Delhi District Court
State vs Ravinder Kumar on 24 November, 2011
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 133/06
Unique Identification No. 02404R0038722006
State
Versus
Ravinder Kumar
Son of Chandu Lal
R/o 41/43, West Punjabi Bagh,
New Delhi.
FIR No. 280/00
PS - Saraswati Vihar
U/s. 147 IPC, 427 IPC and 451 of IPC
read with Section 109 of IPC.
Date of Decision: 22/11/2011
Date of order on sentence: 24/11/2011
ORDER ON SENTENCE
24/11/2011
Present. Ld. APP for State.
Convict Ravinder Kumar in person with counsel Sh. S.C. Buttan.
Heard on the point of sentence.
Learned defence counsel has contended that convict is having his
family. He is not involved in any other case. He is having grown up grandsons
and granddaughters. Learned defence counsel further submits that a lenient view
SC No. 133/06 1
be taken and convict be released on probation.
On the other hand, Ld. APP has contended that accused has been
convicted for offences U/s. 147 IPC, 427 IPC and 451 of IPC read with Section
109 of IPC. Hence, he be dealt with accordingly.
I have considered the submissions of learned defence counsel and Ld.
APP for State. The offences committed has caused a huge loss to the complainant
as household articles and one Honda City car were damaged and Honda City car
was burnt valuing Rs. 8,00,000/ approximately. Glasses of another house were
smashed and damage was caused. Considering the gravity and nature of offences
and loss caused to the complainant, in which, house of the complainant was totally
ransacked by rioting, I am not of the view to release the convict on probation.
Offence U/s. 147 of IPC is punishable with imprisonment of either
description for a term which may extend to two years or with fine or with both.
Accordingly, sentence of two years S.I. is imposed U/s. 147 of IPC
read with Section 109 of IPC.
Offence U/s. 427 of IPC is punishable with imprisonment of either
description for a term which may extend to two years, or with fine, or with both.
Accordingly, sentence of two years S.I. is imposed U/s. 427 of IPC
read with Section 109 of IPC.
Offence U/s. 451 of IPC is punishable with imprisonment of either
description for a term which may extend to two years and shall also be liable to
fine.
Accordingly, sentence of two years S.I. is imposed U/s. 451 of IPC
read with Section 109 of IPC with fine of Rs. 5000/. In default of payment of
SC No. 133/06 2
fine, he shall further undergo S.I. for six months.
Compensation to the tune of Rs. 10 lacs is also imposed upon the
convict, out of which, Rs. 9 lacs will be payable to the complainant i.e. onwer of
H.No. MD1 i.e. Kanwar Sain and Rs. one lac will be payable to the owner of
H.No. MD2, Pitam Pura, Delhi.
All the substantive sentences of imprisonment shall run concurrently.
Fine and compensation not deposited.
If compensation is deposited, then the same be paid to Kanwar Sain,
owner of H.No. MD1, Pitam Pura Delhi, and Rs. one lac to the owner of H.No.
MD2, Pitam Pura, Delhi, after the expiry of period of filing of appeal, as
mentioned above. Both the complainants be informed accordingly.
Convict be remanded to JC to serve the sentence.
Announced in Open Court on
th
dated 24 of November, 2011
(Virender Kumar Goyal)
Additional Sessions Judge
Fast Track Court
Rohini : Delhi
SC No. 133/06 3
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 133/06
Unique Identification No. 02404R0038722006
State
Versus
1. Ashok Kumar
Son of Chandu Lal
R/o 41/43, West Punjabi Bagh,
New Delhi.
2. Ravinder Kumar
Son of Chandu Lal
R/o 41/43, West Punjabi Bagh,
New Delhi.
3. Rajesh
Son of Mam Chand
R/o 16, Alipur road,
Delhi.
4. Sachin Diwan @ Montoo
Son of Sh. Vinod Kumar
R/o B60,
Puspanjali, Pitam Pura, Delhi.
At Present: A301, Meera BaghI,
New Delhi.
SC No. 133/06 4
5. Naveen @ Bitoo
Son of Sh. Vijender Kumar
R/o B60, Puspanjali,
Pitam Pura, Delhi.
At present:
A301, Meera BaghI,
Paschim Vihar, New Delhi.
6. Munni Lal Gupta
Son of Sh. Nathu Mal,
R/o 148, Kapil Vihar,
Kohat Enclave, Pitam Pura,
Delhi.
7. Mrs. Suman
W/o Rajesh
R/o 16, Alipur Road,
Delhi. ( Since discharged)
8. Mrs. Pushpa
W/o Ravinder Kumar Gupta
R/o 41/43, West Punjabi Bagh,
Delhi. ( Since discharged)
FIR No. 280/00
PS - Saraswati Vihar
U/s. 147/149/452/506/427/436/382/120B of IPC
Date of institution of the case: 28/05/2003
Arguments heard on: 12/10/2011
Date of reservation of order: 16/11/2011
Date of Decision: 22/11/2011
SC No. 133/06 5
JUDGMENT
This case was registered on the statement of one Sushila Aggarwal u/s 147/149/452/506/427/436/382/120B of IPC against the accused persons. One complaint by advocate Sh. Gagan Minocha was also given to the police related to the same incident. During investigation, site plan of the place of occurrence was prepared. Burnt car no. DL8SP0048 and its remains , broken pieces of bricks and glasses were taken into possession in this case. Later on, one video cassette was got prepared about the damage caused to the house of the complainant, which was also seized in this case. Broken pieces of bricks, glasses and stones were also taken into possession from the house of Sh. Gagan Minocha.
Another complaint was also given by one kanwar Sain, husband of complainant dated 01/08/2000. During investigation, ownership record of Tata sumo DL 6CD0004 and Tata Sumo no. DL3CD7000, truck no. HR 46A 3654, truck no. HR46A 3565 and tempo no HR46A 3563 were taken and notices were issued to the owners of these vehicles u/s 133 of M.V Act and u/s 160/175 of Cr.PC Act. These were replied upon the concerned persons. Truck No. HR46A3564 was seized in this case.
Fingerprints from the spot were collected. Photographs of place of occurrence were taken. During investigation, vehicle Tata sumo DL 6CD0004 was found in the name of Jai Hind Gupta and Vehicle no. DL3CD7000 was found in the name of Sh. B.M. Malhotra. Truck No. HR46A 3563 was belonging to one Ravinder Kr Gupta. Truck No. HR 46A 3665 was belonging to Ashok Kumar Gupta and these could not be seized for the reasons best known to the accused persons.
SC No. 133/06 6
One DD entry was also got recorded by Inspector Prem Singh Patwal that when he contacted accused Ashok Kumar to surrender before the police or Court then accused Ashok Kumar threatened him. It was further recorded that accused Ashok Kumar was misusing his political links and due to which case could not be proceeded.
On completion of investigation, chargesheet was filed against accused Ashok Kumar, Ravinder Kumar, Rajesh, Sachin Diwan, Naveen @ Bitto, Munni Lal Gupta, Mrs Suman and Mrs Pushpa without arrest being business men and respected persons of the society as mentioned in the chargesheet.
Case was committed to the Court of Sessions on 25/05/04 and was received on 01/06/04. Charge was framed against the accused Ashok Kumar, Ravinder Kumar, Rajesh, Sachin Diwan, Naveen and Munni Lal Gupta u/s 147/149/452/34 of IPC and u/s 427/34 and also u/s 436/34 of IPC on 17/02/2005. Amended charge was framed against these persons on 30/03/2005 u/s 147/149/452/34 of IPC and 427/34 and 436/34 of IPC.
Accused Pushpa and Suman were discharged vide order dated 17/02/05.
To prove its case, prosecution has examined PW1 to PW22 in all. During the trial, FSL report was also filed and was taken on record. Statements of accused persons were recorded. Accused Ashok Kumar, Raivinder Kumar, Rajesh and Naveen have denied the case of prosecution and have stated that they are innocent. On 30/05/2000, their niece Shalini was murdered by her husband, father in law and mother in law as shooting had taken place in their house. Due to this reason, they were busy in the cremation of Shalini, which took SC No. 133/06 7 place on 03/05/2000 and thereafter they sat in the baradari for the condolence. On 05/05/2000, in the morning they had gone to Garh Ganga for " Asthi Visarjan"
from where they returned in the evening after performing the necessary rites. Later on, they came to know that their names have been falsely implicated in this case to pressurize them to withdraw the complainant lodged against the opposite party u/s 302/498A of IPC, but since they did not compromise, therefore they got a false case registered against them in connivance with the police.
Accused Sachin Diwan has stated in his statement that he is innocent and he was busy in the last rites in the house and many persons came to show their condolence and he was busy there. His Mama's and fufa had gone for Gadh Ganga for "Asthi visarjan"
Accused Muni Lal has stated in his statement that he has been falsely implicated in this case. He has no concern with the case. He was only a distant relative and his name has been mentioned only to defame him and malign his reputation in the society.
I have heard ld APP for State and Ld cousnel Sh. S.C.Buttan for accused persons and have gone through the evidence brought on record and material produced on record.
Findings qua identity of the accused persons and their presence at the place of occurrence PW1 Kailash Devi has stated that Kanwar Sain, is her brother. He lived in kothi no. MD1, Pitampura. On 04/05/2000, in the night time, she was present there. On 05/05/2000, she was sitting with her bhabhi Sushila in one room while her mother was in the other room. Servant Anuj was working in the SC No. 133/06 8 house. At about 10.15 am, she heard a noise from outside the house. The crowd was asking to open the gate of their house otherwise they would kill the killers of Shalini. They started pelting stone and broke the window panes and other glasses of the house. They entered in the house by opening the gates. They also broke open the gates of the house and other articles were also damaged. They set the house on fire. They also set the car on fire, which was standing outside the gate of the kothi. The crowd was saying that Ravinder and Ashok had asked them to kill Kanwar Sain and his wife. Due to this incident, she was frightened and went upstairs and she bolted the gate of the room from inside.
Regarding identity of the accused persons, PW1 Kailash Devi has stated that she saw all the accused persons, present in the Court, there. They were instigating the crowd to burn the house. PW1 has identified accused Ravinder, Ashok and Bittoo and Sachin. She could not identify the other accused persons, though they were present there and she was got down by the fire brigade. Her statement was recorded by the police.
Ld defence counsel has contended that PW1 has deposed falsely about the identity of the accused persons particularly accused Ashok, Ravinder, Bittoo and Sachin as they were known to the witness being relative of the deceased Shalini. Ld defence counsel has further contended that PW1 has nowhere stated that about the incident, police was informed at that time, so the witness cannot be relied upon.
PW1 has stated in the cross examination that on seeing the crowd, she became afraid and ran upstairs. Her sister in law and mother remained at the ground floor. She closed the door at the end of the stair case. No one came SC No. 133/06 9 upstair after her. Crowd remained at the spot for about 15 minutes.. PW1 has further stated that she does not know as to who removed her from the roof to the hospital. Only one vehicle was lying in the drive way, which was burnt and it was given to the Shalini at the time of the marriage, so PW1 cannot be disbelieved about the incident.
PW1 has denied the suggestion that she reached at the house of Kanwar Sain in the evening of 05/05/2000. She has also denied that she is made up witness. She has also denied that she named Ravinder, Ashok, Bitto and Sachin as they were the witness in the murder case, with a view to weaken that case.
Ld defence counsel has contended that from the deposition of PW1, it is not certain whether accused Munni Lal Gupta was also present there as she has stated that she did not exactly saw Munni Lal Gupta was also in the group as she could not identify them in the crowd. So, identity and presence of accused Munni Lal Gupta is not proved in any manner.
PW5 is Dr. A. K. Malhotra. He has stated that on 05/05/2000, he was working at Muni Maya Ram Jain hospital. On that day, patient Ms. Kailash aged 60 years was examined by him with the alleged history of violence at home by some mob. As there was no injury, so PW5 prepared OPD consultancy paper Ex.PW5/A. On examination, patient was found to have high blood pressure at that time. Anti hypertensive treatment and anxiolytic given and patient was referred to Government hospital.
PW5 has not been cross examined by Ld defence counsel in any manner that he had prepared the false and fabricated OPD card Ex.PW5/A in SC No. 133/06 10 respect of Mrs. Kailash. Even it is not suggested to PW5 that Mrs. Kailash was not examined by him at that time on 05/05/2000. So, the suggestion given to PW1 that she reached at the house of Kanwar Sain in the evening of 05/05/2000 is itself contrary to the medical record of PW1 as proved by PW5 Dr. A.K. Malhotra.
It is also not disputed that alleged history was given as violence at home by some mob, so the incident as took place has not been disputed by Ld defence counsel except the identity of the accused persons.
PW11 Constable Ram Avtar has stated that on 05/05/2000, on receipt of DD no.7A, he alongwith SI Anand reached at MD1, Pitampura, Delhi and they found that one car was burning inside the gate but outside the building. They also found that other household articles like furniture, refrigerator, TV, table and other articles lying scattered here and there . Glass table, showcase were lying broken and damaged. The members of the family and fire brigade personnels were trying to extinguish fire. So PW11 has also corroborated the fact as deposed by the PW1 Kailash Devi that there was crowd and the fire brigade personnels were trying to extinguish the fire.
Similarly PW19 SI Anant Kiran has also deposed the same facts as of PW11 regarding the incident and has stated that staff of fire brigade was trying to extinguish the fire and he came to know that injured was removed to Muni Maya Ram Jain hospital. PW19 has further stated that he after conducting the proceedings at the spot, went to Muni Maya Ram Jain hospital, where he met with one Sushila and recorded her statement Ex.PW6/A. Again he came back at the spot and prepared rukka on the statement of Sushila, which is Ex.PW19/A. He got registered the case through constable Ram Avtar. PW19 has also stated SC No. 133/06 11 that the prepared the site plan Ex. PW19/B and recorded the statements of Sanjay, Kailash Devi and Anuj.
According to the case of prosecution, statement of Smt Kailash was recorded on 05/05/2000 itself and PW1 has also stated that she made her statement to the police about the incident. So the testimony of PW1 Smt Kailash inspires confidence and she can be relied upon as she was present at the house of Kanwar Sain at the time of incident and she went upstairs and she was removed by the officials of fire brigade and being on roof she had an opportunity to see the persons who attacked house no. MD1 Pitam Pura, Delhi.
According to PW1, on that day, her Bhabhi , her mother and servant Anuj were also present in the house. PW6 Smt Sushila has stated that on 05/05/2000, she was present at house No. MD1 Pitam Pura, Delhi, which was her brother in law i.e. Kanwar Sain's house. At that time, her mother in law Smt Mishri Devi and her sister in law (nanad) Kailashwati were also present there. At about 10/10.15 pm, Anuj, servant of the house was washing the clothes and she and her nanad i.e. PW1 were sitting in a room and mother in law was sitting in another room. All of sudden, they heard as if the doors of the house were being knocked at violently. She found about 60/70 persons outside the house raising lalkars" tumhe zinda nahi chhodenge, maar dalenge, aag laga do." Those persons then smashed the window panes of drawing room of the house. A car was lying parked inside the house was also set on fire by those persons . About 15/20 persons, out of the aforesaid persons, entered the house. Her sister in law i.e. Kailashwati went to the roof of the house. Everything around was damaged including telephone wires. To save herself and her mother in law, she took her SC No. 133/06 12 out of the house and came out of the room. At that time, she saw a number of persons leaving that place in a bus, in a dumper and Tata Sumo, but he could not identify anyone of them. She heard being said there " Bittu bauji kah rahein hai ki gadi main be aag laga do" and " Ashok Bauji kah rahein hai kuch bhi bachne na paaye, Shalini ko marne walo ko hum nahin chhodege." Prior to that, she had seen Ravinder Babu, Bittu Babu, Diwan father of Shalini, Montu at the time of marriages etc, but she did not see anyone of them on the day and place of occurrence. PW6 has further stated that she did not see Ashok, Bittu @ Naveen, Sachin and Ravinder in the crowd present at the place of occurrence or instigating the crowd or pelting stones because she was inside the house. She only heard people calling their names.
Ld defence counsel has contended that PW6 Smt Sushil Aggarwal has been confronted with the fact that everything around were damaged including telephone wires, which is not so recorded in her statement Ex.PW6/A. In my view, deposition of PW6 itself proves the fact as to why police was not informed at the time of incident because telephone wires were also damaged, so persons who were present in the house were not having any opportunity to inform the police and more so they were so much frightened that they could not thought about informing the police about the incident.
PW6 has not supported the case of the prosecution regarding the presence of Ashok, Bittoo @ Naveen, Sachin and Ravinder and she has been cross examined by Ld APP , but even then she has not supported the case of the prosecution, hence identity of the accused persons as aforesaid at the place of occurrence is not proved in any manner. She had also come out of the house, so SC No. 133/06 13 she could have seen the accused persons, if they at all were present, but she has deposed fairly that she over heard slogans raised by the crowd.
Ld defence counsel has contended that even the slogan as raised "Tumhe zinda nahi chhodenge, maar denge, aag laga do." are not appearing in the statement Ex.PW6/A, so she has made improvement in this respect, hence she cannot be relied upon.
In my view, all though the particular slogan is not written therein, but has written that " tumhe zinda nahi Chhodenge" which proves that crowd was raising the slogan at the time of incident.
PW6 Sushila Aggarwal has not been cross examined regarding the incident, which had taken place except the identity of the accused persons, to which she has stated that she did not see the accused Ashok, Bitto @ Naveen, Sachin and Ravinder at the place of occurrence because she was inside the house. So to the extent of identity of the accused persons, she is not helpful to the case of prosecution, but rest of her testimony inspires confidence and she can be relied upon that crowd has caused damaged to the house and car was set on fire by the crowd. She has also corroborated regarding the presence of Smt Misri Devi and PW1 Kailash Wati and about servant Anuj at that time in house no. MD1 Pitam Pura, She has also corroborated that when the crowd attacked the house, her sister in law went to the roof of the house.
PW6 further inspires confidence about the fact that she saw number of persons leaving the place of occurrence in bus, dumper and Tata sumo to which PW6 has not been cross examined in any manner that crowd had not been reached there nor left in these vehicles from the place of occurrence. SC No. 133/06 14
PW12 Anuj Kumar has stated that on 05/05/2000, she was working in MD1, Pitampura, Delhi. He was working there for the last two years back from the date of incident. On that day, at about 10/10.30, he was doing household work, Mishri Devi, Kailash Devi and Sushila were present in the house. Suddenly, he heard noise emanating from outside the house. He immediately came out of the house and found the doors of one vehicle make Tata Sumo were broken. One dumper, Tata 407 and a school bus were also stationed there. About 60 to 70 persons were present in all the four vehicles, which included Ravinder and Ashok i.e. Maternal uncle of Shalini, Montu and Bitto, brother of Sahlini, whereas Munni Lal, relative of Shalini and one person Rajesh, fufa of Shalini and certain other labour class persons. All of them were shouting that nothing should remain in the house of Kanwar Sain and they started pelting stones at the house and they set the house on fire and also set on fire the Honda city car standing there. The ladies were shouting slogans outside the house. After damaging the properties, they all left away in the vehicles towards Munni Maya Ram hospital.
PW12 has identified all the accused persons before the Court correctly. He has further stated that he has seen all the relatives of Shalini and they were known to him as they use to come at the house of Kanwar Sain, where he was working.
Ld defence counsel has contended that from the deposition of PW12, it is doubtful whether he was working as servant at the house of Kanwar Sain because he has not produced any documentary evidence to show that he was working as servant at that time. Ld defence counsel has further contended that PW12 has given his age as 22 years in the year 2009, when he was examined, SC No. 133/06 15 which shows that in the year 2000 he was just 13 years of age. So he cannot be relied upon as to whether he was working as servant in the house of Kanwar Sain at the time of incident or not.
In my opinion, PW12 has given the description of the house in question and about the incident and also of the place where he used to live in the house, so he cannot be disbelieved, in any manner. PW12 Anuj Kumar has been cross examined most of the part in respect to the incident, which took place on 03/05/2000 regarding murder of Shalini, which is not relevant to this case, hence testimony of PW12 is unrebutted and unshaken. In the cross examination, PW12 has stated that his statement was recorded by police in the day time on 05/05/2000, which corroborates with the deposition of PW19 SI Anant Kiran that he recorded the statement on the day of incident.
Ld defence counsel has further contended that PW12 has been confronted with his statement Ex.PW12/DA, where names of Ashok, Ravinder, Bittoo are not appearing rather it is mentioned that some persons were leading, who were relatives of deceased Shalini, so the identity of the accused persons is doubtful from the statement of PW12 also. Even PW12 has been confronted with the name of accused Rajesh, with his statement Ex.PW12/DA, so PW12 Anuj cannot be relied upon.
In my view, the contention of learned defence counsel is forceful and improvement made by PW12 is material regarding the name of accused persons. PW12 was working there for the last about two years, so it cannot be said that he was not knowing the accused persons and could not identify them in the crowd. Had the accused persons been present at the time of incident, then certainly, their SC No. 133/06 16 names could have been disclosed by PW12 in his statement made to the IO. It is not the case of prosecution or any of the witness has not stated that accused persons were not on visiting terms with the complainant party.
PW5 Dr. A.K. Malhotra has stated that on 05/05/2000, he had also examined patient Sushila, aged 52 years, with the alleged history of violence by some mob. He prepared OPD consultancy paper Ex. PW5/B. The patient was complaining of uneasiness and restlessness. The patient was also found having high blood pressure at that time. Anti hypertensive treatment and anxiolytic given and patient was referred to government hospital for further management.
Again, PW5 has not been cross examined in respect of Sushila that she was not examined by him on 05/05/2000 or that she was not examined by him after the incident or that OPD card was fabricated in connivance with the complainant party. So, PW5 has corroborated with PW6 that after the incident, she was examined by him.
PW2 Sanjay Aggarwal is one of the eye witness to the incident. He has stated that Kanwar Sain, his uncle, was residing in H.No. MD1, Pitam Pura. Sushila Devi, complainant, is his mother. In the night of 04/05/200, his mother Sushila Devi had gone to live in H.No. MD1, Pitam Pura. On 05/05/2000, he went there to bring back his mother and reached there at about 10.15/10.30 a.m. He saw that household articles of the house were damaged and scattered and the house was burning. Car, which was standing outside the kothi, was also burning. He saw his mother hiding herself in the corner of the house, outside the house. His grandmother was sitting on the road. He also saw crowd of 40/50 persons present there. Four vehicles were also standing there. One of the vehicle was SC No. 133/06 17 school bus, one was dumper, one was TATA 407 and one was TATA Sumo. The left door of the Sumo was broken. He noted down the numbers of three vehicles on a slip, which he had handed over to the police. After damaging the house and setting the house on fire, the crowd went away in those vehicles. They were accused Ashok, Ravinder and Naveen. He did not see anyone on the roof of the house or inside the house. Thereafter, fire brigade and police also arrived and fire brigade got down his bua from the roof. Police also took into possession the Honda City Car vide memo Ex. PW2/A alongwith stones lying on the spot. PW2 has further identified the burnt Honda City car as Ex. P1 before the Court.
Learned defence counsel has contended that PW2 Sanjay Aggarwal is a planted witness and he neither reached at the spot nor was present at the time of incident because he did not raise any hue and cry or alarm on seeing the Honda City Car on fire. He took his mother and Smt. Mishri Devi, his grandmother from the house to Muni Maya Ram Jain Hospital, but has stated that police had already been informed. His statement was recorded at about 1111.15 a.m. and he signed the same. Learned defence counsel has further contended that learned Addl. PP has gone through the file at that time, but signed statement is not available in the record, so he cannot be relied upon Learned defence counsel has further contended that in his further cross examination, PW2 Sanjay Aggarwal has been confronted with his earlier deposition and has stated that on 05/05/2000, he reached at the hospital at about 11 or 11.15 a.m.. He stayed there for half an hour and thereafter left for his house. On that date, police met him in front of the house of Kanwar Sain, on his return from the hospital and thereafter he left for his house. His mother was also SC No. 133/06 18 accompanying him at that time. Learned defence counsel has further contended that again PW2 Sanjay Aggarwal has further deposed that he did not remove his mother or his father's sister to hospital, rather, he brought both of them and his grandmother from the hospital. So, PW2 Sanjay Aggarwal himself has contradicted about the fact as to whether he had removed his mother and Smt. Mishri Devi, his grandmother, to Muni Maya Ram Jain Hospital or he took them back from the hospital.
Learned defence counsel has further contended that again, PW2 Sanjay Aggarwal has stated that his mother took his grandmother to hospital in his presence. He did not accompany his mother to the hospital and has voluntarily stated that he did not so accompany them as fire brigade personnel were busy in bringing down his father's sister. His took his father's sister to hospital. His mother, his grandmother and his father's sister were discharged from the hospital after medical aid. So, it is not sure whether PW2 Sanjay Aggarwal took his father's sister to hospital or not as earlier he had stated that he did not remove his father's sister to hospital. So, PW2 cannot be believed in any manner.
In my view, PW1 Smt. Kailash Devi has stated in the cross examination that at the time of discharge, Sanjay and his friends etc and their relatives had come to the hospital and from the hospital, she went to the house of Sushila. So, the testimony of PW2 Sanjay Aggarwal is corroborated with the deposition of PW1 Smt. Kailash Devi to the extent that she was brought back to the house of Kanwar Sain by PW2 Sanjay Aggarwal after her discharge from the hospital. PW6 Smt. Sushila Aggarwal has also stated that her son Sanjay Aggarwal also reached there and met her outside the house. SC No. 133/06 19
PW19 ASI Anant Kiran has further corroborated and has stated that he recorded statements of Sanjay, Kailash Devi and Anuj. So, presence of PW2 Sanjay Aggarwal is not doubtful in any manner in respect that he had also reached at the spot and saw incident taking place.
On the other hand, learned defence counsel has contended that PW19 SI Anant Kiran has stated in the cross examination that witness Sanjay met him at the spot after sending ruqqa at about 1.15 p.m. and he did not meet Sanjay till the time of recording of statement of Sushila Devi. Learned defence counsel has further contended that PW19 SI Anant Kiran has further stated that he had recorded statement of Sanjay before receiving the copy of FIR, which shows that before 1.15 p.m., Sanjay as not present there.
In my view, it seems to be a minor contradiction as PW2 Sanjay Aggarwal has further stated that he has brought both of them and his grandmother from the hospital, who were discharged after first aid after about 30 minutes of stay there.
MLC of Smt. Kailash is Ex. PW5/A and of Smt. Sushila Aggarwal is Ex. PW5/B of Muni Maya Ram Jain Hospital. According to PW5 Dr. A.K. Malhotra, on 05/05/2000, he examined Smt. Kailash with the alleged history of violence at home by some mob and prepared OPD Consultancy Paper Ex. PW5/A. On the same day, he also examined Smt. Sushila Devi, aged about 52 years, with alleged history of violence by some mob and prepared OPD consultancy paper Ex. PW5/B. PW5 Dr. A.K. Malhotra has not been cross examined by learned defence counsel in any manner to the extent that both Smt. Kailash Devi and Smt. Sushila were not examined by him on 05/05/2000. Even PW5 has not been cross examined SC No. 133/06 20 as to at what time they reached in the hospital and when they were discharged and whether they were accompanied by someone or not. So, in absence of such cross examination, it cannot be said that PW2 Sanjay Aggarwal had not seen the accident and had not brought back the inured persons from the hospital. Incident had taken place at about 10.15 or 10.30 a.m. Thereafter, injured persons were taken to Muni Maya Ram Jain Hospital. Injured persons stayed there for half an hour and they were brought back by PW2 Sanjay Aggarwal. So, in all, PW2 Sanjay Aggarwal could not have reached at the spot at about 11 or 11.15 a.m., as deposed by him, when his statement was recorded by the police and it seems to be more probable that his statement was recorded by the police, as deposed by PW19 SI Anant Kiran, at about 1.15 p.m. or after sending the ruqqa by the IO.
Regarding the identity of accused persons, PW2 Sanjay Aggarwal has stated that he had seen accused Ashok, Ravinder and Naveen leading the crowd at the time of incident and he has been cross examined by learned defence counsel regarding the presence of accused persons that accused persons had gone to Garh Ganga on 05/05/2000, but PW2 Sanjay Aggarwal has denied the knowledge of the same.
Presence of PW1 Smt. Kailash Devi and Smt. Sushila Aggarwal alongwith mother of PW1 in H.No. MD1, Pitam Pura, Delhi, in the intervening night of 04/05/2000 and in the morning of 05/05/2000 with servant Anuj Kumar, is not unnatural. PW16 Kanwar Sain with his son Rahul was in judicial custody in Fir No. 278/00 i.e. case regarding murder of Shalini. So, the relatives must have been there to lookafter the house.
Another independent witness is Smt. Pinki Aggarwal. She has been SC No. 133/06 21 examined as PW10. She has stated that she runs a beauty parlour under the name and style Anish Beauty Parlour" at BP29, Pitam Pura, Delhi. On 05/05/2000, at about 10.15 a.m., she was present in her beauty parlour. In between 10.15/10.30 a.m., she heard noise and she came out of the beauty parlour. At that time, she saw many vehicles lying parked in front of her beauty parlour. These were Tata Sumo, matador and school bus. The persons, who alighted from those vehicles, started raising slogans "Kanwar sain murdabad", "Badla leke rahenge" and also started pelting stones at the house of Kanwar Sain. They set the Honda City vehicle lying parked inside the house of Kanwar Sain on fire and also set on fire his house. They also caused mischief. They threw the articles out of the house of Kanwar Sain. Those persons, who did all this, were family members of Shalini. They were also including accused Ashok Aggarwal, maternal uncle, Ravinder, another maternal uncle, Montu, brother and Rajesh, father's sister husband of Shalini. She knew all of them even prior to the present occurrence as they used to visit the house of Kanwar Sain and she also used to visit the house of Kanwar Sain. The other persons were of labour class. The said persons ultimately left towards Muni Maya Ram Hospital, while raising slogans "Kanwar Sain Murdabad". When they left, she entered her beauty parlour. PW10 has further identified accused Ashok Aggarwal, Rajesh, Montu and Ravinder before the Court.
As PW10 Smt. Pinki Aggarwal has not supported the case of the prosecution, hence, she has been cross examined by learned Addl. PP, wherein she has admitted that she had told to the police that assailants had damaged door, refrigerator, T.V., telephone, deck and window panes/glasses of the house. She had seen Smt. Sushila and her dadi running away from the house of Kanwar Sain, SC No. 133/06 22 whereas Smt. Kailash was present on the roof.
PW10 Smt. Pinki Aggarwal has been confronted with her previous statement Ex. PW10/A, wherein it is recorded that Sushila, her dadi and Kailash were seen present on the roof of the house. She has been confronted with certain other parts of her statement Ex. PW10/A recorded earlier by the police. She has further stated in this cross examination that she did not see accused Munni Lal Gupta amongst the culprits on that day of occurrence.
Learned defence counsel has contended that one one hand, PW10 Smt. Pinki Aggarwal has stated that accused persons and family of Kanwar Sain were known to her and on the other hand, she has stated that on that day, when incident had occurred, she was not aware of death of Shalini, which is quite unnatural and even she did not come to know about the arrest of Kanwar Sain and others, which is also unnatural as according to her deposition, she was having beauty parlour in front of the house of Kanwar Sain and she was knowing the accused persons and also the family members of Kanwar Sain as she used to visit the house of Kanwar Sain. So, PW10 cannot be relied upon in any manner.
Learned defence counsel has further contended that PW10 Smt. Pinki Aggarwal has also been confronted with the fact that she saw many vehicles parked in front of her beauty parlour, which is not recording in her statement Ex. PW10/A. Even it is also not recorded in her statement Ex. PW10/A that Honda City Car was parked inside the house of Kanwar Sain and crowd had set the car on fire in the house. Learned defence counsel has further contended that PW10 Smt. Pinki Aggarwal has admitted that only Shalini used to come to her beauty parlour and no other family member from inlaws house used to come in the beauty SC No. 133/06 23 parlour. So, the claim of PW10 Smt. Pinki Aggarwal that she was knowing the family members of Kanwar Sain is not inspiring any confidence.
In my view, PW10 Smt. Pinki Aggarwal has admitted further in the cross examination that she used to visit the house of Kanwar Sain as and when there is any death and marriage in the family and she did not go to their house at the time of death of Shalini as there was no person in the house, which is evident from the fact that after the murder of Shalini, no one was in the house and other relatives were staying there to lookafter the house with the servant. So, it cannot be said that PW10 cannot be relied upon at all.
Learned defence counsel has further contended that PW10 Smt. Pinki Aggarwal has stated in the cross examination that she had not seen servant Anuj in the house of Shalini at that time nor she had seen Sanjay Aggarwal present in the house at that time.
The contention of learned defence counsel is not forceful as according to deposition of PW12 Anuj, he was doing household work in the house and Sanjay Aggarwal came there and went to Muni Maya Ram Jain Hospital and brought the injured persons back to the spot. PW10 Smt. Pinki Aggarwal was seeing the incident from her beauty parlour. Hence, it is natural that she might not have seen servant Anuj and Sanjay Aggarwal at that time.
Learned defence counsel has contended that PW10 Smt. Pinki Aggarwal has admitted that accused Ashok Aggarwal was not known to her prior to the incident. Similarly, Montu and Ravinder were not known to her and she had seen the family members of Shalini in the photographs in album etc., shown to her by Shalini, which was seen by her after one or two months of the reception. SC No. 133/06 24 Learned defence counsel has further contended that PW10 Smt. Pinki Aggarwal has admitted that from 1997 till the incident in question, she never either met or saw accused Ashok Aggarwal, Ravinder and Montu. So, her deposition regarding identity of accused persons as the persons, who were leading the crowd and caused damage to the house of Kanwar Sain, is doubtful and cannot be relied upon.
During this incident, not only H.No. MD1, but H.No. MD2 was also damaged by the mob. In this respect, PW9 Smt. Vimal Manocha has stated that on 05/05/2000, at about 10/10.15 a.m., she was present at her house. Kanwar Sain is their immediate neighbour. At that time, she heard some noise. Thereupon, she peeped through the window of the kitchen of her house and saw that a big vehicle came and stopped in front of their house. 20/25 persons alighted from that vehicle. She also noticed another big vehicle lying parked across the road in front of her house. Name of some school was found written on the second vehicle. All of a sudden, she heard noise and at the same time, saw pelting of stones. She felt as if the window panes of their house were getting smashed. She came out of the kitchen and went to the drawing room and found broken pieces of glass lying inside. These broken pieces of glass were of their drawing room. She also found some stones lying scattered inside the drawing room. She found that all the doors of their house were banged from outside. She also heard that people were saying that she should open the door of house, otherwise they would set their house on fire.
PW9 has further deposed that immediately she locked all the doors of her house from inside and telephonically called at H.No. MD18 of the same locality and also contacted her son Gagan. Thereafter, she accompanied son of the SC No. 133/06 25 landlord of MD18 to their house after he reached their house. Thereafter, her husband came to MD18 and took her along to their house.
Regarding the identity of the accused persons alighted from big vehicles, PW9 has stated that they were of labour class. The persons, who alighted from the vehicle lying parked across the road, were in white clothes. None of the accused was amongst those persons wearing white clothes. Police lifted some stones from inside their house.
PW9 Smt. Vimal Manocha has not been cross examined regarding the damage caused to her house by the mob as she had not identified the accused persons in any manner. So, from the deposition of all these witnesses, as discussed above, prosecution has been able to prove beyond reasonable doubts that on 05/05/2000, at about 10/10.15 a.m., a crowd came at the spot in some vehicles and caused damage to H.No. MD1 and threw household articles and also set the house on fire with Honda City Car lying parked inside the house. The crowd had also caused damage to H.No. MD2 of Smt. Vimal Manocha by pelting stones.
Another PW is Gagan Manocha examined as PW18. He is son of PW9 Smt. Vimal Manocha. He is an Advocate by profession. His father is also an Advocate by profession. He has stated that in the first week of May,2000, when he was present in High Court, he received a call from his mother, who was in a distress condition and had informed that lot of people had entered their house and caused damage to window panes on the front side of their house. They also threatened his mother to open the door, else they would set the house on fire. His mother ran for her safety from the back door side to the neighbours house. PW18 reached at his house and found that the window panes on the front side of the SC No. 133/06 26 house were broken and the broken pieces of glasses and stones were lying inside and outside the house.
PW18 has further deposed that in fact, this was on account of him and his father being present in the court at the time of production of Kanwar Sain and his son Rahul, who were arrested in relation to shooting incident of Shalini Aggarwal, wife of Rahul Aggarwal.
PW18 has further deposed that his mother disclosed that about 20 to 25 people had entered into their property and she saw many persons outside, who had come in a tempo, bus and Sumo van. This was seen by his mother from the window of the kitchen and of the rooms on the front portion of the house. The in laws of Rahul Aggarwal had criminally trespassed in their property and caused damage to their property and threatened the safety of his mother. He gave a written complaint in this respect to the police Ex. PW18/a.
PW18 has been cross examined by learned defence counsel regarding his appearance as an Advocate for Kanwar Sain, to which, PW18 has stated that he appeared as courtesy before the Court being a neighbour and has denied that he has legally assisted Kanwar Sain and Rahul and he visited the house of Kanwar Sain from 03/05/200 to 05/05/2000 as a sympathy only.
PW18 has further stated in the cross examination that when he reached at his house, his mother was not there as his father had taken his mother from the rear side neighbours house. Regarding the identity of the accused persons, who had caused damage to H.No. MD2, PW18 has stated that from the conversation and information, he guessed that relatives of Shalini had caused damage.
Admittedly, PW18 is not eye witness to the incident and whatever SC No. 133/06 27 information he has gained about the incident is from his mother. So, it seems that H.No. MD2 was damaged by the crowd because PW18 and his father were representing Kanwar Sain and his son Rahul before the court in respect of murder of Shalini.
PW15 Smt. Veena Gupta has stated that on 05/05/2000, she had gone to the house of Dr. Brij Mohan at about 9.00 a.m. at a walking distance of one minute from her house. When she left her house, her mother in law, her sister in law Sushila Devi, her sister in law Kailash Devi and their servant Anuj were present in the house. While sitting at the clinic of Dr. Brij Mohan, she came to know that a case was registered for dowry against their family members. Thereafter, she was told to remain there, otherwise she could have been arrested. PW15 came to know about the incident, so, she is not eye witness to the incident, but has stated that while she was coming to house in a car with her brother Ishwar Chand, she saw smoke coming out from their house and the Honda City car, which was parked inside the house. She can tell the names of the persons, who were present in the crowd and can identify them and has identified accused Ravinder Kumar, Ashok Kumar, Rajesh Kumar, Munni Lal, Sachin, Naveen, Suman and Pushpa. Other persons were of labour class. They came to her house in a Tata Sumo, truck and school bus. Thereafter, lady police came at the spot and she left the spot. Video of their house was prepared and photographs were taken. Video cassette was seized vide memo Ex. PW15/A. PW15 has also identified truck No. HR46A3564 as Ex. P2, which was seen by her in front of her house and has further identified video cassette as Ex. P3. She has also identified the photographs Ex. PW7/1 to Ex. PW7/26 of her house, which were taken by the police after the SC No. 133/06 28 incident.
In the cross examination, PW15 has again confirmed that her mother in law Mishri Devi, Jethani sushila Devi, her nanad Kailash Devi and servant Anuj were present in the house. Anuj was residing with them at that time, who had joined as servant with them in the year 1998. One Mr. Pandit, who was working at their shop in Naya Bazaar at that time had introduced Anuj to them. So, this fact is also corroborating with the cross examination of PW12 Anuj Kumar that on 05/05/2000, he was working in H.No. MD1 for the last about two years.
In the cross examination, PW15 Smt. Veena has again confirmed that she came to know about the damage to house on 05/05/2000 itself as she had seen the same, while sitting in the car outside the house. She has further explained that her husband was also arrested in case U/s. 302 of IPC on 03/05/2000. At that time, she was admitted in the hospital. She was admitted in the hospital on 03/05/2000 in the night and came back from the hospital to her house in the night of 04/05/2000.
It is not suggested to the witness by learned defence counsel that she was in judicial custody on 05/05/2000 and had not seen the damage to the house. Merely that PW15 has not produced prescription given by Dr. Brij Mohan on 05/05/2000 does not mean that she had not gone to the clinic of Dr. Brij Mohan for her medical examination on 05/05/2000, as deposed. Again, she has further stated that she was discharged in the evening from Jaipur Golden Hospital on 04/05/2000. She has further stated that she was called by the doctor for checkup at about 9.30 a.m. on 05/05/2000 and it took 3045 minutes and by 10.30 a.m., she was free. PW15 has further stated that she left the clinic of Dr. Brij Mohan at SC No. 133/06 29 about 10.30 a.m. and came back in the van of his brother Ishwar Chand, who was driving the same.
Learned defence counsel has contended that PW15 has made improvement about the smoke coming out of the house and also from Honda City car, which is not appearing in her statement Ex. PW15/DA, which shows that she is not witness to the incident at all. Learned defence counsel has further contended that PW15 has further stated that while she was sitting in the van, the crowd was having its back towards her and has again stated that she had seen them, while they were coming out of the house. The truck was also standing outside the house on the road. The truck was standing in front of gali adjoining to their house, but was standing towards the market. Only labour class boarded the truck, when they came out of the house.
So, the labour class persons were seen by PW15. If at all, we assume that she had seen the incident, but even then, it is doubtful that she had seen accused Ravinder Kumar, Ashok Kumar, Rajesh Kumar, Munni Lal, Sachin, Naveen, Suman and Pushpa in the crowd. Even if we assume that the accused persons were present, then no role has been attributed on the part of these accused persons by PW15 as to whether they were instigating the crowd to damage the house or were leading the crowd or were instigating the crowd to raise slogans against Kanwar Sain and his family members. So, regarding identity of accused persons, PW15 Smt. Veena Gupta cannot be relied upon and she does not inspire any confidence about the presence of accused persons at the spot.
PW16 Kanwar Sain was in judicial custody on 05/05/2000. So, whatever he had come to know about the incident is from his relatives, who met SC No. 133/06 30 him in Tihar Jail after 05/05/2000 and also about the name of the accused persons i.e. Ravinder Kumar, Ashok, Bittu and Sachin, who had come to their house with labourers and had caused damage to their house MD1, as told to him.
PW16 has further stated that he and his wife were released on bail on 21/06/2000. he made inquiries as to whether any FIR was registered. Thereafter, he reached at his house MD1 and saw damage to his house and household articles. He also found one briefcase missing containing two gold sets, seven gold ginnies, 100 silver coins, 3540,000/ cash and some stamp papers. Thereafter, investigation was transferred to Crime Branch and he handed over the list of damage caused to his house Ex. PW16/A to the police. So, PW16 is not eye witness to the involvement of accused persons in the incident, which had taken place on 05/05/2000.
One more independent witness is PW14 Vinod Kumar Arya. He has stated that he was running a shop in MD market, Pitam Pura, Delhi, under the name and style M/s. Pooja Collection. He does not remember the date, month and year of the incident, but it was around 57 years back, when he went to open his shop at about 10.30/11 a.m. He heard lot of noise. He went towards the same and saw that at MD1, Pitam Pura, many people had gathered there and were pelting stones towards the house and were trying to damage the house. Then he came back to his shop. The crowd had put on fire a vehicle, which was standing in MD1, Pitam Pura. The crowd had also put on fire the said house as well. It took about half an hour. H.No. MD1 belongs to Kanwar Sain. The crowd was consisting of 7080 persons. He had gone to his shop on a two wheeler scooter.
As PW14 has not supported the case of the prosecution, hence, he has SC No. 133/06 31 been cross examined by learned Addl. PP. Even in the cross examination, he has not supported the case of the prosecution regarding the fact that he saw big vehicle and one Munni Lal Gupta, resident of Kapil vihar, present there and was standing outside. He has been confronted with his statement Ex. PW14/A. So, from the deposition of PW14 Vinod Kumar Arya, prosecution has been able to prove beyond reasonable doubts that a crowd/mob of 7080 persons had caused damage by pelting stones to H.No. MD1 and also set the same on fire alongwith vehicle, which was standing in MD1, Pitam Pura, but he has not supported the case of the prosecution regarding identify of any accused persons, particularly accused Munni Lal Gupta.
PW1 Smt. Kailash Devi has named the accused persons instigating the crowd to burn the house i.e. accused Ravinder, Ashok, Bittu and Sachin and in the cross examination has stated that she cannot say exactly if Munni Lal Gupta was in the crowd as she could not identify him in the crowd.
PW2 Sanjay Aggarwal has stated that 23 persons were leading the crowd. They were accused Ashok, Ravinder and Naveen.
PW6 Smt. Sushila Aggarwal has stated that she had not seen anyone of these persons i.e. Ravinder Babu, Bittu Babu, Diwan and Montu on the day of aforesaid occurrence. Even in the cross examination, she has stated that she did not see accused Ashok, Bittu @ Naveen, Sachin and Ravinder in the crowd instigating the crowd or pelting stones because she was inside the house.
PW9 Smt. Vimal Minocha and PW18 Gagan Minocha have not named any of the accused persons instigating or causing damage to their house MD2, Pitam Pura, Delhi. PW10 Smt. Pinki Aggarwal has named accused Ashok SC No. 133/06 32 Aggarwal, maternal uncle, Ravinder, another maternal uncle, Montu, brother, and Rajesh, father's sister husband of Shalini as the persons, who had caused damage to house of Kanwar Sain i.e. MD1, Pitam Pura, Delhi, but in the cross examination, she has stated that she did not see Munni Lal Gupta amongst the culprits on the aforesaid date, time and place and from her deposition, it has also come on record that she was not knowing to the accused persons and had seen their photographs in the album. She neither met them nor saw the accused persons. So, in my view, PW10 Pinki Aggarwal cannot be relied upon regarding the identity of the accused persons and that they were present at the spot instigating the crowd to cause damage to the house and to set the same on fire.
PW14 Vinod Kumar Arya has not named any person, rather he has not supported the case of the prosecution regarding the identity of accused Munni Lal Gupta present in the crowd and standing outside the house.
PW15 Smt. Veena Gupta came to know about the identity of accused persons as hearsay.
PW16 Kanwar Sain was in judicial custody at that time, so, PW1, PW2 and PW6 have named some of the accused persons and PW1 Smt. Kailash Devi has stated that accused Munni Lal Gupta was not present. In such circumstances, identity of accused Munni Lal Gupta is doubtful as to whether he was present at the spot at the time of incident and was leading and instigating the crowd to cause damage to H.No. MD1, Pitam Pura, or H.No. MD2, Pitam Pura and to set the same on fire.
Learned defence counsel has contended that in defence of the accused persons, DW1 Sh. Devender has been examined, who has stated that he is working SC No. 133/06 33 as Purohit/Acharya and is doing the immersion of ashes of dead persons. He used to keep the record of the persons, whose ashes are immersed and made entry in the Bahi in Mundi language according to their family history. DW1 has further stated that on 05/05/2000, Friday, Jai Hind, Ashok Kumar, Surender Kumar, Ravinder Kumar, Inderawati, Shakuntala, Santosh, Mohini and Veena came to Gangaji with the ashes of niece Shalini Devi @ Shalu, R/o MD1, Pitam Pura, Delhi, and ashes were immersed in Gangaji. Maternal uncle Jai Hind and Ravinder, Anand Kumar alongwith Vijay Diwan i.e. Naveen @ Bittu, alongwith Fufa Mam Chand's son Rajesh Kumar of civil lines alongwith driver of Uttarkashi alongwith driver Chhotan Mishra of Bihar also came. He made entry in his record at about 10.30 a.m. Family members of deceased Shalini reached to him at about 9.30 a.m. Firstly, they got bath and thereafter the sanskar of Asthi visersion was performed. Thereafter, they again took the bath and other formalities were completed. After completing all the formalities, these persons came to his place and according to DW1, he made entry in this respect, copy of which is Ex. DW1/A. It was also signed by Ashok Kumar at point A, Ravinder at point B, Naveen at point C and Rajesh Kumar at point D. DW1 has also identified the accused persons before the Court i.e. Ashok Kumar , Rajesh, Ravinder and Naveen as the same persons, who had come to him on 05/05/2000 for immersion of ashes of deceased Shalini.
Nothing came out from the cross examination of DW1 to disbelieve his testimony. He has maintained the record as per his practice in Mundi language. He has also produced the original Bahi. So, it is doubtful whether on 05/05/2000, accused Ashok, Ravinder, Rajesh and Naveen were present at Garh Ganga, Garh Mukteshwar, District Ghaziabad, or were present in front of H.No. MD1, Pitam SC No. 133/06 34 Pura, at about 10.15 a.m. or 10.30 a.m. and were instigating the crowd and were leading the crowd to cause damage to the house and to set the same on fire.
Learned defence counsel has contended that considering the distance between Delhi and Garh Ganga, Garh Mukteshwar, it was not possible for the accused persons to reach at Delhi after immersion of ashes to instigate and lead the crowd. So, in all, accused persons could not have reached at 10.15 or 10.30 a.m. at H.No. MD1, Pitam Pura, Delhi.
In view of above, the deposition of DW1, who is an independent witness and is not interested in any manner, has maintained his record in the ordinary course of his business, hence cannot be disbelieved in any manner regarding the presence of accused Ashok, Ravinder, Rajesh and Naveen at Garh Ganga, Garh Mukteshwar, District Ghaziabad, on 05/05/2000 at about 9.30 a.m. at his place. So, the presence of accused Ashok, Ravinder, Rajesh and Naveen is doubtful at the place of occurrence on that day at about 10.15/10.30 a.m. and it seems that witnesses being relatives of Kanwar Sain have named them because Kanwar Sain and his son Rahul were behind bars due to murder of Shalini and accused persons are relatives of Shalini i.e. accused Ashok and Ravinder are maternal uncles of Shalini, accused Rajesh is Fufa of Shalini and accused Naveen is cousin of Shalini.
Learned defence counsel has further contended that Kanwar Sain and Sanjay Aggarwal i.e. PW16 and PW2 had also given affidavit i.e. PW16/DB and Ex. PW2/DA, wherein Sanjay Aggarwal declared on oath that due to misrepresentation and misconception, he named few persons/relatives of Shalini Aggarwal involved in rioting in FIR No. 280/2000. He was under stress since his SC No. 133/06 35 cousin brother Rahul Aggarwal and uncle were involved in other case FIR no. 278/2000, got registered by relatives of Shalini Aggarwal and his witness in Fir No. 280/2000 was purely based on guess and suspicion and he had personally not seen any relative of Shalini Aggarwal involved in rioting on 05/05/2000. Learned defence counsel has further contended that Sanjay Aggarwal has further declared in affidavit Ex. PW2/DA that he has learnt from reliable sources that relatives of Shalini Aggarwal were not even in Delhi on the day of incident. Learned defence counsel has further contended that similarly, PW16 Kanwar Sain has declared that he has asked his Bhabhi whether she had personally seen those relatives of Shalini Aggarwal in rioting, but she has replied in negative and has stated that her report/statement is based purely on guess and suspicion only.
In my view, PW2 Sanjay Aggarwal has denied the suggestion that he had put his signatures at point A after execution of document Ex. PW2/DA and has further deposed that these signatures were obtained by his uncle Kanwar Sain and has denied that he visited the Notary Public regarding attestation of Ex. PW2/DA. PW2 has further stated in the cross examination that he never executed any affidavit to the effect that he never witnessed any such occurrence or whatever he stated before the police was simply on guess and suspicion. PW2 has explained that he put signatures at point A and B on Ex. PW2/DA, when Kanwar Sain made him understand that matter has been amicably settled and he should put his signatures on blank stamp paper and that in this way, Rahul would also come out and accepting whatever he had told him to be correct, he put his signatures at point A and B. So, the signatures on the affidavit, which was blank, were obtained by Kanwar Sain and was signed under the misrepresentation and misconception SC No. 133/06 36 that matter was settled and in this way, Rahul was coming out.
In such circumstances, it cannot be said that affidavit Ex. PW2/DA was given voluntarily by PW2 Sanjay Aggarwal. So, benefit of Ex. PW2/DA cannot be given to the accused persons in respect of the fact that no incident had taken place and accused persons were not involved in the same in any manner.
PW16 Kanwar Sain has also been cross examined regarding his affidavit given in this respect Ex. PW16/DB, to which, PW16 has stated that affidavit bears his signatures at point A and B, but these were obtained on blank stamp paper, which he signed under pressure of 10 to 12 persons, who came to his house and after pressurizing him, obtained his signatures on blank stamp paper.
Learned defence counsel has contended that as PW16 Kanwar Sain did not make any complaint that the said persons obtained his signatures on blank stamp papers to senior police officers, hence, he cannot be believed that he signed blank stamp paper Ex. PW16/DB under pressure.
Whatsoever it may be, but it seems that affidavits Ex. PW2/DA and Ex. PW16/DB were executed in December 2000 by PW2 Sanjay Aggarwal and PW16 Kanwar Sain under some settlement, from which, accused persons backed out and in such circumstances, affidavits Ex. PW2/DA and Ex. PW16/DB cannot be deemed to be true and correct about the facts of the incident and involvement of accused persons in this case.
Regarding identity of accused Sachin, PW1 Smt. Kailash Devi has stated that accused Sachin was present at the time of incident and was instigating the crowd, whereas PW2 Sanjay Aggarwal has not named accused Sachin as the person present in the crowd or instigating the crowd in any manner. Accused SC No. 133/06 37 Sachin is brother of Shalini. So, it cannot be said that he was not known to Sanjay. PW6 Smt. Sushila Devi has not named anyone. PW10 Smt. Pinki Aggarwal has named Montu, brother of Shalini. Accused Sachin Diwan is also known as Montu.
Regarding the presence of accused Sachin Diwan, DW2 Vinod Kumar has been examined, who has stated that Shalini was his daughter. On 03/05/2000, she was murdered in her inlaws house. He reported the matter to police. In that case, Kanwar Sain and Rahul Aggarwal were arrested and Smt. Veena Aggarwal was absconding. Dead body of Shalini was released to them in the evening of 03/05/2000 after the postmortem. They cremated her at Nigam Bodh Ghat. They reported the matter to the police on 04/05/2000 since they had received threats from some unknown persons to withdraw the case.
DW2 has further stated that on 05/05/2000, they had gone for collecting ashes at Nigam Bodh Ghat. Ravinder and Ashok alongwith his son Sachin and Naveen, he himself and many other relatives had gone to Nigam Bodh Ghat. Thereafter, he alongwith his son Sachin Diwan returned to their house for sitting in the condolence, while accused persons alongwith Jai Hind and Anand Kumar had gone to Garh Ganga for immersion of ashes and they had started from Nigam Bodh Ghat at about 8/8.30 a.m. and after immersing the ashes, they returned back to his house at about 4/5.00 p.m. So, according to DW2, Sachin Diwan son of DW2 Vinod Kumar Diwan, came back to his house on 05/05/2000 and sat in condolence. Nothing has been suggested to DW2 in the cross examination that accused Sachin was not present in his house with DW2 and was not sitting in condolence, but was instigating the crowd to cause damage to H.No. MD1 and set the same on fire. The suggestions given to DW2 are in respect of SC No. 133/06 38 accused Ravinder and Ashok Aggarwal only, which has been denied by DW2 and he has also denied that accused persons had not gone to Garh Ganga on 05/05/2000 for immersion of ashes of Shalini. So, the presence of Sachin Diwan at the spot on 05/05/2000 at about 10/15/10/30 a.m. instigating the crowd to cause damage to H.No. MD1 and MD2 and set the same on fire with Honda City Car is doubtful. Testimony of DW2 is unrebutted and unshaken and inspiring confidence about the presence of accused Sachin Diwan in his house after collecting the ashes of Shalini Aggarwal on 05/05/2000. So, the witnesses of prosecution cannot be believed regarding the presence of accused Sachin Diwan at the spot on the day of the incident instigating the crowd to cause damage to H.No. MD1 or MD 2 or to set the same on fire as they have not corroborated with each other and it seems to be quiet impossible that some of the witnesses had seen some persons and some of the witnesses had seen other persons.
PW2 Sanjay Aggarwal has stated that crowd came at the spot in school bus, one dumper, one TATA 407 and Sumo. The left door of the Sumo was broken. He noted down the number of three vehicles on a slip, which he handed over to the police. PW6 Smt. Sushila Aggarwal has stated that crowd came there in a bus, dumper and Tata sumo. PW9 Smt. Vimal Manocha has stated that she had also seen two big vehicles outside the house. PW10 Smt. Pinki Aggarwal has stated that she saw many vehicles lying parked in front of her beauty parlour. Those vehicles included Tata Sumo, matador and school bus. Persons alighted from those vehicles started raising slogans "Kanwar Sain murdabad", "Badla leke rahenge" and started pelting stones at the house of Kanwar Sain. They set the Honda City vehicle on fire and also set on fire house of Kanwar Sain. PW12 Anuj SC No. 133/06 39 Kumar has also stated that one dumper, TATA 407 and one school bus were also stationed outside the house. He found the door of one of the vehicle make TATA Sumo broken. PW15 Smt. Veena Gupta has also stated that crowd came to their house in Tata Sumo, truck and school bus. She has also identified truck no. HR46A3564 belonging to one Surender Kumar Gupta, brother of accused Ashok and Ravinder, before the court, which was seized in this case. PW19 SI Anant Kiran has also stated that from the statements of the witnesses, he came to know that vehicle No. DL6CD0004 make TATA Sumo and one TATA Safari, one school bus, one TATA 407 and one dumper were involved.
So, it has to be seen whether the accused persons had entered into a criminal conspiracy and abetted the crowd to cause damage to H.No. MD1 and H.No. MD2 and to set the same on fire with Honda City Car by providing the vehicles, as deposed by the witnesses.
In this respect, PW19 has stated that on 06/05/2000, he went to Teen Murti to collect the ownership papers of the vehicles, which were registered in Delhi, vide application Ex. PW19/C. He had also moved an application for supplying ownership papers of the involved vehicles at RTO, Rohtak, vide Ex. PW19/D and received particulars of vehicles No. HR46A3563, HR46A3564 and HR46A3565, vide Ex. PW19/E. PW19 has further deposed that thereafter, he issued notice U/s. 133 of Motor Vehicle Act to one Surender Kumar Gupta Ex. PW19/F. He received reply from Surender Kumar Gupta on Ex. PW19/F itself. He also gave notice U/s. 133 of M.V. Act to one Ashok Kumar Gupta Ex. PW19/G. He received reply on notice Ex. PW19G itself from him. He also gave notice U/s. 133 of M.V. Act to one SC No. 133/06 40 Ravinder Kumar Gupta, which is Ex. PW19/H and received reply from Ashok Kumar on Ex. PW19/H itself.
In the cross examination, only suggestion has been given to PW19 that vehicles mentioned by him in his statement were not involved, which has been denied by him. PW19 has further deposed that he got verified the vehicles involved in the incident from one witness Arun Kumar. PW19 has further denied the suggestion that he did not collect any proof to the fact that the vehicles were involved in the incident and has mentioned the numbers of the vehicles at the instance of complainant with the motive to falsely implicate the accused persons.
PW20 Inspector Rajender Singh Dahiya, who had further conducted the investigation, has stated that on 11/08/2000, he visited the factory of accused Ashok and Ravinder at Rithala with constable Purshottam. One truck bearing No. HR363564 was seized from the factory vide seizure memo Ex. PW13/A and was deposited in the malkhana with the MHC(M). Later on, it was released on superdari. Identity of truck is not disputed as it has already been identified by PW13 HC Purshottam as Ex. P2. PW20 has not been cross examined regarding the fact that the truck in question, which was seized by him, was not involved in the incident and was not provided to the crowd to be used in committing the offence as alleged.
PW13 HC Purshottam has stated that on 08/11/2000, he was posted as Constable in DIU Northwest District. On that day, he alongwith Inspector Rajender Dahiya had gone to SLM factory, Rithala. One truck bearing No. HR26A3564 was standing there without stepney. It was seized vide memo Ex. PW13/A. He has also identified the truck as Ex.P2 produced by the Superdar SC No. 133/06 41 before the Court.
PW4 Sewa Singh has appeared from Transport Authority, Rohtak. He has produced the record regarding vehicle No. HR463563 belonging to Ravinder Kumar Gupta, of vehicle No. HR46A3564 belonging to one Surender Kumar Gupta and that of truck No. HR46A3565 belonging to Ashok Kumar Gupta. He has produced the record only of the transport authority, hence, he cannot be disbelieved in any manner. Nothing has been suggested or PW4 has been cross examined that these vehicles were not belonging to Surender Kumar and accused Ravinder Kumar Gupta and accused Ashok Kumar Gupta. In this case, only one of the truck i.e. HR46A3564 was seized, which was belonging to Surender Kumar Gupta and Surender Kumar Gupta is not one of the accused, but he is brother of accused Ashok and Ravinder Kumar. Other vehicles could not be seized in this case for the reasons best known to the accused persons.
Regarding TATA Sumo and other vehicles, PW22 Arun Kumar has been examined, who has stated that about 10 years back, he was working as Security guard in Suraksha Security Service. He was deputed for duty in the factory of accused Ravinder Gupta in Rithala. He worked in the factory for 78 days. His duty hours were from 2.00 p.m. to 2.00 a.m. night. There were two vehicles i.e. Tata 407 and Tata Sumo in their factory. Both the vehicles used to remain inside the factory premises. Driver of the Tata Sumo Car, while reversing Tata Sumo car, struck against the stairs inside the factory, due to which, the door of driver side was damaged. So, it was removed and was kept in the factory. Both the vehicles or either one of the vehicle also used to go, while carrying spices from the factory during his duty hours from 2.00 p.m. to 2.00 a.m. night. SC No. 133/06 42
PW22 has further deposed that once police officials came in the factory and took him to PS for making inquiries and after making inquiries, he was released.
As PW22 has not supported the case of the prosecution, hence, he has been cross examined by learned Addl. PP, wherein he has stated that he does not remember whether the registration number of Tata sumo was DL2CF9554 and of Tata 407 was HR46A3563, but has admitted that he was doing job in security services in the year 2000. He has further stated that he cannot say whether it was left side door of Tata Sumo, which was removed on 04/05/2000 after accident on 01/05/2000. PW22 has further denied the suggestion that on 05/05/2000, Tata Sumo was taken away by the driver at about 8.30 a.m. and Tata Sumo came back at about 11.15, but has stated that he was not on duty at that time. There was driver in the factory, but he cannot say whether his name was Satyawan. He has denied the suggestion that his duty hours were not from 2.00 p.m. to 2.00 a.m. night.
In the cross examination, PW22 has denied the suggestion that factory does not belong to Ravinder Gupta. So, from the deposition of PW22, prosecution has been able to prove beyond reasonable doubts that Tata sumo No. DL2CF9554 and Tata 407 HR46A3563 were belonging to SLM factory i.e. of accused Ravinder Kumar Gupta and door of Tata Sumo was removed on 04/05/2000 after the accident, which corroborate with the depositions of other witnesses PW2 Sanjay Aggarwal and PW12 Anuj Kumar that one Tata Sumo having one door broken also came at the spot, from which, crowd had alighted and caused damage to H.No. MD1 and MD2 and set H.No. MD1 on fire with Honda SC No. 133/06 43 City Car. The deposition of PW22 also corroborates with the fact that Tata 407 also came at the spot carrying the mob, who had caused damage to H.No. MD1 and MD2 and set H.No. MD1 on fire with Honda City Car on fire and other household articles.
PW2 Sanjay Aggarwal, PW6 Smt. Sushila Devi and PW12 Anuj Kumar may be interested witnesses in deposing about the vehicles, which were belonging to accused persons, but PW10 Smt. Pinki Aggarwal is an independent witness. She has also deposed about Tata Sumo, matador and school bus. PW9 has also deposed about two big vehicles. PW13 has identified truck No. HR46A3564, which was seized in this case and was identified by PW13 and also by PW15 as the same, which was found standing at the spot at the time of incident. So, none of the witness can be disbelieved about the vehicles, which came at the spot alongwith crowd, particularly PW22 Arun Kumar, who has stated that he cannot say that left door of Tata Sumo was broken after the incident of 01/05/00 and was removed on 04/05/2000, which shows that he has not denied this fact specifically. Statement of PW2 was recorded on 05/05/2000 itself on the day of incident. So, if the door was removed on 04/05/2000, then it cannot be said that PW2 Sanjay was knowing this fact that door of Tata Sumo was removed and consequently he deposed the same. In such circumstances, the witnesses cannot be disbelieved regarding the involvement of vehicle No. HR46A3564 belonging to one Surender Kumar Gupta, Tata 407 bearing No. HR46A3563 and Tata Sumo bearing No. DL2CF9554 belonging to accused Ravinder Gupta.
Learned defence counsel has contended that identity of these vehicles have not been proved in any manner as the same were not seized during SC No. 133/06 44 investigation by the IO.
During investigation, notices were given to the accused persons regarding the production of the vehicles alongwith driver at the time of incident, but none of the persons i.e. Surender Kumar, accused Ravinder Kumar Gupta and accused Ashok Kumar Gupta had produced the vehicles with their drivers. According to the reply of Surender Kumar Gupta, his vehicle No. HR46A3564 was lying stationed and driver had gone to his house. According to accused Ravinder Kumar Gupta, Vehicle no. HR46A3563 was also lying stationed due to closure of the godown from 03/05/2000 to 08/05/2000. Accused Ashok Kumar replied that his vehicle No. HR46A3565 was lying stationed because on that day, there was no work. But none of the accused has proved these replies in any manner by leading any defence evidence or by examining themselves U/s. 315 of Cr.P.C.. Even none of the witness has been cross examined in this respect that the vehicles, as deposed by them, were not at the spot at the time of incident due to the reasons, as mentioned by them in reply to the notices U/s. 133 of M.V. Act and witnesses have deposed falsely about identity of vehicles.
The contention of learned defence counsel is not forceful in any manner as the accused persons themselves avoided the seizure of vehicles by the police during investigation as despite notices given U/s. 133 of M.V. Act, neither the accused persons produced the vehicles nor the drivers of the vehicles before the police for investigation. It is evident from the facts that one DD entry was also got recorded by Inspector Prem Singh Patwal that when he contacted accused Ashok Kumar to surrender before the police or Court, then accused Ashok Kumar threatened him. It was further recorded that accused Ashok Kumar was misusing SC No. 133/06 45 his political links, due to which, case could not be proceeded.
So, involvement of these vehicles is not in dispute to the extent that these vehicles were taken to the spot carrying labour class persons, who had caused damage to H.No. MD1 and MD2, Pitam Pura, Delhi, and set on fire H.No. MD1 and also Honda City Car and further caused damage to household articles lying in H.No. MD1, Pitam Pura, Delhi.
Regarding the involvement of Tata Sumo, one Tata 407 and one dumper, accused persons have stated that none of the vehicle taken out of the factory on that day; that vehicles remained in the factory; that Dumper No. HR46A3564 and 3565 remained at the house of brother of accused Ashok namely Surender and were plying in Haryana only and that vehicles never came to Delhi on that day, but these facts have not been proved by leading any defence evidence in any manner nor witnesses have been cross examined on these lines. It has also been admitted by the accused persons that PW2 Arun Kumar was working as security Guard in Suraksha Security Service and has further admitted that vehicles were in order. Witnesses examined in this case have also deposed about a dumper.
In response to question No. 100 of statement of accused, accused Ravinder Kumar Gupta has stated that vehicle No. HR463536 does not belong to him. There seems to be typographical mistake in the number mentioned of Tata 407 as HR463536, whereas the actual number is HR463563. This fact has been proved by PW4 Sewa Singh, who has appeared from Transport Authority office Rohtak and to prove the testimony of PW4 to the contrary, nothing has been brought on record. PW4 has not been cross examined in any manner that vehicles SC No. 133/06 46 No. HR46A3564, HR463563 and HR46A2565 were not in the names of accused Ravinder Kumar Gupta, Surender Kumar Gupta and accused Ashok Kumar Gupta. So, accused Ravinder Kumar Gupta has given a false explanation regarding the ownership of truck No. HR463563 i.e. Tata 407. So, mere denial of ownership of this vehicle by the accused is of no consequence as the prosecution has been able to prove beyond reasonable doubts from the evidence brought on record and from the depositions of the witnesses that vehicle No. HR46A3563 Tata 407 was registered in the name of accused Ravinder Kumar Gupta. It has been also proved beyond reasonable doubts that Tata Sumo, which was in SLM factory of accused Ravinder Kumar Gupta, having one door broken, which was removed on 04/05/2000, was also involved and vehicles i.e. dumper and Tata 407 were seen at the spot, in which the labour class persons had reached there and committed rioting, as deposed by the witnesses. Accused persons have not been able to prove anything contrary to these facts, as explained by them in their statements, nor have been able to prove that these vehicles were not in their names at that time.
It has to be seen as to whether beside accused Ravinder Kumar Gupta, other accused persons were involved or not. In this respect, PW1 Smt. Kailash Devi has stated that crowd was saying that Ravinder and Ashok had asked them to kill Kanwar Sain and his wife. PW1 has not been cross examined in this respect at all. PW6 Smt. Sushila Devi has stated that she heard being said there "Bittu bauji kah rahein hai ki gadi main bhee aag laga do" and "Ashok Bauji kah rahein hai kuch be hachne na paaye" "Shalini ke marne walo ko hum nahin chhodege". PW6 has also not been cross examined nor confronted in any manner with this part of SC No. 133/06 47 her statement. PW10 Smt. Pinki Aggarwal has also stated that those persons alighted from the vehicles, started raising slogans "Kanwar Sain murdabad", "Badla leke rahenge", but both these slogans does not make out any involvement of accused persons in the incident. PW12 Anuj Kumar has not stated anything about the slogans raised by the crowd. PW2 Sanjay Aggarwal has also not stated anything about the slogans raised by the crowd. In view of the damage caused to H.No. MD1 and MD2, Pitam Pura, Delhi, and that H.No. MD1 was set on fire with Honda City Car, shows that the crowd remained there for sometime, while pelting stones and throwing household articles of H.No. MD1. According to the case of the prosecution, all the above witnesses were present and had seen the incident. So, it seems to be unbelievable that some of the witnesses heard about the slogans and some of them did not hear the slogans, as raised by the crowd. So, the witnesses cannot be believed regarding the slogans raised by the crowd that accused Ravinder and Ashok had asked them to kill Kanwar Sain and his wife or that "Bittu bauji kah rahein hai ki gadi main bhee aag laga do" and "Ashok Bauji kah rahein hai kuch be hachne na paaye". It has already been held that accused persons were not present at the spot, hence, it seems to be improbable that they were saying to the crowd at the spot to set the Honda City car on fire and also to smash each and everything. Slogans were raised by the crowd, but it seems to be improbable that the persons of unlawful assembly were raising slogans, while naming the accused persons.
In such circumstances, it is clear that the crowd, which was consisting of labour class persons, was acting as instigated to cause damage to H.No. MD1 and MD2 because Shalini was murdered and owner of H.No. MD2 was SC No. 133/06 48 representing Sh. Kanwar Sain and his son in the Court of law because neither persons of the crowd/mob were having any motive to cause damage to H.No. MD1 and MD2 nor they were related to Shalini in any manner. So, it is clear that accused Ravinder Gupta entered into a criminal conspiracy and abetted the labour class persons to cause damage to H.No. MD1 and MD2, Pitam Pura, Delhi, and also to set H.No. MD1 on fire with Honda City car. The crowd was also instigated to damage the household articles of H.No. MD1 and to achieve this, accused persons provided vehicles to the crowd. This is also evident from the fact that the crowd/mob was not uncontrolled or was not acting for any other reason. Had it been so, the crowd must have damaged other properties/shops/vehicles of the area, but the crowd was targeting only H.No. MD1 and MD2. H.No. MD2, Pitam Pura, Delhi, was also damaged to take revenge as to why Kanwar Sain and his son Rahul were being represented by PW18 Sh. Gagan Minocha and his father, both Advocates, before the Court of law.
In view of above discussion, the labour class persons, part of the crowd/mob, who were 70 to 80 persons, formed an unlawful assembly and committed rioting by using force in prosecution of their common object to cause damage to H.No. MD1 and MD2, Pitam Pura, Delhi, and also to set on fire H.No. MD1 with Honda City Car and also to cause damage to household articles of H.No. MD1. It is also evident from the depositions of the witnesses, who have identified the burnt car as Ex. P1, proved the photographs as Ex. PW7/1 to 26, stones and pieces of glass taken into possession from the spot collectively exhibited as Ex. PW11/1, video cassette prepared regarding damage caused to H.No. MD1 as Ex. P3.
SC No. 133/06 49
The contention of learned defence counsel that case property was produced unsealed is of no consequence as photographs of the spot were also taken showing damage to the house and video cassette was also prepared. The contention of learned defence counsel that video cassette was prepared later on is also of no consequence as PW15 Smt. Veena Gupta has stated that video cassette of their house was prepared. The video cassette was also played in the Court during the course of arguments showing the damage caused to the household articles and H.No. MD1. PW19 SI Anant Kiran has also identified the ashes of burnt Honda City car as Ex. P4. So. Prosecution has been able to prove beyond reasonable doubts that the crowd/mob consisting of labour class persons committed offence punishable U/s. 147 of IPC.
As none of the member of the crowd/mob could have been arrested, hence, prosecution has not been able to prove offence U/s. 149 of IPC in any manner.
From the depositions of the witnesses and the material produced before the Court during their examination, identified by the witnesses, it is proved that the members of the unlawful assembly i.e. of crowd/mob committed house trespass by entering into H.No. MD1, Pitam Pura, Delhi, which was being used by Kanwar Sain and his family members as a dwelling house and caused damage to the household articles in entire area of the house, but nothing has come on record from the depositions of the witnesses that the persons, who were part of crowd/mob committed house trespass after having made preparation for causing attempt or assault or wrongfully restrained any person present therein as none of the witnesses i.e. PW1 Smt. Kailash Devi, PW6 Smt. Sushila Devi and PW12 SC No. 133/06 50 Anuj Kumar has stated that any of the member of the unlawful assembly, while committed house trespass, made any attempt to commit assault or wrongfully restrained to any of them, who were present in the house at that time, so, instead of offence U/s. 452 of IPC, prosecution has been able to prove offence U/s. 451 of IPC beyond reasonable doubts committed by the unlawful assembly of labour class persons.
From the depositions of the witnesses, it has been proved beyond reasonable doubts that persons, who have formed unlawful assembly and were part of mob/crowd, caused damage to property belonging to complainant party, which is evident from the photographs and video cassette and it is also proved that Honda City car was burnt. So, they caused wrongful loss and damage to the property of the complainant for more than Rs. 50/. So, prosecution has been able to prove offence U/s. 427 of IPC beyond reasonable doubts committed by the members of unlawful assembly of labour class persons.
From the depositions of the witnesses, it has been proved beyond reasonable doubts that House No. MD1, Pitam Pura, Delhi, was being used as a dwelling house and at that time, PW1 Smt. Kailash Devi, PW6 Smt. Sushila Devi and PW12 Anuj Kumar were present therein and proved that Honda City car was set on fire by the persons of unlawful assembly.
Learned defence counsel has contended that from the photographs, as proved by the prosecution, it cannot be said that house was set on fire in any manner. Hence, offence U/s. 436 of IPC is not proved in any manner nor there was any intention of the persons, part of the crowd, to cause destruction of the dwelling house or that they were knowing it to be likely that the same will cause SC No. 133/06 51 destruction of the dwelling house. Learned defence counsel has further contended that only Honda City car was set on fire by the persons, part of the crowd/mob, which was standing outside the house. Had it been the intention of the persons, part of the mob, then certainly, as the Honda City car was set on fire, the house i.e. dwelling unit could have been set on fire, which is not evident from the photographs proved on record in any manner or that the house was set on fire at any place with intent to cause destruction of the dwelling house.
The contention of learned defence counsel for accused persons is forceful. From the photographs produced and proved on record except setting on fire the Honda City car, prosecution has not been able to prove in any manner that the persons, part of the crowd/mob, forming unlawful assembly had set the house on fire i.e. dwelling unit being used by PW16 Kanwar Sain and his family members. So, the prosecution has not been able to prove offence U/s. 436 of IPC against the members of the unlawful assembly of labour class persons.
Now, it has to be seen whether the accused persons can be convicted for the abetment, for which, no charge has been framed against the accused persons.
It has been held in AIR 1961 Kerala 331 titled as Thangal V. State of Kerala, that "A review of these authorities in, our opinion clearly establishes that where the case is covered by Ss. 236 and 237 of the Code of Criminal Procedure and the accused has notice of all the facts which go to make up the charge of abetment he can be convicted of the charge of abetment even though the charge framed against him was only for the substantive offence. The prosecution evidence SC No. 133/06 52 in this case and the findings of the court was only that he instigated the 2nd accused to escape arid therefore the courts below could have rightly framed a charge of abetment. In such a case the accused can certainly be convicted of the offence of abetment to escape, although there has been no charge in respect of it. We therefore confirm the conviction but alter the conviction to one under S. 225B read with S. 109 IPC."
It has also been held in AIR 1970 Orissa 10 titled as Prasanna Kumar Samal and others V. anand Chandra Swain that:
"It is no doubt true that as a general rule it cannot be laid down that a person charged for the substantive offence can in no circumstances be convicted for abetment of the same. The position seems to be fairly well settled that where a case is covered U/ss. 236 and 237 Cr.P.C. and the accused had notice of all the facts which go to make up the charge of abetment, he can be convicted for such abetment, even in cases where the charge framed against him is only for the substantive offence. On the other hand, if in a given case, it is found that the accused had no notice of the facts constituting abetment, and as such, had no chance of meeting such a case, a conviction for abetment will not be justified when he is charged with the substantive offence."
In AIR 1960 Patna 459 titled as State of Bihar V. Srilal Kejriwal and others, it has been held that where an offence, which is alleged to be the object of conspiracy is actually committed, the charge of criminal conspiracy U/s. 120B is irrelevant. In such a case, the conspiracy amounts to abetment.
In such circumstances, admittedly, the accused persons have not been charge for a criminal conspiracy or abetment, but as the prosecution has been able to prove that crowd/mob of labour class persons after forming an unlawful assembly committed rioting in H.No. MD1 and MD2, Pitam Pura, Delhi, and further caused damage to the household articles and burnt Honda City Car lying SC No. 133/06 53 stationed in H.No. MD1, thus caused damage to property of Kanwar Sain having value of more than Rs. 50/ and also committed house trespass in H.No. MD1, Pitam Pura, Delhi, with intent to commit offence punishable with imprisonment and for this purpose, the mob targeted H.No. MD1 and H.No. MD2, Pitam Pura, Delhi, only. They also raised slogans against Kanwar Sain, for which, they were having no motive at all to do such activities, then certainly, they acted in such a manner as instigated by the accused and the crowd/mob of labour class persons of 7080 in number reached there in the vehicles of accused persons, out of which, one vehicle No. HR46A3564 (dumper) belonging to Surender Kumar Gupta, which was seized in this case and has been identified by the witnesses, was provided to those persons to reach at H.No. MD1, Pitam Pura, Delhi. Another vehicle belonging to accused Ravinder Kumar Gupta bearing No. HR46A3563 Tata 407 and Tata Sumo were also provided, as deposed by the witnesses, to the members of the unlawful assembly under a criminal conspiracy and instigated those persons and further intentionally aided by providing the vehicles belonging to them to facilitate the mob to reach at H.No. MD1 and H.No. MD2, Pitam Pura, Delhi.
In view of above discussion, the presence of accused persons is doubtful at the place of incident on 05/05/20000. One Surender Kumar Gupta intentionally aided in abetment by providing vehicle No. HR46A3564 to the persons of the unlawful assembly to commit the offence, but he is not an accused before the Court.
Accused Ravinder Kumar Gupta intentionally aided by providing his vehicle Tata 407 bearing No. HR46A3563 and Tata Sumo to the members of the SC No. 133/06 54 unlawful assembly i.e. labour class persons and abetted the commission of offences committed by the crowd i.e. offence U/s. 147 IPC, 427 IPC and 451 of IPC. Accordingly, accused Ravinder Kumar Gupta is convicted for offences U/s. 147 IPC, 427 IPC and 451 of IPC read with Section 109 of IPC.
Accused Ashok Kumar, Rajesh, Sachin Diwan @ Montoo Naveen @ Bitoo and Munni Lal Gupta are acquitted for offences U/s. 147/149/452/34 of IPC, U/s. 427/34 of IPC and U/s. 436/34 of IPC.
Announced in Open Court on nd dated 22 of November, 2011 (Virender Kumar Goyal) Additional Sessions Judge Fast Track Court Rohini : Delhi SC No. 133/06 55