Delhi District Court
State vs . on 13 August, 2014
FIR No. 619/06
IN THE COURT OF SH.PULASTYA PRAMACHALA
ADDITIONAL SESSIONS JUDGE
SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI
FIR No. : 619/06
Under Section : 147/148/149/186/323/353/307/427 IPC &
3/4 PDPP Act
Police Station : Gokal Puri
Sessions Case No. : 58/14
Unique I.D. No. : 02402R0607802006
In the matter of :
STATE
Vs.
1. Raju Alam,
S/o. Sh. Yamin Ali,
R/o. Gali no.22-1/2, Old Mustafabad, Delhi.
2. Pushpender,
S/o. Sh. Laxman Singh,
R/o. Gali no.6, Panchal Vihar,
Shiv Vihar, PS Gokal Puri, Delhi.
3. Vijay,
S/o. Sh. Laxman Singh,
R/o. Gali no.6, Panchal Vihar,
Shiv Vihar, PS Gokal Puri, Delhi.
4. Md. Dilshad,
S/o. Sh. Hasim,
R/o. H.No.198, Gali no.8,
Bhagirathi Vihar, Phase-II, Delhi.
5. Majid (since expired)
S/o. Sh. Nasiruddin,
R/o. H.No.179, Gali no.7,
Bhagirathi Vihar, Phase-II, Delhi.
(Pulastya Pramachala)
Additional Sessions Judge (Shahdara)
Page 1 of 25 Karkardooma Courts, Delhi
FIR No. 619/06
6. Mohsin,
S/o. Sh. Irshad,
R/o. Gali no.4, Ashok Vihar,
Loni, Ghaziabad, U.P.
7. Salim,
S/o. Sh. Kallu Khan,
R/o. H.No.A-17, Gali no.6,
Bhagirathi Vihar, 33 ft. road, Delhi.
8. Jahid,
S/o. Sh. Shamsuddin,
R/o.E-9, Nehru Market, H.No.1,
New Seelam Pur, Delhi.
9. Javed,
S/o. Sh. Nazar Mohd.,
R/o. H.No.D-31, Gali no.7,
Shakti Vihar, Old Mustafabad, Delhi.
10. Md. Khalid,
S/o. Sh. Sher Khan,
R/o. H.No.D-31, Gali no.7,
Old Mustafabad, Delhi.
11. Javed Ali,
S/o. Sh. Ajijul Rehman,
R/o. H.No.22½ foota,
Old Mustafabad, Delhi.
12. Nafisur Rehman,
S/o. Sh. Jafar Rehman,
R/o. E-71, Gali no.21, 25 ft. road,
Old Mustafabad, Delhi.
Date of Institution : 27.10.2006
Date of Committal : 08.01.2007
Date of receiving in this Court : 29.01.2014
Date of reserving judgment : 24.07.2014
Date of pronouncement : 13.08.2014
Decision : All are acquitted.
(Pulastya Pramachala)
Additional Sessions Judge (Shahdara)
Page 2 of 25 Karkardooma Courts, Delhi
FIR No. 619/06
JUDGMENT
CASE SET UP BY PROSECUTION :-
1. On 28.08.2006 an information vide DD no. 28-A was received in Gokal Puri police station, regarding a riot taken place at 33 Foota Road, Old Mustafabad, Delhi and SI Daras Pandey was assigned this call. SI Daras Pandey along with Ct. Ramesh Kumar reached the spot and found around 1000-2000 persons assembled at that place, who were raising slogans and pelting stones on the police party. On the spot a number of police officials were already present, who were trying to control the mob. However, the mob continued pelting stones, due to which PCR van bearing no. DL-1CJ-3096, DL-1CJ-3005, DL-1CG-6402, motorcycle bearing no. DL-1SN-3243 and RTV bearing no. DL-1VA-3629 were damaged. SI Daras Pandey came to know that some injured police officials were already taken to GTB hospital and he reached GTB hospital. In the hospital, he obtained MLC of Ct. Daya Chand, Ct. Bachchu Singh, Ct. Manoj, Ct. Jaibir Singh, Ct. Omender, HC Omkar Singh and ACP Shri Bhag Singh. Complainant Ct. Daya Chand gave his statement alleging that on the same day at around 01:30 PM, he along HC Vinod, Ct. Samay Singh, Ct. Uday Bhan, Ct.
Suraj Pal, staff of BSES and CISF had gone to gali no.16, Mustafabad, near the Noor Masjid, Delhi on a raid against unauthorized connection of electricity. The officials of BSES were checking unauthorized connection and in that process they were disconnecting wire through which a direct electricity connection was taken from the main line in the house of accused Yusuf. Yusuf resisted such action of BSES and (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 3 of 25 Karkardooma Courts, Delhi FIR No. 619/06 started abusing and manhandling Sh. V.S Tyagi, AM, BSES. Police team tried to pacify him, but accused Yusuf called other accused persons namely Hussain, Naim Malik, Yameen, Arfin, Akbar and Nafis. All of them started raising slogans and collected other public persons on the spot. Accused Naim Malik exhorted the mob to make the police team and team of BSES run away from that place and all of them started pelting stones. 20-25 public persons surrounded Ct. Daya Chand and Ct. Bachchu Singh. Accused Yameen was leading this group of persons and 8-10 persons were having wooden stick (lathi). All of them started beating these two police officials with wooden sticks. They hit upon the head of Ct. Bachchu Singh several times. Yameen was exhorting them to finish Ct. Bachchu Singh. Due to injuries received by him, Ct. Bachchu Singh became unconscious and assuming him dead, all those public persons fled away from that spot. In the meantime, additional police force reached the spot. PCR van took the injured persons to GTB hospital.
2. After recording such statement, SI Daras Pandey came back to the spot. He was handed over custody of 17 accused persons, who were apprehended by the police force. He collected the broken glasses of official vehicles and pieces of stones from the spot. The remaining rioters had fled away from the spot. Therefore, present FIR was got registered and further investigation was assigned to SI Vijay Gupta. SI Vijay Gupta arrested the accused persons out of 17 apprehended persons. Six persons were found to be juvenile, who were produced before Juvenile Justice Board. On 12.09.2006 accused Nafisur (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 4 of 25 Karkardooma Courts, Delhi FIR No. 619/06 Rehman was arrested. Thereafter, on 23.10.2006 further investigation was assigned to SI Ajay Kumar, who deposited the MLCs of injured officials for obtaining opinion regarding nature of injuries. He also obtained NBWs against accused Hussain, Naim Malik, Yameen, Arfin, Akbar and Nafis. Accused Pushpender, Vijay Singh, Irshad, Majid, Mohsin, Salim, Jahid, Javed, Mohd. Khalid, Javed Ali, Nafisur Rehman were released on bail while accused Raju Alam remained in J/C.
3. After completion of investigation, chargesheet was filed before the Court for offences under Section 147/148/149/186/323/307/427 IPC and under Section 3/4 PDPP Act. A complaint under Section 195 Cr.P.C. was also filed by SHO Gokul Puri police station.
4. Charges were framed against all accused persons for offences under Section 148/186/353/332/307/427 IPC read with Section 149 IPC on 08.10.2007, to which they pleaded not guilty and claimed trial. PROSECUTION WITNESSES :-
5. In this case, 23 police officials were examined by the prosecution. The respective role and purpose of these police witnesses are shown in the following table :-
Serial Number of Role of witnesses
no. witnesses and
name
1. PW-1 Ct. Daya Complainant and injured official. Rukka was
Chand prepared on his statement.
2. PW-2 HC Omkar Injured official, who had accompanied PW-5
Singh and PW-10 to the spot.
3. PW-5 HC Jaibir Injured official, who had apprehended
Singh accused Dilshad.
(Pulastya Pramachala)
Additional Sessions Judge (Shahdara)
Page 5 of 25 Karkardooma Courts, Delhi
FIR No. 619/06
4. PW-6 Ct. Bachchu Injured official.
Singh
5. PW-8 HC Ramesh Accompanied first IO to spot and GTB
Kumar hospital and took rukka to police station from
GTB hospital for registration of FIR.
Thereafter he came back to the spot with
second IO/PW-27.
6. PW-10 ACP Bhag Injured official.
Singh
7. PW-11 Ct. Omender Injured official.
8. PW-12 HC Duty Officer, who registered FIR.
Brigender Singh
9. PW-13 HC Sanjeev He apprehended accused Javed, S/o. Nazar.
Kumar
10. PW-14 Ct. Anil He apprehended accused Mazid.
Kumar
11. PW-15 HC He apprehended accused Zahid.
Devender Kumar
12. PW-16 HC Umesh He apprehended accused Dilshad.
Kumar
13. PW-17 Ct. Manoj Injured official. However, his MLC was not Kumar proved on the record.
14. PW-18 Ct. Ali He apprehended accused Khalid.
Shubbar
15. PW-19 Ct. Shiv Injured official. However, his MLC was not Kumar proved on the record.
16. PW-20 HC Arvind He apprehended accused Salim.
17. PW-21 Ct. Brijpal He apprehended accused Raju Alam.
18. PW-22 HC Anil He apprehended accused Pushpender.
(Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 6 of 25 Karkardooma Courts, Delhi FIR No. 619/06
19. PW-23 SI Ajay He was assigned further investigation of this Kumar case on 23.10.2006. He collected MLC of injured persons and obtained NBWs of accused Hussain, Naim Malik, Yameen, Arfin, Akbar and Nafis.
20. PW-24 Ct. Uday He apprehended accused Mohsin.
Bhan
21. PW-25 Ct. Jagvir He apprehended accused Vijay.
22. PW-26 SI Darsh He was first IO, who recorded statement of Pandey complainant/PW-1 and made his endorsement. He got the FIR registered and collected articles i.e. broken glasses, stones, bricks etc. from the spot and prepared parcels of the same. He visited GTB hospital and collected MLCs of injured persons. 17 persons were apprehended, who were handed over to the other police officials on the spot, before moving to GTB hospital. He came back to the spot from GTB hospital and after arrival of PW-27 he handed over the pullandas, documents and custody of accused persons to him.
23. PW-27 SI Vijay After registration of FIR, he was assigned Gupta further investigation of this case. He came to the spot along with PW-8 at about 09:00 PM.
He met PW-26/first IO and others. He was handed over parcels and custody of accused persons and he arrested all of them. He recorded statement of the witnesses and sent the accused persons for medical examination. He deposited MLCs of injured persons in the hospital for final opinion. On 12.09.2006 he was in search of accused persons, accompanied by PW-6 and PW-20 at Tripal Factory, Mustafabad. On identification of PW-6, he arrested accused Nafisur Rehman.
(Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 7 of 25 Karkardooma Courts, Delhi FIR No. 619/06
6. In this case, MLCs of six injured police officials were proved by the prosecution. PW-3 Dr. Banarsi was working as CMO, GTB on 28.08.2006 and was on emergency duty with Dr. Sabd Prakash. He had identified the handwriting and signatures of Dr. Prakash on the MLC of PW-11, which was proved as Ex.PW-3/A. As per this MLC PW-11 had suffered simple injury. PW-3 also identified handwriting and signatures of Dr. Ajay on the MLC of PW-5, which was proved as Ex.PW-3/C. As per this MLC, PW-5 had also sustained simple injury. PW-3 had himself prepared the MLC of PW-10, which was proved as Ex.PW-3/B. As per this MLC, PW-10 had sustained simple injury.
7. PW-4 Dr. Parveen Kumar was also working as CMO, GTB on 28.08.2006. He was on duty with Dr. Mohit and he identified handwriting and signatures of Dr. Mohit on MLC of PW-6, which was proved as Ex.PW-6/A. As per this MLC, PW-6 had sustained simple injury.
8. PW-9 Dr. P.K. Phukan had examined PW-2 and prepared his MLC, which was proved as Ex.PW-9/A. PW-29 Dr. Mohit Joshi identified the handwriting and signatures of Dr. Sumit Chakravarti on the MLC of PW-2, which was in respect of opinion regarding nature of injury. This opinion was proved as Ex.PW-29/A and as per this opinion PW-2 had sustained grievous injury.
9. Original MLC of PW-1 was not placed on record and its photocopy was marked as PW-28/P1 by PW-28 Dr. Vinita Rathi. Though PW-28 had not prepared this MLC but she had examined the X-ray plate of PW-6 and PW-1. She proved X-ray report as Ex.PW-28/B, according to which (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 8 of 25 Karkardooma Courts, Delhi FIR No. 619/06 PW-1 had sustained fracture proximal phalanx of fifth digit.
10. Besides aforesaid doctors, Sh. V.S. Tyagi, Senior Manager of BSES was examined as PW-7. As per his testimony, on 28.08.2006, he went along with enforcement staff, local police and CISF at Gali no.16, Mustafabad. He conducted raid against theft of electricity. He found case of direct theft of electricity in the house of Mr. Yusuf. When his staff tried to remove the wire, said Yusuf resisted that move and gathered public persons. The police officials asked him and his colleagues to leave the spot. According to him no incident took place in his presence.
11. For the sake of ready reference, I would also like to lay down the description of injured persons with reference to nature of their injuries and time of their medical examination. Same is shown in the table as follows :-
Name of injured Nature of Time of Exhibit mark
injury medical of MLCs
examination
PW-11 Ct. Omender Simple 07:00 PM Ex.PW-3/A
PW-10 ACP Bhag Singh Simple 06:25 PM Ex.PW-3/B
PW-5 Ct. Jai Veer Singh Simple 04:20 PM Ex.PW-3/C
PW-6 Ct. Bachchu Singh Simple 02:15 PM Ex.PW-4/A
PW-2 HC Omkar Singh Grievous 02:50 PM Ex.PW-9/A
PW-1 Ct. Daya Chand Grievous 02:15 PM Mark
PW-28/PA
ARGUMENTS OF PROSECUTION :-
12. Ld. Chief PP argued that all the accused persons were part of the mob and they were apprehended from the spot by the police officials. He (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 9 of 25 Karkardooma Courts, Delhi FIR No. 619/06 submitted that some of the PWs viz PW-18, PW-21 and PW-22 could not identify the relevant accused due to long passage of time. However, even these witnesses were able to identify all the accused persons during their cross-examination conducted by APP. He further argued that the doctors have duly proved the MLCs of the injured persons, which establishes the fact that these officials were injured due to violent act of the mob. He submitted that the police witnesses i.e. PW-13 to PW-22 have proved the case of prosecution as far as role of all accused persons is concerned and as far as allegation of riot is concerned. He further referred to the testimony of PW-1 and PW-6 to support the charges under Section 307 IPC.
DEFENCE ARGUMENT :-
13. A common written argument was filed on behalf of accused Raju Alam, Javed Ali. Another common written argument was filed on behalf of Mohd. Khalid and Javed. Similar common written argument was filed on behalf of accused Salim, Mohsin, Jahid and Dilshad. Another common written argument was filed on behalf of accused Vijay and Pushpender.
14. Accused persons referred to a number of case laws, particulars of which are as follows :-
(1) Kush Hori & Ors. Vs. State (NCT of Delhi), 2006 [3] JCC 1921.
(2) Ashok Narang Vs. State, 2012 [1] JCC 482. (3) Savita Alias Babbal Vs. State of Delhi, 2011 [3] JCC 1687. (4) Musheer Khan @ Badshah Khan & Anr. Vs. State of Madhya Pradesh, 2010 [3] JCC 1648.
(5) Sanjay Vs. State, 2009 [3] JCC 2337.
(6) Dr. Jhamman Lal Vs. State (Delhi Administration), 2011 [4] JCC 2932.
(Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 10 of 25 Karkardooma Courts, Delhi FIR No. 619/06 (7) Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 Supreme Court 1622.
(8) State of Rajasthan Vs. Shri Teja Singh and Ors., 2001 II AD (S.C.) 125.
(9) State of Punjab v. Sukhdev Singh, 1992 (3) RCR 311. (10)Jagdish Raj Jaggi v. The State, 1987 (2) RCR Criminal 1. (11)Nanak Chand v. State of Delhi, 1992 (1) RCR 412. (12)Ritesh Chakarvarti v. State of Madhya Pradesh, 2006 (4) RCR (Criminal) 480.
(13)Roop Chand v. State of Haryana, 1989 (2) RCR 504. (14)State of Punjab v. Gurdial Singh, 1992 (1) RCR 646.
15. The written arguments filed on behalf of accused persons are already part of record and they are quite elaborative. For the sake of brevity, I do not intend to repeat the same. In nutshell, it was argued on behalf of accused persons that the accused persons were falsely implicated in this case by the police. Accused persons were not involved in the alleged incident, nor were they part of the mob. These persons were lifted by the police persons from the different places and were made scape goat. Ld. defence counsels submitted that the prosecution has not been able to prove beyond doubts that the accused persons were part of the alleged mob. They also argued that the case was not properly investigated by the IO and there are a number of lacunae in the evidence produced by the prosecution. They submitted that the prosecution has not proved any DD entry or other record to show that the injured persons were present on the spot on duty or to show that police team had been sent at the spot along with officials of BSES or to show that any such complaint was received by police regarding unauthorized extraction of electricity. They further submitted that name (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 11 of 25 Karkardooma Courts, Delhi FIR No. 619/06 of Yusuf has been highlighted by the complainant and IO, as the person who was responsible to assemble the mob, however, such person was never booked by the police and was not produced before this Court. Even the other persons, who are named in FIR were not chargesheeted by police for the reasons best known to them. Despite there being standing instructions of the department, police did not get photograph and video recording of the incident. IO neither took photograph of the spot or of the damaged vehicles nor seized them in this case, nor such damaged vehicles were ever produced before the Court. IO even did not seize blood stained clothes of the injured persons. IO did not cite the officials of police control room as witness, who had recorded information vide DD no.23-A. As per this information police had beaten the public, but IO did not explain such incident before the Court in the chargesheet. Therefore, the chargesheet presented before the Court did not depict correct account of facts. The PWs, who had apprehended the accused persons and IOs of this case have given contradictory statements regarding apprehension of the accused persons. Some injured persons even did not identify the accused persons at first instance and their testimony recorded in the cross- examination conducted by ld. APP is not reliable because apparently it was based on the facts suggested by ld. APP and not as per the facts recalled by the witnesses.
FINDINGS :-
16. From the case of prosecution, it is revealed that the alleged incident of pelting of stones upon the police party by a mob had started at around (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 12 of 25 Karkardooma Courts, Delhi FIR No. 619/06 01:30 PM. The testimony of PW-1 and PW-7 shows that a team of police officials had visited Gali no.16 at Old Mustafabad, to conduct a raid against unauthorized electricity connection. However, IO has not filed any record of such requisition, if made by BSES before the local police, to get assistance of local police. The case of prosecution is that the accused persons along with number of other public persons had formed an unlawful assembly with common object to resist the raid against unauthorized electricity connection and thus, they voluntarily obstructed the police officials in discharge of their public functions and also caused injuries to several officials. In order to establish that the police officials i.e. PW-1, PW-6 and others were at the spot in discharge of their public duty, it was incumbent upon the prosecution to prove the relevant record of such public duty i.e. to prove that a team of police officials had accompanied a team of BSES, in order to provide assistance in the raid against unauthorized electricity connection. It is the basic principle of law of evidence that the best possible evidence should be produced before the Court. In a criminal prosecution, prosecution is burdened with the task to prove the alleged facts beyond all reasonable doubts. In the back drop of such requirement, if prosecution fails to produce the basic evidence, then the Court has to be cautious towards the case of prosecution. If a raid was conducted, then there must have been some record in the BSES also to show that such raid was planned and actually conducted. If a police team was taken along with BSES team, then there must have been some requisition/complaint on the part of BSES, in response of which the (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 13 of 25 Karkardooma Courts, Delhi FIR No. 619/06 police department would have sent a team of officials with enforcement staff. There would have been DD entry in the concerned police station as well mentioning the place of departure and the purpose there of. None of such basic records were produced and proved by the prosecution. Therefore, such claim of prosecution that the police officials including the injured officials were present on the spot in discharge of their pubic duty, has not been proved with support of readily available best possible evidence. Such omission on the part of prosecution assumes significance in view of the contents of DD no.23-A dated 28.08.2006. This information was recorded on the same day at around 01:30 PM in the police station, wherein it was stated that some police personnel had beaten public, therefore, at Government Senior Secondary School, Gali no.19, Mustafabad, pubic persons were on rampage. The first IO i.e. PW-26 had reached the spot in response to this DD entry. He did not say anything about the alleged information. This information was received by police itself and transmitted by one police official to another police official, which does not support the allegations of prosecution that one Mr. Yusuf assembled public persons on the spot against the raid and that mob consisting of the accused persons obstructed the police officials from discharge of their public duty.
17. According to the prosecution, some other police officials were also injured in this case, like PW-17 Ct. Manoj Kumar and PW-19 Ct. Shiv Kumar. However, their MLCs were not placed on the record. According to the prosecution, 17 persons were apprehended by different police (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 14 of 25 Karkardooma Courts, Delhi FIR No. 619/06 officials, who were formally arrested by PW-27. Accused Nafisur Rehman was arrested at the instance of PW6 on 12.09.2006 vide arrest memo Ex.PW-2/A. Other accused persons were arrested on 28.08.2006 itself and following is the particulars of time and arrest memo of remaining accused persons:-
Name of Time of Arrest Arrest Memos Attesting Witness Accused Md. Dilshad 11:00 p.m Ex.PW-5/A PW-5 Javed 11:25 p.m Ex. PW-13/A PW-13 Mazid 11:05 p.m Ex. PW-14/A PW-14 Zahid 11:20 p.m Ex. PW-15/A PW-15 Javed 11:50 p.m Ex. PW-16/A PW-16 Khalid 11:45 p.m Ex. PW-18/A PW-18 Salim 11:15 p.m Ex. PW-20/A PW-20 Raju Alam 11:40 p.m Ex. PW-21/A PW-21 Pushpender 10:45 p.m Ex. PW-22/A PW-22 Mohsin 11:05 p.m Ex. PW-24/A PW-24 Vijay 10:50 p.m Ex. PW-25/A PW-25
18. Prosecution had to establish that the accused persons were part of an unlawful assembly and that being members of such unlawful assembly, they voluntarily caused hurt to the police officials as well as with a common intention to cause death of PW-6, they did something which within their knowledge would have caused death of PW-6. Besides that, they also had to prove that accused persons caused damage to the vehicles as alleged in this case. For that purpose, it is necessary to be convinced that the accused persons were members of the alleged (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 15 of 25 Karkardooma Courts, Delhi FIR No. 619/06 unlawful assembly. To establish this fact, prosecution was required to prove that accused persons had taken active participation in the activity of this unlawful assembly or they otherwise shared the common object of unlawful assembly. It is to be kept in mind that mere presence in an assembly does not make such a person a member of an unlawful assembly, unless it is shown that he had done something or omitted to do something, which would make him a member of unlawful assembly.
In support of such concept reliance is placed upon Baladin v. State of U.P. AIR 1956 SC 181.
19. In the present case, it is well apparent that the complainant i.e. PW-1 had not seen the accused persons specifically. In his statement Ex.PW-1/A, PW-1 did not mention the name of any of the accused persons. Even in his testimony before the Court, he could not identify the accused persons as the persons who were involved in rioting and causing injury to him. However, when he was cross-examined by APP, then in a mechanical manner he went on admitting all the suggestions put by APP and in that process he went on to admit the suggestion that the accused persons were present in the crowd and they had caused injury and damage to the police vehicles. However, once again in his cross-examination conducted by defence, he could not point out any accused with reference to his name. Similarly, PW-6 did not mention anything about the role played by the accused persons in the process of causing hurt to him and his colleagues including PW-1. However, he deposed that he had identified all the accused persons in the police station as the participant in the riot and as the persons, who caused (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 16 of 25 Karkardooma Courts, Delhi FIR No. 619/06 injury to him. It is to be kept in mind that PW-1 and PW-6 claimed that they were surrounded by 20-25 public persons equipped with lathi and danda, who gave severe beatings to them by lathi and danda. They further claimed that PW-6 had become unconscious and the public persons assumed that PW-6 was dead, therefore, they left that place. In that situation, PW-1 would have also identified the persons, who had surrounded him and caused injuries by beating with lathi and danda. However, PW-1 did not point out any finger towards the accused persons indicating them to be member of group of those public persons, who surrounded him and PW-6 and gave severe beatings. Therefore, there is no consistency in respect of identification of accused persons to be responsible for causing injuries to PW-1 and PW-6. Apart from these persons, PW-17 Ct. Manoj Kumar and PW-19 Ct. Shiv Kumar also did not point out to any accused person and they could not identify the accused persons. It is not stated by any of the injured persons that other police officials apprehended the accused persons on their pointing out. Rather, the testimonies of different witnesses create a sort of confusion regarding the time and actual apprehension of accused persons.
20. I would start with the discussion of testimony of these witnesses with reference to such part, which leaves certain questions. In his statement given to PW-26/ first IO, PW-1 mentioned name of certain persons, who had allegedly joined the unlawful assembly and who had collected other public persons. As per case of prosecution and as testified by PW-1, after receiving injuries on the spot he was removed to GTB (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 17 of 25 Karkardooma Courts, Delhi FIR No. 619/06 hospital and later on, PW-26 reached GTB hospital, who recorded statement of PW-1. In the rukka, it is shown that PW-26 had sent this rukka through PW-8 to police station at around 07:30 PM. So it can be presumed that the statement of PW-1 would have been recorded by PW-26 at around 07:00 PM. The MLC of PW-1 shows that he was medically examined in GTB hospital at around 02:15 PM. Time of incident is reported to be around 01:30 PM. All these timings show that PW-1 and PW-6 were removed to hospital in the initial phase itself. Now the question is that did PW-1 know all those persons by their name prior to this incidence? If he knew them, then how and if he did not know them, then how could he mention name of these several persons in his statement given to PW-26. These questions are very important to test the veracity of the case of prosecution, which is based on the initial statement of PW-1 and the rukka prepared by PW-26. From the evidence led by prosecution i.e. from the testimony of PW-1 and PW-26, I do not find any explanation to these questions. Absence of any explanation to these questions indicates towards a situation, wherein the statement of PW-1 was not given as per his own knowledge and his statement was actually prepared as an afterthought planning. PW-1 deposed before the Court that he did not know the name of accused persons as well and in this regard PW-11 deposed that IO/PW-26 recorded their names after making inquiry from accused persons. The accused persons were not apprehended in the presence of PW-1, because he was already taken to the hospital. Therefore, apparently he could not have said anything in respect of apprehension (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 18 of 25 Karkardooma Courts, Delhi FIR No. 619/06 of each accused person. However, he could have stated about the role played by accused persons, if they were actually part of the mob.
21. PW-2 deposed that the accused persons were not apprehended before PW-27/ 2nd IO reached the spot. He also deposed that PW-27 himself arrested the accused persons. He further deposed that he remained at the spot up to 05:00/06:00 PM and the accused persons were arrested in his presence. However, the testimonies of PW-26 and PW-27 depict a different scenario. PW-26 deposed that the accused persons were apprehended by police party in his presence and before leaving to GTB hospital he had handed over the custody of accused persons to the other police officials present on the spot. PW-26 went to GTB hospital with PW-8, collected MLC of the injured persons and recorded statement of PW-1. Thereafter, he made his endorsement and prepared rukka, which became basis for registration of FIR at around 08:00 PM. The role of PW-27started after registration of FIR and according to PW-27, at around 09:00 PM, he was handed over the copy of FIR and thereafter, he came to the spot and met PW-26 and others. PW-26 handed over the parcels prepared by him to PW-27 along with custody of the accused persons. Thus, the testimony of PW-2 and PW-26 and PW-27 contradict each other regarding the manner and the time of apprehension of the accused persons.
22. PW-5 and PW-16 both claimed in their testimonies that they had apprehended Dilshad, which is not a possible scenario. PW-5 further deposed that he went to hospital along with PW-2, PW-10, PW-11, (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 19 of 25 Karkardooma Courts, Delhi FIR No. 619/06 PW-17 and PW-19. However, the MLCs of PW-2, PW-10 and PW-11 would show that all these persons were taken to GTB hospital at different times. The time of medical examination of all these persons have already been shown in the table herein above. Now the question is that whether these injured persons were made to wait in the GTB hospital for their medical examination? From the testimonies of all the injured persons, I do not find any whisper of such fact. It is not probable also that the injured police officials would have been made to wait at GTB hospital for their medical examination and treatment. As far as identification of accused Nafisur Rehman as the assailants, who hit upon PW-1 and PW-6, is concerned, I have already mentioned herein above that PW-1 did not identify him as the assailants. Therefore, the identification of Nafisur Rehman is not well corroborated and established.
23. PW-1 and PW-6 were taken to GTB hospital simultaneously. However, I find contradictory statement regarding certain facts in their testimony. PW-1 had refused to identify the accused persons, but PW-6 went on to take name of Yusuf, Naim, Raju Alam, Nafisur Rehman, Pushpender and thereafter, all the accused persons, indicating them to be the assailants who had hit him. It is well apparent that such testimony of PW-6 was in a kind of improved version. PW-6 also claimed that PW-27 collected stones etc. and had taken them into his possession and at that time he was also present at the spot. However, such fact deposed by PW-6 is contradicted by testimonies of PW-26 and PW-27, according to whom it was PW-26, who had collected all such articles (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 20 of 25 Karkardooma Courts, Delhi FIR No. 619/06 from the spot and prepared their pullanda. PW-6 also claimed that he had witnessed preparation of arrest memo and personal search memo of some of the accused persons. However, the arrest memos show that in none of the arrest memo of the accused persons, PW-6 is shown as witness. PW-6 also claimed that some of the officials of BSES were also injured and removed to GTB hospital, however, other witnesses have denied that officials of BSES were also injured. Even PW-7, who was concerned manager of BSES did not make any such allegation regarding injuries being caused to him and his other members. Thus, it appears that PW-6 went on to state such facts, which are otherwise not supported and corroborated by other witnesses by prosecution.
24. In his testimony, PW-8 deposed that when he reached the spot along with PW-26, the incident had already taken place prior to their reaching. However, the testimony of PW-26 reflects as if PW-26 himself had seen the incident going on, on the spot. Therefore, once again confusion is created by these two witnesses in respect of the scene witnessed by them.
25. PW-10 deposed that he had sustained injuries along with many police officials and local police with help of other forces apprehended the accused persons. In his cross-examination, he deposed that none of the accused persons were arrested in this case in his presence. However, the timing of his medical examination and the time of medical examination of other five injured persons are totally different. None of these injured witnesses gave account of such fact, which could explain the reasons for their medical examination at different time. This is an (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 21 of 25 Karkardooma Courts, Delhi FIR No. 619/06 important aspect of this case, because it was claimed by PW-5 that all the injured persons were taken together.
26. PW-11 deposed that from the hospital all injured persons came back to the spot along with PW-26 and after reaching the spot they found that 17 persons were apprehended. He further deposed that PW-6 had sustained injuries in his presence with stones. Such statement of PW-11 contradicts the statement of PW-1 and PW-6 to the effect that PW-6 was injured with lathi. PW-11 further deposed that all accused persons were arrested in the noon and he had reached the hospital in noon. Now such statement given by PW-11 creates another contradictory situation. MLC of PW-11 shows that he was medically examined in the hospital at around 07:00 PM and in that situation he could not have reached the hospital in noon. Similarly, the accused persons were found to be apprehended by this witness after going back to the spot with PW-26. If this was so then how could he say that accused persons were apprehended in the noon? Such contradictory statement adds up to the doubtful scenario regarding apprehension of the accused persons.
27. PW-13 deposed that he produced accused Javed before second IO/PW-27. PW-13 was shown as the person, who had apprehended Javed, S/o. Nazar. However, according to PW-26 and PW-27 all the accused persons, who were apprehended by the police team, were produced before PW-27 by PW-26 and therefore, it could not have been PW-13, who could have produced Javed before PW-27. Rather (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 22 of 25 Karkardooma Courts, Delhi FIR No. 619/06 as per testimony of PW-26, PW-13 should have produced Javed before PW-26. Another glaring contradiction appearing in the testimony of PW-13 is in respect of time of arrest of Javed. He deposed that accused Javed was arrested at around 07:00 PM and he remained at the spot for another one or two hour. But as per arrest memo, accused Javed was arrested at around 11:25 PM. Similarly, PW-14 also deposed to hand over the custody of Majid to PW-27. He also claimed that Majid was arrested at around 07:00 PM and he remained at the spot up to 08:30 PM. Though, Majid was shown to be arrested at around 11:05 PM and even this accused was allegedly produced by PW-26 before PW-27. PW-15 also claimed to have produced accused Zahid before PW-27 in contradiction to the testimony of PW-26 and PW-27. PW-16 claimed that he had arrested accused Dilshad, but he had signed arrest memo of accused Javed S/o. Azizul Rehman. This has to be seen that the witnesses of arrest memo of accused persons are shown as per the official, who had allegedly apprehended them and therefore, contention of apprehension of Dilshad and signature on the arrest memo of other accused Javed becomes important. In contradiction to aforesaid witnesses and especially PW-26 and PW-27, PW-17 claimed that all the injured persons had returned to the spot with PW-26 and PW-26 arrested 15-20 persons on the spot. Such fact was altogether a new version introduced by PW-17 so as to create further confusion regarding the manner of apprehension of accused persons.
28.As already observed by me herein above, the prosecution had to (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 23 of 25 Karkardooma Courts, Delhi FIR No. 619/06 establish that all accused persons were involved in the illegal activity of unlawful assembly in furtherance of a common object. However, the prosecution witnesses have created so much of confusion about the manner and timing of apprehension of accused persons, which does not lead me to reach a particular conclusion regarding involvement of each accused person in the alleged incident of stone pelting. I am unable to form concrete opinion regarding the role played by each of the accused persons in the alleged incident. In the case of Kush Hori & Ors. Vs. State (NCT of Delhi) (supra), Delhi High Court discharged the accused persons, who were alleged to have become member of unlawful assembly, which caused injuries to certain police officials, on the basis of the fact that there was no statement of any of the witnesses, which could show that the accused persons were responsible for any specific act of assault or use of criminal force. The Court found that there was no specific overt act ascribed to the accused persons and therefore, Court held that it could not be established that they were the accused persons, who caused injuries to the police officials or that accused persons were responsible for any overt act, which could amount to an assault or use of criminal force.
29. Even in the present case, none of the witnesses, who allegedly witnessed the incident as well as apprehended the accused persons, gave any explanation of the specific role played by each accused persons. They came up with vague testimony that the accused persons were apprehended from a mob of around 1000-1200 public persons.
30. Unfortunately, I also find that the investigation of this case was not (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 24 of 25 Karkardooma Courts, Delhi FIR No. 619/06 logically and properly conducted. From the contradictory account of facts given by different witnesses, I get a feel that an artificial story was framed so as to levy a charge of Section 307 IPC, though the persons who were named by PW-1 as well as by PW-6 were not even chargesheeted by the police, for the reasons best known to them. Therefore, I do find that prosecution has failed to prove the allegations against the accused persons beyond reasonable doubts. Accordingly, all accused persons are acquitted of the charges leveled against them.
File be consigned to record room, as per rules.
Announced in the open court (PULASTYA PRAMACHALA) today on 13.08.2014 Additional Sessions Judge (Shahdara), (This order contains 25 pages) Karkardooma Courts, Delhi (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 25 of 25 Karkardooma Courts, Delhi