Delhi District Court
State vs . Chaudhary Mateen Ahmad Etc. on 19 January, 2013
IN THE COURT OF SH DHARMENDER RANA
Metropolitan Magistrate, NorthEast Delhi
FIR N0. 12/01
U/S 147/148/149/186/323/332/353 IPC
PS Seelampur
State Vs. Chaudhary Mateen Ahmad Etc.
J U D G M E N T
a) Sl. No. of the case : 1198/12
b) Date of commission of offence: 07.01.2001
c) Date of institution of the case : 21.02.2002
d) Name of the complainant : Sh. E. Raja Babu, SDM Punjabi Bagh, Delhi.
e) Name & address of the accused : (1) Chaudhary Mateen Ahmad MLA S/o
Mahfooz Ali, R/o C53/9, Gali No. 9,
Chauhan Bangar Delhi.
(2) Jamir Ahmad Munna Councillor S/o Jahirul
Hassan R/o C71, New Seeampur, Delhi.
(3) Nadim Dehlawi S/o Abdul Latif, R/o 1255,
Gali No. 6, Rishi Kardam Marg, Chauhan
Bangar, Delhi. (Expired)
(4) Sultan Ahmad S/o Samshad Ahmad R/o J
34/8B, Gali No. 6, Chauhan Bangar Delhi.
(5) Najim Nakabi S/o Hasim Nakabi, R/o H.
No. C206/9, Gali No. 5, Chauhan Bangar
Delhi. ( Expired)
(6) Mohd. Ashraf S/o Mohd. Faruk R/o 134/7
Gali No. 7, Jafrabad, Delhi.
f) Offence complained off : 147/148/149/186/323/332/353 IPC
g) Plea of the accused : Pleaded not guilty
h) Arguments heard on : 09.01.2013
i) Final order : Chaudhary Mateen Ahmad and Jamir
Ahmad Munna Convicted.
Sultan Ahmad and Mohd. Ashraf Acquitted.
State Vs. Chaudhary Mateen Ahmed Etc. 1/43
j) Date of Judgment : 19.01.2013
State Vs. Chaudhary Matin Ahmad & Ors.
BRIEF STATEMENT OF REASONS FOR DECISION:
1.Facts of the prosecution case adumbrated in brief are as follows: On 07.01.2001, in compliance of the orders of the Hon'ble Supreme Court, complainant E. Raja Babu (PW5); SDM Punjabi Bagh has gone to Jafrabad for closure of F category Industrial Units with his sealing team. At about 12:30 Noon he was sealing a unit named 'Mahrom Mechanical' situated at GF 134/7, Jafrabad, Delhi. Meanwhile , the area M. L. A. Chaudhary Mateen Ahmed and the area councilor Jameer Ahmed Munna came there along with a mob of about 10001500 people and disrupted the peaceful sealing/closure of the factory. M. L. A. Mateen Ahmed is alleged to have grabbed the arm of complainant E. Raja Babu and forcibly dragged him into the unit which was being sealed. The mob pelted stones and assaulted Virender Singh (PW
1), a member of SDM Team, who consequently sustained injuries. Upon the complaint of the complainant Ex. PW5/A, rukka Ex. PW12/A was prepared and FIR No. 12/2001 was registered in the instant matter. Accused Chaudhary Mateen Ahmad S/o Mahfooz Ali, Jamir Ahmad Munna S/o Jahirul Hassan, Nadim Dehlawi S/o Abdul Latif, Sultan Ahmad S/o Samshad Ahmad, Najim Nakabi S/o Hasim Nakabi, Mohd. Ashraf S/o Mohd. Faruk were accordingly apprehended in the instant matter.
2. Upon completion of investigation charge sheet U/s 173 Cr.P.C. was filed on behalf of the IO and the accused were consequently summoned. Upon supply of the documents a formal charge for the offence U/s State Vs. Chaudhary Mateen Ahmed Etc. 2/43 147/148/149/186/332/353 IPC was framed against the accused persons to which they pleaded not guilty and claimed trial.
However, during the course of trial accused Nadeem Dehlavi and Nazim Nakabi expired and proceedings qua them were declared to be abated. The trial thereafter continued against the remaining accused persons.
3. It would be worthwhile to mention here that in the charge framed against accused and in the testimonies of PW1 to PW5 the name of police station is reflected to be PS Seema Puri whereas the matter pertains to PS Seelampur. The same appears to be a typographical error and might have crept in as the Ld. Predecessor was looking after jurisdiction of PS Seema Puri. However, in any case, the same does not affect the merits of the case.
4. In order to substantiate the allegations prosecution has examined as many as 13 witnesses.
5. PW1 Virender Singh is an LDC at SDM Office , Punjabi Bagh ;Delhi, who has deposed that " I do not remember the exact date of incident, however in the year 2001 at the time of sealing the polluting factories. I also do not remember the month and date. On that day I along with SDM Punjabi Bagh Sh. E. Raja Babu visited (sic) at Seelampur Delhi to seal the polluting factories as per the instructions of the government. I do not remember the exact time however it was noon time. Again said it was 12/1.00 p.m. All of sudden mob of people came there and they started pushing us. One of them also pushed me. I also received injuries on my left ribs (sic). Police officials took me to hospital. SDM informed in concerned PS by his wire less cell. Police officials reached at the spot. I do not know anything else more about this case State Vs. Chaudhary Mateen Ahmed Etc. 3/43 and nothing more was happened. I do no know the assailants who caused me injuries."
6. PW2 Dr. Nain Singh is an Asst. Professor Surgery who has deposed that on 31.10.2001, he was posted at GTB Hospital in Surgery Department as Senior Resident. On that day he received medical treatment documents of MLC No. B68/01 of Virender Singh Dabas. He has given his noting on the MLC which is Ex. PW2/A.
7. PW3 Dr. V. K. Jain is the CMO of GTB Hospital who has deposed that on 07.01.2001, injured namely Virender Singh Dabas was brought to the casualty by Ct. Ram Kumar with the alleged history of getting injured. He has examined the injured and prepared the MLC No. 68/01 Ex. PW3/A.
8. PW4 ASI Khajan Singh is the DO who has recorded FIR No. 12/01 U/S 186/353/332/147/148/149 IPC Ex. PW4/A and has proved endorsement on the rukka Ex. PW4/B.
9. PW5 Sh. E. Raja Babu is the complainant who has deposed that " On 07.01.2001, I was working as (sic) SDM, Punjabi Bagh. As per the order of Hon'ble Supreme Court regarding closure (sic) of factories/industrial units in nonconforming area. On that day, I along with my other staff were sealing the unit M/S Mehroom Mechanical at GF134/7 in Jafrabad area. On that day, at about 12:30 PM around 1,000/ people in a mob came there, and started disturbing the sealing process. I came to know that among mob, there were MLA and other counselor of area with mob who (sic) were disturbing the sealing process. One of our staff of sealing party namely Virender Singh was also assaulted by the mob. One person from the mob caught my hand and dragged me to the sealing unit. In this incident, one Virender Singh received State Vs. Chaudhary Mateen Ahmed Etc. 4/43 injuries. For assaulting, and obstructing from official duty, I made my complaint to the SHO PS Seelampur, and same is Ex. PW5/A which bears my signature at point A. I came to know from the public that the person who caught my hand was local MLA. I cannot identify the person who caught my hand. Some public persons told me that the person who caught my hand was MLA. I cannot identify any person present in the court today. I was not aware at that time as to who was the MLA, and counselor of the area at that time at the time of making the complaint to SHO PS Seelampur Ex. PW5/A."
10. PW6 HC Som Pal is a police official who has deposed that " On 07.01.2001, I was posted at PS Seelampur as constable. On that day, I was on duty with ASI Raj Pal along with SDM, Punjabi Bagh namely Sh. E. Raja Babu and were busy in (sic) sealing programme in Jafrabad and at about 12:00 Noon we reached at gali No. 7, Factory No. 134, Jafrabad. SDM started to seal the factory but the owner of the factory resisted not to seal the factory. At about 12:30 PM accused Chaudhary Mateen Ahmad with Jamir Ahmad had come with the mob around 1500 public persons and started raising slogans against administration and the police. Mob also started pelting stones on us and during this one of the staff of SDM namely Sh. Virender Singh sustained injuries. Accused Chaudhary Mateen Ahmad took the SDM inside after holding him with his hands. Thereafter, SHO PS Seelampur reached there with police staff and dispersed the crowd. IO also reached there at the spot. IO recorded my statement. Accused Chaudhary Mateen Ahmad is present in the court today (witness correctly identified the accused). I cannot identify the other accused persons who are present with accused Chaudhary Mateen Ahmad."
State Vs. Chaudhary Mateen Ahmed Etc. 5/43
11. PW7 HC Sanjeev is a police official who has deposed that " On 07.01.2001, I was posted at PS Seelampur as constable. On that day, I was on reserve duty in the PS at about 2.20 PM, Duty Officer HC Khajan Singh handed over me original rukka and copy of present FIR for giving it to SI Ram Ji Pandey who met me at the gate of PS and I accordingly handed over the original rukka and copy of FIR to him. Thereafter, I along with SI Ram Ji Pandey went to the spot i.e. H. No. 134/07, Gali No. 7, Jafrabad, Delhi where we met with SI Kamal Kishore. IO/SI Ram Ji Pandey prepared the site plan at the instance of SI Kamal Kishore. Thereafter, we returned back to PS. IO recorded my statement."
12. PW8 Ct. Nigam Singh is a police official who has deposed that " On 07.01.2001, I was posted at PS Seelampur as constable. On that day I along with SI Kamal Kishore, HC Akrool Haq and HC Rajbeer was on duty regarding the sealing in the area of Jafrabad situated at Seelampur. On that day at about 12:00 PM I was present along with SI Kamal Kishore at Gali No. 7 Jafrabad. At that time SDM Punjabi Bagh E. Raja Babu was sealing one factory situated at GF/134/7. The owner of the above said factory prohibited the SDM to seal the said factory. Thereafter, a gathering of about 1000/1500 people gathered there and started raising slogan against police, government and SDM. The SDM tried to pacify the people but in vain. At about 12:30 PM Chaudhary Mateen Ahmad also reached there and started raising slogan against the government and Delhi Police. Chaudhary Mateen Ahmad caught hold of (sic) hand of E. Raja Babu and scuffled with him. Thereafter, Mateen Ahmad pulled him on the ground and took him inside the factory. Thereafter, SI Kamal Kishore with the other police staff intervened and tried to save the SDM from Mateen Ahmad. After some State Vs. Chaudhary Mateen Ahmed Etc. 6/43 time SHO PS Seelampur reached to the spot and took five person with himself in police zipsy. Accused Mateen Ahmad and four other accused persons who were taken by the SHO with himself to PS are present in the court today. (witness correctly identified all the five accused persons). IO recorded my statement."
13. PW9 Sh. PC Jain is the retired SDM who has deposed that " On 24.01.2002, I was posted as SDM, Seelampur, Delhi. On that day, I gave permission U/S 195 Cr. P. C. regarding the manhandling/assaulting on sealing team headed by Sh. E. Raja Babu, SDM Punjabi Bagh on 07.01.2001. As per the complaint of Sh. E. Raja Babu, SDM, Punjabi Bagh, he along with staff member including Sh. Virender Singh attached to SDM Punjabi Bagh was sealing a unit in the name of M/S Mehroom Mechanical at GF134/7, Jafrabad, Delhi. At about 12:30 PM, the area MLA Chaudhary Mateen, Javed Ahmad, Munna, Councilor with around 1000 people manhandled and assaulted the sealing team. In the meantime, Sh. Virender Singh Dabas received the injuries while discharging his official duties.
On 24.01.2002, I accorded the sanction U/S 195 Cr. P. C. for the prosecution of accused persons U/S 186 IPC specifically. My detail permission/report is Ex. PW9/A which bears my signature at point A."
14. PW10 SI Raj Pal is a police official who has deposed that " On 07.01.2001, I was posted at PS Kotla Mubrakpur, Delhi as ASI. On that day, I came to the PS Seeampur for the purpose of sealing of polluting industries. I was engaged with Sh. E. Raja Babu, SDM, Punjabi Bagh and his staff, along with two other constables namely Virender Singh and Sompal. At about 12.00 Pm I along with SDM Sh. E. Raja Babu along with above mentioned staff went to 134, Gali No. 7, Jafrabad, Delhi which State Vs. Chaudhary Mateen Ahmed Etc. 7/43 was a factory polythene (manufacturer). The owner of the above mentioned factory started shouting (sic) and did not allow us to seal the said factory. At about 12:30 PM, the area MLA Mateen Ahmad and area councilor Nazeer Ahmad arrived at the spot along with 1000/1500 people. The said mob along with the above said persons shouted against the government. The accused Mateen Ahmad caught hold of (sic) the hand of SDM, E, Raja Babu and dragged him inside the above mentioned factory. I along with the above mentioned staff tried to pacify the matter with the help of our staff. SI Kamal Kishore of the concerned PS was also present there and he also tried to pacify the matter but our efforts went in vain. The mob started pelting stones on the police party and the above staff. SI Kamal Kishore warned the mob not to do those illegal activities. In the meantime, SHO along with Staff arrived at the spot and mob was pacified with great efforts. Thereafter SDM, Sh. E. Raja Babu gave a written complaint to the SHO concerned in respect to the injuries sustained to Sh. Virender Singh, one of the staff of the SDM concerned and also against the illegal activities. The said complaint was handed over to SI Kamal Kishore by the SHO who prepared the rukka and the rukka was sent to one constable to PS Seelampur for registration of FIR. Thereafter, I left for the other sealing programme with staff which was to be conducted at some other place. Since, I had gone for only one day from South District, and due to long passage of time I cannot recollect the faces of accused persons i.e. concerned MLA Mateen Ahmad and Councilor Nazeer Ahmad as there was a mob of 1000/1500 people. IO recorded my statement."
15. PW 11 Ct. Ram Kumar is a police official who has deposed that " On 07. 01.2001, I was posted at PS Seelampur as constable. On that day, sealing work was State Vs. Chaudhary Mateen Ahmed Etc. 8/43 being carried out in Gali No. 7, Jafrabad, Delhi. I was called by (sic) SI Ram Ji Pandey at the spot. On his instruction, I took the injured Sh. Virender Singh to the GTB Hospital. Accordingly, MLC already Ex. PW3/A of injured was prepared and thereafter, I accordingly delivered the same in the PS. IO recorded my statement".
16. PW12 Kamal Kishore is a Delhi Police Inspector who has deposed that "
On 07/1/2001 I was posted at P.S. Seelampur as SI. On that day at about 12:00 pm I alongwith E. Raja Babu and his staff including Virender Singh Dhabas (injured) and my staff including HC Ashrul Haq, Ct Rajbeer and Ct Nigam reached at the spot i.e. House no. 134, Ground Floor Gali no. 7, Zafrabad, Delhi where the complainant E. Raja Babu started the operation of sealing of the above mentioned house where the electronic Factory in the name of Mehroom Electronics was being run. The owner of the factory namely Mohd. Ashraf (name of the accused later on known) who opposed the SDM and his staff against the sealing of the above mentioned factory stating that he will not let them seal the above mentioned factory. In the meantime the mob of approximately 800//1000/ persons led by accused persons Mateen Ahmad, Zahir Ahmad @ Munna, Nadeem Dahelbi, Nazim Naqvi and Sultan Khilone Wala. Public persons from the mob took the SDM E. Raja into the above mentioned factory. In the meantime SHO Gurcharan Dass also came alongwith his staff at the spot. The mob gathered at the spot started pelting stones at the staff of the SDM and police persons due to these pelting one of the staff member of the SDM Virender Dabas sustained injuries. SHO, above mentioned, advised the mob to pacify the matter. The public persons/ mob disbursed from the spot at the request of the SHO leaving behind 15/20 persons at the spot. SDM E. Raja Babu handed over the written complaint to the SHO State Vs. Chaudhary Mateen Ahmed Etc. 9/43 concerned for taking the action against the wrongdoer which was marked to me. I with the help of staff apprehended five persons namely Mateen Ahmad, Zahir Ahmad @ Munna, Nadeem Dahelbi, Nazim Naqvi and Sultan Khilone Wala at the instance of the complainant E. Raja Babu and took them to the police station. I prepared the rukka on the complaint of the SDM E. Raja Babu. The rukka is Ex PW12/A bearing my signature at point A. Accordingly, FIR was registered and further investigation of the present case was marked to SI Ramji Pandey. I handed over the custody of the above mentioned five persons to SI Ramji Pandey. IO /SI Ramji Pandey prepared the site plan at my instance. The above mentioned five persons were arrested and personally searched vide memo Ex PW 12/B to Ex PW 12/K all bearing my signature at point A. IO recorded my statement.
On 26/6/2001 I was present in the Police Station Seelam Pur. On that day at about 8:00 pm accused Mohd. Ashraf was present in the P.S. with the IO where I identified him as the owner of the factory who was opposing the seal on the day of incident. Accordingly, he was arrested. His personal search was conducted vide memo Ex PW 12/M bearing my signature at point A. IO recorded my statement. All the four accused persons namely Mateen Ahmad, Zamir Ahmad, Mohd. Ashraf and Sultan Ahmad Khilone Wala are present in the court today and correctly identified by the witness while accused Nadeem Dahelvi and Nazim Naqbi have already expired.
I can identify the hand writing of SI Ramji Pandey (expired) as I have worked with him and I have seen him writing and signing during the course of his official duties. At this stage, the site plan Ex. PW12/N bearing his signature at point A prepared at the instance of the witness is shown to the witness who correctly identified State Vs. Chaudhary Mateen Ahmed Etc. 10/43 by the witness prepared by IO/SI Ramji Pandey (expired). Disclosure statement of the accused Mohd. Ashraf is also recorded and the hand writing of IO/SI Ram Ji Pandey Ex. PW12/O bearing his signature at point A. All the above mentioned arrest memos and personal memos bearing the signature of IO/SI Ram Ji Pandey at point B. The accused Mohd. Ashraf was arrested on 26.06.2011 vide arrest memo Ex. PW12/P bearing the signature of the IO at point A."
17. PW13 Ct. Rajbir Singh is another police official who has deposed that "
On 07.01.2001, I was posted as constable in PS Seelampur. On that day, I was engaged in a sealing programme along with SI Kamal Kishore, Ct. Ashrul Haq and Ct. Nigam Singh. At about 12.00 pm, we reached at Jafrabad, Gali No. 7, team of SDM was sealing a factory in the name of Mehroom Mechanic. The owner of the factory was opposing the sealing. The mob of approx. 100200 persons came at the spot and starting shouting. Public persons from the mob took the SDM in a room of the above mentioned factory. In the meantime, SHO, PS Seelampur along with his staff also reached at the spot and could manage to pacify the matter. IO recorded my statement. Thereafter, 34 public persons were taken to the PS by the police leaving behind me at the spot. I cannot identify the 34 public persons due to lapse of time as I had seen them once and approx. 150200 public persons were there."
18. PE was closed by the order of the Court dated 21.07.2012. Statement of accused persons u/s 313 Cr. P. C. were recorded wherein they have pleaded innocence. Accused persons have opted not to lead any defence evidence.
19. I have heard the rival submissions and carefully perused the record.
20. It is contended on behalf of the Ld. Defence Counsel that the most State Vs. Chaudhary Mateen Ahmed Etc. 11/43 important witnesses of the prosecution namely E. Raja Babu ( PW5) and injured Virender Singh ( PW1) have refused to identify the accused persons as perpetrator of the offence and thus the entire prosecution version crumbles and the accused persons deserves to be acquitted. It is further highlighted that prosecution has failed to examine HC Ashrul Haq and Ct. Narender leaving an irreparable void in the prosecution story. It is further contended that HC Som Pal ( PW6) has partially identified accused Matin Ahmed but he has not ascribed any role to accused Mateen Ahmed. It is highlighted that HC Som Pal ( PW6) fails to identify the remaining accused persons. It is further highlighted that the witness has himself admitted that he had seen the posters of accused Mateen Ahmed and thus he was able to identify him. It is further contended that the very presence of HC Som Pal ( PW6) at the spot does not finds a mention in the rukka or challan and thus the testimony of HC Som Pal ( PW6) cannot be relied upon. It is further contended that HC Som Pal ( PW6) fails to reveal about the details of the factory, the name of the witnesses whose statement was recorded by the IO at the spot, the name of the factory owner, casting a doubt upon his veracity. It is further highlighted that he testified that one Saleem was examined by the police but subsequently resiles. It is argued that it would be unsafe to rely upon the uncorroborated testimony of a police official. It is further contended that even Inspector Kamal Kishore ( PW12) does not ascribes any role to either of the accused persons. It is further highlighted that Inspector Kamal Kishore ( PW12) wrongly identifies accused Sultan Ahmed as Mohd. Ashraf. It is further highlighted that the prosecution has failed to bring on record any DD Entry regarding the arrival and departure of the police officials examined in the witness box by the prosecution. It is further contended that State Vs. Chaudhary Mateen Ahmed Etc. 12/43 the complaint U/S 195 Cr. P. C in the instant matter is neither moved by the complainant or his administrative superiors but is moved by another SDM which cannot be held to be a valid complaint u/S 195 Cr. P. C. It is argued that in the absence of any corroboratory piece of evidence it would be legally impermissible to convict the accused persons only on the basis of an unreliable testimony of a police official. It is further submitted that ever since the inception of legislative assembly in NCT of Delhi, accused Mateen Ahmed has been a member of legislative assembly till date. It is submitted that since accused Mateen Ahmed and Jameer Ahmed @ Munna are man of prominence in the society, they were implicated by the government in the instant case so as to suppress the public resentment against the sealing of factories. It is submitted that the demonstrations were held even outside the house of accused Mateen Ahmed and just to send down strong message to the masses their representatives i.e. the area MLA and the area Councilor were booked in a false and frivolous case. Ld. Defence Counsel has placed reliance upon the matter of Govinda Vs. State by Sri Rampuram PS and Another. Criminal Appeal No. 984 of 2007 DOD 15 March, 2012.
On the contrary the Ld. APP has vehemently argued that prosecution has successfully proved its case against the accused persons and all of them deserves to be convicted. It is contended that all the material witnesses examined on behalf of the prosecution have corroborated the prosecution version regarding the incident in the witness box. It is highlighted that HC Som Pal ( PW6) has correctly identified the accused in the witness box. It is further contended that the testimony of HC Som Pal ( PW6) is duly corroborated with the testimony of Ct. Nigam Singh ( PW8), SI RaJ Pal State Vs. Chaudhary Mateen Ahmed Etc. 13/43 ( PW10) and Kamal Kishore ( PW12). It is further highlighted that the presence of HC Som Pal (PW6) is corroborated in the testimony of SI Raj Pal ( PW10). It is thus argued that the presence of HC Som Pal (PW6) at the spot is duly proved. It is further highlighted that even the complainant E. Raja Babu ( PW5) in his testimony has admitted that he was informed by the public persons that the person who caught his hand was the area M.L. A. It is submitted that this piece of testimony is relevant and admissible U/S 6 of the Indian Evidence Act as 'Res Gestae'. It is argued that the defence has itself brought on record that Sh. Mateen Ahmed is the area M. L. A. since the constitution of Legislative Assembly till date. It is thus argued that the accused persons deserves to be convicted.
21. A criminal trial is primarily a quest to find answers to the two following basic questions: (A) Whether any penal offence has been committed ?
(B) Who committed the offence ?
Reverting back to the case at hand, for the sake of convenience, I propose to first make an endeavor to find an answer to question A and analyze serially the commission or otherwise of the offences alleged by the prosecution.
Section 147 IPC
22. Use of force or violence by a member of an 'unlawful assembly' in prosecution of a common object is recognized as the offence of Rioting. An 'unlawful assembly' is statutorily defined U/S 141 of the IPC. The offence of rioting punishable U/S 147 IPC is defined in Section 146 IPC. The relevant statutory provisions are State Vs. Chaudhary Mateen Ahmed Etc. 14/43 reproduced herein for ready reference:
Unlawful assembly. Section141. An assembly of five or more persons is designated 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; or 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 property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or Fifth. By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.
Explanation. An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.
Rioting Section 146. 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 State Vs. Chaudhary Mateen Ahmed Etc. 15/43 member of such assembly is guilty of the offence of rioting. Punishment for rioting Section 147.
Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
23. For a successful prosecution of a riot case the prosecution must prove:
(i)that there were five or more persons;
(ii)that they had a common purpose;
(iii)that they had begun to execute such purpose;
(iv) that they intended to help one another by force, if necessary;
(v) that they had shown such degree of violence which would alarm at least one person of reasonable courage.
24. In the case at hand, complainant E. Raja Babu has specifically deposed that : "On that day, I along with my other staff were sealing the unit M/S Mehroom Mechanical at GF134/7 in Jafrabad area. On that day, at about 12:30 PM around 1,000/ people in a mob came there, and started disturbing the sealing process. I came to know that among mob, there were MLA and other counselor of area with mob who (sic) were disturbing the sealing process. One of our staff of sealing party namely Virender Singh was also assaulted by the mob. One person from the mob caught my hand and dragged me to the sealing unit. In this incident, one Virender Singh received injuries."
The testimony of the complainant is duly corroborated regarding the State Vs. Chaudhary Mateen Ahmed Etc. 16/43 incident by the testimony of all the material witnesses examined on behalf of the prosecution.
25. Injured Virender Kumar has also testified that on the ill fated day he along with complainant E. Raja Babu went to Seelampur to seal the polluting factories as per the directions of the government. He has categorically testified that: "I do not remember the exact time however it was noon time. Again said it was 12/1.00 p.m. All of sudden mob of people came there and they started pushing us. One of them also pushed me. I also received injuries on my left ribs (sic). Police officials took me to hospital. SDM informed in concerned PS by his wire less cell."
26. Similarly, HC Som Pal ( PW6) has also endorsed the allegations of the complainant and has categorically deposed that:
"At about 12:30 PM accused Chaudhary Mateen Ahmad with Jamir Ahmad had come with the mob around 1500 public persons and started raising slogans against administration and the police. Mob also started pelting stones on us and during this one of the staff of SDM namely Sh. Virender Singh sustained injuries. Accused Chaudhary Mteen Ahmad took the SDM inside after holding him with his hands."
27. More or less on similar lines Ct. Nigam Singh ( PW8) has corroborated the allegations of the prosecution and has categorically deposed that: "Thereafter, a gathering of about 1000/1500 people gathered there and started raising slogan against police, government and SDM. The SDM tried to pacify the people but in State Vs. Chaudhary Mateen Ahmed Etc. 17/43 vain. At about 12:30 PM Chaudhary Mateen Ahmad also reached there and started raising slogan against the government and Delhi Police. Chaudhary Mateen Ahmad caught hold hand of E. Raja Babu and scuffled with him. Thereafter, Mateen Ahmad pulled him on the ground and took him inside the factory"
28. On identical lines SI Rajpal ( PW10) has deposed that: "At about 12.00 Pm I along with SDM Sh. E. Raja Babu along with above mentioned staff went to 134, Gali No. 7, Jafrabad, Delhi which was a factory polythene (manufacturer). The owner of the above mentioned factory started shouting (sic) and did not allow us to seal the said factory. At about 12:30 PM, the area MLA Mateen Ahmad and area councilor Nazeer Ahmad arrived at the spot along with 1000/1500 people. The said mob along with the above said persons shouted against the government. The accused Mateen Ahmad caught hold the hand of SDM, E, Raja Babu and dragged him inside the above mentioned factory. I along with the above mentioned staff tried to pacify the matter with the help of our staff. SI Kamal Kishore of the concerned PS was also present there and he also tried to pacify the matter but our efforts went in vain. The mob started pelting stones on the police party and the above staff. SI Kamal Kishore warned the mob not to do those illegal activities."
29. Similarly Kamal Kishore ( PW12) has also corroborated the testimony of the above said witnesses and has testified that: " On that day at about 12:00 pm I along with E. Raja Babu and his staff including Virender Singh Dabas (injured) and my State Vs. Chaudhary Mateen Ahmed Etc. 18/43 staff including HC Ashrul Haq, Ct Rajbeer and Ct Nigam reached at the spot i.e. House no. 134, Ground Floor Gali no. 7, Zafrabad, Delhi where the complainant E. Raja Babu started the operation of sealing of the above mentioned house where the electronic Factory in the name of Mehroom Electronics was being run. The owner of the factory namely Mohd. Ashraf (name of the accused later on known) who opposed the SDM and his staff against the sealing of the above mentioned factory stating that he will not let them seal the above mentioned factory. In the meantime the mob of approximately 800//1000/ persons led by accused persons Mateen Ahmad, Zahir Ahmad @ Munna, Nadeem Dahelbi, Nazim Naqvi and Sultan Khilone Wala. Public persons from the mob took the SDM E. Raja into the above mentioned factory. In the meantime SHO Gurcharan Dass also came alongwith his staff at the spot. The mob gathered at the spot started pelting stones at the staff of the SDM and police persons due to these pelting one of the staff member of the SDM Virender Dabas sustained injuries. SHO above mentioned advised the mob to pacify the matter. The public persons/ mob disbursed from the spot at the request of the SHO leaving behind 15/20 persons at the spot. SDM E. Raja Babu handed over the written complaint to the SHO concerned for taking the action against the wrongdoer which was marked to me."
30. Somewhat on similar lines Ct. Rajbir Singh has also corroborated the alleged assault upon the SDM engaged in carrying out sealing work. However, Ct. Rajbir Singh has mentioned the number of the persons constituting the mob to be 100 State Vs. Chaudhary Mateen Ahmed Etc. 19/43 200 in contradistinction to the whooping number of about 10001500 persons as mentioned by other witnesses. However, the difference in number as revealed by Ct. Rajbir Singh and other witnesses is too trivial a issue and becomes inconsequential, as in any case the number was more then five.
31. From the testimony of the above mentioned witnesses, I do not have any hesitation in holding that the prosecution has successfully proved on record that on the fateful day a mob, exceeding five persons in count, had gathered at the spot with an avowed object of thwarting/disrupting the sealing proceedings. Thus one can safely infer that the miscreants constituted an unlawful assembly. It has also been successfully proved on record that when the complainant E. Raja Babu ( PW5) commenced the sealing proceedings he along with his associate Virender Singh Dabas was assaulted by the members of the unlawful assembly.
32. MLC Ex. PW3/A also corroborates the prosecution version that Sh. Virender Singh Dabas ( PW1) has sustained injuries in the scrimmage. Defence has also opted not to crossexamine any of the prosecution witnesses on the said count. Even during the course of final arguments not even a single word was uttered disputing the veracity of the incident.
33. Therefore, in light of the uncontrovorted and unchallenged testimony of the prosecution witnesses, I do not have any hesitation in holding that on 07.01.2001 at about 12:30 PM at Gali No. 7, Jafrabad the members of an unlawful assembly have assaulted the complainant and his associate Virender Singh Dabas while they were engaged in carrying out the sealing proceedings in compliance of the order of the Hon'ble Apex Court. Therefore, one cannot escape the inescapable conclusion that State Vs. Chaudhary Mateen Ahmed Etc. 20/43 the prosecution has successfully proved that an offence of rioting punishable u/s 147 IPC has been committed in the instant matter.
Section 148 IPC
34. Now I proceed to analyze the commission of an offence punishable u/s 148 IPC. The relevant statutory provision is reproduced herein for ready reference. Section 148 IPC Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which my extend to three years, or with fine, or with both.
Perusal of the statutory provision reveals that an aggravated form of rioting, wherein the rioters are armed with any deadly weapon, is punishable u/s 148 IPC. At the very outset, I have no hesitation in holding that prosecution has failed to lead any evidence to the effect that the rioters were armed with any weapon leave aside 'Deadly weapons". The prosecution witnesses have simply testified that the rioters pelted stones. However, by no stretch of imagination, a stone can be qualified as a Deadly Weapon. Thus I am of the opinion that prosecution has failed to prove on record that an offence u/s 148 IPC has been committed in the instant case.
Section 186 IPC
35. Now I proceed to test the material available on record for commission of an offence u/s186 IPC. Ld. Defence Counsel has very rightly pointed out that, in case of an offence u/s 186 IPC, Section 195 Cr.P.C.,in no uncertain terms, obligates filing of State Vs. Chaudhary Mateen Ahmed Etc. 21/43 a complaint by the concerned public servant himself or his superior officer. Admittedly,in the case at hand the requisite complaint has neither been filed by the complainant E.Raja Babu nor by his superior officer. A complaint by Sh. P.C. Jain,who is neither complainant nor the superior of the complainant, can not be held to be a valid complaint for the purpose of Section 195 Cr.P.C. Thus, the accused persons can not be convicted for commission of an offence u/s186 IPC. Reliance is placed upon 2008 AIR SCW3357: 2008 (6) SCALE 236 (SC).
Section 332 IPC
36. Now I move on to the next offence in the series i.e. section 332 IPC.The same is reproduced herein for ready reference: section 332 IPC : Whoever voluntarily causes hurt to any person being a public servant in the discharge of his duty as such public servant, or with intent to prevent or deter that person or any other public servant from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by that person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
37. In order to bring home a charge for the offence u/s 332 IPC prosecution is required to prove the following ingredients: (I) Voluntary causing of hurt to any public servant.
(ii) While such public servant is acting in the discharge of his duties.
State Vs. Chaudhary Mateen Ahmed Etc. 22/43 38. Perusal of the above discussed prosecution evidence, which is not
repeated here for the sake of brevity, reveals that all the material witnesses in unison have testified that on the eventful day, the members of an unlawful assembly manhandled complainant E.Raja Babu (PW5)and voluntarily caused simple injuries upon the person of his associate Virender Singh (PW1),while they were attempting to seal a polluting unit in compliance of the directions of the Hon'ble Apex Court. The alleged assault upon two public servants, in discharge of their functions, has not been controverted by the Defence. Moreover,MLC Ex. PW 3/A corroborates the ocular testimony of the prosecution witnesses. The Defence has not disputed the assault but has merely contested the prosecution version on the issue of identity of assailants. Thus,it would not be incorrect to infer that an offence u/s 332 is also attracted in the instant case.
Section 353 IPC
39. Now I move on to the last offence alleged in the series i.e. u/s 353 IPC. The relevant statutory provision is reproduced herein for ready reference: Section 353 IPC: Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
State Vs. Chaudhary Mateen Ahmed Etc. 23/43
40. In order to bring home a charge for the offence u/s 353 IPC prosecution is required to prove the following ingredients: (I) Assault or use of criminal force to any public servant.
(ii) While such public servant is acting in the discharge of his duties.
41. Perusal of the above discussed prosecution evidence, which is not repeated here for the sake of brevity, reveals that all the material witnesses in unison have also testified that on the eventful day, the members of an unlawful assembly dragged complainant E.Raja Babu (PW5) by his hand and voluntarily caused simple injuries upon the person of his associate Virender Singh (PW1),while they were attempting to seal a polluting unit in compliance of the directions of the Hon'ble Apex Court. The ocular testimony of the prosecution witnesses regarding the said assault upon two public servants, in discharge of their functions, has not been controverted by the Defence. The Defence has merely contested the prosecution version on the issue of identity of assailants. Thus,one can safely conclude that an offence u/s 353 is also attracted in the instant case.
42. Now, I proceed to find an answer to the second limb of the criminal trial:
(B) Who committed the offence ?
The identity of the accused constitutes the most important issue in a criminal trial. In cases of mammoth rioting the task becomes all the more onerous as implication of inquisitive spectators,curious wayfarers and nonchalant bystanders needs to be ruled out. It would be apt to analyze the role of individual accused in detail to ascertain his guilt. Thus I propose to deal with them sequentially.
State Vs. Chaudhary Mateen Ahmed Etc. 24/43
Role of Accused Mateen Ahmed
43. Accused Mateen Ahmed appears to be the 'Master of Ceremonies' of this unfortunate tale of events as the Defence and Prosecution alike have kept him in the focus of their arguments. It has been contended by the Ld. Defence Counsel that the complainant E. Raja Babu (PW5) and the injured Virender Singh (PW1) have refused to identify the accused Mateen Ahmed as perpetrator of the offence. It is argued that once the complainant and injured in the prosecution story have disowned the prosecution version in the witness box the entire prosecution version crumbles and nothing survives. It is argued that it would be legally impermissible for the court to act upon the solitary testimony of H.C. Sompal.
44. I cannot but disagree with the Ld. Defence Counsel that simply because the protagonist and deuteragonist have not supported the prosecution story in toto, the prosecution case deserves to be thrown overboard. In my humble understanding of the subject there is no statutory order of preference to be accorded to the witnesses. The witnesses are to be tested on their individual merits and no precedence can be accorded to any particular witness simply because it suits either of the contesting parties. No doubt, there may be cases wherein the outcome of the trial shall be solely dependent upon certain witnesses whose testimony shall conclusively establish the innocence or guilt of the accused. However, a conscientious judicial mind has to decide the issue of the guilt or innocence of the accused on a conspectus of the entire evidence available on record. There can be no second thought about the legal proposition that benefit of doubt is necessarily to be construed in favor of the accused.
State Vs. Chaudhary Mateen Ahmed Etc. 25/43 However, benefit of doubt is not a legal dosage to be administered at every segment of the evidence but an elixir to be awarded to the accused at the final end after consideration of the entire evidence. It would thus be appropriate to analyze the individual testimony of the dramatis personae of the prosecution story.
45. Let us begin with the testimony of Sh. Virender Singh Dabas (PW1),who happens to be one of the important witness in the prosecution story. Admittedly, Sh. Virender Singh Dabas (PW1) has refused to identify accused Mateen Ahmed in the witness box. However, perusal of the testimony of injured Virender Singh Dabas (PW
1) reveals that it is not blemish free. In his crossexamination by the Ld. APP, he categorically testifies that he had not given any statement to the police. It appears highly improbable that the IO can afford to ignore to examine the injured in such a case. The apprehension against the witness stands readily vindicated when in his crossexamination by the Ld. Defence Counsel, at the very outset, he testifies that the IO of the case recorded his statement in the hospital at about 2:003:00 PM. Further, in his crossexamination by the Ld. APP, he has refused to endorse the suggestion regarding the presence of the factory owner at the pertinent point of time. Surprisingly, in the same breath, he has admitted the suggestion of the Ld. APP that the owner of the factory obstructed them to seal the factory and also started raising slogans against them. It is thus evident that Sh. Virender Singh Dabas ( PW1) was not coming up with the entire truth before the court and it would be legally unsafe to discard the prosecution version upon his testimony.
46. Now we come down to the evidence of the most important witness of the instant case. Admittedly, complainant Sh. E. Raja Babu ( PW5) has refused to identify State Vs. Chaudhary Mateen Ahmed Etc. 26/43 accused Mateen Ahmed as an assailant. However, a closer scrutiny of his testimony has a different tale to tell. Perusal of the record reveals that FIR in the instant matter was registered upon the hand written complaint of Sh. E. Raja Babu (PW5). Complainant has admitted in his examinationinchief that he made the complaint Ex. PW5/A to the SHO and he has even identified his signatures at point A upon the same. In the complaint Ex. PW5/A complainant has specifically alleged that "around 12:30 Noon area M. L. A. Chaudhary Mateen, Jameer Ahmed Munna, Councilor with much mob, roughly amounting to 1000 people, disturbed the peaceful sealing/closure process and the M. L. A. Mr. Mateen grabbed my arm and forcibly dragged into the unit." Document Ex. PW5/A is an embryonic document which has been prepared by the author without any unnecessary delay. In his examinationin chief also complainant E. Raja Babu has reiterated that he came to know that among mob there were M.L.A and other councilor of the area with mob disturbing the sealing process. Unfortunately, complainant E. Raja Babu ( PW5) has refused to identify the accused in the dock. The only explanation tendered by the witness regarding the mentioning of the name of the accused in the complaint Ex. PW5/A is that he came to know from the public that the person who caught his hand was the local M. L. A. It would be pertinent to mention here that witness E. Raja Babu is not a naive and rustic villager but a man of eminence who holds an important position of the SDM dealing with various kind of persons day in and day out. The explanation tendered by Sh. E. Raja Babu ( PW5) seems to be specious and deceptive. It appears nearly impossible that the complainant would risk inviting penal action by furnishing false information or State Vs. Chaudhary Mateen Ahmed Etc. 27/43 leveling baseless allegations against the area M. L. A. simply on the basis of unreliable and incredible information of the onlookers. Furthermore, the rukka Ex. PW2/A, which has been duly proved by Inspector Kamal Kishore (PW
12),unambiguously reflects that the complaint was entrusted to Inspector Kamal Kishore (PW12) and accused Mateen Ahmed was arrested at the instance of the complainant. The complaint Ex. PW5/A and the rukka Ex. PW12/A are contemporaneous with the incident leaving little scope for imagination or false implication. Therefore, it would not be incorrect to infer that the complainant has deliberately resiled from his previous version on the point of identity of accused persons.
47. It is a settled proposition of law that the first information report is not a substantive piece of evidence but the FIR being the first version of the incident, the statement made therein must be given due weight. Reliance is placed upon Kalyan Vs. State of U.P. (2001) 9 SCC 632. FIR in a criminal case is a vital and valuable piece of evidence for appreciating the evidence led by the prosecution in the trial. The statement of the complainant which forms the subject matter of the instant FIR can be used for the purpose of corroboration or contradiction of the witness as per Sections 157 and 145 of the Indian Evidence Act.
It has been observed by the Hon'ble Apex Court in the matter of Khujji @ Surendra Tiwari vs. State of Madhya Pradesh Criminal Appeal No. 413 of 1982 decided on 16.07.1991 while examining the testimony of Ramesh Chand (PW4) who has lodged the FIR that State Vs. Chaudhary Mateen Ahmed Etc. 28/43 "It is true that the first information report is not substantive evidence but the fact remains that immediately after the incident and before there was any extraneous intervention PW4 went to the police station and narrated the incident. The first information report is a detailed document and it is not possible to believe that the investigating officer imagined those details and prepared the document Exh. P3. The detailed narration about the incident in the first information report goes to show that the subsequent attempt of PW4 to disown the document, while admitting his signature thereon, is a shift for reasons best known to PW4. We are, therefore, not prepared to accept the criticism that the version regarding the incident is the result of some fertile thinking on the part of the investigating office. We are satisfied, beyond any manner of doubt, that PW4 had gone to the police station and had lodged the first information report. To the extent he has been contradicted with the facts stated in the first information report shows that he has tried to resile from his earlier version regarding the incident."
48. Further, now I move on to analyze the testimony of another important witness namely HC Som Pal (PW6). HC Som Pal has categorically testified that at about 12:30 PM accused Chaudhary Mateen Ahmed with Jameer Ahmed had come with the mob around 1500 public persons and started raising slogans. He went on further to categorically and unambiguously testify that accused Mateen Ahmed took the SDM inside after holding him with his hands. He has further admitted that SDM was dragged inside by Chaudhary Mateen Ahmed. In his crossexamination by the Ld. State Vs. Chaudhary Mateen Ahmed Etc. 29/43 Defence Counsel he has testified that he was posted in PS Seelampur for the past two years and he was aware that accused Mateen Ahmed was the area M. L. A. He went on further to explain that he has seen his posters in the area. The identification of the accused by the witness in the witness box clinches the matter.
49. Ld. Defence Counsel has made a feeble attempt to attack the testimony of the witness by disputing his presence at the spot. However, the Ld. Defence Counsel could not succeed in his efforts as the presence of HC Som Pal at the spot had been duly corroborated in the testimony of SI Raj Pal ( PW10). Moreover, neither HC Som Pal nor SI Raj Pal has been crossexamined on the issue of presence of HC Som Pal at the spot, consequently leaving his presence at the spot uncontroverted and unchallenged.
50. I cannot but disagree with the Ld. Defence Counsel that in a criminal trial the conviction of an accused cannot be sustained on the basis of the sole testimony of a truthful witness. Reliance is placed upon Shivaji Sahabrao Bobade and Anr. V. State of Maharashtra (1973) 2 SCC 793. It is only in cases of mammoth rioting the accused should not be convicted on the basis of the sole testimony of the witness. However in the case at hand the testimony of HC Som Pal, as we shall see later, is duly corroborated by the testimony of other prosecution witnesses.
51. Now I move on to the next material witness Ct. Nigam Singh ( PW8) who has also categorically testified that accused Chaudhary Mateen Ahmed caught hold of the hand of complainant E. Raja Babu and scuffled with him. He went on further to testify that accused Mateen Ahmed pulled him on the ground and took him inside the State Vs. Chaudhary Mateen Ahmed Etc. 30/43 factory. The testimony of Ct. Nigam Singh inspires confidence and Ld. Defence Counsel has not been able to point out any inherent taint in the testimony of Ct. Nigam Singh.
52. Now I move on to the testimony of another eye witness namely SI Raj Pal Singh (PW10). SI Raj Pal has categorically testified that accused Mateen Ahmed caught hold of the hands of SDM E. Raja Babu and dragged him inside the factory. Although the witness has not been able to pinpoint M. L. A. Mateen Ahmed in the witness box but he has testified that he cannot identify the accused persons by their name but he recognizes them by their faces. He has further testified that the four accused present before the court were arrested in the instant matter. In his cross examination by the Ld. Defence Counsel he rejected the suggestion that accused Mateen Ahmed was not present at the spot.
In light of the other corroboratory piece of evidence available on record, mere failure of the witness to identify the accused by his name does not efface its intrinsic value. Moreover, the witness has duly explained that he had gone to the spot only for one day and due to passage of time he cannot recollect the faces of the accused. The witness sounds to be truthful as nothing prevented a police official from mechanically identifying and implicating the accused persons.
53. Now I move on to another important witness of the prosecution namely Inspector Kamal Kishore ( PW12). Inspector Kamal Kishore has testified that accused Mateen Ahmed led a mob of about 8001000 persons on the fateful day. He further testified that he with the help of the staff apprehended accused Mateen Ahmed. He has also proved rukka Ex. PW12/A. He has correctly identified accused Mateen State Vs. Chaudhary Mateen Ahmed Etc. 31/43 Ahmed. Although, the witness fell short of corroborating that it was accused Mateeen Ahmed who dragged the SDM but that itself does not falsify the prosecution version. It is not improbable that a police official, who was busy managing a boisterous mob of around 1000 persons, might not have been able to notice the entire event with minute details or might have not been able to recollect it with scientific precision and mathematical exactitude. However, in any case, Inspector Kamal Kishore conclusively proves the presence of accused Mateen Ahmed at the spot and lends credence to the testimony of HC Som Pal ( PW6).
54. Now the last material witness namely, PW13 Ct. Rajbir Singh, of the prosecution has admittedly failed to identify the accused persons in the witness box. However, this witness does not sound to be creditworthy. In his crossexamination by Ld. APP he testified that he could not say as to who dragged the SDM inside the room. He further went on to testify that he cannot say whether accused persons present in the court were arrested by the police on that day due to lapse of time as he had seen them only once and that too when around 10001500 public persons were there. Surprisingly, he has been categorical in disowning the suggestion that it was accused Mateen Ahmed who dragged the SDM E. Raja Babu inside the room. A witness who is not able to reveal that who dragged the SDM inside the room and who is not even able to identify the person who were arrested by the police is categorical in exculpating the accused. Therefore, the reasons are not difficult to fathom that he had been won over by the accused.
55. It is a settled proposition of law that the court needs to separate chaff from the grain to evaluate the credibility of the witnesses. The question of guilt of the State Vs. Chaudhary Mateen Ahmed Etc. 32/43 accused is to be decided on a conspectus of the entire evidence available on record. A motley of witnesses cannot accord the status of truth to falsehood by mere repetition and similarly truth ought not to be discarded for want of mere repetition. Considering the above discussed inherent strengths and weaknesses of the prosecution witnesses, I do not have any hesitation in holding that accused Matin Ahmad was involved in the commission of an offence u/s 147/332/353 IPC.
56. Furthermore, there is another way of arriving at the same conclusion. It has been conclusively established above that on the fateful day the mob constituted an unlawful assembly. Both the complainant E. Raja Babu (PW 5) and injured Virender Singh (PW 1) have testified that they were informed by the members of the public that it was MLA Matin Ahmad who assaulted and dragged the complainant. I concur with learned APP that such a piece of information emanating from bystanders/spectators forms the part of the same transaction and is relevant and admissible as 'Res Gestae' under section 6 of the Indian Evidence Act. Illustration A, appended to section 6, unequivocally permits the court to consider the statement of the bystanders, so connected in time and space with the incident to form a part of the same transaction. It has been brought on record that ever since the inception of legislative assembly in NCT of Delhi, accused Mateen Ahmed has been a member of legislative assembly till date and thus there remains no scope for any confusion regarding his identity. The above said portion of the testimony of complainant E. Raja Babu and injured Virender Singh Dabas coupled with the testimony of HC Sompal (PW 6), Ct. Nigam Singh (PW
8), SI Raj Pal (PW 10), Inspector Kamal Kishore (PW 12), complaint EX PW 5/A and State Vs. Chaudhary Mateen Ahmed Etc. 33/43 rukka EX PW 12/A conclusively establishes on record that accused Matin Ahmad was present at the spot sharing with the mob the common object of disrupting the sealing proceedings. Thus I do not have any hesitation in holding that accused Mateen Ahmed was the member of an unlawful assembly constituted for the purpose of resisting the execution of sealing proceedings. And thus, as per provisions of section 149 IPC, he is liable for commission of any offence committed by the members of the unlawful assembly in prosecution of the common object of the assembly.
It has been conclusively established above that an offence u/s 147/332/353 IPC has been committed in the instant matter. Thus, one can not resist the inescapable conclusion that accused Matin Ahmad deserves to be convicted for the abovesaid offences r/w section 149 IPC.
57. This court is conscious of the fact that this court has found complainant E. Raja Babu and injured Virender Singh Dabas unreliable. However, it is a settled proposition of law that legal maxim falsus in uno falsus in omnibus is not applicable in India. Therefore, I do not find any harm in relying upon the credible portion of the testimony of the said witnesses. Reliance is placed upon Nisar Ali vs State of U.P; AIR 1957, SC 366 (1).
Identity of accused Jameer Ahmad @ Munna
58. Now I move on to analyze the guilt of accused Jameer Ahmad @ Munna in the instant case. Admittedly, none of the prosecution witnesses has ascribed any particular act to accused Jameer Ahmad @ Munna. However, as already discussed above, it is legally permissible to assay the guilt of accused Jameer Ahmad @ Munna State Vs. Chaudhary Mateen Ahmed Etc. 34/43 with the aid of section 149 IPC. For the sake of brevity, the detailed discussion of the prosecution witnesses is dispensed with to avoid repetition. Injured Virender Singh (PW1) has testified in his crossexamination by Ld. APP that " In the meantime a mob of 1000/1500 people came there. At the time I do not know about the MLA Mateen Ahmed, Councilor Jameer Ahmed, Munna were also present with the mob at the spot but the same fact I came to know later on". Complainant E. Raja Babu ( PW5) has also testified, in his examinationinchief, about the presence of the area councilor with the mob disturbing the sealing proceedings. In his complaint Ex. PW5/A, he has categorically named accused Jameer Ahmed @ Munna to be a part of the riotous mob. In his crossexamination by the Ld. APP he has testified that he came to know that the area M. L. A. and the councilor disrupted the sealing proceedings. It has been already established above that his knowledge about the involvement of accused Jameer Ahmed emanating through the onlookers/spectators is relevant and admissible U/S 6 of the Indian Evidence Act. HC Som Pal (PW 6) has also categorically testified that at about 12:30 PM, accused Jameer Ahmed along with coaccused Mateen Ahmed came at the spot along with a mob of about 1500 people and started raising slogans against administration and the police. Although the witness has not been able to identify accused Jameer Ahmed by his name but he has endorsed his presence at the spot. Further, Ct. Nigam Singh (PW8) has also testified the apprehension of the accused Jameer Ahmed from the spot. Similarly SI Raj Pal ( PW10) has also testified that at about 12:30 PM, the area councilor 'Nazeer Ahmed' arrived at the spot along with 1000/1500 people and started raising slogans against the government.
State Vs. Chaudhary Mateen Ahmed Etc. 35/43 Admittedly, the witness faltered in revealing the correct name of accused Jameer Ahmed and has also failed to exactly pin point the accused in the dock, however, he has endorsed the presence of the accused at the spot and has categorically deposed about the apprehension of accused in the instant matter. Mere failure of the witness to reveal the correct name of the accused is not fatal as the same appears to be more of a typographical error as, in the crossexamination by Ld. Defence Counsel himself, the name of accused Jameer Ahmed is reflected to be recorded as Nazeer Ahmed. Even otherwise also one cannot loose sight of the fact that the witness was deposing after about 910 years of the incident. Further, Inspector Kamal Kishore ( PW12) has categorically testified that accused Jameer Ahmed @ Munna led a mob of about 800 1000 people. He has categorically testified the apprehension of accused Jameer Ahmed @ Munna at the instance of complainant E. Raja Babu. The rukka Ex. PW 12/A, which is a document contemporaneous with the incident, also reflects the apprehension of accused Jameer Ahmed @ Munna at the spot.
59. Considering the totality of the prosecution evidence, I do not have any hesitation in holding that accused Jameer Ahmed @ Munna was also a member of an unlawful assembly which has assaulted the complainant E. Raja Babu (PW5) and injured Virender Singh (PW1), while they were engaged in sealing the polluting units in compliance of the orders of the Hon'ble Supreme Court. Thus, I pronounce accused Jameer Ahmed @ Munna guilty of committing an offence punishable U/S 147, 332,353 r/w Section 149 of IPC.
Identity of accused Sultan Ahmed
State Vs. Chaudhary Mateen Ahmed Etc. 36/43
60. Admittedly, none of the material prosecution witness has leveled any culpable allegation against accused Sultan Ahmed. HC Som Pal (PW6) has generally testified, qua accused Sultan Ahmed, that he recognizes the accused present in the doc by their faces. Similarly, Ct. Nigam (PW8) has testified in general terms about the apprehension of accused Sultan Ahmed. SI Raj Pal ( PW10)has also not testified anything incriminating against the accused Sultan Ahmed but has generally testified that he recognizes the persons present in the court by their faces. The only person to name accused Sultan as part of the mob is Inspector Kamal Kishore ( PW12). However, even he has faltered in identifying accused Sultan and has wrongly identified accused Sultan as Ashraf. Even if, for the sake of arguments,the presence of accused Sultan is presumed at the spot, in the absence of any evidence to the contrary,it can not be presumed that he shared the common object of the assembly. Therefore, I am of the opinion that the issue of identity of accused Sultan Ahmed is not free from suspicion and he deserves the benefit of doubt.
Identify of accused Mohd. Ashraf
61. Now I move on to analyze the issue of identity of the last accused in the prosecution list. The material available on record against accused Mohd. Ashraf also appears to be on a similar footing with accused Sultan Ahmed. Injured Virender Singh ( PW 1) has given mutually contradictory statements against the owner of the factory. Complainant E. Raja Babu has also not levelled any allegation against accused Mohd. Ashraf. Although HC Som Pal (PW6), Ct. Nigam Singh (PW8) and SI Raj Pal (PW10) have testified that owner of the factory has resisted the sealing proceedings. However, State Vs. Chaudhary Mateen Ahmed Etc. 37/43 they fell short of naming accused Mohd. Ashraf or identifying him as owner of the factory. Inspector Kamal Kishore (PW12) has testified that owner of the factory namely Mohd. Ashraf has opposed the sealing proceedings. However, even Inspector Kamal Kishore has wrongly identified accused Sultan as Ashraf. The prosecution has failed to lead any documentary evidence to prove the owner ship of the above said factory.
In the absence of any clinching evidence , it would be unsafe to rely upon the sole testimony of Inspector Kamal Kishore. More so, when Inspector Kamal Kishore has himself failed to correctly identify the owner of the factory , accused Mohd. Ashraf deserves the benefit of doubt. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from 'may have' to' must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused. Thus, I am of the opinion that accused Mohd. Ashraf deserves an acquittal in the instant matter.
62. After answering both the questions required to be answered in a criminal trial it would be apt to briefly deal with the contentions of the Ld. Defence Counsel. Most of the contentions of the Ld. Defence Counsel have already been dealt with above and now I shall take up the remaining contentions. The contentions of the Ld. Defence Counsel that the prosecution case deserves to be thrown overboard for lack of support from the complainant and the injured has already been negatived above. As State Vs. Chaudhary Mateen Ahmed Etc. 38/43 far as the contention regarding non examination of HC Ashrul Haq and Ct. Narender is concerned I cannot convince myself that mere non examination of HC Ashrul haq and Ct. Narender is fatal to the prosecution case. Record reflects that vide order dated 19.12.2011 the Ld. Predecessor has categorically observed that Ct. Narender need not be summoned henceforth as he was reported to be not traceable by the Worthy DCP. Further order dated 21.07.2012 reflects that it was Ld. Defence Counsel himself who has brought to the notice of the court that HC Ashrul Haq has not appeared before the court owing to some illness for the past one year. It was also submitted by the Ld. Defence Counsel that HC Ashrul Haq was not required for deposing some extra facts other than the facts deposed by the prosecution witnesses. Acting upon the request of the Ld. Defence Counsel coupled with the fact that the matter was pending for past 11 years the Ld. Predecessor has closed PE. It is a settled proposition of law that it is the sole discretion of the prosecution to examine or not to examine its witnesses subject to the rider that the best evidence ought to be brought before the court. Mere repetition by way of examination of witnesses, testifying on similar points, is not going to advance the cause of effective and expeditious justice. More so, the defence cannot claim to earn some brownie points by arguing on the one hand that Ct. Ashrul Haq has nothing new to testify and on the other hand arguing that non examination of Ct. Ashrul Haq is fatal to the prosecution version. Further more, the Ld. Defence Counsel has failed to highlight as to how come the cause of the Defence is prejudiced by non examination of Ct. Ashrul Haq. Thus, I am of the opinion that mere non examination of Ct. Narender and HC Ashrul Haq is not fatal to the prosecution case. I also cannot but disagree with the Ld. Defence Counsel that accused Mateen Ahmed and Jameer State Vs. Chaudhary Mateen Ahmed Etc. 39/43 Ahmed @ Munna have been falsely implicated by the government in the instant case so as to suppress the public resentment against the sealing of factories. There is nothing on record to substantiate the contention of the Ld. Defence Counsel rather to the contrary it is evident that the prosecution has moved an application for withdrawal of the proceedings against the accused persons. The contention of the Ld. Defence Counsel that the testimony of police official cannot be relied upon lacks any statutory force and deserves to be discarded. It has been observed in the matter of Izazul vs. State 2007 (4) R.C.R (Crl.) 315 that: " Police officials cannot be presumed less or more credible than any other normal public witness mere fact that they are police officials does not by itself give rise of any doubt about their creditworthiness "
Now as far as the issue regarding the arrival and departure entry of the police official is concerned, I am of the opinion that the same should have been brought on record by the IO. Having said that, I cannot travel any further with the Ld. Defence Counsel as the defence cannot claim to earn any benefit on account of lapses of the IO. It has been observed by the Hon'ble Apex Court in Zindar Ali SK vs. State of West Bengal & Anr 2009 III AD (S.C) 7 that: " It is trite law that the defence cannot take advantage of such bad investigation where there is clinching evidence available to the prosecution as in this case."
State Vs. Chaudhary Mateen Ahmed Etc. 40/43 More over, once clinching evidence has been led by the prosecution proving the presence of the police officials at the spot, which is not disputed or challenged by the defence in the crossexamination of the witnesses, mere absence of DD entry is not going to come to the rescue of the accused. Therefore, I do not have any hesitation in holding that the contentions of the Ld. Defence Counsel deserves to be discarded for want of merits.
63. Before parting, I would also like to bring on record my anguish regarding the nihilistic conduct of the witnesses in the instant case. The complainant in the instant case is holding a responsible position of SDM. In his hand written complaint Ex. PW5/A he has levelled categorical and unambiguous allegations against the area M. L. A. Sh. Mateen Ahmed and the area councilor Sh. Jameer Ahmed @ Munna. However, in his evidence before the court he has refused to identify them as perpetrators of the offence. Similarly, injured Virender Singh (PW1) has not been truthful before the court. In his statement under oath he has given mutually contradictory statements.
64. Witnesses are stated to be the 'eyes' and 'ears' of the Court. Regretfully, the environment today has become so contaminated that the picture presented before the Court is at times blurred and the sound accompanying is often bleak. There are situations when truth seems to be obscure and Justice appears to be obfuscated under the mist of chicanery and mendacity. Day in and day out witnesses belies the public expectations of testifying truthfully in the court of law and subjugate the sacrosanct values of truth and justice to the abhorrent heap of negotiated silence and orchestrated chicanery. The nihilistic conduct of false and dishonest witnesses leaves State Vs. Chaudhary Mateen Ahmed Etc. 41/43 victims in lurch and justice wounded. Turning a nelsons eye towards such abominable conduct of the witnesses would lead to anarchy and push the law abiding citizens to bewilderness and prayers to the Almighty their only hope. The Courts of this country owe a duty to detoxify the court rooms from the evil of falsehood and dishonesty otherwise the day is not far off when the Court itself would be in dock before the proletariat, surrendering before the curative power of the crowd. A witness cannot be permitted to vilify the triumvirate of Truth , Law and Justice.
Perjury in a court of law is not only a serious offence but a pernicious assault upon the established democratic institutions of the country. In the case at hand, regretfully, witnesses holding important public positions have not been truthful before the court. When an honest and truthful witness deposes in the court of law against a dreadful criminal he is assured of the state machinery backing him up in his fight against the crime. An ordinary witness would be highly disappointed and disgruntled when he realizes that those at the helm of affairs in the state machinery are themselves not honest and truthful in testifying before the court. The officers holding respectful and responsible positions in the state government owe a duty to lead by their conduct. I am of the considered opinion that the witnesses cannot be permitted to make a mockery of criminal trial.
In these circumstances, let a show cause notice U/S 340 Cr. P. C. be served upon complainant E. Raja Babu (PW5) and Virender Singh (PW1) directing them to explain as to why appropriate proceedings for perjury be not initiated against them.
State Vs. Chaudhary Mateen Ahmed Etc. 42/43
65. As a cumulative effect of the aforesaid discussion, I am of the opinion that accused Chaudhary Mateen Ahmed and Jameer Ahmed @ Munna deserves to be convicted for commission of the offence U/S 147/332/353 IPC r/w Section 149 IPC. Further, I am of the opinion that prosecution has failed to prove its case against accused Sultan Ahmed and Mohd. Ashraf and they are entitled for an acquittal for commission of offence U/S 147/148/149/186/332/353 IPC. Ordered accordingly. Announced in the open court on 19.01.2013 (Dharmender Rana) MM07/NorthEast Karkardooma Courts,Delhi State Vs. Chaudhary Mateen Ahmed Etc. 43/43