Delhi District Court
State vs 1. Mahadev Rawat on 24 April, 2018
IN THE COURT OF
Dr. SATINDER KUMAR GAUTAM : ADDL. SESSIONS JUDGE-03 :
EAST DISTRICT: KARKARDOOMA COURTS: DELHI.
S.C. No: 497/2016
(ID No.: 02402R0188532011)
State Versus 1. Mahadev Rawat
S/o Late Sh. Om Prakash
R/o X-4114, Gali No. 13,
Shanti Mohalla, Gandhi Nagar,
Delhi.
2. Rajesh Sharma
S/o Sh. Shyam Sunder Sharma
R/o X-4191, Gali No. 14,
Shanti Mohalla, Gandhi Nagar,
Delhi.
3. Yash Gupta @ Chotti
S/o Sh. Vishnu Swaroop
R/o R/o X-4246, Gali No. 13,
Shanti Mohalla, Gandhi Nagar,
Delhi.
4. Vipin Sharma
S/o Sh. Raj Kumar Sharma
R/o X-4949, Gali No. 13,
Shanti Mohalla, Gandhi Nagar,
Delhi.
5. Vivek Kumar Sharma @ Billoo
S/o Sh. Jeevan Lal Sharma
R/o X-4949, Gali No. 13,
Shanti Mohalla, Gandhi Nagar,
Delhi.
SC No. 497/16 State Vs. Mahadev Rawat etc. Page 1 of 51
6. Gaurav Sharma
S/o Sh. Shyam Sunder Sharma
R/o X-4191, Gali No. 14,
Shanti Mohalla, Gandhi Nagar,
Delhi.
FIR No. 90/2011
PS. Krishna Nagar
U/s. 147/148/149/302/307/323/324/452 IPC
Chargesheet Filed On : 28.06.2011
Chargesheet Allocated On : 27.07.2011
Received by this Court on : 11.02.2014.
Court Presided over on : 06.11.2017
Judgment Reserved On : 23.04.2018
Judgment Announced On : 24.04.2018
JUDGMENT
1. On receipt of DD No. 32-A dated 30.03.2011 police machinery came into motion and filtered case of the prosecution is that MLCs of injured were obtained and Kuldeep Thakur, one of the injured, lodged a police report to the effect that on that day live telecast of cricket match between India and Pakistan was being relys and said match was being watched by them on a TV screen installed in the gali. He further stated that whenever player of Pakistan was declared out, same was being celebrated with fire of crackers. At about 9.40 p.m. two motorcycles, on one motorcycle two bikers and another three bikers, came there and they objected on the celebration and watching the match in the gali and even they also abused with one old man namely Subhash Chand and those persons left the place with threat by saying "will come back and see them". Police was informed by dialing 100 number on which police came but by that SC No. 497/16 State Vs. Mahadev Rawat etc. Page 2 of 51 time. those persons had already left. He stated that after sometime 8-10 persons armed with cricket bats, base ball bats, danda (thapi), knives and glass bottles came there and they attacked the persons present in the gali. One of the offenders entered the house of Neeraj and caused injuries to him. On account of the attack, Kuldeep and 5-6 other persons of the gali sustained injuries. He stated that two of the offenders, who were trying to flee away, were apprehended with their bike and public persons caused injuries to them. Complainant also mentioned the numbers of two motorcycles which were caught hold at the spot. On this statement of the complainant, present FIR was registered under Secs. 147/148/149/323/324/307/302/452 IPC.
2. During investigation, earth control, blood stained earth, piece of glass, broken bottle glasses, wooden thapi (without handle), blood stained cloth of injured, blood stained chappal, motorcycle bearing registration number DL- 7SBA-6888 (Black Pulsar), motorcycle bearing registration no. DL-7SBB-3210, iron rod etc. were lifted from the spot and post-mortem on the body of Gaurav was conducted and after it, body was handed over to its legal heirs.
3. Accused Mahadev Rawat and Rajesh Sharma were arrested from the spot and then on the basis of his disclosure statement, other accused persons were arrested and recoveries were also effected. After completion of investigation, chargesheet was filed against all the above named accused persons before the court of ld. MM.
4. After compliance of provisions of Sec. 207 CrPC by the court of learned MM, case was committed to the court of Sessions, as some of the SC No. 497/16 State Vs. Mahadev Rawat etc. Page 3 of 51 offences were triable by it.
5. Vide order dated 12.12.2011, passed by the learned Predecessor, charges under Sec. 147; 148; 302 r/w 149; 323/324 r/w 149; 307/149 and 452/149 IPC were framed against all the accused persons. To the said charges, all the accused persons pleaded not guilty and claimed trial.
6. To prove the guilt against the accused persons, prosecution examined 43 (in fact 42 witnesses as number PW 10 was never given to any witness). Examined witnesses are as under:-
PW-1 Kuldeep Thakur, in his examination-in-chief specified the role of the accused persons. He is also a witness to the seizure of articles from various places and identified the same. He is also a witness to the arrest of accused persons Mahadev Rawat, Rajesh and Yash Gupta and also proved the memos in that respect.
PW-2 Harbinder, Duty Officer, proved the copy of the FIR as Ex.PW2/A. He also proved the copy of the DD No.3-A as Ex.PW2/C. PW-3 HC Ram Prasad, DD Writer, proved the DD entries 32A, 36A, 37A and 39A as Ex.PW3/A to D respectively and also copy of DD register as Ex.PW 3/E. PW-4 SI Mukesh Kumar Jain prepared scaled site plan and proved the same as Ex.PW4/A. PW-5 SI Jai Singh reached the spot, inspected the site and directed the photographer to take the photographs from different angles. He proved his report Ex.PW5/A. SC No. 497/16 State Vs. Mahadev Rawat etc. Page 4 of 51 PW-6 Dr. Lav Kesh Nayyar proved his record regarding nature of injuries in respect of injured Akshay and Rajesh as Ex.PW38/A-2 and 38/B-2.
PW-7 Subhash, another alleged material witness of the case, stated that on 30.03.2011 while he was watching a cricket match on TV, installed in the gali, between 9 - 10 p.m. two boys along with one child came on a bike being driven at a fast speed and the persons who were watching the TV asked the driver of the bike to drive slow on which an altercation had taken place and matter was pacified and motorcyclist left the spot with intimidation to the persons present there. Police was informed and police came there and on inquiry it was told to the police that those boys had already left the spot. He further deposed that after about 15-20 minutes of the same, 8-10 boys (accused persons) came there and attacked with knives etc. whoever came in their front on account of which Vicky and few other persons sustained injuries and one Gaurav expired.
PW-8 Neeraj Chandhok, injured, deposed that on the date of incident 7-8 persons wearing cap came near to him and attacked him. He failed to identify any one of them. He was cross-examined by State but did not identify any of the accused persons.
PW-9 ASI Satyapal is a witness to the arrest of Yash Gupta @ Chhoti and proved arrest and personal search memos vide Ex.PW9/A & 9/B. PW-11 Const. Jagbir Singh (inadvertently number 10 was not given to witness) photographed the spot and proved photographs as Ex.PW11/P18 to 34 with negatives Ex.PW11/P1 to P17.
PW-12 Naveen Malhotra, another material witness, stated that on SC No. 497/16 State Vs. Mahadev Rawat etc. Page 5 of 51 30.03.2011 while he along with other persons was watching TV in the gali for cricket match, at about 9.40 p.m. accused Yash Gupta @ Chhoti came there on a motorcycle being driver in a rash and negligent manner and two more persons were also sitting on the said motorcycle and on it, Subhash Chand stopped him and asked him to driver the bike solely stating that kids were sitting as pillion rider but on hearing it, Yash Gupta became furious and after some time he came there again with 3-4 more friends and quarrelled with them. Police call was made. Accused Yash Gupta, Billu and Vipin along with other persons had come with dandas, knives and baseball bat etc. and started beating them. Accused Vipin gave knife blow to Gaurav on which he caught hold accused Vipin and asked Gaurav to run away, meantime Vivek Kumar @ Billu stabbed him (this witness) in his abdomen and someone on his head from backside on account of which he became unconscious. This witness also identified accused Mahadev Rawat, Rajesh Sharma also. During cross-examination conducted by ld. Addl. PP he admitted that Billu attacked Kuldeep Thakur with baseball bat on account of which he sustained injuries in his hand with some object.
PW-13 Sanjeev Malhotra, one of the injured persons, deposed that on the date of incident he sustained injuries on account of brick blow but he failed to identify who caused injuries to him. He was cross-examined by State and during cross-examination by ld. Addl. PP for the State, he admitted that Pankaj stabbed Neeraj Chandhok after entering into house and Rajesh and Mahadev were also amongst the assailants. During the said cross-examination, he also admitted that rest of the assailants left the spot and later on he came to know that two SC No. 497/16 State Vs. Mahadev Rawat etc. Page 6 of 51 motorcycles one - make Apache was of accused Billu and the other - make Pulsar was of accused Rajesh.
PW-14 Shivam Malhotra @ Pinku deposed that accused persons, who were present in the court, along with one associate (juvenile) caused injuries to him and his father (Sanjeev Malhotra). He further deposed that he did not know the name of any of the accused. This witness was cross-examined by State and during his cross-examination he admitted that he came to know the name of the accused persons as Mahadev, Shanky, Rajesh, Vipin Sharma, Yash Gupta @ Chhoti, Billu Sharma, Raunak and Gaurav and that he had forgotten these facts.
PW-15 Abhishek, other material witness, also supported the prosecution story specifying the role of accused persons in the crime in question.
PW-16 Manmeet Singh @ Meetu deposed that on the date of incident, on hearing the noises, he came outside from his house and found Abhishek in injured condition. He deposed that he had not seen any of the assailant and made call at 100 number.
PW-17 ASI Om Pal deposed that on 30.03.2011 while he was deputed as ASI with PCR, on receipt of call, he reached the spot and admitted Gaurav Sharma, one of the injured to GTB Hospital.
PW-18 Ct. Jitender joined the investigation of this case on the day of incident itself and handed over the sealed parcels with sample seal to Investigating Officer which were seized vide memo Ex.PW18/A. He is also a witness to the arrest of the accused persons namely Mahadev Rawat, Rajesh Kumar, Vipin Sharma Gaurav Sharma and Yash Gupta @ Chotti and also SC No. 497/16 State Vs. Mahadev Rawat etc. Page 7 of 51 recoveries effected from them on different dates. He proved the memos prepared in that respect and identified the articles.
PW-19 Raju Dutt made a phone call about the incident, on the day of incident from his mobile number 9718561569.
PW-20 Ct. Brijesh Kumar joined the investigation of this case and is a witness to the arrest of accused Vivek Kumar Sharma @ Billu and recovery effected from him. He proved the memos in that respect.
PW-21 Const. Hamvir deposed that on 27.04.2011 after post-mortem of deceased Gaurav Sharma sealed parcels and blood stained clothes were handed over to him and same were seized vide memo Ex.PW21/A. PW-22 Const. Sandeep delivered the copies of FIR to ld. Ilaqa Magistrate and Sr. Police Officer on being handed over the same to him.
PW-23 Manoj Kumar Sharma, brother of accused Rajesh, is registered owner of motorcycle bearing registration no. DL-7SBA-6888 and taken the said motorcycle on superdari.
PW-24 Const. (W) Kiran, PCR Official, recorded information conveyed to PCR at 22:35:51 Hours from mobile no. 9865494486 that four boys has been stabbed by some boys in gali no. 45, Shankar Nagar, Krishna Nagar, Delhi.
PW-25 Const. (W) Suman, PCR Official, recorded information conveyed to PCR at 22:27:59 Hours from mobile no. 9718561669 that firing incident is taking place in quarrel near Shiv Mandir, Shankar Nagar.
PW-26 Dr. Thejaswi H.T. conducted post-mortem on the body of deceased Gaurav and proved the same as Ex.PW26/A opining the cause of SC No. 497/16 State Vs. Mahadev Rawat etc. Page 8 of 51 death as "hemorrhagic shock and its complications due to stab wound on the abdomen".
PW-27 Dr. Priya Govil medically examined Neeraj Chandhok (PW-8) and proved his MLC Ex.PW27/A. PW-28 Const. (W) Shimla Kumari, PCR Official, recorded information conveyed to PCR at 22:29 Hours.
PW-29 Sh. J.P. Nahar, the then ld. MM, conducted TIP proceedings of accused persons Gaurav Sharma and Vipin Sharma and proved the same as Ex.PW29/A to F whereby they refused to join the test identification parade proceedings.
PW-30 Dr. Sachin Harit medically examined Pinku @ Shivam (PW-14) and Abhishek (PW-15) and proved their MLCs Ex.PW30/A and 30/B respectively.
PW-31 Const. (W) Savita, PCR Official, recorded information conveyed to PCR at 9.55 p.m. PW-32 Const. (W) Usha, PCR Official, recorded information conveyed to PCR at 10.26 p.m. from mobile phone number 9911875855 regarding quarrel in West Azad Nagar Rajgarh Colony and then she further transmitted the said information to the communication staff for futher necessary action.
PW-33 HC Sanjay Kumar deposed that on 30.03.2011 on receipt of information, when he reached the spot, he came to know that few boys had come and left the spot after quarrelling with the persons present there.
PW-34 SI Rajender Prasad is partly Investigating Officer of the case and proved the memos Ex.PW1/P-1 to P-5 of the articles seized from the spot . SC No. 497/16 State Vs. Mahadev Rawat etc. Page 9 of 51
PW-35 Veenu Sethi informed the police at about 10.30 p.m. from his mobile phone no. 9911875855 at 100 number about the incident.
PW-36 HC Arun Kumar, MHC(M), proved the entries Ex.PW36/A to G effected in register no. 19 regarding deposit of articles and also sending of exhibits to FSL.
PW-37 Const. (W) Geeta, PCR Official, recorded information conveyed to PCR at 10.28 p.m. from mobile phone no. 9718223323 regarding murder in gali no 4, Shankar Nagar, near Shiv Mandir, and on receipt of the same, said witness immediately transmitted the said information to communication staff for further necessary action.
PW-38 Dr. P.K. Phukan proved the MLCs Ex.PW38/A & B in respect of injured Akshay and Rajesh Kumar prepared by Dr. Ashutosh. He also proved the MLC in respect of Kuldeep Thakur as Ex.PW38/D. PW-39 Dr. Prasad Upganlawar also proved the medical record in respect of Pinku @ Shivam (PW-14) and Abhishek (PW-15) at point X on the MLCs Ex.PW30/A & B opining the nature of injuries of Pinku @ Shivam as "dangerous".
PW-40 Inspt. Subhash Kumar is partly Investigating Officer of the case. He got recorded the FIR of this case after preparing of ruqqa. He is also a witness to the arrest of accused persons Mahadev, Rajesh, Yash Gupta @ Chhoti, Vipin Sharma, Vivek Sharma @ Billoo, Gaurav Sharma and recoveries of weapons etc. effected from them and proved the memos prepared in that respect.
PW-41 Dr. Mohit Arora proved the medical record in respect of Kuldeep SC No. 497/16 State Vs. Mahadev Rawat etc. Page 10 of 51 Thakur prepared by Dr. Binit Singh.
PW-42 Ms. Manisha, FSL Expert, proved the reports Ex.PW 40/M and N. PW-43 Dr. Ashok also proved the medical record in respect of one of the injured persons namely Neeraj Chandhok (PW-8) opined the nature of injuries as "dangerous".
7. Statements of accused persons were recorded under Sec. 313 CrPC. All these accused persons denied the case of prosecution in toto and pleaded their innocence.
8. Accused Mahadev Rawat further pleaded that in fact while he was returning from the house of his sister Beena, he was assaulted and robbed of Rs. 550/- by five unknown persons. He further pleaded that he became unconscious then and there and when he regained consciousness, he found himself admitted in GTB hospital where he saw his friend Gaurav Sharma, his neighbour who disclosed him that he had brought him in hospital while he (accused) was in unconscious and injured. He further pleaded that he had filed a complaint case which is subjudice before court and that in fact police also recorded his statement in the hospital about the incident happened with him but due to reasons best known to the Investigating Officer, he concealed the same and did not put forward.
9. Accused Rajesh pleaded that he had gone to the shop of his uncle (chacha) namely Ram Kumar to purchase articles and due to heavy rush, he had parked his motorcycle bearing registration no. DL-7SBA-6888 belonging to his elder brother Manoj in front of Shiv Mandir as shop is also situated near to that SC No. 497/16 State Vs. Mahadev Rawat etc. Page 11 of 51 place. He further pleaded that a quarrel had taken place between some unknown persons and while he was going to pick his motorcycle he was attacked by the residents of the locality as a result of which he sustained multiple injuries and in order to save their own skin for causing injuries to him (accused), he was implicated falsely in this case and that later on his motorcycle was also seized wrongly. He further pleaded that he did not cause any injuries to anyone at any point of time.
10. Accused Gaurav Sharma pleaded that his brother Rajesh Sharma had gone to the shop of his uncle, just near to the place of incident to purchase articles and that he (his brother) was detained by the police and then police also called him (this accused) for inquiries after three weeks and later on he was also implicated falsely in this case.
11. Accused Yash Gupta pleaded that no recovery was effected either from him or at his instance and that he did not make any disclosure statement at any point of time and that police obtained his signatures on some papers and later on same were used to suit the prosecution case. He further pleaded that he was not known by any alias name as "Chhoti".
12. Accused Vivek Kumar Sharma @ Billoo further pleaded that PW Kuldeep Thakur was having enmity with him on account of political rivalry as he had contested elections for Samajwadi Party against Somesh Kapoor, a BJP candidate and that Kuldeep Thakur was his dead supporter and on account of it, he (Kuldeep Thakur) named him falsely in this case. He further pleaded that he himself went to the Police Station when he came to know about his name falsely SC No. 497/16 State Vs. Mahadev Rawat etc. Page 12 of 51 arrayed in this case and that he did not make any disclosure statement.
13. Accused Vipin pleaded that PW Kuldeep Thakur was having enmity with his uncle Vivek Kumar Sharma, a Samajawadi Party worker, on account of political rivalry, as his uncle had contested MCD Elections against Somesh Kapoor @ Swami, a candidate of BJP and Kuldeep was his dead supporter.
14. All these accused persons denied any recovery either effected from them or at their instance. None of the accused claim over case property. All accused persons opted for leading defence evidence in their defence.
15. DW-1 Gaurav Sharma S/o Sh. Kishan Shrma (business friend - examined on behalf of Mahadev Rawat) deposed that on 30.03.2011 at about 8.30/9 p.m. some of his friends were present in his house on account of Indo-Pak cricket match and he along with his one of his friends had gone to market to fetch some food items. He deposed that on noticing a crowd near Hanuman Mandir, he reached there and found Mahadv Rawat there in unconscious condition. He deposed that he along with his friend rushed Mahadev Rawat to hospital and on the way when Mahadev Rawat regained consciousness, he (Mahadev Rawat) disclosed that while he was returning from the house of his sister, 4-5 boys attacked him and robbed him of his cash. He further deposed that they got admitted said Mahadev Rawat with GTB Hospital. He further deposed that later on he was called in the PS and his statement was recorded.
16. DW-2 Anil Kumar, Ahlmad to the court of of Sh. Dhiraj Mittal, the then Metropolitan Magistrate (also examined on behalf of Mahadev Rawat) brought the record of case file of CC No. 49564/2016 titled as Mahadev Rawat SC No. 497/16 State Vs. Mahadev Rawat etc. Page 13 of 51 and proved certified copy of the same as Ex.DW2/A running into twelve pages.
17. DW-3 Ram Kumar S/o Late Sh. Ram Bharose (nephew of Rajesh Sharma and examined on his behalf) deposed that on 30.03.2011 at about 9/9.30 p.m. Rajesh Sharma, his nephew, came to his (witness) shop situated in front of Shiv Mandir to purchase some articles. He deposed that after parking motorcycle bearing registration no. 6888, Rajesh Sharma went in the gali in front of the shop. He further deposed that after that when Rajesh Sharma did not return for a period, on inquiries he came to know about a quarrel in the said gali on which this witness had informed his brother i.e. father of Rajesh Sharma. He further deposed that he also noticed that motorcycle of Rajesh Sharma was being taken by some police officials.
18. Learned Addl. PP for the State argued that prosecution has been able to prove the charges against all the accused persons through evidence of all material coupled with other material witnesses including medical and expert evidence. He also submitted that there is no reason to implicate the accused persons falsely in this case by complainant as no ill-will, grudge or enmity has either been alleged or proved against any of the accused persons. He further submitted that defence taken by accused Vipin and Vivek regarding alleged enmity with Kuldeep Thakur is an after thought and that no documentary proof was produced in support of said defence. It is further argued by ld. Addl. PP that there is no material contradiction in the deposition of the prosecution witnesses, however, there are minor discrepancies or contradictions here and there which have occurred due to the passage of time, lapse of memory and the SC No. 497/16 State Vs. Mahadev Rawat etc. Page 14 of 51 understanding as well as reproduction of the same, same can be ignored, in view of well settled proposition of law on this issue and particularly in view of the circumstances of the case in which manner the crime has been committed. Ld. Addl. PP prayed for conviction to the accused persons, as per the charges framed against them.
19. On the other hand, learned counsels submitted that prosecution case is liable to be demolish as built up on sand well without any basis. All the accused persons pleaded their innocence claiming their false implication.
20. Sh. S.K. Ahluwalia, ld. counsel for accused Gaurav Sharma and Rajesh Sharma submitted that prosecution case is full of contradictions; improvements and also denied of prosecution case by material witnesses. He pointed out that during examination of PW-7 Subhash Chand, he was declared hostile and stated that he did not state that the name of two accused persons who were apprehended at the spot as Rajesh Sharma and Mahadev Rawat. Ld. counsel also pointed out improvements, contradictions and other aspects as stating that all this casts a serious doubt on the prosecution case for which accused persons are entitled for their acquittal.
21. For accused Mahadev Rawat, ld. counsel has taken the plea that perusal of the MLC of said accused is contrary to the record of prosecution case as the said MLC, it is clearly mentioned that he was brought by his friend Gaurav which also supports the defence of the accused. Ld. counsel for accused Mahadav Rawat further submitted that said accused had no connection with the crime in question and rather he himself was a victim of the incident/another SC No. 497/16 State Vs. Mahadev Rawat etc. Page 15 of 51 crime. He pointed out that even for the said crime, he has filed complaint case and proved the copies of the same and said matter is at the stage of evidence. Ld. defence counsel submitted that defence of the accused be taken at par in view of the case reported as State of Haryana Vs. Ram Singh, 2002 (1) JCC 385 (Supreme Court of India) and Anil Sharma & Ors V State of Jharkhand [2004 (3) RCR (Cri) 774] wherein it was observed that the evidence tendered by accused can not always be termed to be a tainted one and they are entitled to equal treatment and equal respect as that of the prosecution evidence.
22. Ch. Rajinder Singh, ld. counsel for accused Vipin and Vivek pointed out the contradiction regarding injuries caused to deceased Gaurav. He also pointed out that some of the material witnesses have not supported the prosecution case. He has also drawn the attention of the court towards the defence taken by these accused persons for their false implication on account of MCD elections.
23. Sh. Sanjay Gupta, ld. counsel for accused Yash Gupta @ Chhoti has taken objection that "Yash Gupta" is not having any alias name as "Chhoti" and that prosecution has not able to prove by any documentary evidence to show that Yash Gupta was having any alias name. He also raised the objection that at one point alias of Yash Gupta was mentioned as "Chhotte" and at other point, same is mentioned as "Chhoti" which creates doubt on the prosecution case.
24. Ld. defence counsels placed reliance on the cases reported as Nanhar & Ors Vs. State of Haryana, 2010 (3) RCR (Criminal); Vijay Kumar Vsw. State of Rajasthan, 2014 (3) LRC 88 (SC); Ajay @ Chotu & Ors. Vs. SC No. 497/16 State Vs. Mahadev Rawat etc. Page 16 of 51 State, 2012 (4) LRC 273 (Del) (DB); Riaz Ali Vs. State, 2012 (2) JCC 1092; Kailash Gour & Ors. Vs. State of Assam, 2012 (1) LRC 81 (SC); State Vs. Sunil Kumar @ Sagar @ Rahul & Ors., 2015 (3) LRC 380 (Del) (DB); Rajeev Ohlan Vs. State, 2016 (4) LRC 362 (Del); Anil Rai Vs. State of Bihar, 2001 (3) RCR 722 (Crl.); State of Punjab Vs. Sucha Singh & Ors, 2003 (2) RCR 766 (Crl.) with various other citations on the points and submissions raised during their final arguments to buttress their contentions further submitting that case does not fall within ambit of Secs. 147/148/149 IPC.
25. I have considered the rival submissions; gone through the material on record and also ctied judgments on the issues involve.
26. PW-1 Kuldeep Thakur is the complainant and one of the star witness of the case who got registered FIR of this case. He appeared before the court on 03.02.2012 and deposed that on 30.03.2011 a TV set was installed in the gali outside his shop to watch Indo-Pak cricket match and whenever wicket of the Pakistan fall, they celebrate it with fire of crackers. Around 9.40 p.m. two motorcycles came there and on one of the motorcycle two persons were sitting and they passed peacefully while on the other motorcycle three persons were sitting and they had some altercation with a boy of their gali. They were asking them to leave the passage. Sh. Subhash, aged about 65 years, tried to make them understand on which Yash Gupta @ Chhoti started abusing to said Subhash and Sh. Subhash asked them to leave the spot on which he (Yash Gupta) threatened that he would come back and would not leave and then left from there. Police was informed by dialling 100 number and after sometime SC No. 497/16 State Vs. Mahadev Rawat etc. Page 17 of 51 police reached there and left the spot after inquiry. As soon as the police officials left the spot, 8-10 boys armed with knives, glass bottles, baseball bat and wickets of cricket came there on motorcycles and started attack the persons present in the gali. Vivek Sharma was having a baseball bat in one hand and knife in other hand and caught hold Gaurav (deceased). Accused Gaurav Sharma and Vipin inflicted knife blows on Gaurav (deceased) and one boy of their gali namely Akshay Malhotra or Naveen @ Vickey intervened and tried to save Gaurav from their clutches. Accused Billoo gave knife blow in the abdomen of Vicky. Gaurav (deceased) ran towards gali no. 5 on which Billoo shouted that Gaurav be not spared and caught hold of him. Accused Gaurav Sharma and Vipin chased deceased Gaurav. Accused Mahadev and Rajesh Sharma were given beating to Sanjeev Malhotra with baseball bat and wicket and in order to save him, he (witness) grappled with them and during said scuffle, Sanjeev Malhotra was left and he (witness) was beaten by them. In the meantime a boy named Shanky reached there and stabbed Shivam in his abdomen. Neeraj was standing inside his house and one of those boys entered the house of Neeraj and gave knife blow on his neck and he (witness) could not see the face of said assailant and thereafter said assailant entered the house of Neeraj and that since (witness) was standing outside he was unaware what had happened inside the house of Neeraj. Accused Yash Gupta was having 2-3 glass bottles in his hands and started pelting the same on them and escaped from the spot. Public caught hold of Rajesh and Mahadev Rawat and gave severe beatings to them and when Billoo tried to escape on motorcycle bearing registration no. 3210 (grey colour SC No. 497/16 State Vs. Mahadev Rawat etc. Page 18 of 51 Apachi), he (said witness) took out the keys from the ignition. Since Rajesh was apprehended he could not escape from the spot on his motorcycle bearing registration no. 6888 (Black colour Pulsar). Police arrived at the spot. 3-4 boys of their lane sustained injuries. Besides him, Abhishek, Gaurav, Neeraj Chandok, Naveen Malhotra @ Vickey and Shivam also sustained injuries. He got fracture in his right hand and was also having breathing problem. His statement Ex.PW1/A was recorded. PW-1 Kuldeep Thakur again appeared before the court on 16.07.2013 and on that date, he stated that he had shown the place of incident and at his pointing out, site plan was prepared. Blood stained earth, control earth and blood stained green colour glass pieces and blood sample from outside the House No. 30, were seized. One wooden thapi having broken handle (blood stains) lying outside the house of Neeraj was seized vide memo Ex.PW1/P1 and blood stained shirt was seized vide memo Ex.PW1/P2. A pair of hawai chappal was also seized vide memo Ex.PW1/P3 while two motorcycles bearing registration no. DL-7SA-BA-6888 and DL-7SBB-3210 were seized from the spot vide memos Ex.PW1/P4 & P5. One wiper pipe was also seized vide memo Ex.PW1/P6. After discharge from the hospital on 31.03.2011 accused Mahadev Rawat and Rajesh were brought to PS and were arrested vide memos Ex.PW1/P7 & P8 respectively and their personal search were conducted vide memos Ex.PW1/P9 & 10. Accused Yash Gupta was also arrested vide memo Ex.PW1/9A & 9B. He (this witness) had gone to Tihar twice or thrice but accused persons refused to join the the TIP proceedings.
27. To shake the testimony of PW-1 Kuldeep Thakur, he was cross- SC No. 497/16 State Vs. Mahadev Rawat etc. Page 19 of 51 examined on behalf of accused persons. He has been confronted with his previous statement on the issues wherein he has made improvements, though he has testified the role of accused persons and their actively participation in the crime. He has denied the suggestion put to him on behalf of accused Yash Gupta @ Chhoti that said accused was not present at the spot at that time or that no bottle was ever pelted by him. It is also denied that Yash Gupta did not come in the gali along with other boys on motorcycle at any point of time or had any altercation with a boy of the gali or that hurled abuses or extended any threat to Subhash.
28. Similarly, during cross-examination on PW-1 conducted on behalf of other accused persons, this witness has denied the suggestions put to him that no such quarrel had taken place or that none of the accused persons actively participated in the crime and used any weapon as stated by him during examination-in-chief. Though he categorically stated that he was beaten by Mahadev Rawat, Rajesh with baseball bats and dandas. The suggestions with respect to remaining accused persons have also been denied by this witness i.e. PW-1 Kuldeep Thakur. As such, testimony of this witness remained unshaken during cross-examination on behalf of accused persons.
29. PW-7 Subhash Chand is also a witness to the incident who was also watching cricket match on 30.03.2011 in the gali. This witness also testified that two mnotorcycles came there at fast speed and an altercation took place between them. That matter was pacified. Police was informed and police came there. As those boys had already left the place, police also left the spot but after SC No. 497/16 State Vs. Mahadev Rawat etc. Page 20 of 51 15-20 minutes of the same, 8-10 boys came there and attacked with knives who came in their front and watching match. On account of said attack, one boy named Gaurav had died while other sustained injuries. Two accused persons were apprehended at the spot by the public persons. This witness has been confronted by ld. Addl. PP with his earlier statement recorded under Sec. 161 CrPC in which he admitted that earlier to that attack, two boys left the spot while extending the threat and some of the assailants were having cricket stamps and baseball bats but he did not give the name of one of the accused as Yash Gupta. He identified the accused persons present in the dock are the same persons who came at the time of the crime and attacked the persons who were watching the match in the gali and his nephew and other persons sustained injuries because of the attack of the accused persons.
30. PW-8 Neeraj Chandok; PW-12 Naveen Malhotra, PW-13 Sanjeev Malhotra; PW-14 Shivam Malbotra @ Pinku and PW-15 Abhishek also corroborated the statement of each other with regard to the incident and altercation having taken place; injuries sustained by the injured at the hands of the accused persons with baseball bats, glass bottles, knives etc. while they were watching Indo-Pak cricket match in the gali.
31. There is no denial to the fact that defence evidence be also treated at par with prosecution evidence but only if found to be reliable and trustworthy. It is very interesting to note that on one side, accused Rajesh has not taken any plea regarding apprehending with motorcycle though during cross-examination of PW-1 Kuldeep Thakur; PW-13 Sanjeev Malhotra; PW-14 Shivam Malhotra SC No. 497/16 State Vs. Mahadev Rawat etc. Page 21 of 51 having denied the suggestion and corroborated their examination. PW-23 Manoj Kumar Sharma, brother of accused Rajesh appeared and stated that on the day of incident said motorcycle was with him at his house and accused Rajesh did not use the same on that day. Even during cross-examination of PW-34 SI Rajinder Prasad the accused Rajesh has taken the stand that no such motorcycle was seized from the spot. No suggestion regarding seizure of motorcycle from the spot was put to PW-40 Inspt. Subhash Kumar. At the same time, he has taken the stand in his statement recorded under Sec. 313 CrPC and by producing DW-3 Ram Kumar, this witness has taken the defence that he had parked the motorcycle near the spot. Same are contradictory to each other and said testimony is not reliable.
32. Regarding the defence taken by accused persons Vipin Sharma and Vivek Sharma, to that effect, there is no document in support of the same. The suggestions put to the witnesses in this regard have been denied by the witnesses which has no value in the eyes of law.
33. Regarding plea of accused Yash Gupta, that he has no alias name as Chhoti, it is clear from the record that in the arrest memo Ex. PW9/A; personal search memo Ex. PW9/B and in the disclosure statement, he named himself as Yash Gupta @ Chhoti apart from it, there are other ocular evidence to this effect. For the sake of arguments, if it is taken that Yash Gupta @ Chhoti has no alias name, even then it is to be seen that his parentage with other particulars are mentioned on the record and that he has been identified by the witnesses as one of the assailants. The plea of the accused in this regard has no value in the SC No. 497/16 State Vs. Mahadev Rawat etc. Page 22 of 51 eyes of law and has been raised only for the sake of contentions and it does not have any bearings on the merit. in comparison to the deposition of prosecution witnesses which have more trustworthy and inspired confidence.
34. Accused Guarav Sharma took the plea that he was called in the Police Station for inquiry after detention of his brother in the PS and later on he was also implicated falsely in this case. No reason of false implication is given as to the effect that whether he has having any enmity with any police official or with any other person. Why public witnesses who are independent witnesses would identify him as one of responsible for the crime in question. No report/complaint has been made by him or any member of his family for his false implication in this case.
35. There is no denial to the fact that mere taking plea of false implication has no value in the eyes of law.
36. In the present matter, public witnesses have identified the accused persons as responsible for the crime in question. There is no reason for their false implication at the hands of the public persons who are independent witnesses. Rather injured would be the most interested person to see the actual culprit(s) behind the bars.
37. Besides the above, in Ram Adhar Vs. State 2004 Crl. LJ 1869 at 1873 (All.), it was observed that - the defence cannot be allowed to take the plea of paucity of light. It has come in the evidence of the prosecution witnesses that it was Deewali night and houses were illuminated. The assault was initiated inside the house at 8.30 p.m. when the lights inside the houses are generally on. In any SC No. 497/16 State Vs. Mahadev Rawat etc. Page 23 of 51 case, since the assailants were the brothers of witness Smt. Saroj Shukla and his friend, who admittedly visited her house on several occasions prior to the incident, it cannot be taken to be case of mistaken identity.
38. It is a mandate of Section 134 of Evidence Act, 1872 that quality and not quantity of evidence is material. The quality of evidence even of a single witness whose testimony has either to be accepted or rejected, is such a testimony is found by the court to be entirely reliable there is no reason of impediment to the conviction of accused on such proof. Even as, the guilt of accused may be proved by testimony of single witness, even though a considerable number of witnesses may be forthcoming to testify the truth of the case for prosecution. Mere probability of witnessing the occurrence by the neighbour of place of incident is not enough, but something more is required to test the veracity in order to marking as more trustworthy. When such a solitary witness omit to state the material fact of the actual incident in his first disclosure before the investigating officer, then his evidence become doubtful and reliable to be pushed out of the arena of solitary eye witness of murder. For this, reference is taken from a judgment reported as JT 2013 (1) SC 222 titled as Kishan Chand Vs State of Haryana.
39. Hence, in view of the above, and on perusing the record, it is clear that PW-1 Kuldeep Thakur and other material witnesses of the case, have clearly identified the accused persons stating that accused persons are responsible for the crime in question.
Contradictions and Improvements:
SC No. 497/16 State Vs. Mahadev Rawat etc. Page 24 of 51
40. It is also well settled that minor contradictions are normal and two persons will never depose the incident in a same way i.e. in same words. Every person has its own style to depose about the events of occurrence. In the present case, some of the accused came twice and then incident has been committed. Accused persons who were more than five persons, caused injuries to various persons present in the gali. Anyone can expected that in such a situation, how much trauma will be there as on account of said incident, one person has died. Background of victims including eye witnesses has also to be seen from vivid eyes as the crime committed. It is also well known when victims of such like incident appear and when a person is excited as well as scared, he talks Nineteen to the dozen. No denial of it about death of one person with injuries to so many persons. For a moment, if case of Mahadev Rawat who left at the spot, there is no explanation as to how other accused sustained injuries. MLCs to that effect are on record. All accused are conspicuously silent on this issue. In case reported as Makwana Takhat Singh Vs. State of Gujarat, 1992 Cr LJ 3396 at 3597 (SC) it was pointed out that defence has not explained the injuries on the accused.
41. In case reported as State of Rajasthan Vs. Smt. Kalki, 1981 SCC(2) 752, Hon'ble Apex Court observed that:
"In the depositions of witnesses there are always some normal discrepancies however honest ad truthful they may be. These discrepancies are due to normal errors of observations, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person."
SC No. 497/16 State Vs. Mahadev Rawat etc. Page 25 of 51
42. In another authority reported as Narayan Chetanram Chaudhary & Anr. Vs. State of Maharashtra (Crl. A. 25-26/2000) the Hon'ble Apex Court held as under:
"Only such omissions which amount to contradiction in material particulars can be used to discredit the testimony of the witness. The omission in the police statement by itself would not necessarily render the testimony of witness in the Court is different in material particulars from that disclosed in his earlier statements, the case of the prosecution become doubtful and not otherwise. Minor contradictions are bound to appear in the statements if truthful witnesses as memory sometimes plays false and sense of observations differ from person to person. The omissions in the earlier statement if found to be of trivial details, as in the present case, the same would not cause any dent in the testimony of PW-2. Even if there is contradiction of statement of a witness on any material point, that is no ground to reject the whole of the testimony of such witness.
Xxxx There is bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefore should not render the evidence of eye-witnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence."
43. There is also no denial to the well settled law that errors due to the lapse of memory may be given due allowance. (Reference may be taken from the case reported as Siddiqua Vs. Narcotics Control Bureau (2007 Crl L.J. 1471 of Hon'ble High Court of Delhi).
44. Besides the above, in case reported as Mohaman Nair Vs. State of Kerala, 1989 Crl LJ 2106 it is observed that - It is true that there was some little positive contradictions on minor details including sequence of events and also contradictions by omissions on such minor details between the occurrence SC No. 497/16 State Vs. Mahadev Rawat etc. Page 26 of 51 witnesses. But these contradictions and discrepancies have not in any way affected the basic prosecution version regarding the joint attack by all the four accused against PW2 and the murderous attack by the first accused against deceased. If at all it has affected anything it is only regarding the murderous common intention. Further, there witnesses have only seen different portions of the attack PW2 alone has seen the incident from the inception. He had no occasion to see the fast fatal stab because before that he ran away. He identified all the four in the test identification parade as well as in the Court."
45. In an authority reported that Mohinder Kumar Vs. State, 1996 Cr LJ 2945 (Del): 1996 (2) Rec Cr R 708, court has observed as under:
"It is well settled that where the direct evidence regarding the assault is worthy of credence and can be believed, the question of motive becomes more or less academic. Sometimes the motive is clear and can be proved and sometimes however, the motive is shrouded in the mystery and it is very difficult to locate the same. If, however, the evidence of the eye-witness by credit worthy and is believed by the Court which has placed implicit reliance on that the question whether here is any motive or not becomes wholly irrelevant. In Rajinder Kumar's case reported as 1996 CrLJ 960 Apex Court held "that the circumstances which prove the guilt of the accused are however, not weakened at all by this fact that the motive has not been established. It often happens that only the culprit himself knows what moved him to a certain course of action.
Defective Investigation:
46. Besides the above, contentions of the ld. counsels that investigation SC No. 497/16 State Vs. Mahadev Rawat etc. Page 27 of 51 is faulty, Hon'ble Apex Court in catina of judgment from time to time that accused persons cannot take the shelter of faulty investigation, if otherwise case of the prosecution is strong. In Dhanaj Singh Vs. State of Punjab, 2004 Crl. LJ 1807 at 1809 (SC) and also Karnel Singh Vs. State of M.P., 1995 (5) SCC 518, Hon'ble Apex Court observed that in case of a defective investigation the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the Investigating Officer if the investigation is designedly defective. There is no manifesting defect in the investigation It has been conducted with the utmost fair manner. However, there is a little bit delay in lodging the FIR, after receipt of information from the PCR as well as sending the case property to the FSL and procure the FSL result but same are beyond control as the police officials keep on busy of arrest of the accused persons and recovery of the case property from their instances.
"Common object" and "Common intention"
47. Rioting has been defined under Sec. 146 IPC and same is reproduced as under:
Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting.
Unlawful assembly is defined under Sec. 141 IPC, which is reproduced as under:
An assembly of five or more persons is designated as an "unlawful assembly" , if the common object of the persons composing that assembly is - First- To overawe by criminal force, or show of criminal force, the Central or any State Government or Parliament or the Legislature of any State, or any public servant in the exercise of the lawful power of such public servant; or Second - To resist the execution of any law, or of any legal process;SC No. 497/16 State Vs. Mahadev Rawat etc. Page 28 of 51
Third - To commit any mischief or criminal trespass, or other offence; or Fourth - By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any xxxxxxxx Fifth By means of criminal force, or show or criminal force, to compel xxxx Ingredients of section 148 are as follows:
(1) the accused must be a member of an unlawful assembly; (2) he must have used force or violence in prosecution of the common object of the assembly; and (3) he must be armed with a deadly weapon or with anything which, when used as a weapon of offence, is likely to cause death Present case is being tried under Sec. 147/148/149 IPC read with other offences. It is to see whether case falls within ambit of Sec. 147/148/149 or not or falls within provisions of Sec. 34 IPC.
48. No doubt, there is much difference between the scope and applicability of Sec. 34 and Sec. 149. Though both the sections deal with constructive criminal liability, both have the same meaning. Sec. 34 does not by itself create any offence, whereas Section 149 does. Section 149 creates a specific offence and postulates an assembly of give or more persons having a common object. Sec. 34 enacts a rule of co-extensive culpability when offence is committed with common intention by more than one accused.
49. In Ramjanam Pandey, 1993 Supp. (3) SCC 669, 672, Hon'ble Apex Court clearly observed that - "it is well settled that object has to be inferred from various factors like the weapons with which the members were armed their movements, the acts of violence committed by them and from the results thereof."
50. The "words in furtherance of common intention of all" are a most essential part of section 34 of the Indian Penal Code. It is common intention to SC No. 497/16 State Vs. Mahadev Rawat etc. Page 29 of 51 commit the crime actually committed. This common intention is anterior in time to the commission of crime. On the other hand, Sec. 149 of the Indian Penal Code speaks of an offence being committed by any member of an unlawful assembly in prosecution of the common object of that assembly. The distinction between "common intention" under Sec. 34 and "common object" under Sec. 149 is of vital importance.
51. Section 149 is wider than Sec. 34. In the joint liability, it's found on the "common object" in Section 34 a common intention. Both are sections which deal with liability for constructive criminality i.e. liability for an offence not committed by the person charge. Section 149 creates a specific offence and deals with the punishment of that offence alone. It postulates an assembly of five or more persons having a common object - namely one of those named in Sec.
141.
52. Section 149 IPC makes every member of an unlawful assembly at the time of committing of the offence, guilty of that offence. The section creates a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object, any other member of that assembly. However, the vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common object of the unlawful assembly knew to be likely to the committed in prosecution of that object.
53. Both Sections deal with become responsible for the commission of offence. They have certain object or some exceptions. Sec. 149 is differ with Sec. SC No. 497/16 State Vs. Mahadev Rawat etc. Page 30 of 51 34 IPC. Section 34 lays down the principle of constructive liability . The essence of Sec. 34 IPC is a simultaneous consensus of the minds of the persons participating in criminal action to bring about a particular result.
54. Section 149 provides for constructive liability on every person of an unlawful assembly if an offence is committed by any member thereof in prosecution of the common object of that assembly or such of the members of that assembly knew to be likely to be committed in prosecution of that object. Whether an assembly is unlawful one or not, thus, would depend on various factors, the principal amongst them being a common object. Formed by the members thereof to commit an offence specified in one of the other clauses contained in Sec. 141 of the IPC. Constructive liability on a person on the ground of being a member of unlawful assembly can be fastened for an act of offence created by one or more members of that assembly if they had formed a common object.
55. The object of the provisions of Sec. 147; 148 & 149 IPC is to be gathered from the evidence as brought on record as well as documents pertaining to the investigation conducted by the police agency as to whether the assailant has common object of unlawful assembly. The prosecution in order to attract the provisions of Sec. 148 and 149 examined PW-1 Kuldeep Thakur who has stated in his examination-in-chief and made several improvements which have been confronted with his earlier statement, recorded by the police, during the investigation. PW-1 Kuldeep Thakur during his cross-examination on behalf of the accused persons testified that he stated in Ex.PW1/A that there three boys SC No. 497/16 State Vs. Mahadev Rawat etc. Page 31 of 51 had come and an altercation took place and they were asked to leave the passage or one Subhash tried to make them understand on which Yash Gupta @ Chhoti started abusing said Subhash and said Subhash asked them to leave the spot on which he threatened that he would come back and would not leave. He further stated that PCR call was made on which two police officials came at the spot on the motorcycle and after inquiry they left the spot. The accused Vivek Sharma was holding baseball bat in one hand and knife in other hand and caught hold Gaurav (deceased) and accused Gaurav and Vipin inflicted knife blows on the person of deceased Gaurav and that one boy of gali namely Akshay Malhotra and Naveen @ Vicky intervened and tried to save Gaurav from their clutches. He also further stated that accused Billoo gave a knife blow in the abdomen of Vickey or that Gaurav ran towards gali no. 5 on which Billoo shouted
- "...Gaurav be not spared and caught hold of him and that accused Gaurav and Vipin chased deceased Gaurav ..." The accused Mahadev Rawat and Rajesh Sharma gave beatings to Sanjeev Malhotra with baseball bat and wicket and in order to save him he (said witness) grappled with them and during said scuffle Sanjeev was left and accused started beating him. He further stated that in the meantime Shanky came there and he stabbed Shivam in his abdomen and that Neeraj was standing inside his house and one of those boys entered the house of Neeraj and gave knife blow on his neck; the accused Yash Gupta @ Chhoti was having 2-3 glass bottles in his hand and that he started pelting bottles on them and escaped from the spot and that when Billoo tried to escape on his motorcycle No. 3210, he (said witness) took out the keys from the ignition and SC No. 497/16 State Vs. Mahadev Rawat etc. Page 32 of 51 that since Rajesh was apprehended, he would not escape on his motorcycle No. 6888. PW-1 Kuldeep Thakur cross-examined by defence counsels for different accused persons and they all tried to bring some contradictions and improvements in his statement. However, the witness has vehemently denied that he is a tutored witness. He stated that there was situation like riots, accused persons were armed with weapons and caused injuries and responsible for the death of Gaurav. It is well settled that the witnesses mentioned in the list of witnesses are to be examined but it is the prerogative of the State as to how he has to prove its or number to examine the witnesses. The statement of PW-1 Kuldeep Thakur who has supported the case of prosecution and corroborated with medical evidence. On the statement of this witness, present FIR was registered. His presence was natural. He is totally stranger. He is not an interested witness. Neither deceased nor other injured were related to him. His testimony was held to be cogent with the testimony of other prosecution witnesses who were also eye and ear of the incident and they have also stated in their depositions about the incident. This is the duty of the Investigating Officer to record the statement of the witnesses as per their narration. There are certain contradictions and improvements but he is the eye-witness of the incident. The presence of Kuldeep Thakur at the place of incident, at the relevant time is undoubtedly proved. He categorically stated that accused persons were having baseball bat, wicket and knife, glass bottles and other weapons with which they caused injuries to deceased Gaurav and other injured persons. All the eye witnesses were consistent by deposing that accused persons were responsible SC No. 497/16 State Vs. Mahadev Rawat etc. Page 33 of 51 for the injuries to the injured persons and they have seen the accused persons while committing the crime. The statement of the witnesses is duly corroborated with evidence of other eye-witnesses and injured as well as with medical record. The improvements in the statements of the injured and eye witnesses are natural. One has to state the facts as per their observations and production as captured by him during the scene of crime.
56. The word "unlawful assembly" has been defined under Sec. 141 IPC. "Unlawful Assembly" to be an assembly of five or more persons. They must have a common object inter alia to commit mischief or criminal trespass or other offence. The pivotal question of applicability of Sec. 149 IPC has its foundation on constructive liability which is sine qua non for its application. It contains essentially only two ingredients, namely, (i) the offence committed by any member of any unlawful assembly consisting five or more members; and (ii) such offence must be committed in prosecution of the common object (Sec. 141 IPC) of the assembly or members of that assembly knew to be likely to be committed in prosecution of the common object.
57. Determination of the common object of an "unlawful assembly" or the determination of the question whether a member of the unlawful assembly knew that the offence was committed or likely to be committed is essentially a question of fact that has to be made, keeping in view the nature of the assembly, the arms carried by the members and the behaviour of the members at or near the scene and a host of similar or connected facts and circumstances that cannot be entrapped by any attempt at an exhaustive enumeration and observation, as SC No. 497/16 State Vs. Mahadev Rawat etc. Page 34 of 51 observed in case reported as Bharat Soni Vs. State of Chattisgarh, 2013 CrLJ 486 (SC).
58. In the instant case, accused Yash Gupta @ Chhoti along with associates at the first instance visited the place of incident where he was got understood by PW Subhash and Yash Gupta intimidated to them and then again reached the spot with glass bottles and other weapons of offence with his associates and this shows their intention and their behaviour reveal that they are intending to commit a crime but none of these accused persons has made any pre-plan to the assault or kill the deceased Gaurav or to cause injury to which person by which accused. Therefore, the circumstances as well depositions made by prosecution witnesses does not reveal that they have gathered at the spot with common object to cause death of the Gaurav (deceased).
59. There is free fight between the accused persons and the injured including deceased. One must be held responsible for of his own act. Members of the unlawful assembly may have a community of object upto a certain point beyond which they may differ in their object and the knowledge possessed by each member of what is likely to be committed in provocation of their common object may very not only according to the information at their command but also according to the extent to which they shares the common object. As a consequent the effect of Sec. 149 may be different, on different members of the same unlawful assembly. The decision of Hon'ble Apex Court in Gangadhar Beheara & Ors. Vs. State of Orrissa, 2002 (8) SCC 381 similarly explained and SC No. 497/16 State Vs. Mahadev Rawat etc. Page 35 of 51 reiterate the legal position on this subject.
60. The "words in furtherance of common intention of all" are a most essential part of section 34 of the Indian Penal Code. It is common intention to commit the crime actually committed. This common intention is anterior in time to the commission of crime. Common intention means pre- arranged plan. On the other hand, Sec. 149 of the Indian Penal Code speaks of an offence being committed by any member of an "unlawful assembly in prosecution of the common object" of that assembly. The distinction between "common intention" under Sec. 34 and "common object" under Se. 149 is of vital importance as observed in Devi Lal Vs. State,AIR 1971 SC 1444, 1446.
61. It is well settled that Sec. 34 as well as Sec. 149 deal with liability for constructive criminality i.e. vicarious liability of a person for acts of others. Both the sections deal with combination of persons who become punishable as shares in an offence. Thus they have a certain resemblance and may to some extent overlap. But a clear distinction is made out between "common intention"
and "common object" in that common object denotes action in concert and necessarily postulates the existence of pre-arranged plan implying a prior meeting of the minds while common intention does not necessarily require proof of prior meeting of minds or pre-concert, Thus, if five or more persons do an act and intention to do it. The non-applicability of Sec. 149 is no bar in convicting the accused under Sec. 302 read with Sec. 34 if the evidence discloses commission of an offence in furtherance of the common intention of them.
62. There is much difference between the scope and applicability of SC No. 497/16 State Vs. Mahadev Rawat etc. Page 36 of 51 sec. 34 and sec. 149. Though both the sections deal with constructive criminal liability, both have the same meaning. Sec. 34 does not by itself create any offence, whereas section 149 does. Section 149 creates a specific offence and postulates an assembly of five or more persons having a common object. Sec. 34 enacts a rule of co-extensive culpability when offence is committed with common intention by more than one accused.
63. In Munna Chanda Vs. State of Assam, 2006 CrLJ 1632 , it was observed that - there was an unlawful assembly but the appellant was unarmed and except one, all were not party to all stages of dispute. The deceased was assaulted by one of the accused persons but it could not be said that they had a common object of killing the deceased because the person who assaulted the deceased could not be ascertained. Two of the appellants were neither named in FIR nor were identified in dock and no overt act was alleged against them. Thus, there membership of assembly was not proved, and their conviction for commission of offence under Sec. 302/149 was set aside as they were entitled to benefit of doubt.
64. Section 149 IPC cannot be applied here because when the accused persons have rushed to the house/gali of the persons to injure them or the intimidate to the house owners but the grievous injury is inflicted by one of the individual for his own act, the other accused persons having no particular animus nor abator as same does not come under the mischief of Sec. 149 as observed in case reported that AIR 1972 SC 122.
65. In case if a particular person is having common object, then the SC No. 497/16 State Vs. Mahadev Rawat etc. Page 37 of 51 innocence lie on the defence. The prosecution has to prove for the purpose that there was unlawful assembly to commit various offences for which each accused was a member of the unlawful assembly. Mere presence or association with other members alone does not per se be sufficient to hold everyone of them criminally liable for offences committed by others unless there was sufficient evidence on record to show that one such person also intended to or knew likelihood of commission of such offending act. In the present case, there is no legally acceptable material to prove that the accused persons acted as member of unlawful assembly to connect them with the murder of the deceased or cause injuries to the victims. At any rate in the absence of reliable evidence to prove that the accused persons have prior meeting of mind with ulterior object to commit murder of deceased Gaurav. That act would not show common object of any assailant of the said assembly. It is not possible to support conviction and the benefit of doubt must be given to them.
66. In Lalji Vs. State of UP, AIR 1989 SC 754, it was held that where altercation took place and free fighting is there without any pre meditation resulting into death of one of the person, it would not themselves into liable each other to common object and each person will be liable for his own act and for not liable for acts of others.
67. In Kuldeep Vs. State of Haryana, 1996 (1) Crimes 89, it was observed that the accused were armed with a gun each, while five other accused persons were found armed with a pistol each which were not used. It was held that the common object of the unlawful assembly was not to commit the SC No. 497/16 State Vs. Mahadev Rawat etc. Page 38 of 51 murder of the deceased.
68. Now all the eye-witnesses including Kuldeep Thakur have not deposed about common object of all the assailants came without any object to eliminate or to intimidate the local persons. Even though the various accused has caused grievous or dangerous injuries though others have never uttered any word about to cause injury or to act in a particular manner whereas they have never been stated that the accused persons had made a shouting to intimidate or to kill by any one of them. There is no evidence on record to prove that the accused persons come within ambit of Sec. 147, 148 and 149 IPC and as such they are not covered within the scope of aforesaid Sections
69. The general allegations are that large member of persons who are facing trial have came together. It is clear from the deposition of the witnesses that they have not given graphic account of events. Such details should not be considered when same do not affect the basis of the prosecution case. But from the deposition of the witnesses and the opinion of the expert like medical which has been proved through MLCs etc. It is matter of record that the victims have sustained injuries at the hands of the accused persons. Though there may be mistake on the identity of the accused persons on this aspect but the injuries have been opined as per nature of injury sustained. Even though the accused persons also sustained injuries from the hand of public persons.
70. In case reported as Lalif 1973 CrLJ 1769 (SC), it is observed that wherein course of an altercation between two groups a sudden free fight ensued without any pre-meditation resulting in the death of a one person, it could not be SC No. 497/16 State Vs. Mahadev Rawat etc. Page 39 of 51 said that the appellant had formed themselves into an unlawful assembly by developing the common object to kill and as such each person was liable only for his own act and not vicariously liable for the acts of others.
71. In case reported as Kuldeep Singh Vs. State of Haryana, 1996 (1) Crimes 89 (SC), Hon'ble Apex Court observed that the accused person attacked the deceased with gandasa and lathies etc. Two of the accused were armed with a gun each, while five other accused persons were found armed with a pistol each which were not used. It was held that the common object of the unlawful assembly was not to commit the murder of the deceased.
72. Keeping in view of the aforesaid discussion and judgments cited and as per the ingredients of Sections 147; 148 & 149 IPC and deposition of witnesses, all these accused persons namely Mahadev Rawat; Rajesh Sharma; Yash Gupta @ Chhoti; Vipin Sharma; Vivek Kumar Sharma and Gaurav Sharma are acquitted for the offences punishable under Sec. 147/148 and 149 IPC.
73. From the material on record as well as deposition of the witnesses, PW-1 Kuldeep Thakur's testimony is unrebutted on the issue that the two motorcycles rided by 2-3 persons at 9.45 p.m. and they had some altercations and while going away from the gali were intimidated to the public persons including PW Subhash, Kuldeep Thakur etc. One of the person who came on the motorcycle is accused Yash Gupta who is correctly identified. Later on 8-10 boys came on motorcycles armed with wickets, lathies and baseball bats, glass bottles etc. and suddenly attacked with the said weapons, the accused Vivek Sharma SC No. 497/16 State Vs. Mahadev Rawat etc. Page 40 of 51 holding baseball bat in one hand and knife in the other and caught hold Gaurav, deceased. Accused Gaurav Sharma and Vipin inflicted knife blow on the person of said Gaurav. Accused Billu gave a knife blow in the abdomen of Vicky. Billu also shouted that the Guarav should not be spared and caught hold of him. Accused Guarav Sharma and Vipin chased Gaurav (deceased); accused Mahadev Rawat and Rajesh Sharma gave beating to Sanjeev Malhotra with baseball bat and wicket. Accused Shanky stabbed Shivam in his abdomen. One of them also gave knife blow on Neeraj inside his house. Accused Yash Gupta started pelting glass bottles upon them. Abhishek, Neeraj Chanodk @ Vicky, Shivam and Kuldeep Thakur suffered injuries. The suggestion made to this effect about the injuries not caused by the accused persons to the avbovenamed injured have been vehemently denied and the role of each of the accused in the commission of the offence has been specifically narrated. Though there is a little bit improvement in the statement recorded before the court but the same is natural one and the witness has narrated the same in his own way as happened and observed from their vivid eyes. It is categorically denied by PW-1 Kuldeep Thakur that he did not tell the exact position of accused persons to the IO and the Draftsman no such incident has taken place as the accused persons or that he had signed the memos subsequently. It is also denied that accused Yash Gupta was caught in the PS and was implicated falsely at his instance or that he is deposing falsely being tutored witness or that Subhash become a false witness at his instance. It is denied that accused Gaurav Sharma has not beaten anyone or that his name has been implicated falsely. It is also denied that he identified SC No. 497/16 State Vs. Mahadev Rawat etc. Page 41 of 51 accused Gaurav Sharma at the instance of the IO first time in the court. It is also denied that name of ccused Vivek & Vipin has came to his knowledge through public He stated that he know them as he contested elections and name of Vipin was taken during incident. He was beaten by accused Mahadev Rawat and Rajesh with baseball bats and danda. It is denied that the quarrel had taken place between him on one side and Vivek and his supporters on the other side and due to this reason he falsely named Vivek and his nephew in this case. It is also denied that he was not present at the spot or that for that reason he did not help the deceased or not intervened in the quarrel and that he is deposing falsely
74. PW-7 Subhash Chand, PW-8 Neeraj Chandok , PW-12 Naveen Malhotra; PW-14 Shivam Malhotra and PW-15 Abhishek have not denied that there is no such incident taken place in the gali Everyone who is witness of the occurrence has categorically testified that 8-10 boys came there and attacked with chhaku chhuri etc. on the persons who came in their front and watching cricket march. PW-7 Subhash Chand categorically stated that - "the accused persons present in the court today are the same person who came there and attacked on the persons who were watching cricket match on the TV. My nephew and few others received injuries because of beating of the accused persons and one Guarav had died..."
75. The deposition of above named witnesses have been duly consistent and corroborated and on the contrary there is no evidence in rebuttal to this effect. The suggestions made to these witnesses with regard to their identification involvement in the crime and caused no injury have been denied. SC No. 497/16 State Vs. Mahadev Rawat etc. Page 42 of 51
76. PW-27 Dr. Priya Govil proved the injures on Neeraj Chandok (PW8) vide MLC Ex.PW27/A as dangerous. PW-30 Dr. Sachin Harit medically examined Pinku @ Shivam (PW-14) and Abhishek (PW-15) and proved their MLCs Ex.PW30/A and 30/B respectively. On these MLCs, nature of injuries were opined as dangerous and grievous respectively mentioned at point D. MLC of Akshay and accused Rajesh were proved as Mark X-1 & Mark X-2 and also original of the same as Ex.PW38/A & B. From the record, it is clear that nature of injuries sustained by Akshay are opined are grievous. PW Kuldeep Thakur was medically examined vide MLC (photocopy marked as PW40/X-3 and Ex.PW38/C & D) opining the nature of injuries as simple.
77. Dr. Thejaswi H.T. (PW-26) conducted post-mortem on the body of Gaurav and proved the report as Ex.PW26/A opined the cause of death as hemorrhagic shock and its complications due to "stab wound" on the abdomen. Details of the injuries are clearly mentioned in the said report Ex.PW26/A. This witness clearly mentioned that - time since death was about 16-18 hours. Record is clear to the effect that post-mortem was conducted on 31.03.2011 from 2.15 p.m. to 3.15 p.m.
78. PW-40 Inspector Subhash Kumar collected the MLC of the injured persons and also obtained the subsequent opinion from the doctor concerned. Crime team also lifted broken pieces of glass, one square shaped danda and one thapi, and also blood stained earth and earth control from House No. 40/92, Gali No. 4 Shankar Nagar, Krishna Nagar and kept the same in plastic container with the seal of SK. Two motorcycles bearing registration no. DL-7SBA-6888 and DL- SC No. 497/16 State Vs. Mahadev Rawat etc. Page 43 of 51 7SBB-3210 were also seized vide memos Ex.PW1/P-4 & P-5. On 31.03.2011 at 2 p.m. he prepared inquest papers Ex.PW40/C-1 to C-3. Deadbody was identified vide memos Ex.PW18/T & S and after its post-mortem same was handed over to its legal heirs. Doctor gave sealed pullanda and blood sample and he seized the same vide memo Ex. PW 20/A and same was deposited with MHCM. At about 6.30 p.m. HC Hari Kishan and Const. Nirdosh came with accused persons Mahadev Rawat and Rajesh and he interrogated both of them and conducted proceedings about the same. On 01.04.2011 accused Mahadev Rawat and Rajesh were taken out from the Lock Up and one day police remand was sought vide application Ex.PW40/D and during the same, accused Yash Gupta @ Chhoti was arrested and proceedings Ex.PW9/A & B were conducted. Accused Yash Gupta @ Chhoti made disclosure statement which was recorded as Ex.PW40/E. Search of houses of these accused were effected to recover the weapons of offence and memos Ex.PW40/F to H were prepared in this respect. Supplementary statements of witnesses were recorded. On 31.03.2011 from House No. 40/92, Gali No. 4, Shankar Nagar blood stained earth was also seized vide memoEx.PW1/P-1. One blood stained shirt of Neeraj Chandok was also seized from his house on 31.03.2011 vide memo Ex.PW1/P-2. One hawai chappal stained with blood was also lifted from the spot and one wiper iron pipe and one square shaped danda from the gali no. 4 were also seized vide memo Ex.PW1/P-3 and P-6 respectively. Mahadev Rawat and Rajesh Sharma were produced before ld, MM and before their said production, their blood stained clothes which they were wearing at that time were seized vide Ex.PW18/Q and R SC No. 497/16 State Vs. Mahadev Rawat etc. Page 44 of 51 as Sando vest (white coloured); one shirt and half pants o black colou9r of Mahadav Rawat and one jeans pants of blue colour and one T Shirt of Rajesh Shamas were seized. One day police remand of accused Yash Gupta @ Chhoti was sought vide application Ex.PW40/I. Neeraj Chandok was admitted with Max Balaji Hospital Mayur Vihar and statement of Neeraj Chandok was recorded. On 03.04.2011 accused Yash Gupta @ Chhoti was taken out from the Lock Up and search of weapon of offence was made but could not be recovered despite best efforts and then accused was got sent to judicial custody. On 05.04.2011 on the basis of secret information, accused Vipini Sharma was arrested from his house No. X-4949, Gali No. 13, Shanti Mohalla, Gandhi Nagar and proceedings Ex.PW18/D to F were conducted. Accused Vipin was provided clothes to muffle his face and was instructed to remain in muffled face and on 06.04.2011 said accused was produced before the court in muffled face and an application Ex.PW40/J was moved regarding test identification parade proceedings and PW Kuldeep Thakur was informed about TIP proceeding but on reaching before Central Jail for said TIP, accused Vipin Sharma refused to join the TIP proceedings and supplementary statement of Kuldeep Thakur was recorded. On 10.04.2011, accused Vivek Sharma was arrested from his house No. X-4949, Gali No. 13, Shanti Mohalla, Gandhi Nagar, Delhi and memo Ex. PW20/A & B were prepared. Accused made disclosure statement Ex.PW20/C. On 11.04.2011 accused was produced before ld. MM and one day police remand was sought vide application Ex.PW40/K and said accused pointed out the place of occurrence vide memoEx.PW20/D. On12.04.2011 accused Vivek Sharma @ SC No. 497/16 State Vs. Mahadev Rawat etc. Page 45 of 51 Billu from a room situated at first floor of his house got recovered one white shirt of half sleeves and one blue coloured jeans - stating that he had worn the same at the time of incident - which were seized vide memo Ex.PW20/E. Said accused also disclosed that he had thrown the basball bat used in the commission of offence at Brij Ghat Garhganga UP and led the police party there and from half kilometer before Brijghat, from a pit said baseball bat was got recovered which was seized vide memo Ex.PW20/F. On 18.04.2011 three days police remand of accused Vipin Sharma was obtained to recover the case property pursuance to his disclosure statement but same could not be recovered and said accused later on made supplementary statement on 19.04.2011 stating that he had told lied about throwing of clothes at said place by thinking that nobody would come there to collect the same and in fact same are lying at his house. He further submitted that however, he had thrown the knife at some place while travelling in a bus from Dehradun to Mussourie and is unable to point out the place. On 20.04.2011 accused led the police party to his house and got recovered one white shirt and one blue colouered jeans stating that he was wearing at the time of commission of offence. Those clothes were washed by his mother. Those clothes were seized vide memo Ex.PW18/H. On 21.04.2011 accused Gaurav Sharma was arrested from his house on the basis of the secret information and proceedings Ex.PW18/I to L were prepared. On 27.04.2011 on the pointing out of complainant Kuldeep Thakur, SI Mukesh Jain, Draftsman, took rough notes and prepared scaled site plan. On the same day, Const. Hmbir produced post- mortem report and two sealed parcels and he seized the parcels vide memo SC No. 497/16 State Vs. Mahadev Rawat etc. Page 46 of 51 Ex.PW21/A and deposited the said parcels with malkhana. On 28.04.2011 police party with Kuldeep Thakur reached Tihar Jail where TIP of accused Gaurav was to be conducted and accused Gaurav refused to join the said proceedings. Statement of Kuldeep Thakur was recorded. On 02.05.2011 one day police remand of accused Gurav was obtained and accused made supplementary disclosure statement Ex.PW18/M stating that earlier he had misled the police and clothes won by him at the time of the commission of offence were lying at his house. In pursuance to the said supplementary statement, clothes i.e. T Shirt and one black coloured track suit were seized vide memo Ex.PW18/N and despite efforts weapon of offence could not be recovered. On 01.06.2011 result regarding nature of injuries regarding Kuldeep Thakur was obtained. On 10.06.2011 through Const. Jitender exhibits were taken from MHC(M) and deposited with FSL vide RC NO. 47/21/2011. On 11.06.2011 result on the MLCs of Mahadev Rawat and Rajesh Sharma were obtained and on 25.06.2011 supplementary statements of Sanjeev Malhotra, Naveen @ Akshay and Neeraj were recorded. On 05.04.2013 FSL reports Ex.PW40/M & N were placed on record vide application Ex.PW40/L.
79. Perusal of the record shows that accused Gaurav and Vipin Sharma refused to join the Test Identification Parade. This fact also goes against them. These accused persons have been duly identified by the prosecution witnesses responsible for the crime in question.
80. Accused Rajhesh Sharma has taken the plea of "alibi" as alleged that he was not present at the time of commission of the crime. The deposition SC No. 497/16 State Vs. Mahadev Rawat etc. Page 47 of 51 of the accused in statement u/s 313 CrPC as well as examination of DW-3 Ram Kumar do not corroborate.
81. A reference is made to a judgment of Delhi High Court reported in 2015 (216) DLT 599 titled as Rajender Thakur Parokar Vs. State, Hon'ble Mr. Justice Pradeep Nandrajog and Hon'ble Mr. Justice R.K. Gauba wherein it was laid down that "if the accused fails to substantiate the plea of alibi, an adverse presumption has to be drawn against him and ought to result in conviction of the accused which was done in the said case.
82. In the judgment Vijay Pal Vs. State by the Hon'ble Supreme Court of India in Criminal Appeal no. 2153/2011, wherein plea of alibi was considered and failure to establish plea of alibi was responsible for conviction of the accused. Sec. 11 of the Indian Evidence Act, 1872 for which illustration (b) is read as under :
(b) The question is, whether A committed a crime.
The circumstances are such that the crime must have been committed either by A, B, C or D, every fact which shows that the crime could have been committed by no one else and that it was not committed by either B, C or D, is relevant.
83. Hence, in view of nature of injuries caused by the accused persons and deposition of eye-witnesses, medical evidence are consistently proved that the victims sustained injuries, as mentioned above, at the hands of the accused persons with their common intention and one of the injured died in the present matter. However, there is no evidence to the effect that any of these accused persons have entered the house of any victims. As such, all these accused persons namely Mahadev Rawat; Rajesh Sharma; Yash Gupta @ Chhoti; SC No. 497/16 State Vs. Mahadev Rawat etc. Page 48 of 51 Vipin Sharma; Vivek Kumar Sharma and Gaurav Sharma are acquitted for the offence punishable under Sec. 452/34 IPC.
84. With above discussion, court is of the view that prosecution has been able to prove its case against accused persons Vipin Sharma; Vivek Kumar Sharma and Gaurav Sharma for committing murder of Gaurav and hence, these accused persons namely Vipin Sharma; Vivek Kumar Sharma and Gaurav Sharma are held guilty for the offence punishable under Sec. 302/34 IPC and are convicted as such.
85. Injuries regarding victims Shivam, Neeraj, Naveen Malhotra and Akashy (Naveen Malhotra @ Vicky @ Akshay) have been opined as dangerous/grievous. To attract the provisions of Sec. 307 IPC, it is mandatory that accused should have done the act with such guilty intention or knowledge and in such circumstances, that but for same intervening act, the act would have amounted to murder in the normal course of events. [Vasudeo Gogte (1932) 34 Bom LR 57]. It is also settled law that the question of intention to kill or the knowledge of death in terms of Sec. 307 IPC, is a question of fact and not one of law. It would all depend on the facts of a given case. The important thing to be borne in mind in determining the question whether an offence under Sec. 307 IPC is made out, is the intention and not the injury (even if simple or grievous) For this, supported by case reported as Vasant Virthu Jadhav Vs. State of Maharashtra (1997) 2 Crimes 539 (Bom.).
86. Besides the above, weapons of offence were also got recovered at the instance of the accused persons with the blood stains. Accused merely SC No. 497/16 State Vs. Mahadev Rawat etc. Page 49 of 51 denied the recovery of anything from him or at their instance. Simple denial is of no value. There is no explanation as to how said weapon which was sent to FSL later on and as mentioned in FSL report was procured. Said weapon of offence - got recovered at the instance of the accused, show that same was of having blood stains. In view of all these facts and dimensions of injuries, as mentioned in the MLCs of the injured persons, court is of the view that ingredients of Sec. 307 IPC are covered for this case. As such, court is also of the view that prosecution has fully established its case against accused persons namely Mahadev Rawat; Rajesh Sharma; Yash Gupta @ Chhoti; Vipin Sharma; Vivek Kumar Sharma and Gaurav Sharma for causing injuries to Shivam, Neeraj Chandhok and Akshay and hence, these accused persons namely Mahadev Rawat; Rajesh Sharma; Yash Gupta @ Chhoti; Vipin Sharma; Vivek Kumar Sharma and Gaurav Sharma are held guilty for the offence punishable under Sec. 307/34 IPC and are convicted as such.
87. Regarding injuries sustained by victim Kuldeep Thakur and Sanjeev, there is no denial to the fact that these injured persons have sustained simple injuries. As such, court is also of the view that prosecution has fully established its case against accused persons namely Mahadev Rawat; Rajesh Sharma; Yash Gupta @ Chhoti; Vipin Sharma; Vivek Kumar Sharma and Gaurav Sharma for causing injuries to Kuldeep Thakur and Sanjeev. Hence, the accused persons namely Mahadev Rawat; Rajesh Sharma; Yash Gupta @ Chhoti; Vipin Sharma; Vivek Kumar Sharma and Gaurav Sharma are held guilty for the offence punishable under Sec. 323/324/34 IPC and are SC No. 497/16 State Vs. Mahadev Rawat etc. Page 50 of 51 convicted accordingly.
88. In sum up of the above discussion, is that all the accused persons namely Mahadev Rawat; Rajesh Sharma; Yash Gupta @ Chhoti; Vipin Sharma; Vivek Kumar Sharma and Gaurav Sharma are acquitted of the offence punishable under Sec. 147/148 & 149 IPC and also 452/34 IPC. However, they are held guilty for the offence punishable under Sec. 307/34 and 323/324/34 IPC and are convicted accordingly.
89. Besides the above, accused persons Gaurav, Vipin Shrma and Vivek Sharma are held guilty for the offence punishable under Sec. 302/34 IPC and are convicted as such. Digitally signed by SATINDER SATINDER KUMAR Announced in open court on KUMAR GAUTAM Date: 2018.04.24 24th day of April, 2018 GAUTAM 16:21:25 +0530 (Dr. Satinder Kumar Gautam) ASJ-03 (East) KKD Courts:
Delhi.
SC No. 497/16 State Vs. Mahadev Rawat etc. Page 51 of 51