanyu there who had come in a Gypsy. Thereafter they all started patrolling on foot and at about 1:50 AM they reached the Jhuggi of Sawan Park where they apprehended 12 persons while gambling near Jhuggi No. N77/A502, Gali Sawan Park. The SHO along with his staff took away eight persons along with him whereas four persons were left in the custody of ASI Shadi Lal and Ct. Anil Kumar. In the meanwhile Khem Chand @ Khemu finding that other police officials had left, instigated the other accused persons and exhorted 'Maro saloon ko ab mauka hai'. Pursuant to the same the accused brought out iron rods and by using these deadly weapons given a beating to ASI Shadi Lal and Ct. Anil Kumar after which they all ran away from the custody of ASI Shadi Lal and Ct. Anil Kumar. Both the injured then rushed to Sunder Lal Jain Hospital pursuant to which information was given to Police Station vide DD No.7B and the case was registered at about 6:30 AM by ASI Dharmbir on the basis of statement of ASI Shadi Lal. Thereafter at the instance of Ct. Anil Kumar St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 54 (PW9) Inspector Bahadur Singh inspected the spot and prepared the sit plan which is Ex.PW18/A and also seized the name of plate of ASI Shadi Lal and also lifted the various exhibits. Inspector Bahadur Singh also collected the MLCs of the injured from the hospital. Thereafter on receipt of secret information the police party along with the Ct. Anil reached at Railway Phatak, near Sangam Park where Inspector Bahadur Singh asked fourfive public persons to join the proceedings but none agreed and without wasting any further time the police party apprehended one person at the instance of Ct. Anil who identified him as the same person whose name was revealed as Mulla. On interrogation the accused Mulla disclosed his involvement in the present case and also the fact having concealed the iron rod from inside the boundary wall near Arya Bhat Enclave. In so far as the accused Rajender, Khem Chand and Deepak (since expired) are concerned they had surrendered before the Court.
(71) In support of its case the prosecution has placed its reliance not only on the testimony of the injured but also on the testimonies of police party who had apprehended the persons who were found indulging into gambling and had thereafter left Mulla, Rajender, Khem Chand and Deepak (since expired) in the custody of ASI Shadi Lal and Ct. Anil Kumar. Coming first to the testimony of ASI Shadi Lal (PW5) the relevant testimony of the same is as under:
"....... On 16/17.10.2009, I was on duty from 12.00 a.m. midnight to 5.00 a.m. alongwith Ct. Anil Kumar on motorcycle patrolling in the area. On that day, in the St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 55 midnight at about 12.00 night, I alongwith Ct. Anil left the P.S. on motorcycle No. DL 1SN 5606 for patrol and checking the area. At about 1.35a.m. midnight SHO informed me on wireless set to reach at Mata Jai Kaur School. I alongwith Ct. Anil reached near Mata Jai Kaur School. We found SHO alongwith HC Mukesh, HC Baljeet, Ct. Kamlesh and Ct. Abhimanyu there. They reached with the Govt. Gypsy. Gypsy and motorcycle were parked near the police booth, then we started patrolling the area on foot. At about 1.50a.m. midnight we reached the jhuggi of Sawan Park. We found about 12 persons while gambling there near the jhuggi No. N77/A502, Gali Sawan Park. They all were apprehended there. SHO proceeded as per law and took eight persons in their Gypsy and also directed me and Ct. Anil Kumar to take them safe custody of the four persons namely Deepak, Khemu, Rajender and Mulla. SHO alongwith eight persons left the spot. Thereafter, accused Khemu who was residing in the Sawan Park instigated other boys by saying "maro salo ko, ab mauka hai". On the instigation of Khemu, accused Mulla brought an iron rod from the gali and started gave iron rod blow on the person of Ct. Anil Kumar. I tried to save Ct. Anil but accused Khemu also brought an iron rod and gave an iron rod blow on my head. Accused Deepak also brought iron rod and inflicted injuries on my person. I received injuries on my fingers and right hand. The fourth boy Rajender also inflicted injuries on my person by an iron weapon. About 8 to 10 persons looking like notorious also reached there. Thereafter, they all inflicted injuries on my person as well as Ct. Anil. Then they ran away from the spot. We also tried to save our life and reached Sundar Lal Jain Hospital. ASI Dharamvir also reached in the hospital and recorded my statement. The 8 to 10 persons who caused injuries us to save those four boys from the safe custody of us. All the St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 56 accused persons obstructed us to perform our Govt. duty and inflicted injuries. My statement was recorded vide Ex.PW5/A bearing my thumb impression at point A. I could not sign because I was having injuries on my fingers as doctor bandage the same.
On 24.12.2010, I alongwith Ct. Anil joined the investigation of this case with the IO. Then we went in the area of jhuggi Sawan Park in search of the accused persons in the Govt. Gypsy. Secret informer met us there. He told that two persons were already arrested under Section 107/151Cr.P.C. may be the person of who assaulted the police officials. Then we returned to P.S. and came to know that two accused persons already taken before the court i.e. SEM Jahangir Puri. When at about 2.30p.m. we all went the court of SEM, Jahangir Puri. We reached there about 3.45p.m. Some persons were coming out from the gate of the SEM court. Out of which, I alongwith Ct. Anil identified two boys who were involved in the incident occurred with us and they were pelting stones and also gave fist and legs blow to us. The both boys were apprehended. They disclosed their name as Rakesh and Naresh. Both the boys were apprehended and brought in the office of the IO and arrested vide memo Ex.PW5/B and Ex.PW5/C bearing my signature at point A. Their personal search was conducted vide memo Ex.PW5/D and Ex.PW5/E bearing my signature at point A. I identify accused Khemu, Mulla and Rajender present in the court today (witness has correctly identified the accused person). Witness further states that accused Deepak is not present in the court today.
Witness further pointed out towards accused Arjun, Puran, Tara Chand, Naresh, Rakesh and Shankar present in the court today and identifies them by their faces and stated that these are the accused persons who came St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 57 subsequently and started gave beatings and also pelted stone on us and tried to save accused Khemu, Mulla, Rajender and Deepak and also obstructed us to perform our government duties.
Accused Naresh and Rakesh made their disclosure statements vide Ex.PW5/F and Ex.PW5/G bearing my signatures at point A. IO recorded my statement.
On 28.01.2011, I alongwith Ct. Anil again joined the investigation. We reached to the DIU office at about 1.00p.m. At that time, accused Puran and Arjun were present there and we identified both of them who inflicted injuries to us by the fist and leg blows as well as pelting stones. Their names revealed in the DIU office. They were arrested there. IO recorded my statement.
I may mention here that on 26.09.2011 I have again joined the investigation of this case. We went to the jhuggies but no independent witness came forward. IO recorded my statement......"
(72) ASI Shadi Lal (PW5) has explained in his testimony that the accused Shankar @ Bunty is the Bad Character (BC) of the area and inflicted on his person as well as on the person of Ct. Anil by giving fist and leg blows. He has been exhaustively crossexamined by the Ld. Counsels and has admitted that the case property i.e. the various bricks, pieces of bricks, uniform, name plate etc. have not been seized by the Investigating Officer in his presence and admits that the stones and iron rod are easily available anywhere. According to him, eight police officials along with eight persons had left the spot in the Gypsy whereas four persons remained in their custody. He has also explained that he had got confused in the name of Naresh but has St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 58 correctly identified him as one of the assailants. In fact he has denied that the incident being occurred on the night of Choti Diwali public persons were burning patakhas (crackers) and has explained that most of the people were sleeping as it was midnight hours. ASI Shadi Lal (PW5) has also explained that he came to know the names of the boys who had been left in their custody as he had made inquiries from them. He is unable to tell the names of the persons who were taken by the SHO in his custody in the Gypsy. He has stated that he used to wear spectacles at the time of the incident and has explained that when accused Khem Chand had exhorted to other persons to attack them, eightten persons came at the spot but he is not aware if the said persons were resident of the same area. According to him, as on date he can tell the name of the said assailants which names he came to know later on and has identified them as Shankar, Rajender, Naresh, Rakesh, Puran, Arjun and Tara Chand who were indulging into stone pelting and also gave them fist and leg blows and also gave them iron rods. He has also explained that he did not notice any other weapon except for the iron rod and stones in the hands of accused persons.
(73) Coming next to the testimony of other injured Ct. Anil Kumar (PW9), the relevant portion of his testimony is as under:
"........ In the intervening night of 16/17.10.2009 I was posted at PS Bharat Nagar. On that night I was on checking duty alongwith ASI Shadi Lal from the 12.00 Midnight to 5.00AM in the area of PS Bharat Nagar. On that night at about 1.30AM we received wireless message from the SHO Inspector Lalit Joshi that we have to reach St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 59 near Mata Jai Kaur School. I alongwith ASI Shadi Lal reached there and SHO was present there alongwith HC Mukesh, HC Baljeet, Ct. Abhimanyu and Ct. Kamlesh with the official Gypsey. Thereafter we left our motorcycle and the police gypsey there and we all went towards the Sawan Park Jhuggies area for patrolling duty. When we reached near the jhuggi no. N77A/502, we found that some persons were gambling there with playing cards and twelve persons were apprehended by us. SHO, HC Mukesh, HC Baljeet, Ct. Abhimanyu and Ct. Kamlesh took the custody of eight apprehended persons in the Gambling Act and went away from there. Four persons namely Khema, Mulla, Rajender @ Gabbar and Deepak were in our custody and on the direction of the SHO I alongwith ASI Shadi Lal were present at the spot. Suddenly Khema shouted that "ab mauka hai, maaro saalon ko" and immediately Mulla went away from there in the gali and came back with an iron rod and gave iron rod blows on my head. When ASI Shadi Lal tried to save me accused Khema also gave a iron rod blow on the head of ASI Shadi Lal and other accused Rajender @ Gabbar and Deepak also gave fists and leg blows upon me and Asi Shadi Lal. On the shouting of accused Khema 8 to 10 persons also came there and they had thrown the bricks and stones upon us and I and ASI Shadi Lal received due to the bricks and stones also. Thereafter the above said four persons alongwith 810 other public persons ran away from there. Thereafter I and ASI Shadi Lal went to the Sunder Lal Jain Hospital on foot and we both were medically treated at Sunder Lal Jain Hospital. After some time SHO Inspector Lalit Joshi with his staff reached at Sunder Lal Jain Hospital. I received injuries on my head and other parts of the body and three four stitches were given on my head during medical treatment. ASI Shadi Lal also received injuries on his St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 60 head, hands and other parts of the body. After medical treatment I was discharged from the hospital. Inspector Bahadur Singh and HC Mukesh met me in the hospital and reached at the spot with them and inspected the site and Inspector Bahadur Singh prepared the site plan at my instance. Bricks and stone pieces were also found at the spot. Blood stained name plate of ASI Shadi Lal was also found at the spot. Inspector Bahadur Singh kept the name plate of ASI Shadi Lal in a cloth pullanda and sealed the same with the seal of BS and seized the same vide memo Ex.PW 9/A which bears my signatures at point A and HC Mukesh put his signatures at point B and Inspector Bahadur Singh put his signatures at point C. Inspector Bahadur Singh also took possession of the blood stained brick piece and kept the same in a cloth pullanda and sealed the same with the seal of BS and seized the same vide seizure memo Ex.PW9/B which bears my signatures at point A and HC Mukesh put his signatures at point B and Inspector Bahadur Singh put his signatures at point C. Inspector Bahadur Singh also took the possession of the bricks from the spot and kept the same in a cloth pullanda and sealed the same vide the seal of BS and seized the same vide seizure memo Ex.PW9/C which bears my signatures at point A and HC Mukesh put his signatures at point B and Inspector Bahadur Singh put his signatures at point C. Inspector Bahadur Singh also took possession of one blood stained brick piece lying near the name plate of ASI Shadi Lal and kept the same in a cloth pullanda and sealed the same with the seal of BS and seized the same vide Ex.PW9/D which bears my signatures at point A and HC Mukesh put his signatures at point B and Inspector Bahadur Singh put his signatures at point C. Inspector Bahadur Singh also lifted blood stained concrete and earth from the spot and kept the same in a plastic container and St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 61 sealed the same with the seal of BS and also lifted sample of concrete and earth from the spot and kept the same in separate plastic containers and seal the same with the seal of BS and both plastic containers were seized vide Ex.PW9/E which bears my signatures at point A and HC Mukesh put his signatures at point B and Inspector Bahadur Singh put his signatures at point C. Thereafter we were going towards the railway phatak No. 3, Sawan Park in search of the accused persons and I saw that one of the accused Mulla was coming from Sangam Park Area and he was apprehended by us at about 4.004.15 PM on 17.10.2009 and I identified him as he gave iron rod blows on my head. He was interrogated by Inspector Bahadur Singh and he confessed about his involvement. Inspector Bahadur Singh arrested accused Mulla vide arrest memo Ex.PW9/F which bears my signatures at point A, HC Mukesh put his signatures at point B, Inspector Bahadur Singh put his signatures at point C and accused Mulla put his signatures at point D. His personal search was conducted vide memo Ex.PW9/G which bears my signatures at point A, HC Mukesh put his signatures at point B, Inspector Bahadur Singh put his signatures at point C and accused Mulla put his signatures at point D. His disclosure statment was recorded by Inspector Bahadur Singh vide memo Ex.PW9/H which bears my signatures at point A, HC Mukesh put his signatures at point B, Inspector Bahadur Singh put his signatures at point C and accused Mulla put his signatures at point D. At the instance of the accused Mulla one iron rod was recovered from near the wall of Arya Bhatt Enclave, near Sawan Park. Iron rod was about 2 ½ - 3Ft long and the same was kept in a cloth pullanda and sealed with the seal of BS and seized the same vide seizure memo Ex.PW9/I which bears my signatures at point A, HC Mukesh put his St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 62 signatures at point B, Inspector Bahadur Singh put his signatures at point C and accused Mulla put his signatures at point D. Thereafter we returned back to the police station and Inspector Bahadur Singh deposited the recovered articles in the Malkhana and recorded my statement.
On 31.12.2009 on the directions of Inspector Bahadur Singh I took nine exhibits including two sample seals to FSL Rohini vide RC No. 8/21/09 and I deposited the same at FSL Rohini and handed over receipt acknowledgment to the MHC(M) and the case property was not tampered during the period it was in my custody. RC Ex.PW1/A bears my signatures at point B and receipt acknowledgment Ex.PW1/B also bears my signatures at point B. On 24.12.2010 Inspector Sudesh of DIU called me at Sawan Park. ASI Shadi Lal and myself joined the investigations with Inspector Sudesh at Sawan Park and we came to know that two persons were already arrested by the police of PS Bharat Nagar and thereafter we came at police station Bharat Nagar and thereafter we came to know that both persons were arrested U/s 107/151 Cr. P. C. and to be produced before the Executive Magistrate. Thereafter we reached at the SEM Court, Jahangir Puri and two arrested persons were coming out from the court with the police and I identified both the persons as the assailants who came at the spot after shouting of Khema and had thrown bricks and stones upon us and they disclosed their names as Naresh and Rakesh. Inspector Sudesh interrogated accused Naresh and he confessed about his guilt and he was arrested by Inspector Sudesh vide arrest memo already Ex.PW5/B which bears my signatures at point B, Inspector Sudesh put her signatures at point C and accused Naresh Put his signatures at point D. Personal search of accused St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 63 Naresh was conducted vide memo Ex.PW5/D which bears my signatures at point B, Inspector Sudesh put her signatures at point C and accused Naresh Put his signatures at point D. His disclosure statements was recorded vide Ex.PW5/F which bears my signatures at point and accused Naresh put his signatures at point C. Inspector Sudesh also arrested accused Rakesh vide arrest memo Ex.PW5/C which bears my signatures at point B and Inspector Sudesh put her signatures signatures at point C and accused Rakesh put his signatures at point D. His personal search was taken vide memo Ex.PW5/E which bears my signatures at point B and Inspector Sudesh put her signatures signatures at point C and accused Rakesh put his signatures at point D. His disclosure statements was recorded vide Ex.PW5/G which bears my signatures at point B and Inspector Sudesh put her signatures signatures at point C and accused Rakesh put his signatures at point D. Inspector Sudesh Kumari recorded our statements.
On 28.01.2011 I alongwith ASI Shadi Lal reached at DIU Office North West District at Sector 11, Rohini to know about the status of the case and I found two persons sitting in DIU Office in front of Inspector Sudesh Kumari and I identified both the persons as the same who came at the spot after shouting of accused Khema and had thrown bricks and stones upon us and they disclosed their names as Arjun and Puran and Puran Lal was arrested by Inspector Sudesh Kumari vide Ex.PW9/J which bears my signatures at point A and Inspector Sudesh put her signatures at point B and accused Puran Lal put his signatures at point C. Accused Arjun was arrested vide Ex.PW9/K which bears my signatures at point A and Inspector Sudesh put her signatures at point B and accused Arjun put his signatures at point C. I recorded my St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 64 statement.
On 03.03.2011 I again went to the DIU Office, North West District alongwith ASI Shadi Lal. I identified the accused Tara Chand as the person who had thrown the bricks and stones upon us at the spot. He was arrested by Inspector Laxmi vide Ex.PW9/L which bears my signatures at point A and Inspector Laxmi put her signatures at point B and accused Tara Chand put his Thumb impression at point C. IO recorded my statement.
(74) He has also identified all the accused persons in the Court and has been exhaustively cross examined on the similar lines as that of ASI Shadi Lal and there are no material contradictions in the same. Ct. Anil Kumar has explained that initially when the police party reached to the jhuggies the persons were found gambling while sitting on plastic chairs and the cards were placed on a table in front of them. According to Ct. Anil Kumar, he remained at the spot for about 2025 minutes. He has explained that no public person was present at the spot at that time and further explained that he and ASI Shadi Lal themselves went to Sunder Lal Jai Hospital which is hardly five to seven minutes walking distance from the spot.
(75) The Ld. Defence Counsels have vehemently argued that the accused have been falsely implicated in the case by the police. It is argued that there are material contradictions in the testimonies of the eye witnesses / injured. It is also pointed out that a specific suggestion had been given to the injured that it was one Negi a bad element of the area who had inflicted injuries upon them after he had refused to pay the monthly collection on St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 65 which an altercation had taken place. It is further pointed out that Ct. Dev Narain Prashad (PW8) has not supported the case of the prosecution and has stated that the accused Rajender was apprehended from Jhuggi No.N77/A506, Sawan Park Extn. whereas it is an admitted case of the prosecution that the accused Rajender had surrendered in the Court and had been formally arrester thereafter.
(76) I have considered the rival contentions. Before analyzing the evidence on record the legal position relating to Unlawful Assembly is briefly discussed as under:
(77) In the case of Rabindra Mahto & Ors. Vs. State of Jharkhand reported in 2006 Cri.L.J. 957 the relationship between Section 149 and Section 120B IPC has been brought out clearly by the Hon'ble Supreme Court as under:
"Under Section 149 IPC, if the accused is a member of an unlawful assembly, the common object of which is to commit a certain crime, and such a crime is committed by one or more of the members of that assembly, every person who happens to be a member of that assembly would be liable for the commission of the crime being a member of it irrespective of the fact whether he has actually committed the criminal act or not. There is a distinction between the common object and common intention. The common object need not require prior concert and a common meeting of minds before the attack, and an unlawful object can develop after the assembly gathered before the commission of the crime at the spot itself. There need not be prior meeting of the mind. It would be enough that the members of the St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 66 assembly which constitutes five or more persons, have common object and that they acted as an assembly to achieve that object. In substance, Section 149 makes every member of the common unlawful assembly responsible as a member for the act of each and all merely because he is a member of the unlawful assembly with common object to be achieved by such an unlawful assembly. At the same time, one has to keep in mind that mere presence in the unlawful assembly cannot render a person liable unless there was a common object and that is shared by that person. The common object has to be found and can be gathered from the facts and circumstances of each case."
(78) In the case of Yunis @ Kariya Vs. State of M.P. reported in 2003 (1) SCC 425 eight accused persons armed with deadly weapons, attacked the deceased in broad daylight in a marketplace causing his death and the same was witnessed by several persons, three of whom were eye witnesses and where the testimony of the eyewitnesses was tallying with each other, the oral testimony of the eyewitnesses as well as the medical and other evidence established the commission of crime. The Hon'ble Supreme Court held Section 149 IPC to have been established on the basis of evidence. (79) In the case of Maranadu & Anr. Vs. State by Inspector of Police, Tamil Nadu reported in 2008 (16) SCC 529 on the question of law under Section 149 IPC, the Hon'ble Supreme Court has cautioned against the acceptance of the evidence of the partisan witnesses, particularly in case involving Section 149 IPC and while stating the principles of appreciation of evidence, relied on the case of Masalti Vs. State of U.P. reported in AIR St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 67 1965 SC 202, it was observed by the Hon'ble Court that: "....it would be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. The mechanical rejection of such evidence on the sole ground that it is partisan, would invariably lead to failure of justice."
We are quite convinced in this case that the evidence of the eyewitnesses, though they were somewhat partisan, was liable to be accepted, excepting against the three accused persons who were acquitted. We have given the reasons for acceptance of that evidence and also for the acquittal of three accused persons, who could not be held to be the part of the unlawful assembly...."
(80) In the case of Pandurang Chandrakant Mhatre Vs. State of Maharashtra, reported in AIR 2010 SC (Supp) 204 the Hon'ble Apex Court in a case where the incident took place between two rival political parties and it was the evidence of witnesses that accused armed with sword while others were armed with iron bars and all of them started attacking the deceased with their respective weapons in their hands was truthful and found corroboration from medial evidence, the accused persons whose presence as members of party of assailants was consistently mentioned and their over acts in chasing and assaulting deceased were clearly proved and were liable to be convicted under Section 302 r. w. S 149 whereas other accused persons entitled to benefit of doubt. However, all accused persons were held guilty of offences punishable under S 148 and S 326 read with S 149. In this case the Hon'ble St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 68 Apex Court enunciated the principle that under Section 149, two ingredients are required to be satisfied. Firstly, there has to be the commission of an offence by any member of an unlawful assembly. Secondly, such offence must have been committed in prosecution of the common object of that assembly or must be such that the members of that assembly knew it to be likely that the offence would be committed. The Hon'ble Court has held as under:
"65. Section 149 IPC creates a specific and distinct offence. Its two essential ingredients are:
(i) commission of an offence by any member of an unlawful assembly and;
(ii) such offence must have been committed in prosecution of the common object of that assembly or must be such as the members of that assembly knew it be likely to be committed."
(81) Similarly in the said case the Hon'ble Apex Court again placed its reliance on the case of Masalti Vs. State of U.P. reported in AIR 1965 SC 202 wherein it had earlier observed that:
".....What has to be proved against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly and he entertained along with the other members of the assembly the common object as defined by Section 141 IPC. Section 142 provides that whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly. In other words, an assembly of five or more persons actuated by, and entertaining one or more of St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 69 the common object specified by the five clauses of Section 141, is an unlawful assembly. The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by Section 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly...."
(82) Further in the case of Musa Khan & Others Vs. State of Maharashtra reported in 1977 SCC (Cri) 164 the Hon'ble Supreme Court had observed that the presence in an assembly of persons does not make the accused a member of an unlawful assembly, unless it is shown by direct or circumstantial evidence that accused shared the common object of the assembly. It was held that:
".....Culpable liability does not arise from mere presence in the assembly, nor does participation in one incident lead to liability for consequences of all the incidents that the unlawful assembly may consequently indulge in - Liability of each individual accused adjudged on facts. ........Thus a court is not entitled to presume that any and every person who is proved to have been present near a riotous mob at any time or to have joined or left it at any stage during its activities is in law guilty of every act committed by it from the beginning to the end, or that each member of such a crowd must from the beginning have anticipated and contemplated the nature of the illegal St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 70 activities in which the assembly would subsequently indulge. In other words, it must be proved in each case that the person concerned was not only a member of the unlawful assembly at some stages, but at all the crucial stages and shared the common objects of the assembly at all these stages. It is not uncommon that an unruly crowd on the rampage may contain some miscreants who may go beyond the common object and commit adhoc crimes graver that the mob had as its objective..."
(83) The Hon'ble Court while having regards to the facts of the case further observed that:
"....On fact, having regard to the background against which the events took place all the four incidents were parts of the same transaction but they were separate incidents in which different members of the mob had participated.......
..... In these circumstances, therefore, the accused who were not present or who did not share the common object of the unlawful assembly at other stages cannot be convicted for the activities of the assembly at those stages. ...."
(84) In the case of Ramappa Halappa Pujar & Ors. Vs. State of Karnataka reported in 2009 (1) SCC (Cri) 250 it was observed that:
".... members of the unlawful assembly can be held liable under Section 149 IPC, if it is shown that they knew beforehand that the offence actually committed was likely to be committed in prosecution of the common object...."St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 71
(85) In the case of Kanwarpal & another Vs. State of M. P., reported in AIR 2002 Supreme Court 3690 it was observed that in the case of a free fight, conviction by recourse to S.149 was not permissible unless it is shown that a particular accused caused injuries he could not be convicted. (86) In the case of Md. Ankoos Vs. Public Prosecutor, High Court of A.P. reported in AIR 2010 SC 566, the Hon'ble Supreme Court has held that:
"....Section 149 IPC creates constructive liability i.e. a person who is a member of the unlawful assembly is made guilty of the offence committed by another member of the same assembly in the circumstances mentioned in the Section, although he may have had no intention to commit that offence and had done no overt act except his presence in the assembly and sharing the common object of that assembly. The legal position is also fairly well settled that because of a mere defect in language or in the narration or in form of the charge, the conviction would not be rendered bad if accused has not been affected thereby"
(87) In the case of State of U.P. Vs. Dan Singh & Ors. reported in (1997) 3 SCC 747 the Hon'ble Supreme Court while placing its reliance on the case of Lalji & Ors. Vs. State of U.P. reported in 1989(1) SCC 437 has observed as under:
"......Common object of the unlawful assembly can be gathered form the nature of the assembly, arms used by them and the behaviour of the assembly at or before the scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case". What has St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 72 happened in the present case is precisely what has envisaged in the explanation to Section 141 I.P.C. With Khima Nand being injured, all hell broke loose. A cry was raised that the doms should be burnt and killed, and this is precisely what happened. the marriage party was assaulted by the villagers. Six of the members of the marriage party were burnt, five of them having been locked inside the house of the only Dom resident of the village whose house was also burnt. Eight others were pursued and then mercilessly beaten and were killed elsewhere in the village. We fail to appreciate how anyone, under the circumstances, can possibly come to the conclusion that an unlawful assembly having the common object of killing the Doms did not exist when fourteen people have been killed without the use of any weapon more lethal than a stick or stone. Considering the number of injuries on the persons who had died, it is evident that a large number of persons must have taken part in the assault. Even if the assembly of villagers was initially lawful, the same, undoubtedly, became unlawful when the riot started after Khima Nand was injured. All the eye witnesses have said that fifty or more villagers had taken part in the attack. Who were members of the assembly will be considered later but what is relevant to note is that a large number of villagers were present, duly armed with lathis and sticks, when the occurrence started and except six people who were burnt, eight others were beaten to death by blows from lathis, sticks an stones. It is difficult to appreciate the conclusion of the High Court that, under the circumstances, the attackers probably had a similar object but not a common object.
This brings us to the next question as to who were the persons who were members of this unlawful assembly. it is no doubt true that some of the villagers may have been St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 73 present at the time of the occurrence who were mere spectators and could not be regarded as being members of the unlawful assembly. It also happens, when people are killed during a riot, there may be a possibility of the incident being exaggerated or some innocent persons being named as being part of the assailants party. This may happen wittingly or unwittingly. But just because there may be some inconsequential contradictions or exaggeration in the testimony of the eye witnesses that should not be a ground to reject their evidence in its entirety. In the cases of rioting, where there are a large number of assailants and a number of witnesses, it is but natural that the testimony of the witnesses may not be identical.
What has to be seen is whether the basic features of the occurrences have been similarly viewed and/or described by the witnesses in a manner which tallies with the outcome of the riot, viz., the injuries sustained by the victims and the number of people who are attacked and killed. Before we deal with the testimony of these witnesses, it will be important to bear in mind that in the present case the conviction is being sought under Section 302 I.P.C. with the aid of Section 149 I.P.C.. The two essential ingredients of this Section are that there must be a commission of an offence by any member of unlawful assembly and that such offence must be committed in prosecution of common object of that assembly or must be such as the members of that assembly knew to be likely to be committed. It is also a wellsettled law (see Masalti Vs. State of Uttar Pradesh, AIR 1965 SC 202) that it is not necessary for the prosecution to prove which of the members of the unlawful assembly did which or what act. In fact as observed in Lalji's case (supra) "while overt act and active participation may indicate common intention of St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 74 the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under Section 149".
Mr. Lalit is right in submitting that the witnesses would be revengeful as a large scale violence had taken place where the party, to which the eye witnesses belonged, had suffered and it is, therefore, necessary to fix the identity and participation of each accused with reasonable certainty. Dealing with a similar case of riot where a large number of assailants who were members of an unlawful assembly committed an offence of murder in pursuance of a common object, the manner in which the evidence should be appreciated was adverted upon by this court in Masalti's case (supra) at page 210 as follows:
"Then it is urged that the evidence given by the witnesses conforms to the same uniform pattern and since no specific part is assigned to all the assailants, that evidence should not have been accepted. This criticism again is not well founded. where a crowd of assailants who are members of an unlawful assembly proceeds to commit an offence of murder in pursuance of the common object of the unlawful assembly, it is often not possible for witnesses to describe accurately the part played by each one of the assailants. Besides, if a large crowd of persons armed with weapons assaults the intended victims, it may not be necessary that all of them have to take part in the actual assault. In the present case, for instance, several weapons were carried by different members of the unlawful assembly, but it appears that the guns were used and that was enough to kill 5 persons. In such a case, it would be unreasonable to contend that because the other weapons carried by the members of the unlawful assembly were not used, the story in regard to the said weapons itself should be rejected.St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 75
Appreciation of evidence in such a complex case is not doubt a difficult task; but criminal courts have to do their best in dealing with such cases and it is their duty to sift the evidence carefully and decide which part of it is true and which is not." One more principle which was laid down in Masalti's case (supra), and which would be applicable here, is that where a "court has to deal with the evidence pertaining to the commission of an offence involving a large number of offenders and a large number of victims, it is usual to adopt the test that the conviction could be sustained only if it is supported by 2/3 or more witnesses who give a consistent account of the incident. In a sense the test may be described as mechanical; but it cannot be treated as irrational or unreasonable".
(88) The principles of law which broadly emerge from a broad reading of the aforesaid are briefly culled out as under:
➢ Section 149 IPC creates a constructive liability i.e. a person who is a member of the unlawful assembly is made guilty of the offence committed by another member of the same assembly in the circumstances mentioned in the Section, although he may have had no intention to commit that offence and had done no overt act except his presence in the assembly and sharing the common object of that assembly.
➢ Two essential ingredients of this Section are that there must be a commission of an offence by any member of unlawful assembly and that such offence must be committed in prosecution of common object St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 76 of that assembly or must be such as the members of that assembly knew to be likely to be committed.
➢ An assembly, which is lawful to begin with, subsequently becomes unlawful. In other words, unlawful intent can develop during the course of the incident at the spot coinstanti.
➢ For determination of the common object of an unlawful assembly the conduct of each of the member of the said assembly before the attack, at the time of attack and thereafter as well as the motive for the crime are some of the relevant facts for consideration.
➢ Common object of the unlawful assembly can be gathered form the nature of the assembly, arms used by them and the behaviour of the assembly at or before the scene of occurrence which inference has to be deduced from the facts and circumstances of each case.
➢ Mere spectators who may be present at the time of the incident cannot be regarded as being members of the unlawful assembly.
➢ Possibility of exaggeration or implication of innocent persons being a part of the assailants party cannot be ruled out which may happen wittingly or unwittingly.
➢ That there are some inconsequential contradictions or exaggeration in the testimony of the eye witnesses cannot be a ground for rejection of their evidence in its entirety.
➢ In a case of rioting where there are a large number of assailants and a number of witnesses are involved it is only natural that the testimony of St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 77 the witnesses may not be identical.
➢ The Court is required to ascertain whether the basic features of the occurrences have been similarly viewed or described by the witnesses in a manner which tallies with the outcome of the riot, that is the injuries sustained by the victims and the number of people who were attacked or killed.
➢ In a case where the Court has to deal with the evidence pertaining to the commission of an offence involving a large number of offenders and a large number of victims, it is usual to adopt the test that the conviction could be sustained only if it is supported by two to three or more number of witnesses who give a consistent account of the incident which may be described as mechanical but it cannot be treated as irrational or unreasonable.
➢ It is the duty of the Court to sift the evidence carefully and decide which part of it is true and which is not.
(89) Now applying the settled principles of law to the facts of the present case, I may observe that Firstly none of the accused have stated that they are not residing in Sawan Park Jhuggies and it has been established that there are all residents of the same area. They are all residing in the NBlock of Sawan Park Jhuggies and are all neighbours.
(90) Secondly it stands established that Shankar @ Bunty is the Bad Character (BC) of the area and accused Naresh @ Naval is also involved in St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 78 the other cases.
(91) Thirdly the incident took place at 3:25 AM (midnight) inside the Jhuggi Cluster where large number of persons reside. In fact two incidents had taken place. First when a large number of persons were found gambling on occasion of Choti Diwali and were picked up by the local police, out of whom four were left behind at the spot in the custody of ASI Shadi Lal and Ct. Anil Kumar because of scarcity of space in the official vehicle. Second when these four persons taking advantage of the situation finding the police officers being outnumbered, exhorted their other associates present in the area to reach the spot after which they all attacked ASI Shadi Lal and Ct. Anil Kumar and escaped from their custody after inflicting injuries upon them.
This being the background, there is hardly a possibility that any innocent resident of the same area could have been falsely implicated in the case at that hour of night.
(92) Fourthly once the people in the area were already aware of the police raid a large number of people having being lifted in the gambling, there is a little probability that any innocent resident would come out to watch the proceedings. Even otherwise, not even a single accused has taken this plea of innocent byestanders and their false implication merely being a resident of the same area where the incident had taken place.
(93) Fifthly the accused Khem Chand, Rajender @ Gabbar and Mulla have been correctly identified by both the victims i.e. ASI Shadi Lal and Ct. Anil Kumar as the persons who had been left in their custody by the SHO St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 79 after they were caught gambling because there was scarcity of space in the official vehicle.
(94) Sixthly the medical evidence on record proves the prosecution case that both the injured ASI Shadi Lal and Ct. Anil Kumar had themselves come to Sunder Lal Jain Hospital and had given the alleged history of assault after which they were provided the treatment and information was sent to Police Station and thereafter on the basis of the statement of ASI Shadi Lal the FIR was registered where he specifically named the four accused persons i.e. Khem Chand, Rajender @ Gabbar, Mulla and Deepak (since expired) and also stated that eightten persons had come to their rescue. According to the defence counsel and as per the suggestion given by the accused to the witnesses there were a large number of police officials present in the area who had come to pickup a notorious person by the name of Negi but since the police could not find Negi and the accused refused to give monthly to the police officers there was a quarrel with the police officers on the one side and the persons associated with Negi on the other side in which the police officers got injured and hence they picked up all the residents of the area who had some kind of a record. The story put forward by the defence does not inspire the confidence of the Court. Had it been so that there was a free fight as suggested by the accused, I am sure that the injured policemen (the victims before this Court) would not have gone to the Sunder Lal Jain Hospital themselves on foot, rather there would have been other police officials to help them, which is not the case. The facts of the case speak for themselves. The St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 80 first thing the victims did on receiving injuries was to seek medical assistance and hence the injured ran to the nearby hospital i.e. Sunder Lal Jain Hospital on foot and the record of the hospital proves the same lending credence to the version put forward by the prosecution.
(95) Seventhly the FSL Report again supports the case of the prosecution showing that there was human blood present on the clothes of the injured i.e. uniform of the injured which blood was of the same blood group as belonging to the victims, thereby establishing that injuries have been caused to ASI Shadi Lal and Ct. Anil Kumar.
(96) Eighthly it stands established that both the injured were on official duty and the accused Mulla, Rajender @ Gabbar, Khem Chand and Deepak (since expired) had been detained by the police as they were indulging into gambling on the festival of Choti Diwali. While the SHO with his staff took away eight persons with them, there being no space in the Gypsy, they left four persons in the custody of ASI Shadi Lal and Ct. Anil Kumar. However, after the SHO left the spot and finding an opportunity the said four persons i.e. Mulla, Rajender @ Gabbar, Khem Chand and Deepak (since expired) raised an alarm on which the other accused persons came to the spot and attacked on ASI Shadi Lal and Ct. Anil Kumar in which process the accused Mulla, Rajender @ Gabbar, Khem Chand and Deepak (since expired) escaped from their custody. The injuries on the bodies of the injured shows that they were caused by blunt weapons and the use of stones and bricks cannot be ruled out.
St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 81 (97) Ninethly it is writ large from testimonies of both the victims that four persons had been detained in their custody whereas after the SHO left eightten persons had joined the accused who used force on them with the common object of freeing the four accused persons i.e. Mulla, Rajender @ Gabbar, Khem Chand and Deepak (since expired) from their lawful custody / detention. The victims have identified Shankar @ Bunty, Naresh @ Naval, Rakesh, Puran Lal, Arjun and Tara Chand as the persons who had pelted stones and bricks on them and helped in getting Mulla, Rajender @ Gabbar, Khem Chand and Deepak (since expired) freed from their lawful custody. (98) Lastly in so far as the alleged recovery of iron rod at instance of accused Mulla is concerned, I may observe that the said recovery has been effected from a public place which is easily accessible to general public. Further, despite the availability of various public persons at the spot of recovery, no public person has been joined at the time of its recovery. I may observe that such iron rod / saria is freely available in the market. Therefore I hold that the recovery of iron rod does not stand established. (99) It is writ large from the aforesaid that the aspect of the first incident of gambling in respect of which separate legal proceedings have been instituted, has not been disputed. It is also not disputed that a large number of persons had been involved in gambling and taken to the Police Station by the SHO and it stands established the SHO with his staff took away eight persons with them, there being no space in the official vehicle whereas they left four persons i.e. Mulla, Rajender @ Gabbar, Khem Chand and Deepak (since St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 82 expired) in the custody of ASI Shadi Lal and Ct. Anil Kumar. However, after the SHO left the spot and finding an opportunity the said four persons exhorted on which the other accused persons came to the spot and attacked ASI Shadi Lal and Ct. Anil Kumar and used criminal force to get Mulla, Rajender @ Gabbar, Khem Chand and Deepak (since expired) freed and also caused their escape from the custody of ASI Shadi Lal and Ct. Anil Kumar and also obstructed ASI Shadi Lal and Ct. Anil Kumar from discharging their official duties.
(100) In so far as the accused Mulla, Rajender @ Gabbar and Khem Chand are concerned they escaped / rescued from the lawful custody and detention of ASI Shadi Lal and Ct. Anil Kumar and caused injuries to them. Further, while doing so the accused have obstructed ASI Shadi Lal and Ct. Anil Kumar from discharging their official duties as public servant. Therefore, they are liable for offences under Sections 147 r/w 149 IPC, 186 r/w 149 IPC, 333 r/w 149 IPC and Section 224 r/w 149 IPC.
(101) Further, in so far as the accused Shankar @ Bunty, Naresh @ Naval, Rakesh, Puran Lal, Arjun and Tara Chand they are also liable for the offences under Sections 147 r/w 149 IPC, 186 r/w 149 IPC, 333 r/w 149 IPC and Section 225 r/w 149 IPC.
(102) In so far as the provisions of Section 148 IPC are concerned, I hereby hold that no doubt the prosecution had proved the incident of stone and brick pelting but in so far as the use and recovery of iron rod is concerned St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 83 the same has not been proved reasonable doubt and hence benefit of doubt is being given to them for the same.
(103) Further, in so far as the provisions of Section 307 Indian Penal Code are concerned, I may observe that as per the provisions of Section 307 Indian Penal Code whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. (104) To constitute an offence under Section 307 IPC, it is sufficient if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances and may even in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between the act of the accused and its result, if any. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some over act in execution thereof [Ref.: Vipin Bihari Vs. State of MP reported in 2006 (8) SCC 799; Bappa @ Bapu Vs. State of Maharastra reported in 2004 (6) SCC 485; State of Maharastra Vs. Kashi Rao & Ors. St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 84 reported in 2003 (10) SCC 434; Hari Mohan Mandal Vs. State of Jharkhand reported in 2004 (12) SCC 220 and Surender Kumar Sharma Vs. State reported in 2010 (III) AD (Delhi) 198]. This being the legal position, intention can be deduced not only from the nature of injuries caused but also from other circumstances.
(105) In the present case neither the knowledge nor the intention has been reflected. The medical evidence does not substantiate the charges alleged. Though ASI Shadi Lal had a fracture in the right ring finger which was opined to be grievous in nature yet there is no injury which could have cause death in the ordinary course of nature. Therefore, under these circumstances I hereby hold that the intention and knowledge as contemplated under the provisions of Section 299 and 300 Indian Penal Code are not made out. This being so I hereby hold that the prosecution has miserably failed to prove and substantiate the necessary ingredients of the offence under Section 307 Indian Penal Code against the accused Mulla, Rajender @ Gabbar, Khem Chand, Shankar @ Bunty, Naresh @ Naval, Rakesh, Puran Lal, Arjun and Tara Chand for which benefit of doubt is being given to them.
FINAL CONCLUSIONS:
(106) In the case of Sharad Birdhichand Sarda vs State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 85 are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
(107) Applying the above principles of law to the present case it is evident that the investigation conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the first and the second investigating officers. Further, on the basis of the evidence on record the following facts stand established:
➢ That on the intervening night of 1617.10.2009, ASI Shadi Lal along with Ct. Anil Kumar of Police Station Bharat Nagar were on duty from 12.00 midnight to 5.00 AM and were patrolling the area on motorcycle No. DL1SN5606.St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 86
➢ That at about 1.35 AM SHO Police Station Bharat Nagar instructed ASI Shadi Lal on wireless set to reach at Mata Jai Kaur School on which ASI Shadi Lal along with Ct. Anil reached near Mata Jai Kaur School where they found the SHO along with HC Mukesh, HC Baljeet, Ct. Kamlesh and Ct. Abhimanyu who had reached there in a Govt. Gypsy. ➢ That the Gypsy and motorcycle were parked near the police booth, after which they all started patrolling the area on foot.
➢ That at about 1.50 AM midnight the patrolling party reached the jhuggi of Sawan Park where they found about 12 persons gambling near the jhuggi No. N77/A502, Gali Sawan Park when all the said persons were apprehended.
➢ That the SHO along with his staff took eight persons in their Gypsy and directed ASI Shadi Lal and Ct. Anil Kumar to keep the custody of the four persons namely Deepak (since expired), Khemu, Rajender and Mulla after which SHO alongwith eight persons left the spot. ➢ That after the SHO left the spot, finding an opportunity the accused Khemu who was residing in the Sawan Park instigated other boys by saying "maro salo ko, ab mauka hai" on which instigation accused Mulla, Rajender, Khem Chand and Deepak (since expired) started beating the police officials i.e. ASI Shadi Lal and Ct. Anil Kumar. ➢ That the other accused persons i.e. Shankar @ Bunty, Naresh @ Naval, Rakesh, Puran Lal, Arjun and Tara Chand also came to the spot and attacked ASI Shadi Lal and Ct. Anil Kumar and used criminal force to St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 87 get Mulla, Rajender @ Gabbar, Khem Chand and Deepak (since expired) freed and also caused their escape from the custody of ASI Shadi Lal and Ct. Anil Kumar and also obstructed ASI Shadi Lal and Ct. Anil Kumar from discharging their official duties. ➢ That after the accused ran away from the spot ASI Shadi Lal and Ct.
Anil Kumar themselves walked to Sundar Lal Jain Hospital where medical treatment was provided to both the injured.
➢ That information was sent to Police Station Bharat Nagar from Sunder Lal Jain Hospital on which ASI Dharambir reached the hospital where he recorded the statement of ASI Shadi Lal on the basis of which the present FIR was registered.
(108) The medical evidence on record proves the prosecution case that both the injured ASI Shadi Lal and Ct. Anil Kumar had themselves come to Sunder Lal Jain Hospital and had given the alleged history of assault. It has been established that there were lacerated injuries on the occipital region of Ct. Anil Kumar which injuries were opined to be Simple in nature. Further, it stands established that ASI Shadi Lal had suffered lacerated wounds on the occipital region and frontal region and also a fracture in the right ring finger which injuries were opined to be Grievous in nature. The FSL Report again supports the case of the prosecution showing that there was human blood present on the clothes of the injured i.e. uniform of the injured which blood was of the same blood group as belonging to the victims, thereby confirming St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 88 that the above injuries had been caused to ASI Shadi Lal and Ct. Anil Kumar. (109) There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence.
(110) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, MLCs, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up a continuous link.
(111) Therefore, in view of the above in so far as the accused Mulla, Rajender @ Gabbar and Khem Chand are concerned they escaped / rescued from the lawful custody and detention of ASI Shadi Lal and Ct. Anil Kumar and caused injuries to them. Further, while doing so the accused have St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 89 obstructed ASI Shadi Lal and Ct. Anil Kumar from discharging their official duties as public servant and hence they are held guilty of the offences under Sections 147 r/w 149 IPC, 186 r/w 149 IPC, 333 r/w 149 IPC and Section 224 r/w 149 IPC for which they are accordingly convicted. (112) Further, in so far as the accused Shankar @ Bunty, Naresh @ Naval, Rakesh, Puran Lal, Arjun and Tara Chand they are held guilty of the offences under Sections 147 r/w 149 IPC, 186 r/w 149 IPC, 333 r/w 149 IPC and Section 225 r/w 149 IPC for which they are accordingly convicted. (113) However, the prosecution has not been able to prove and substantiate the allegations against the accused in respect of the offences under Section 148 IPC and 307 IPC beyond reasonable doubt and hence all the accused are acquitted of the same.
(114) Case be listed for arguments on sentence on 21.3.2013.
Announced in the open court (Dr. KAMINI LAU)
Dated: 15.3.2013 ASJII(NW)/ ROHINI
St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 90
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII:
NORTHWEST: ROHINI COURTS: DELHI Session Case No. 159/2011 Unique Case ID No.: 02404R0292052011 State Vs. (1) Shankar @ Bunty S/o Lt. Sh. Shyam Lal R/o A32, Sangam Park, R.P. Bagh, PS Bharat Nagar, Delhi (Convicted) (2) Mulla S/o Sh. Chob Singh R/o Jhuggi No. 77A & 538, Sawan Park, Delhi (Convicted) (3) Khem Chand @ Khem S/o Attar Singh R/o Jhuggi No. 77A/512, Sawan Park Extn., Delhi Deepak (Convicted) (4) Deepak S/o Baldev Raj R/o WP165, Wazirpur Village, PS Ashok Vihar, Delhi (Expired) St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 91 (5) Rajender @ Gabbar S/o Attar Singh R/o Jhuggi No. N77/A506, Sawan Park Extn., Delhi (Convicted) (6) Naresh @ Naval S/o Sh. Chedami Lal R/o N77/C269, Sawan Park Extn., Delhi (Convicted) (7) Rakesh S/o Genda Lal R/o N77B550, Sawan Park Extn., Delhi (Convicted) (8) Puran Lal S/o Attar Singh R/o House No. 77A/500, Sawan Park, Delhi (Convicted) (9) Arjun S/o Nem Pal R/o A75, Swarn Park Extn., Bharat Nagar, Delhi (Convicted) (10) Tara Chand @ Kalu S/o Bani Singh R/o N70C480, THuts, Sawan Park Extn., Delhi (Convicted) St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 92 FIR No.: 22/2009 Police Station: Bharat Nagar Under Sections: 147/148/149/186/224/307/333/334/353/34 IPC Date of conviction: 15.3.2013 Arguments concluded on: 25.3.2013 Date of Sentence: 26.3.2013 APPEARANCE:
Present: Sh. Sukhbeer Singh, Addl. Public Prosecutor for the State.
All convicts are in Judicial Custody with Sh. Suresh Tomar and Ms. Vijaya Sachdeva Advocates.
ORDER ON SENTENCE:
As per the allegations on 17.10.2009 at about 3:25 AM in front of Jhuggi No. N77/A/502, Sawan Park Extension, Delhi all the accused namely Shankar @ Bunty, Mulla, Khem Chand, Rajender @ Gabbar, Naresh @ Naval, Rakesh, Puran Lal, Arjun, Tara Chand @ Kale and Deepak constituted an unlawful assembly and in prosecution of common object of that assembly they used force with ASI Shadi Lal and Ct. Anil Kumar while they were discharging their public functions. It is also alleged that all the accused in prosecution of common object of that assembly committed rioting being armed with deadly weapon i.e. iron rods and voluntarily obstructed ASI Shadi Lal Ct. Anil with discharging their public functions and also voluntarily caused grievous hurt to ASI Shadi Lal with intent to prevent or deter him St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 93 from discharging his duty. Further, as per the allegations all the accused in prosecution of common object intentionally offered resistance or illegal obstruction to the lawful apprehension of four persons namely Deepak, Khem Chand @ Khemu, Mulla and Rajender in order to cause their escape from lawful custody. It has also been alleged that all the accused in prosecution of common object of that assembly attempted to commit murder of ASI Shadi Lal.
On the basis of the testimonies of the various prosecution witnesses particularly the injured ASI Shadi Lal and Ct. Anil Kumar and also on the basis of the other evidence on record, this Court vide its Judgment dated 15.3.2013 held the accused Mulla, Rajender @ Gabbar and Khem Chand guilty for the offences under Sections 147 r/w 149 IPC, 148 IPC, 186 r/w 149 IPC, 333 r/w 149 IPC and Section 224 r/w 149 IPC. Further, the accused Shankar @ Bunty, Naresh @ Naval, Rakesh, Puran Lal, Arjun and Tara Chand have also been held guilty of the offences under Sections 147 r/w 149 IPC, 148 IPC, 186 r/w 149 IPC, 333 r/w 149 IPC and Section
225 r/w 149 IPC. However, all the accused have been acquitted of the charge under Section 307 Indian Penal Code.
Heard arguments on the point of sentence. The convict Shankar @ Bunty is stated to be aged about 29 years having a family comprising of th aged widow mother, wife, one son and one daughter. He is 7 class pass and is a butcher by profession.
St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 94
The convict Mulla is stated to be aged about 23 years having a family comprising of aged parents, two elder brothers, one younger brother th and two married sisters. He is 5 class pass and is an electrician by profession.
The convict Khem Chand is stated to be aged about 35 years having a family comprising of wife, four sons and one daughter. He is totally illiterate and is a labour by profession.
The convict Rajender @ Gabbar is stated to be aged about 36 years having a family comprising of wife, three sons and three daughters. He is totally illiterate and is a labour by profession.
The convict Naresh @ Naval is stated to be aged about 31 years th having a family comprising of aged parents, wife and one daughter. He is 5 class pass and is a labour by profession.
The convict Rakesh is stated to be aged about 31 years having a family comprising of aged parents, one elder & three younger brothers, three th married sisters, wife, one son and two daughters. He is 9 class pass and is an A.C. Mechanic by profession.
The convict Puran Lal is stated to be aged about 65 years having a family comprising of wife, three daughters, three sons, two grandsons and nd two granddaughters. He is 2 class pass and is a labour by profession.
The convict Arjun is stated to be aged about 23 years having a family comprising of aged grandmother, parents, three younger brothers and th one younger sister. He is 5 class pass and is a labour by profession. St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 95
The convict Tara Chand @ Kalu is stated to be aged about 32 years having a family comprising of aged widow mother, two married sisters, two brothers, wife and two daughters. He is totally illiterate and is a labour by profession.
The Ld. Counsels for the convicts submit that all the convicts belong to very poor families and are helping hands of their respective families. It is submitted that any harsh view would be detrimental not only to the convicts but also their family members.
Ld. Addl. Public Prosecutor on the other hand has argued that except the convict Arjun and Tara Chand, all other convicts have other criminal involvements. He has pointed out that the convict Shankar @ Bunty is a BC (Bad Character) of the area and is involved in the following cases:
1. FIR No. 316/2000, PS Model Town, under Sections 379/411 IPC.
2. FIR No. 498/2001, PS Mukherjee Nagar, under Sections 379 IPC.
3. FIR No. 328/2003, PS Model Town, under Sections 25/54/59 of Arms Act.
4. FIR No. 334/2003, PS Model Town, under Sections 25/54/59 of Arms Act.
5. FIR No. 530/2004, PS Model Town, under Sections 25/54/59 of Arms Act.
6. FIR No. 199/06, PS Model Town, under Sections 25/54/59 of Arms St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 96 Act.
He has also pointed out that the convict Mulla is involved in two other cases, details of which are as under:
1. FIR No. 682/06, PS Ashok Vihar, under Sections 308/34 IPC.
2. FIR No. 20/2009, PS Bharat Nagar, under Sections 12/9/55 of Gambling Act.
In so far as the convict Khem Chand @ Khema is concerned, he is also a BC (Bad Character) of the area and is involved in following cases:
1. FIR No. 682/06, PS Ashok Vihar, under Sections 308/34 IPC.
2. FIR No. 231/09, PS Ashok Vihar, under Sections 324/32 IPC.
3. FIR No. 153/09, PS Swaroop Nagar, under Sections 147, 148, 149, 186, 353, 332 IPC and Section 3 & 4 of Danger to Public Property Act.
4. FIR No. 20/09, PS Bharat Nagar, under Sections 12/9/55 of Gambling Act.
5. FIR No. 153/2008, PS Bhadrabad, Uttranchal, under Sections 294 IPC.
In so far as the convict Rajender @ Gabbar is concerned, he is also involved in four other cases details of which are as under:
1. FIR No. 67/01, PS Ashok Vihar, under Sections 61/1/14 of Excise Act.
2. FIR No. 473/01, PS Ashok Vihar, under Sections 61/1/14 of Excise St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 97 Act.
3. FIR No. 231/09, PS Ashok Vihar, under Sections 324/34 IPC.
4. FIR No. 153/09, PS Swaroop Nagar, under Sections under Sections 147, 148, 149, 186, 353, 332 IPC and Section 3 & 4 of Danger to Public Property Act.
Further, the convict Naresh @ Naval is involved in four other cases details of which are as under:
1. FIR No. 7/2010, PS Bharat Nagar, under Sections 307,324,34 IPC.
2. FIR No. 54/2010, PS Bharat Nagar, under Sections 20/61/85 of NDPS Act.
3. FIR No.276/10, PS Bharat Nagar, under Sections 324/34 IPC.
4. FIR No. 153/08, PS Bhadrabad Uttranchal, under Section 294 IPC.
The convict Rakesh is involved in two other cases i.e.
1. FIR No. 73/2006, PS Ashok Vihar, under Sections 160 IPC.
2. FIR No. 95/10, PS Bhalswa Dairy, under Sections 324/34 IPC.
Further, the convict Puran Lal is involved in ten other cases details of which are as under:
1. FIR No. 88/92, PS Ashok Vihar, under Sections 308/34 IPC.
2. FIR No. 396/94, PS Ashok Vihar, under Sections 61/1/14 of Excise Act.
3. FIR No. 126/95, PS Ashok Vihar, under Sections 61/1/14 of Excise Act.St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 98
4. FIR No. 514/95, PS Ashok Vihar, under Sections 61/1/14 of Excise Act.
5. FIR No. 120/96, PS Ashok Vihar, under Sections 61/1/14 of Excise Act.
6. FIR No. 608/97, PS Ashok Vihar, under Sections 61/1/14 of Excise Act.
7. FIR No. 406/99, PS Ashok Vihar, under Sections 61/1/14 of Excise Act.
8. FIR No. 616/99, PS Ashok Vihar, under Sections 61/1/14 of Excise Act.
9. FIR No. 148/01, PS Ashok Vihar, under Sections 61/1/14 of Excise Act.
10. FIR No. 216/01, PS Ashok Vihar, under Sections 61/1/14 of Excise Act.
The Ld. Addl. PP for the State has for a stern view against the convicts keeping in view the nature of allegations involved and also keeping in view their previous criminal involvements.
I have considered the rival contentions. Except the convicts Arjun and Tara Chand, all other convicts are involved in other criminal cases. In fact the convicts Shankar @ Bunty and Khem Chand @ Khema are BCs (Bad Characters of the area). In the background, as highlighted above I St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 99 hereby award the following sentence to the convicts Mulla, Rajender @ Gabbar and Khem Chand:
1. For the offence under Section 147 r/w 149 Indian Penal Code, the convicts are sentenced to Rigorous Imprisonment for a period of One Year (each).
2. For the offence under Section 186 r/w 149 Indian Penal Code, the convicts are sentenced to Rigorous Imprisonment for a period of One month.
3. For the offence under Section 224 r/w 149 Indian Penal Code, the convicts are sentenced to Rigorous Imprisonment for a period of One Year (each).
4. For the offence under Section 333 r/w 149 Indian Penal Code, the convicts are sentenced to Rigorous Imprisonment for a period of One Year (each) and fine to the tune of Rs.1,000/ (each). In default of payment of fine the convicts shall further undergo Simple Imprisonment for a period of two days (each).
All the sentences shall run concurrently.
Further, in so far as the convicts Shankar @ Bunty, Naresh @ Naval, Rakesh and Puran Lal are concerned, I award the following sentence to them:
1. For the offence under Section 147 r/w 149 Indian Penal Code, the St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 100 convicts are sentenced to Rigorous Imprisonment for a period of One Year (each).
2. For the offence under Section 186 r/w 149 Indian Penal Code, the convicts are sentenced to Rigorous Imprisonment for a period of One Month (each).
3. For the offence under Section 225 r/w 149 Indian Penal Code, the convicts are sentenced to Rigorous Imprisonment for a period of Six months (each).
4. For the offence under Section 333 r/w 149 Indian Penal Code, the convicts are sentenced to Rigorous Imprisonment for a period of One Year (each) and fine to the tune of Rs.1,000/ (each). In default of payment of fine the convicts shall further undergo Simple Imprisonment for a period of two days (each).
All the sentences shall run concurrently.
In so far as the convicts Arjun and Tara Chand are concerned they are first time offenders with no criminal background. Therefore, a lenient view is taken against them and I award following sentence to them:
1. For the offence under Section 147 r/w 149 Indian Penal Code, the convicts are sentenced to Rigorous Imprisonment for a period of six months (each).
2. For the offence under Section 186 r/w 149 Indian Penal Code, the St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 101 convicts are sentenced to Rigorous Imprisonment for a period of One Month (each).
3. For the offence under Section 225 r/w 149 Indian Penal Code, the convicts are sentenced to Rigorous Imprisonment for a period of Six months (each).
4. For the offence under Section 333 r/w 149 Indian Penal Code, the convicts are sentenced to Rigorous Imprisonment for a period of Six months (each) and fine to the tune of Rs.1,000/ (each). In default of payment of fine the convicts shall further undergo Simple Imprisonment for a period of two days (each).
All the sentences shall run concurrently.
Benefit of Section 428 Cr.P.C. shall be given to the convicts for the period already undergone by them, as per rules.
The convicts have been informed that they have a right to prefer an appeal against this judgment. They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
One copy of the judgment and order on sentence be given to all the convicts free of costs and one copy of order on sentence be attached with their jail warrants.
St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 102
File be consigned to Record Room.
Announced in the open Court (Dr. KAMINI LAU)
Dated: 26.3.2013 ASJ (NW)II: ROHINI
St. Vs. Shankar @ Bunty Etc., FIR No. 22/2009, PS Bharat Nagar Page No. 103