State vs Ved Prakash And Ors. on 3 February, 2021

[Cites 36, Cited by 0]

Delhi District Court

State vs Ved Prakash And Ors. on 3 February, 2021

 IN THE COURT OF VIKAS DHULL, SPECIAL JUDGE
   (PC ACT) (CBI)23 (MPs/MLAs Cases), ROUSE
     AVENUE DISTRICT COURTS, NEW DELHI


SC No.03/2020
ID No. 10/2019
CNR No. DLCT110009952019
State Vs.Ved Prakash and Ors.
FIR No.490/2015
U/s.308/147/148/149/153/186/323/332/341/353/
379/436/452/34 IPC and U/s. 3(1)/4 of P.D.P.P. Act
PS Narela

IN THE MATTER OF :

State

                 Versus


1.    Ved Prakash
      S/o Sh.Uday Singh
      R/o H.No.135, Ishwar Colony
      Near NDPL Office
      (Ext.Phase III Bawana)
      Delhi110039.

2.    Mehfooz


ID No. 10/2019     State Vs. Ved Prakash and Ors.   1/98
       S/o Nasir Ansari
      R/o F727 JJ Colony, Bawana
      Delhi110039.

3.    Mohd.Asgar
      S/o Md.Sadeek
      R/o A610/641, JJ Colony, Bawana
      Delhi.

4.    Sakir @ Guddu
      S/o Sh.Fakruddin
      B4142, JJ Colony, Bawana
      Delhi110039.

5.    Ikbal @ Allauddin
      S/o Md.Idrish
      R/o Jhuggi No. 27 F Block
      JJ Colony, Bawana
      Delhi110039.                                (Expired)

6.    Gulab
      S/o Md.Naseer
      R/o H.No.E1215 / F75
      JJ Colony, Bawana
      Delhi110039.

7.    Mohd.Manjoor Alam
      S/o Nasir Ansari
      R/o H.No.F727, JJ Colony, Bawana


ID No. 10/2019    State Vs. Ved Prakash and Ors.               2/98
       Delhi110039.

8.    Siraj
      S/o Aabid Ali
      R/o H.No.A18, JJ Colony, Bawana
      Delhi110039.


9.    Chand
      S/o Md.Gulab
      R/o E2720, JJ Colony, Bawana
      Delhi110039.


10. Naeed
      S/o Rahman @ Md.Sajjad
      R/o E39, JJ Colony, Bawana
      Delhi110039.


11. Bholu @Salim
      S/o Md.Abdul Hamid
      R/o D65, JJ Colony, Bawana
      Delhi110039.
                                  ... Accused persons

Date of institution of case                        : 24.05.2016

ID No. 10/2019    State Vs. Ved Prakash and Ors.            3/98
 Date on which judgment reserved   : 16.01.2021
Date on which judgment pronounced : 03.02.2021


                          JUDGMENT

1. The prosecution story in brief is that on 25.04.2015, on receipt of DD No. 22B, SI Karmavir alongwith Ct.Shankar had reached at JJ Colony, Bawana where SHO, PS Narela alongwith senior officers were present. There, SI Karamvir came to know that a dead body of a girl was kept in the middle of the road at Tpoint, CRPF Camp and MLA Ved Prakash was instigating the crowd. Senior Officers and the SHO had made the area MLA and crowd understand not to get aggressive and they were warned to disperse but still despite that, they continued to remain there. Thereafter, when parents of deceased girl had agreed to remove the dead body, the mob had pelted stones on the police party and thereafter, crowd was dispersed by using of teargas shells.

ID No. 10/2019 State Vs. Ved Prakash and Ors. 4/98

2. SI Karamvir had also found that a police booth at CBlock, JJ Colony, Bawana was damaged and one car and two motorcyles were found burnt in front of police booth. SI Karamvir also found one burnt motorcyle behind the Government school and bricks and stones were lying on road in large number. Thereafter, SI Karamvir had recorded the statement of HC Jagbir.

3. In his statement, HC Jagbir had stated that he is posted as Head Constable at beat No.10 JJ Colony, Bawana within the jurisdiction of PS Narela and on the day of incident, he was present at the police booth alongwith beat Constable Karambir. He further stated that at around 2.00 p.m. on that day, 810 persons namely, Mehfooz, Javed, Alam, Iqbal, Sakir @ Guddu, Asgar and others, who are residents of JJ Colony, Bawana were seen accompanied by small children and ladies going towards the main road.

ID No. 10/2019 State Vs. Ved Prakash and Ors. 5/98

4. On inquiry, they had told HC Jagbir that dead body of a girl is being brought after the post mortem and they have been called by the area MLA at the main road. Thereafter, HC Jagbir and Ct.Karambir followed them at a distance. HC Jagbir also informed the SHO. After sometime, HC Jagbir saw a dead body of a girl being brought in a vehicle and aforementioned boys stopped the vehicle on the road and in the meanwhile, MLA Ved Prakash also reached there accompanied by 67 more persons. Thereafter, MLA Ved Prakash had instructed to call some more persons from their colony and had instructed to keep the dead body in the middle of the road which lead to traffic jam. Soon a crowd of 250300 people gathered at the spot. He further stated that when parents of deceased girl refused to keep the dead body in the middle of the road, then MLA Ved Prakash and his 67 associates told them that without keeping the dead body in the middle of the road, no one will listen to them and they will not get any compensation. In the meanwhile, the crowd became ID No. 10/2019 State Vs. Ved Prakash and Ors. 6/98 aggressive and started making slogans and MLA Ved Prakash kept on instigating them.

5. At that time, area SHO alongwith his staff came at the spot and asked the crowd to disperse but the aforementioned persons started making slogans against the Delhi Police. It was further stated in the complaint that Sakir @ Guddu and Asgar stated that "let us burn the police booth". Thereafter, aforementioned two persons alongwith 3040 members of the crowd went towards CBlock. HC Jagbir has asked Ct.Amit and Ct.Sumit to follow them. After some time, HC Jagbir had seen smoke coming from the direction of the police booth. Thereafter, he alongwith SHO and other members of the staff ran towards the police booth and there, they found that crowd had damaged the police booth and had burnt Xcent Car of Ct.Sumit, one government motorcyle and two private motorcyles. The two private motorcyles belonged to HC Jagbir and Ct.Karamvir respectively.

ID No. 10/2019 State Vs. Ved Prakash and Ors. 7/98

6. Thereafter, HC Jagbir had saved Ct.Sumit and Ct.Amit from the crowd and in the meanwhile, a Fire Brigade also reached at the spot. However, the crowd did not allow the Fire Brigade to reach further and also pelted stones on the Fire Brigade vehicle. Thereafter, senior police officers with extra force reached at the spot and on the persuasion made by the senior officers, parents of deceased girl had agreed to remove her dead body.

7. Some members of the crowd had tried to stop the parents of deceased girl but parents of deceased girl agreed to take away the body of their deceased daughter. In the meanwhile, crowd started pelting stones on the police party and despite warning, they did not stop. Thereafter, in order to control the crowd, teargas shells were used and the area MLA escaped from the spot alongwith his supporters. Lot of police persons were hurt due to stone pelting and important ID No. 10/2019 State Vs. Ved Prakash and Ors. 8/98 documents lying in the police booth were also found missing.

8. HC Jagbir had specifically named MLA Ved Prakash, Mehfooz, Javed, Alam, Iqbal, Sakir @ Guddu, Gulab and Asgar as members of the crowd.

9. After recording the statement of complainant, MLCs of injured policemen were collected and thereafter, present case was registered.

10. During the course of investigation, SI Karamvir had seized burnt car, motorcycles, bricks and stones vide separate seizure memos and statement of witnesses under Section 161 Cr.P.C. was recorded.

11. The videography of the incident was also taken into possession from the photographer Yashpal. Thereafter, from the video, beat staff i.e. HC Jagbir and Ct.Praveen had identified the accused persons, ID No. 10/2019 State Vs. Ved Prakash and Ors. 9/98 namely, Ved Prakash, Mehfooz, Mohd.Asgar, Sakir, Iqbal, Gulab, Manjur Alam, Siraj, Bholu, Chand and Naeed as persons, who were members of the unlawful assembly.

12. During the course of further investigation, statements of fire officials were also recorded and Call Detail Record of mobile numbers of accused was also obtained from the concerned mobile service providers.

13. The investigating officer had also obtained the details of registered owners of the burnt vehicles which were burnt during the course of rioting.

14. After completion of investigation, charge sheet was filed against eleven accused persons i.e. A1 to A 11 for the offence under Section 308/147/148/149/153/186/323/332/341/353/379/4 36/452/34 IPC and under Section 3(1)/4 of the Prevention of Damage to Public Property Act, 1984 ID No. 10/2019 State Vs. Ved Prakash and Ors. 10/98 (hereinafter referred to as PDPP Act).

15. Charge sheet was filed before the Ld.Metropolitan Magistrate, who after taking the cognizance of the offence, summoned all accused.

16. All accused persons were admitted to court bail as they were charge sheeted without arrest and were further supplied with the copy of charge sheet. Thereafter, the matter was committed to the court of Sessions.

17. When the matter was pending before the Ld.Predecessor of this court, accused Iqbal @ Allauddin (A5) had expired and accordingly, proceedings against him were abated.

18. Thereafter, arguments on the point of charge were heard and vide order dated 01.09.2018, charge was framed against remaining ten accused, namely, (1) Ved ID No. 10/2019 State Vs. Ved Prakash and Ors. 11/98 Prakash; (2) Mehfooz; (3) Mohd.Asgar; (4) Sakir @ Guddu; (6) Gulab; (7) Mohd.Manzoor Alam; (8) Siraj; (9) Chand; (10) Naeed; and (11) Bholu for the offence under Sections 308/186/332/379/435/436/452/148 read with Section 149 IPC and under Section 4 of the PDPP Act to which all ten accused persons have pleaded not guilty to the aforesaid charge and had claimed trial.

19. At trial, prosecution had examined in all 34 witnesses.

20. PW1 Ct.Amit, PW2 Ct. Sumit, PW3 Ct.Praveen, PW4 Ct.Vinay, PW13 Ct.Bheem and PW16 Ct.Karamvir are the police officials, who were on beat duty at beat no.14, JJ Colony, Bawana and all have deposed on similar lines.

21. All the police officials had deposed that on 25.04.2015, they were posted at PS Narela and were ID No. 10/2019 State Vs. Ved Prakash and Ors. 12/98 on beat duty at Beat No.14 i.e. JJ Colony, Bawana and in the afternoon at about 2.15 p.m., HC Jagbir, who happens to be the complainant of this case, telephonically asked them to come at Tpoint, CRPF Camp and when they had reached at Tpoint, CRPF Camp, they had found large gathering of women and children and after sometime, dead body of deceased Shama Parveen was brought there.

22. In the said gathering, accused A4 Sakir, A2 Mehfooz, A3 Asgar, A7 Alam, A6 Gulab and A9 Chand were present and after sometime, accused A1 Ved Prakash, who happens to be the area MLA, also reached there alongwith his supporters. Thereafter, MLA Ved Prakash had told the gathering that if they do not block the road, no body will address their grievance and further directed the crowd to call more persons from the locality.

23. The crowd also made slogans against the Delhi ID No. 10/2019 State Vs. Ved Prakash and Ors. 13/98 Police. Thereafter, the area SHO also arrived at the spot and made the gathering understand not to block the road. However, they did not agree.

24. In the meanwhile, accused A4 Sakir and A3 Asgar instigated other persons to set the police booth on fire and thereafter, had left the spot accompanied by other persons of the gathering. After sometime, these police officials had seen smoke coming out from the direction of the police booth.

25. On the directions of HC Jagbir, PW1 Ct.Amit and PW2 Ct.Sumit had followed accused A4 Sakir and A3 Asgar to the police booth where they had seen that members of the crowd after entering into the police booth had set the articles lying therein on fire and motorcycle of Ct.Karamvir, motorcycle of HC Jagbir and car belonging to PW2 Ct.Sumit were set on fire apart from one Government motorcycle.

ID No. 10/2019 State Vs. Ved Prakash and Ors. 14/98

26. At the police booth, PW1 Ct.Amit and PW2 Ct.Sumit were surrounded by members of the crowd and they were rescued by the area SHO and other police officials.

27. In the meantime, Fire Brigade had also reached at the spot but the crowd did not allow the Fire Brigade to proceed further and had pelted stones on Fire Brigade Vehicle also. Thereafter, senior members of the staff alongwith other police officials had reached at the spot and they had made the parents of deceased girl understand to take away the deceased girl.

28. When the parents of the deceased girl had agreed to take away the body of deceased girl, the crowd again got agitated and started pelting stones on the police officials in which said police officials were injured. Thereafter, teargas shells were used to disperse the crowd and thereafter, the situation was got under control.

ID No. 10/2019 State Vs. Ved Prakash and Ors. 15/98

29. PW5 Yashpal is the photographer by profession and is running a studio in the name and style of Yash Studio in JJ Colony, Bawana and on the date of incident, he was contacted by Ct.Karambir for the purpose of video recording of the protest going on at Tpoint, CRPF Camp, JJ Colony, Bawana. He further deposed that he had made a video recording of the protest in two master cassettes and the same were converted into a DVD and handed over to the IO of this case. He also produced on record the original master cassettes / tape which were exhibited as Ex.PW5/A and Ex.PW5/B. PW5 Yashpal also proved his video recording in the form of DVD which was exhibited as Ex.PW5/C and the certificate under Section 65B of the Indian Evidence Act, 1872 in support of DVD as Ex.PW5/E.

30. PW6 was ASI Karambir and he was the Incharge of the Crime Team, Outer District. PW6 had reached at ID No. 10/2019 State Vs. Ved Prakash and Ors. 16/98 the spot for carrying out the inspection of the crime scene. PW6 had deposed on oath that on reaching the crime scene, he had found that the police booth was damaged and one Accent car, two motorcycles and one government motorcycle were lying in burnt condition. He also proved his crime visit report as Ex.PW6/A.

31. PW7 Sh.Dev Prakash was the SubOfficer of Fire Brigade, Fire Station, Bawana and PW8 Sh.Sher Singh was the driver of Fire Brigade Vehicle and both had deposed on oath that on 25.04.2015, on receipt of a call regarding fire incident at JJ Colony, Bawana, they had reached at the spot where public persons started pelting stones on their fire brigade vehicle and due to pelting of stones by the crowd, they had parked their vehicle at some distance from the spot.

32. PW9 Sh.Rajesh Khatri was the reporter in the Aajtak Channel. PW9 Rajesh Khatri had deposed on oath that on receiving a call regarding a protest at JJ ID No. 10/2019 State Vs. Ved Prakash and Ors. 17/98 Colony, Bawana regarding death of a girl, he had reached at the spot where he had found the crowd raising slogans against the Delhi Police and there he also came to know that a police booth had also been set on fire. He deposed that he also met accused A1 Ved Prakash, who told him that police had not taken proper action with regard to death of a girl. He further deposed that crowd had became aggressive and had pelted stones in which his vehicle also got damaged and he also sustained injuries.

33. PW10 Ct. Ashok was posted at PS Shahabad Dairy and PW11 SI Manoj was posted as SI, First Battalion, Delhi Armed Police on 25.04.2015 and both had deposed on similar lines as deposed to by other police officials of the police beat at JJ Colony, Bawana. PW10 Ct.Ashok and PW11 SI Manoj also deposed that they had sustained injuries due to pelting of stones and also proved their MLCs Ex.PW10/A and Ex.PW11/A respectively.

ID No. 10/2019 State Vs. Ved Prakash and Ors. 18/98

34. PW12 ASI Jagbir Singh happens to be the complainant of this case and he had proved his complaint Ex.PW12/A and seizure memos of burnt Hyndai Xcent Car and two private motorcyles Ex.PW12/C and that of government motorcycle Ex.PW12/D. He also identified the burnt vehicles in the photograph Ex.PW12/F (Colly) and the stones seized from the spot Ex.PW12/G (colly). PW12 ASI Jagbir/Complainant deposed all the facts as were stated in the complaint and the same are not being repeated herein for the sake of brevity.

35. PW14 was Ct.Abhishek and he was posted as a photographer in the Crime Team of Outer District. He deposed that on 25.04.2015, he had visited the crime scene alongwith ASI Karamvir, who was the Incharge of Crime Team at JJ Colony, Bawana where he had found three burnt motorcycles, one car in burnt condition and police booth damaged and accordingly, ID No. 10/2019 State Vs. Ved Prakash and Ors. 19/98 he had taken 17 photographs of the spot which were collectively exhibited as Ex.PW14/B and negatives of the photographs were exhibited as Ex.PW14/A.

36. PW15 was Inspector Sanjay Bhardwaj, who was posted as SHO at PS Prashant Vihar on 25.04.2015 and had reached at the spot on receiving of information from the Control Room. He had also deposed on similar lines as deposed to by police officials and had further deposed on oath that due to pelting of stones by the crowd, he had sustained injuries on his head and also proved his MLC Ex.PW15/A.

37. PW17 was Ct.Bheem Singh and PW18 was HC Devender, who were posted at PS Narela and PS Bawana respectively on the date of incident and they had also deposed on the similar lines as deposed to by other police officials. They had further deposed that they had sustained injuries due to stone pelting by the crowd and PW17 accordingly, proved his MLC ID No. 10/2019 State Vs. Ved Prakash and Ors. 20/98 Ex.PW17/A.

38. PW19 was Ct.Rajender and he had deposed on oath that on 25.04.2015, he was working as Wireless Operator with SHO of PS Narela. He further deposed that at about 2.00 p.m., they had received a call regarding a protest at JJ Colony, Bawana and accordingly, he had reached there. Thereafter, he had deposed on the similar lines as deposed to by other police officials and the same is not being repeated herein. He further deposed that he was injured in the incident and was medically examined vide MLC Mark PW19/A.

39. PW20 was Dr.Abhishek Kumar, who was posted as Casualty Medical Officer at MV Hospital, Pooth Khurd, Bawana, Delhi and on 25.04.2015, he had examined Inspector Sanjay Bhardwaj regarding his injuries on the forehead for which he had prepared the MLC Ex.PW15/A. ID No. 10/2019 State Vs. Ved Prakash and Ors. 21/98

40. PW21 Dr.Mukesh Bharti was posted as Medical Officer at SRHC Hospital, Narela and had deposed regarding examining of patient namely Sh.Rajesh Khatri vide MLC Ex.PW21/A and PW11 SI Manoj vide MLC Ex.PW11/A and examining of another patient namely, Gulam Sabir vide MLC Ex.PW21/B.

41. PW22 Dr.Vinod Dahiya was also posted as Medical Officer at SRHC Hospital, Narela and he had proved on record examination of PW19 Ct.Rajinder Meena vide MLC Ex.PW19/A and he opined the nature of injuries to be simple.

42. PW23 Ct.Neeraj Kumar, PW24 HC Sudhir Kumar, PW25 ASI Hans Kumar and PW28 HC Ajeet Singh were all posted as Call Operators at Police Control Room, HQs on 25.04.2015 and had recorded various calls received by them regarding quarrel and incident of fire, not allowing the fire brigade vehicle to move ID No. 10/2019 State Vs. Ved Prakash and Ors. 22/98 ahead, gathering of crowd and blocking of the road and they had accordingly, proved their recording of calls in the PCR Form vide Ex.PW23/A, Ex.PW24/A, Ex.PW25/A and Ex.PW28/A respectively.

43. PW26 was SI Ramesh Kumar and he had proved on record that he was posted at PS K.N.Katju Marg, New Delhi on 21.04.2015 as duty officer and on receipt of information from the Police Control Room regarding dead body of a women lying at Haidpur Water Plant Gate, he had lodged DD No. 8A and the said DD was marked to Sh.Gurjant Singh. He also proved the aforementioned DD vide Ex.PW26/A.

44. PW27 was ACP Gulam Sabir and on the date of incident, he was posted as SHO, PS Narela. He had further deposed that on the said date at around 2.15 p.m., HC Jagbir had informed him regarding the protest at JJ Colony, Bawana and thereafter, he had reached at the protest site where he had found that ID No. 10/2019 State Vs. Ved Prakash and Ors. 23/98 accused MLA Ved Prakash and his supporters had blocked the road. Thereafter, he had deposed on same lines as deposed to by police officials and the same is not being repeated herein.

45. PW27 ACP Gulam Sabir further deposed regarding his receiving injuries in pelting of stones by the crowd and his getting treatment in the SRHC Hospital. PW27 ACP Gulam Sabir further deposed that accused A4 Sakir @ Guddu and A3 Asgar had instigated the crowd to put the police post on fire and thereafter, about 3040 persons ran towards police post.

46. PW29 was ASI Mahender Singh and he had also deposed that he was posted as a Call Taker at PHQ. He deposed on oath that he had received a call at about 5.41 p.m. on 25.04.2015 from one person, namely Ved Prakash, MLA from Mobile No. 9911329091 regarding murder of a girl child, sitting on protest and DCP/ACP ID No. 10/2019 State Vs. Ved Prakash and Ors. 24/98 of the police not taking any action. He proved recording of call vide PCR Form Ex.PW29/A.

47. PW30 was Sh.Narender Kumar, who was the owner of Alto Car bearing registration no. DL6CP 2190 and he had deposed that on 25.04.2015 due to pelting of stones by the crowd, his car was damaged.

48. PW31 was HC Shankar Lal and he had deposed on oath that on 25.04.2015, he was posted at PS Narela and was on emergency duty with SI Karamvir from 8.00 a.m. to 8.00 p.m. He further deposed that on receipt of information at around 5.00 p.m. vide DD No. 22A, he alongwith SI Karambir had reached at Tpoint, CRPF Camp, JJ Colony, Bawana where they had found one dead body of a girl placed on the road and large crowd of people gathered there where accused Ved Prakash was addressing the crowd. He also deposed regarding seeing of burnt police chowki and motorcycles and car and lying of stones and bricks on ID No. 10/2019 State Vs. Ved Prakash and Ors. 25/98 the road. He further deposed regarding recording of statement of complainant HC Jagbir, which he had taken to duty offer ASI Naresh for getting the FIR registered. Thereafter, he had handed over the copy of FIR to SI Karambir and thereafter, in his presence, case property i.e. stones, bricks, burnt car, motorcycles etc. were seized.

49. PW32 was SI Karambir and the investigating officer of this case and he had deposed on similar lines as deposed to by PW31 HC Shankar Lal and the same is not being repeated herein.

50. PW32 SI Karambir further deposed that after the receipt of copy of FIR, he had seized the case property, had recorded the statement of Ct.Shankar, statement of Fire Brigade Officials, statement of members of crime team and collected the 17 photographs and the DVD vide different seizure memos. PW32 SI Karambir further deposed that further investigation of the case ID No. 10/2019 State Vs. Ved Prakash and Ors. 26/98 was assigned to SI Aadesh.

51. PW33 was HC Satish and he had deposed on oath that on 25.04.2015, he was posted as a DD Writer at PS Narela and his duty hours were from 4.00 p.m. to 12 mid night. He had deposed that on that day, he lodged DD Entry No. 73B Ex.PW33/A, DD Entry No. 78B Ex.PW33/B and DD Entry No.81B Ex.PW33/C. He also proved the entries in roznamcha register in this regard at Sr.No.73,78 and 81 vide Ex.PW33/D, Ex.PW33/E and Ex.PW33/F.

52. PW34 SI Aadesh was the second IO of this case. He had deposed that after the investigation was handed over to him, he had collected the call detail record of the mobile number of accused A9 Chand, A2 Mehfooz and A7 Alam from their respective Nodal Officers of Mobile Service Providers and he had exhibited the same as Ex.PW34/A(colly). Ex.PW34/B(colly) and Ex.PW34/C(colly). He had also ID No. 10/2019 State Vs. Ved Prakash and Ors. 27/98 deposed on oath that he had obtained the ownership details of the burnt vehicles from the respective registration authorities, which were exhibited as Ex.PW34/G, Ex.PW34/H and Ex.PW34/I. He further deposed that he had filed the charge sheet after the completion of investigation.

53. After the closure of prosecution evidence, statement of accused persons were recorded under Section 313 Cr.P.C. and all the incriminating evidence coming on record was put to accused persons. All the accused persons in their statement denied their role in the rioting and burning of car and motorcycles and further deposed that they have been falsely implicated in the present case.

54. Only accused A1 Ved Prakash has lead defence evidence and in his defence, he has examined DW1 Mohd.Chand Rashid, who was the father of deceased Shama Parveen. He has deposed on oath that on ID No. 10/2019 State Vs. Ved Prakash and Ors. 28/98 20.04.2015, his daughter had gone missing after dinner and thereafter, missing report was got lodged at PS Narela. Thereafter, on 24.04.2015, at about 4.00 p.m. he had received a call from PS. K.N.Katju Marg regarding recovery of a dead body of a girl and accordingly, he had gone to the police station and had identified the body of his deceased daughter from the photograph of the body shown by the police. Thereafter, on the next day, body of deceased girl was taken from Babu Jagjeevan Ram Hospital where he was told that body was brought to the hospital on 21.04.2015. He further deposed that when after taking the body, they had reached T point of JJ Colony, Bawana, Delhi, they met a huge crowd, who asked him to place the dead body on the road itself and further told that they will call the area MLA for justice. Thereafter, area MLA had reached at the spot at around 33.30 p.m. and police also reached at the spot and thereafter, at the instance of police officials and area MLA, they had taken away the dead body from the ID No. 10/2019 State Vs. Ved Prakash and Ors. 29/98 Tpoint, CRPF Camp at around 5 p.m. He further deposed that he did not witness any pelting of stones or use of tear gas shells. No other witness was examined on behalf of accused A1 Ved Prakash. Accordingly, defence evidence was closed.

55. Thereafter, the matter was posted for final arguments.

56. I have heard Sh.Manish Rawat, Ld.Addl.PP for State, Sh.Gagan Bhatnagar, Ld.counsel for accused no.1 and Sh.Imran Ali, Legal Aid counsel for accused nos.2 to 11 except accused no.5 Iqbal (since expired). I have also carefully perused the material available on record as well as the written submissions of accused persons and the respective judgments filed by the parties on record.

Submissions of Ld.Addl.PP for State.

57. It was submitted by Ld.Addl.PP for State that in ID No. 10/2019 State Vs. Ved Prakash and Ors. 30/98 the present case, prosecution has proved this case beyond reasonable doubt that accused persons were part of the unlawful assembly which had done rioting by burning of car, motorcycles and police chowki and had also injured several police persons by pelting of stones.

58. It was submitted that the evidence of prosecution witnesses is consistent to the effect that it was accused A1 Ved Prakash, who was the area MLA, had caused the dead body of Shama Parveen to be kept in the middle of the road which had lead to a traffic jam. It was further submitted that other accused persons, who had joined accused A1 Ved Prakash were duly identified by the area beat officials to be present alongwith him in causing disruption of traffic.

59. It was further submitted that since accused persons were duly identified by the beat area officials, therefore, their identity has been duly established.

ID No. 10/2019 State Vs. Ved Prakash and Ors. 31/98

60. It was further submitted that all the accused persons, who were present at the Tpoint, CRPF Camp, who had caused traffic jam were part of the unlawful assembly as their common objective as per Section 141 IPC was to cause disruption in the movement of traffic and to overawe the police by show of strength to prevent them from discharging their official duties.

61. It was further submitted that the entire incident was videographed and identity of accused persons was duly established from the DVD having the recording of the incident which was exhibited as Ex.PW5/C and the said DVD was also played in the court and from the same, PW1 Ct.Amit had identified the accused persons, who were present in the crowd.

62. It was further submitted that since it was proved on record by the prosecution witnesses regarding the presence of accused in the unlawful assembly, ID No. 10/2019 State Vs. Ved Prakash and Ors. 32/98 therefore, they are vicariously liable being member of the lawful assembly for the acts done by the members of the unlawful assembly like burning of police chowki, vehicles and the act of stone pelting on the police officials which lead to hurt being caused to large number of police officials.

63. It was further submitted that the incident of burning of police chowki and vehicles has been duly proved on record by the photographs Ex.PW14/B (colly) which were clicked by PW14 Ct.Abhishek, part of the Crime Team, who had reached at the spot.

64. It was further submitted that even during the cross examination of prosecution witnesses, no suggestion was put forth to any of the prosecution witnesses that the police chowki was not burnt. Therefore, this fact stands admitted.

65. It was further submitted that nature of injuries ID No. 10/2019 State Vs. Ved Prakash and Ors. 33/98 suffered by police officials in the stone pelting has been duly proved by their respective MLCs and even the doctors, who had examined them, have proved the same by way of their deposition.

66. It was further submitted that minor contradictions in the testimony of prosecution witnesses can easily be ignored as minor contradictions regarding time of the incident or the distance between the Tpoint, CRPF Camp and police chowki are bound to occur if testimony of prosecution witnesses is being recorded after 45 years of incident. It was further submitted that it is a settled principle of law that minor contradictions which do not go to the root of the matter can easily be ignored.

67. Lastly, it was submitted that it is a settled principle of law that where rioting is caused by a huge crowd then, identification of accused persons by two reliable witnesses is sufficient for their conviction. It ID No. 10/2019 State Vs. Ved Prakash and Ors. 34/98 was further submitted in this regard that in the present case, all prosecution witnesses have consistently deposed regarding the role of accused persons and their identification.

68. It was further submitted that identification of accused persons had been done by the area beat officials, who due to their posting in a particular area are familiar with the residents of their beat area. Therefore, identity of accused persons has been duly established in the present case beyond reasonable doubt. Accordingly, a prayer was made for convicting the accused persons for the offence with which they have been charged.

69. In support of his contention, Ld.Addl.PP for State has relied upon the following judgments: (1) Sarwan Singh Vs. State of Punjab, Appeal (Crl.) 480 of 2001; (2) V.K.Mishra and anr. Vs. State of Uttarakhand and anr., Crl.Appeal No. 1247 of 2012; (3) Rajesh Dhiman ID No. 10/2019 State Vs. Ved Prakash and Ors. 35/98 Vs. State of Himachal Pradesh, Crl. Appeal No. 1032 of 2013; (4) Anil Vs. State of Maharashtra, Crl.Appeal No. 728 of 1995; (5) Leela Ram (Dead) through Duli Chand Vs. State of Haryana and Ors., Crl.Appeal No. 297 of 1992; (6) Sukhdev Yadav and Ors., Vs. State of Bihar, Appeal (Crl.) 482 of 2000; (7) Duleshwar and anr. Vs. The State of M.P.Crl. Appeal No. 1813 of 2017; (8) Binay Kumar Singh Vs. The State of Bihar decided on 31.10.1996; and (9) Masalti Vs. State of U.P., Crl.Appeals No. 3034 of 1964 decided on 04.05.1964.

Common Arguments on behalf of Ld.counsel for Accused No.1 and Ld.counsel for Accused Nos. 2 to 11 (except A5).

70. It was jointly submitted that it has come in the evidence of prosecution witnesses that there were two separate places of incident.

71. The first place of incident is at Tpoint, CRPF Camp, where a peaceful dharna was going on and the ID No. 10/2019 State Vs. Ved Prakash and Ors. 36/98 other place of incident was at police booth where vehicles and allegedly police booth were set on fire and even stone pelting had occurred.

72. It was further submitted that accused persons were present at Tpoint, CRPF Camp and they were staging a peaceful protest and were not a member of any unlawful assembly.

73. It was further submitted that in the incident which had occurred at police chowki, the accused persons were not member of any unlawful assembly and this fact has been admitted by prosecution witnesses namely, PW1 Ct.Amit, PW2 Ct.Sumit, PW9 Rajesh Khatri, PW12 ASI Jagbir Singh, PW16 Ct.Karamvir, PW19 Ct.Rajender and PW27 ACP Gulam Sabir in their cross examination.

74. It was further submitted that none of the accused had participated in the incident of stone pelting or of ID No. 10/2019 State Vs. Ved Prakash and Ors. 37/98 burning of vehicles or the police chowki and neither they were part of the unlawful assembly which had set police chowki and vehicles on fire or had pelted stones on the police officials. Therefore, there was no common object of accused persons with the members of the unlawful assembly to burn vehicles, police chowki or to pelt stones on the police officials.

75. It was further submitted that even it was not proved on record that police chowki was set on fire. It was further submitted that accused persons in the cross examination of prosecution witnesses had given a specific suggestion that police booth was not set on fire. Therefore, deposition of prosecution witnesses was nowhere admitted regarding burning of police booth and the onus was upon the prosecution to have proved burning of police booth beyond reasonable doubt.

76. However, in the present case, said fact of alleged ID No. 10/2019 State Vs. Ved Prakash and Ors. 38/98 burning of police booth has not been established on record. It was submitted that neither in the photographs of the place of incident Ex.PW14/B (colly) nor in the deposition of prosecution witnesses namely, PW6 ASI Karambir, PW12 ASI Jagbir Singh and PW27 ACP Gulam Sabir, it has come on record that police booth was set on fire. Therefore, this fact was not established on record and prosecution witnesses had deposed falsely with regard to burning of police booth.

77. It was further submitted that even the fact of burning of Government motorcycle was not proved on record as record from the Registration Authority was not produced and there is no evidence on record to show that any Government motorcycle was burnt in the said incident. Accordingly, it was submitted that charge framed under Section 4 of the PDPP Act is not proved against any of the accused persons as no damage to public property has been proved on record.

ID No. 10/2019 State Vs. Ved Prakash and Ors. 39/98

78. It was further submitted that there is contradiction in the deposition of prosecution witnesses with regard to distance between the police booth and the Tpoint, CRPF Camp and with regard to time of incident which makes their testimony unreliable.

79. It was submitted that there is material contradiction in the testimony of prosecution witnesses, namely, PW1 Ct.Amit, PW4 Ct.Vinay, PW12 ASI Jagbir Singh, PW19 Ct.Rajender, PW27 ACP Gulam Sabir regarding distance between Tpoint, CRPF Camp and the police booth and they have given a varying distance of 4050 meters to 900 meters and there is also material contradictions in the testimony of prosecution witnesses, namely, PW5 Yashpal, PW9 Rajesh Khatri, PW10 Ct.Ashok, PW12 ASI Jagbir Singh, PW16 Ct.Karamvir, PW30 Sh.Narender Kumar and PW34 SI Aadesh regarding the time of the incident that had occurred which also makes the testimony of prosecution witnesses unreliable.

ID No. 10/2019 State Vs. Ved Prakash and Ors. 40/98

80. It was further submitted that there is also a contradiction in the testimony of PW2 Ct.Sumit with regard to meeting the deceased girl about twothree days prior to the incident whereas the fact which has come on record is that she was found murdered on 21.04.2015.

81. It was further submitted that none of the alleged police official, who suffered injuries have signed the MLC or had affixed their thumb impression which also creates a doubt regarding their having suffered any kind of hurt in the stone pelting.

82. It was further submitted that none of the police officials had suffered any kind of fatal injury and it is not believable that if crowd had indulged in a huge stone pelting then, police officials would have suffered simple injuries only, which also creates a doubt regarding any incident of stone pelting being done by ID No. 10/2019 State Vs. Ved Prakash and Ors. 41/98 the crowd. Accordingly, a prayer was made to acquit all accused persons.

83. In support of his contention, Ld.counsel for accused nos.2 to 11 has relied upon the following judgments: (1) Anita Thakur and Ors. Vs. Govt.of J and K and Ors., Writ Petition (Criminal) No. 118 of 2007 (under Article 32 of the Constitution of India) decided on 12.08.2016; (2) Rakesh Vaishnav and Ors. Vs. Union of India and Ors., Writ Petition (s) (Civil) No(s). 1118/2020 (IA No. 98868/2020 - Ex Parte AdInterim Relief); (3) Chandra Bihari Gautam and Ors. Vs. State of Bihar, Appeal (Crl.) 1161 of 1999 decided on 15.04.2002; (4) Charan Singh and Ors. Vs. State of Uttar Pradesh, Criminal Appeal Nos.11151116 of 2003 decided on 10.03.2004; (5) Allauddin Mian and Ors. Vs. State of Bihar, Criminal Appeals Nos. 343 and 446 of 1988 decided on 13.03.1989; (6) Bhimrao and Ors. Vs. State of Maharashtra, Criminal Appeal Nos.144148 of 1996 decided on 06.02.2003; (7) ID No. 10/2019 State Vs. Ved Prakash and Ors. 42/98 Kattukulangara Madhvan (Dead) thr. L.Rs. and Ors. Vs. Majeed and Ors., Criminal Appeal Nos.400, 661 of 2006 and 141 of 2007 decided on 30.03.2017; (8) Dani Singh and Ors. Vs. State of Bihar, Criminal Appeal No. 284286 of 2003 decided on 12.03.2004; and (9) Ramashish Yadav and Ors. Vs. State of Bihar, Criminal Appeal No. 719722/1996 decided on 09.09.1999.

Additional Arguments of Accused No.1.

84. It was further submitted by Ld.counsel for accused A1 Ved Prakash that in the present case, there is no evidence on record that accused A1 Ved Prakash had instigated the crowd to indulge in rioting by burning police booth, vehicles or to do any kind of stone pelting upon the police officials.

85. It was further submitted that although prosecution witnesses had deposed on oath that accused A1 Ved Prakash was instigating the crowd but ID No. 10/2019 State Vs. Ved Prakash and Ors. 43/98 what were the exact words uttered by accused A1 Ved Prakash to instigate the crowd have not been specifically deposed by the prosecution witnesses.

86. It was further submitted that all the prosecution witnesses have admitted in their cross examination that accused A1 Ved Prakash was not the part of the unlawful assembly, which had indulged in stone pelting or on setting on fire the vehicles or the police booth.

87. It was further submitted that mere presence of accused A1 Ved Prakash at the Tpoint, CRPF Camp will not make him liable for the offence of rioting unless some overt act has been attributed to him.

88. Admittedly, accused A1 Ved Prakash had not instigated the crowd to do stone pelting or to indulge in mischief by fire and even accused no.1 Ved Prakash was not present at the police booth or was part of the ID No. 10/2019 State Vs. Ved Prakash and Ors. 44/98 unlawful assembly, which had done the offence of rioting by stone pelting. Therefore, accused no.1 Ved Prakash had not shared any common object with other members of the unlawful assembly to indulge in burning of vehicles or police booth or in stone pelting. Accordingly, Ld.counsel has made a prayer for acquittal of accused A1 Ved Prakash and in support of his contention, he has relied upon the following judgments of the Hon'ble Supreme Court of India delivered in (1) Dani Singh and Ors. Vs. State of Bihar, Criminal Appeal No. 284286 of 2003 decided on 12.03.2004; (2) Amrika Bai Vs.State of Chhattisgarh, Criminal Appeal No. 1036 of 2011 decided on 29.03.2019; (3) Usmangani @ Bhura Abdulgafar and anr. Vs. State of Gujarat, Criminal Appeal No.1041 of 2016 with no. 1042 of 2016 decided on 09.08.2018 and (4) Baladin and Ors. Vs. State of Uttar Pradesh, Criminal Appeal Nos.118 and 119 of 1954 decided on 18.10.1955.

ID No. 10/2019 State Vs. Ved Prakash and Ors. 45/98 Findings and reasons thereof

89. I have considered the rival submissions of respective parties and have carefully perused the material on record.

90. The first and the foremost fact which is required to be established on record by prosecution is whether accused persons, who had assembled at Tpoint, CRPF Camp were part of the unlawful assembly or not?

91. The evidence which has come on record of PW1 Ct.Amit, PW2 Ct.Sumit, PW3 Ct.Praveen, PW4 Ct.Vinay, PW10 Ct.Ashok, PW12 ASI Jagbir Singh, PW13 Ct.Bheem, PW27 ACP Gulam Sabir and PW32 SI Karambir is consistent with regard to the fact that when dead body of deceased Shama Parveen reached at Tpoint, CRPF Camp at about 2.00 p.m. then, accused A1 Ved Prakash alongwith sixseven persons reached there where other accused persons, namely, accused A2 Mehfooz, A3 Asgar, A4 Sakir @ Guddu, ID No. 10/2019 State Vs. Ved Prakash and Ors. 46/98 A6 Gulab were present and presence of accused no.9 Chand was deposed to by PW1 Ct.Amit after seeing the video CD Ex.PW5/C and also by PW32 SI Karambir. Further, with regard to presence of accused A7 Manzoor Alam, PW2 Ct.Sumit, PW3 Ct.Praveen, PW12 ASI Jagbir and PW27 ACP Gulam Sabir had deposed consistently. Further, in the cross examination of aforementioned witnesses, it was never suggested that accused A1 Ved Prakash, A2 Mehfooz, A3 Asgar, A4 Sakir @ Guddu, A6 Gulab, A7 Manzoor Alam and A9 Chand were not part of the crowd which had gathered at the Tpoint. Further, aforementioned accused persons have admitted in their examination under Section 313 Cr.P.C. regarding their presence at Tpoint, CRPF Camp.

92. Further, the identity of accused A1 Ved Prakash, A2 Mehfooz, A3 Asgar, A4 Sakir @ Guddu, A6 Gulab and A9 Chand was also established on record from the video CD Ex.PW5/C which was recording of ID No. 10/2019 State Vs. Ved Prakash and Ors. 47/98 the incident. Therefore, the evidence which has come on record proves beyond reasonable doubt presence of A1 Ved Prakash, A2 Mehfooz, A3 Asgar, A4 Sakir @ Guddu, A6 Gulab, A7 Manzoor Alam and A9 Chand at Tpoint, CRPF Camp.

93. It has also come on record in the evidence of aforementioned prosecution witnesses that when the body of deceased Shama Parveen had reached at T point, CRPF Camp, then accused A1 Ved Prakash, who was the area MLA had asked the crowd to keep the dead body of Shama Parveen on road and not to take the dead body of deceased from the spot till their grievance is addressed.

94. It has also come in the evidence of aforementioned prosecution witnesses that due to act of accused A1 Ved Prakash placing the dead body of deceased Shama Parveen on road, traffic was blocked on both sides of the road. It has also come in their ID No. 10/2019 State Vs. Ved Prakash and Ors. 48/98 evidence that SHO of area, who is PW27 ACP Gulam Sabir also requested accused A1 Ved Prakash not to instigate the crowd but he did not pay any heed to his advise. The evidence of PW27 ACP Gulam Sabir is duly corroborated by the evidence of PW12 ASI Jagbir, who happens to be the complainant of this case.

95. Nothing material was brought out in the cross examination of aforementioned prosecution witnesses by accused persons regarding the facts deposed to by them with regard to incident which took place at T point, CRPF Camp.

96. Now, the next question arises is whether the aforementioned acts of accused A1 Ved Prakash,A2 Mehfooz, A3 Mohd.Asgar, A4 Sakir @ Guddu, A6 Gulab, A7 Mohd.Manzoor Alam and A9 Chand makes them member of unlawful assembly or not?

97. In order to find out the answer to above question, ID No. 10/2019 State Vs. Ved Prakash and Ors. 49/98 it is relevant to reproduce the definition of unlawful assembly which reads as under: "141. Unlawful assembly.--An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is--

(First) -- To overawe by criminal force, or show of criminal force, 1[the Central or any State Government or Parliament or the Legislature of any State], or any public servant in the exercise of the lawful power of such public servant; or (Second) -- To resist the execution of any law, or of any legal process; or (Third) -- To commit any mischief or criminal trespass, or other offence; or (Fourth) -- By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or ID No. 10/2019 State Vs. Ved Prakash and Ors. 50/98 (Fifth) -- By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.

Explanation.--An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.

98. Since the common object of the assembly, which had gathered at Tpoint, CRPF Camp was to deprive the enjoyment of right of way by blocking the way from both sides of the road and to overawe by show of criminal force, the police in lawful exercise of their power, therefore, the crowd which had gathered at T point, CRPF Camp was an unlawful assembly. Therefore, the common object of the assembly was duly covered under the First and the Fourth part of Section 141 IPC and since, there were five or more persons gathered at Tpoint, CRPF Camp, therefore, it was an unlawful assembly.

ID No. 10/2019 State Vs. Ved Prakash and Ors. 51/98

99. The contention of Ld.counsel for accused A1 Ved Prakash that accused A1 Ved Prakash had not made the family of deceased to keep the body in the middle of the road and to block the traffic in the light of deposition of DW1 Mohd.Chand Rashid, who happens to be the father of deceased Shama Parveen wherein he has deposed that it was at the request of accused A1 Ved Prakash and the police, they had taken the body from the Tpoint, CRPF Camp at 5.00 p.m., is required to be rejected.

100. The reason for the same is that in the entire cross examination of prosecution witnesses, no suggestion was ever given to any of the prosecution witnesses that accused A1 Ved Prakash had not made the family of deceased to keep the body in the middle of the road and to block the traffic and accused A1 Ved Prakash had requested the father of deceased Shama Parveen to take away the body which he ID No. 10/2019 State Vs. Ved Prakash and Ors. 52/98 complied with at about 5.00 p.m.

101. In the entire cross examination of prosecution witnesses, no suggestion was given that father of deceased i.e. DW1 Mohd.Chand Rashid had himself taken away the body of deceased on the request of police and the area MLA and not at the instance of senior police officials, who had reached at the spot after the incident of rioting of damaging of police booth and burning of car and motorcycles. Therefore, DW1 Mohd.Chand Rashid has been introduced at the stage of defence evidence as an after thought and his evidence is required to be discarded.

102. The contention of Ld.counsel for accused persons that since there is a contradiction between the testimony of prosecution witnesses regarding the time of alleged incident, therefore, the entire story regarding the occurrence of incident has been cooked up by the prosecution is required to be rejected.

ID No. 10/2019 State Vs. Ved Prakash and Ors. 53/98

103. The reason for the same is that although it is correct that public witnesses namely, PW5 Yashpal, PW9 Sh.Rajesh Khatri and PW30 Sh.Narender Kumar have deposed regarding the incident having taken place at 12 noon/4.30 p.m. whereas police officials, namely, PW12 ASI Jagbir Singh, PW16 Ct.Karamvir and PW27 ACP Gulam Sabir have deposed regarding the incident having taken place at 2.00 p.m. but in the opinion of this court, the contradiction in the time of the incident is a minor one and the same can be ignored.

104. The reason for the same is that the incident of rioting is not such an offence where timing of offence is very relevant. What is relevant in the present case is whether the offence of rioting had indeed taken place or not and the said fact has been proved on record by the testimony of prosecution witnesses which is duly supported with the electronic evidence in the form of ID No. 10/2019 State Vs. Ved Prakash and Ors. 54/98 photographs Ex.PW2/C (colly), PW14/B (colly) and video recording Ex.PW5/C. Therefore, minor contradictions in the time of the incident is inconsequential and does not create a doubt in the prosecution story. I am fortified in my reasoning by the judgment of the Hon'ble Supreme Court of India delivered in State of Uttar Pradesh Vs. Naresh and Others, (2011) 4 SCC 324 wherein it was observed in para 30 as under:

30. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental dis position such as shock and horror at the time of occurrence. Where the omissions amount to a con tradiction, creating serious doubt about the truth fulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial mat ters which do not affect the core of the prosecu tion case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility ID No. 10/2019 State Vs. Ved Prakash and Ors. 55/98 of the witness and record a finding as to whether his deposition inspires confidence.

Therefore, mere marginal variations in the statements of a witness cannot be dubbed as im provements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in ma terial particulars i.e.go to the root of the case/ma terially affect the trial or core of the prosecution's case, render the testimony of witness liable to be discredited. (Vide State Vs. Saravanan, (2008) 17 SCC 587, Arumugam Vs. State ( 2008) 15 SCC 590, Mahendra Pratap Singh Vs. State of UP, (2009) 11 SCC 334 and Sunil Kumar Sambhu dayal Gupta (Dr.) Vs. State of Maharashtra, (2010) 13 SCC.

105. Further, the Hon'ble Supreme Court of India in the case of Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, (1983) 3 SCC 217 has held that much importance cannot be attached to minor discrepancies on the following reasons:

(i) By and large a witness cannot be ex pected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.

ID No. 10/2019 State Vs. Ved Prakash and Ors. 56/98

(ii) Ordinarily, it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental facilities therefore cannot be ex pected to be attuned to absorb the details.

(iii) The powers of observation differ from person to person. What one may notice an other may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.

(iv) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the con versation. It is unrealistic to expect a witness to be a human tape recorder.

(v) In regard to exact time of an incident, or the time duration of an occurrence, usu ally, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable esti mates in such matters. Again, it depends on the timesense of individuals which varies from person to person.

(vi) Ordinarily a witness cannot be expected to recall accurately the sequence of events ID No. 10/2019 State Vs. Ved Prakash and Ors. 57/98 which takes place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.

(vii) A witness, though wholly truthful, is li able to be overawed by the court atmos phere and the piercing crossexamination made by counsel and out of nervousness mix up facts, get confused regarding se quence of events or fill up details from imagination on the spur of the moment. The subconscious mind of the witness some times so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him. Perhaps it is a sort of a psychological de fence mechanism activated on the spur of the moment.

106. Therefore, from the aforesaid judgments, it is ample clear that minor contradictions which do not affect the core of prosecution case cannot be made a ground to reject the entire prosecution case in its entirety and court has to form its own opinion about the credibility of witnesses.

ID No. 10/2019 State Vs. Ved Prakash and Ors. 58/98

107. Therefore, in the present case since the core of prosecution case remains consistent and corroborative, minor contradiction with regard to exact time of the incident will not affect the prosecution case in its entirety or the credibility of the witnesses.

108. In the present case, the offence which is proved against accused A1 Ved Prakash, A2 Mehfooz, A3 Asgar, A4 Sakir @ Guddu, A6 Gulab, A7 Manzoor Alam and A9 Chand is of being member of an unlawful assembly which had the common object of blocking the road at Tpoint, CRPF Camp and overawing the police force by show of force and not disbursing from Tpoint despite being asked to do so. Therefore, accused A1 Ved Prakash, A2 Mehfooz, A3 Asgar, A4 Sakir @ Guddu, A6 Gulab, A7 Manzoor Alam and A9 Chand have committed offence under Section 145 read with Section 149 IPC. This court is conscious of the fact that no charge ID No. 10/2019 State Vs. Ved Prakash and Ors. 59/98 under Section 145 IPC has been framed against aforementioned accused persons but still the accused persons can be convicted for the minor offence even though they were not charged with the same. I am fortified in my reasoning by Section 222(2) Cr.P.C. which is reproduced hereinbelow: "When a person is charged with an offence and facts are proved which reduces it to a minor offence, he may be convicted of the minor offence, although he is not charged with it."

109. Hence, accused A1 Ved Prakash, A2 Mehfooz, A3 Asgar, A4 Sakir @ Guddu, A6 Gulab, A7 Manzoor Alam and A9 Chand are convicted for the minor offence under Section 145 read with Section 149 IPC.

110. Now, the next fact which was required to be established on record by prosecution is that this unlawful assembly of which accused A1 Ved Prakash, ID No. 10/2019 State Vs. Ved Prakash and Ors. 60/98 A2 Mehfooz, A3 Asgar, A4 Sakir @ Guddu, A6 Gulab, A7 Manzoor Alam and A9 Chand were part had also shared the common object of burning of vehicles, police booth and in pelting of stones on the police officials.

111. It is an admitted case of the prosecution that the place where the dead body was kept i.e. at Tpoint, CRPF Camp and the place where incident of burning of vehicles and police booth occurred, are at a distance. Although distance stated by prosecution witnesses between the Tpoint, CRPF Camp and the police booth is varying from 4050 meters to 900 meters, therefore, it cannot be said with certainty as to what was the exact distance between the Tpoint, CRPF Camp and the police booth but one thing is conclusively established on record that Tpoint, CRPF Camp where the crowd had gathered after keeping the dead body on road and the police booth are at some distance and they are not situated at the same place or in close ID No. 10/2019 State Vs. Ved Prakash and Ors. 61/98 vicinity.

112. This fact is further corroborated by the site plan Ex.PW12/B wherein also the place of keeping the dead body is shown at point A and the police booth is shown at point B which are at different locations.

113. Therefore, the prosecution witnesses deposing contrary to each other regarding distance between the Tpoint, CRPF Camp and the police booth is not a material contradiction which affects the core of the prosecution case as it is an admitted case of the prosecution that Tpoint, CRPF Camp and the police booth are at two different locations. Further, it is not expected from the prosecution witnesses to depose with mathematical precision regarding the distance between the Tpoint, CRPF Camp and the police booth. Therefore, variation deposed to by the prosecution witnesses regarding distance between the Tpoint, CRPF Camp and the police booth is required to be ID No. 10/2019 State Vs. Ved Prakash and Ors. 62/98 ignored as the same is not a material contradiction. I am fortified in my reasoning by the judgment of the Hon'ble Supreme Court of India delivered in State of Uttar Pradesh Vs. Naresh and Ors.'s case (supra) and Bharwada Bhoginbhai Hirjibhai's case (supra).

114. The other evidence which has come on record in the testimony of prosecution witnesses i.e. PW1 Ct.Amit, PW2 Ct.Sumit, PW12 ASI Jagbir Singh and PW27 ACP Gulam Sabir is to the effect that two persons from the crowd gathered at Tpoint, CRPF Camp, namely, accused A3 Mohd.Asgar and accused no.4 Sakir @ Guddu had instigated the crowd to put the police post on fire and on such instigation, accused A3 Mohd.Asgar and A4 Sakir @ Guddu accompanied by 3040 persons had ran towards the police post at C Block, JJ Colony, Bawana and thereafter, smoke was seen coming from the side of police booth.

115. It has also come in the cross examination of ID No. 10/2019 State Vs. Ved Prakash and Ors. 63/98 prosecution witnesses namely, PW1 Ct.Amit, PW2 Ct.Sumit, PW3 Ct.Praveen, PW4 Ct.Vinay, PW12 ASI Jagbir Singh and PW27 ACP Gulam Sabir that other accused persons remained present at the Tpoint, CRPF Camp and had not accompanied accused A3 Mohd.Asgar and A4 Sakir @ Guddu to the police booth and were neither part of the crowd, which had pelted stones. Therefore, except accused A3 Mohd.Asgar and A4 Sakir @ Guddu, other accused persons, who were present at the Tpoint, CRPF Camp did not share any common object with the unlawful assembly which had run towards the police booth at C Block, JJ Colony, Bawana to set the same on fire alongwith vehicles or to indulge in rioting by stone pelting on police officials.

116. It is a settled principle of law that with regard to unlawful assembly, the common object which existed initially can be modified or altered at any subsequent stage. Therefore, prosecution is obliged to prove on ID No. 10/2019 State Vs. Ved Prakash and Ors. 64/98 record that accused persons shared the common object even of the modified common object. I am fortified in my reasoning by the judgment of the Hon'ble Supreme Court of India delivered in Dani Singh and Ors. Vs. State of Bihar, Crl.Appeal Nos.284286 of 2003 decided on 12.03.2004 wherein it has been held by the Hon'ble Supreme Court of India in para 11 as under: "11. The emphasis in Section 149 IPC is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section

141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section

149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a ID No. 10/2019 State Vs. Ved Prakash and Ors. 65/98 person, who is alleged to be a member of unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word 'object' means the purpose or design and, in order to make it 'common', it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression 'in prosecution of common object' as appearing in Section 149 have to be strictly construed as equivalent to 'in order to attain the common object'. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular ID No. 10/2019 State Vs. Ved Prakash and Ors. 66/98 stage, and not thereafter. Member of an unlawful assembly may have community of object up to certain point beyond which they may differ in their objects and the knowledge, possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object, and as a consequence of this the effect of Section 149, IPC may be different on different members of the same assembly."

117. In the present case, except for accused A3 Mohd.Asgar and A4 Sakir @ Guddu, there is no evidence on record that accused A1 Ved Prakash, A2 Mehfooz, A6 Gulab, A7 Manzoor Alam and A9 Chand present at the Tpoint, CRPF Camp had shared any common object with accused A3 Mohd.Asgar and A4 Sakir @ Guddu in the burning of police booth, vehicles or in pelting of stones.

118. Further, only accused A3 Mohd.Asgar and A4 4 ID No. 10/2019 State Vs. Ved Prakash and Ors. 67/98 Sakir @ Guddu were the members of the unlawful assembly, which had the common object of burning the alleged police booth and the vehicles at CBlock, JJ Colony, Bawana.

119. Further, no overt act has been attributed to accused A1 Ved Prakash, A2 Mehfooz, A6 Gulab, A7 Manzoor Alam and A9 Chand, who were present at T point, CRPF Camp.

120. Even accused A1 Ved Prakash, A2 Mehfooz, A6 Gulab, A7 Manzoor Alam and A9 Chand, who were present at Tpoint, CRPF Camp, had not participated in the unlawful assembly by going towards the police booth. Therefore, rioting done by the unlawful assembly at police booth, CBlock, JJ Colony, Bawana at the instigation of accused A3 Mohd.Asgar and A4 Sakir @ Guddu and other unidentified 3040 members of the unlawful assembly cannot be attributed to accused A1 Ved Prakash, A2 Mehfooz, A6 Gulab, A7 ID No. 10/2019 State Vs. Ved Prakash and Ors. 68/98 Manzoor Alam and A9 Chand present at Tpoint, CRPF Camp with the aid of Section 149 IPC.

Burning of police booth

121. In the present case, the defence of accused persons was that police booth was never burnt but the said defence was denied by the prosecution witnesses in their cross examination. Therefore, onus was upon the prosecution to have proved burning of police booth by the unlawful assembly of which accused A3 Mohd.Asgar and A4 Sakir @ Guddu were the participants.

122. The material which has come on record shows that there is no evidence on record with regard to burning of police booth. The initial complaint Ex.PW12/A, on the basis of which FIR was registered, only mentions about damage to the police booth and burning of car and motorcycles. PW12 ASI Jagbir ID No. 10/2019 State Vs. Ved Prakash and Ors. 69/98 Singh in his deposition before the court also stated about the damage to the police booth and burning of car and motorcycles. Further, the testimony of PW12 ASI Jagbir Singh was also corroborated by PW27 ACP Gulam Sabir, who was the area SHO, by deposing about the damage to the police booth.

123. Further, PW6 ASI Karambir, who was the Incharge of Mobile Crime Team and had inspected the place of incident, had also deposed in his evidence regarding damage to police booth and he also proved his report Ex.PW6/A in this regard.

124. Further, PW14 Ct.Abhishek, who was the photographer with the Mobile Crime Team, also corroborated the testimony of PW6 ASI Karambir by deposing to the effect that police booth was found damaged. He further proved his deposition by bringing on record 17 photographs of the place of incident Ex.PW14/B(colly).

ID No. 10/2019 State Vs. Ved Prakash and Ors. 70/98

125. I have carefully perused the photographs Ex.PW14/B (colly) and in the said photographs, it is not visible that police booth was burnt but the police booth is seen to be damaged which corroborates the testimony of PW6 ASI Karambir, PW12 ASI Jagbir Singh, PW14 Ct.Abhishek and PW27 ACP Gulam Sabir and complaint Ex.PW12/A.

126. Although PW10 Ct.Ashok and PW16 Ct.Karamvir had deposed in their cross examination regarding dousing of fire at police booth by the Fire Brigade but in the opinion of this court, this is a false deposition made by PW10 Ct.Ashok and PW16 Ct.Karamvir.

127. The reason for the same is that the fire officials, who had reached at the spot had deposed nothing with regard to the dousing of fire at police booth.

128. PW7 Dev Prakash was the Fire Officer posted at ID No. 10/2019 State Vs. Ved Prakash and Ors. 71/98 Bawana Fire Station and he had deposed on oath that on receiving the call, they had reached at JJ Colony, Bawana and on reaching there, public persons had started pelting stones on the Fire Brigade vehicle due to which they were not able to reach at the spot to douse the fire.

129. The statement of PW7 Dev Prakash is duly corroborated by PW8 Sher Singh, who was the driver of the Fire Brigade vehicle. Therefore, PW10 Ct.Ashok and PW16 Ct.Karamvir deposed falsely regarding dousing of fire by fire officials.

130. Therefore, prosecution has failed to prove on record that police booth was burnt by the unlawful assembly of which accused A3 Mohd.Asgar and A4 Sakir @ Guddu were part.

131. The only evidence which has come on record is with regard to damage to police booth and damage to ID No. 10/2019 State Vs. Ved Prakash and Ors. 72/98 police booth stands proved on record in the light of photographs Ex.PW14/B (colly) and also by the evidence of PW6 ASI Karambir, PW12 ASI Jagbir Singh, PW14 Ct.Abhishek and PW27 ACP Gulam Sabir whose evidence regarding damage to police booth remains unchallenged and uncontroverted. Therefore, prosecution has failed to prove the offence under Section 436 read with Section 149 IPC against accused A3 Mohd.Asgar and A4 Sakir @ Guddu. However, it is proved on record that A3 Mohd.Asgar and A4 Sakir @ Guddu were part of the unlawful assembly which had caused damage to the police booth which was a public property.

Theft of articles lying in the police booth

132. It has come in the evidence of PW12 ASI Jagbir Singh, who happens to be the complainant and who was also deputed at beat no.10 which is the police booth that in the incident of rioting, several documents ID No. 10/2019 State Vs. Ved Prakash and Ors. 73/98 like summons, warrants and complaints which were lying in the police booth were found missing after the incident.

133. However, in his cross examination, PW12 ASI Jagbir Singh has deposed that he has not signed any list giving details of summons, warrants and complaints which had gone missing from the police booth.

134. It was incumbent upon the prosecution to have filed on record the list of summons, warrants and the complaints which had gone missing from the police booth to prove the charge of theft framed in the present case.

135. List of summons, warrants and complaints could have been easily filed after obtaining the details from the police station but the same has not been done. Further, list of articles which had gone missing from the police booth has not been specifically deposed to.

ID No. 10/2019 State Vs. Ved Prakash and Ors. 74/98

136. Further, it is not believable that accused persons will commit theft of summons, warrants and complaints which have got no monetary value. Therefore, prosecution has failed to prove that accused A3 Mohd.Asgar and A4 Sakir @ Guddu being part of unlawful assembly had committed theft of summons, warrants and complaints and other articles lying in the police booth. Accordingly, accused A3 Mohd.Asgar and A4 Sakir @ Guddu are acquitted for the offence under Section 379 read with Section 149 IPC.

House Trespass in Police Booth

137. As far as offence under Section 452 read with Section 149 IPC is concerned, the same has also not been proved on record by the prosecution as there is no evidence on record that accused A3 Mohd.Asgar and A4 Sakir @ Guddu being members of the unlawful assembly had committed house trespass into the police booth after having made preparation to cause hurt to ID No. 10/2019 State Vs. Ved Prakash and Ors. 75/98 the occupants of the police booth.

138. The reason for the same is that police booth was lying vacant at the time of incident and all the prosecution witnesses, namely, PW1 Ct.Amit, PW2 Ct.Sumit, PW3 Ct.Praveen, PW4 Ct.Vinay, PW13 Ct.Bheem and PW16 Ct.Karamvir, who were posted at police booth/chowki have all deposed in their evidence that on being called by PW12 ASI Jagbir Singh, they had reached at Tpoint, CRPF Camp and thereafter, incident of alleged burning of police chowki had taken place. Further, none of the aforesaid witnesses, who were posted at police chowki had deposed regarding presence of any other police officials at the police chowki nor there is any evidence of police official regarding his presence at police chowki when the same was damaged. Further, PW1 Ct.Amit in his cross examination admitted regarding presence of all police officials posted at police booth, to be present at the T point, CRPF Camp and no one was present at the police ID No. 10/2019 State Vs. Ved Prakash and Ors. 76/98 booth.

139. Therefore, there was no question of commission of any house trespass by the unlawful assembly in order to put any of the occupants of police booth in fear of any injury or hurt/wrongful restrain. Hence, the offence under Section 452 read with Section 149 IPC was not proved by the prosecution. Accordingly, accused A3 Asgar and A4 Sakir @ Guddu are acquitted for the offence under Section 452 read with Section 149 IPC.

Burning of Vehicles

140. It has come in the evidence of PW1 Ct.Amit, PW2 Ct.Sumit, PW3 Ct.Praveen, PW4 Ct.Vinay, PW12 ASI Jagbir Singh, PW27 ACP Gulam Sabir and PW32 SI Karambir that near the police booth, crowd had burnt one Xcent Car belonging to PW2 Ct.Sumit, one motorcycle of Ct.Karamvir, one motorcycle of HC ID No. 10/2019 State Vs. Ved Prakash and Ors. 77/98 Jagbir Singh and one government motorcycle.

141. Further, photographs of the burnt car and motorcycles were also filed on record vide Ex.PW2/A (colly) and Ex.PW14/B (colly).

142. The seizure memo of the burnt vehicles are Ex.PW12/C and that of Government motorcycle is Ex.PW12/D.

143. Nothing material was brought out in the cross examination of aforesaid prosecution witnesses to show that no incident of burning of motorcycles and car was done by the unlawful assembly of which accused A3 Mohd.Asgar and A4 Sakir @ Guddu were part.

144. The contention of Ld.counsel for accused A2 to A11 that it has not been proved on record that the Government motorcycle bearing no. DL1SN4356 was indeed a Government motorcycle as no document of its ID No. 10/2019 State Vs. Ved Prakash and Ors. 78/98 registration was produced on record which fact is admitted by PW34 SI Aadesh in his cross examination, is required to be rejected.

145. Although the ownership record of motorcycle bearing No. DL1SN4356 was not brought on record but all the prosecution witnesses i.e. PW1 Ct.Amit, PW2 Ct.Sumit, PW3 Ct.Praveen, PW4 Ct.Vinay, PW12 ASI Jagbir Singh, PW27 ACP Gulam Sabir and PW32 SI Karambir have consistently deposed on oath that one motorcycle belonging to the Government was burnt by the crowd.

146. In the entire cross examination of aforementioned prosecution witnesses, it was nowhere suggested by the accused that no Government motorcycle was burnt in the incident near the police booth. Therefore, this fact duly stood admitted as there was no cross examination on this aspect.

ID No. 10/2019 State Vs. Ved Prakash and Ors. 79/98

147. Further, accused persons during the cross examination never suggested to any of the prosecution witnesses that motorcycle bearing No. DL1SN4356 is not a Government motorcycle but belongs to some private person.

148. Had the accused persons during the cross examination suggested to any of the prosecution witnesses regarding the aforementioned motorcycle being a private vehicle then, the onus would have shifted upon the prosecution to have proved that it was a Government motorcycle and not a private motorcycle.

149. However, since accused persons never challenged the aforesaid motorcycle to be the Government motorcycle, therefore, this fact stood admitted and nonproduction of ownership record is of no consequence.

ID No. 10/2019 State Vs. Ved Prakash and Ors. 80/98

150. Further, with regard to burning of car bearing No. DL2CAD6569, the evidence which has come on record lead by prosecution appears to be doubtful.

151. The reason for the same is that in his evidence, PW2 Ct.Sumit has deposed that his car was burnt.

152. PW12 ASI Jagbir Singh, who happens to be the complainant in this case, has also deposed that car belonging to PW2 Ct.Sumit was burnt.

153. However, PW34 SI Aadesh, who was the investigating officer of this case, has deposed that the car which was burnt was bearing No. HR06V5098 which in fact belonged to complainant PW12 ASI Jagbir. However, the seizure memo shows that the car which was seized was having registration no. DL2CAD 6569.

154. In the photographs Ex.PW2/A (colly) filed on ID No. 10/2019 State Vs. Ved Prakash and Ors. 81/98 record by the prosecution, car number visible is DL 2CAD6569 and not HR06V5098. Therefore, it is doubtful that any car belonging to HC/ASI Jagbir or of PW2 Ct.Sumit was burnt. However, from the photographs Ex.PW2/A (colly), it is apparent that one white car is seen burning and even in the seizure memo Ex.PW12/C, reference is made to a burnt car and even in the photographs Ex.PW14/B (colly), a charred burnt car is visible. Therefore, although it is not proved on record that any car belonging to PW2 Ct.Sumit or PW12 ASI Jagbir Singh was burnt but is apparent from the photographs Ex.PW2/A (colly), Ex.PW14/B (colly) and the seizure memo Ex.PW12/C that one car was burnt in the incident.

155. The contention of Ld.counsel for accused nos.2 to 11 that none of the accused was part of the crowd which had burnt the police chowki and the vehicles, therefore, they cannot be held guilty for the offence of rioting, is required to be rejected.

ID No. 10/2019 State Vs. Ved Prakash and Ors. 82/98

156. The reason for the same is that although only eye witnesses to the causing of damage to the police booth and burning of vehicles are PW1 Ct.Amit and PW2 Ct.Sumit and in the cross examination of PW1 Ct.Amit, it has come on record that none of the accused is seen in the video pelting stones or setting fire on the police and further, PW1 Ct.Amit has admitted in his cross examination that accused A3 Mohd.Asgar and A4 Sakir @ Guddu were not part of the crowd which had set police chowki on fire but still accused A3 Mohd.Asgar and A4 Sakir @ Guddu are liable for the offence of rioting as they had shared common object with around 3040 persons, of burning the police chowki and it is immaterial that thereafter whether they had themselves participated in the act of causing damage/burning of vehicles or not?

157. The evidence of prosecution witnesses i.e. PW1 Ct.Amit, PW2 Ct.Sumit, PW3 Ct.Praveen, PW4 ID No. 10/2019 State Vs. Ved Prakash and Ors. 83/98 Ct.Vinay, PW12 ASI Jagbir Singh and PW27 ACP Gulam Sabir is consistent to the effect that it was accused A3 Mohd.Asgar and A4 Sakir @ Guddu, who had instigated the crowd of 3040 persons to burn the police chowki and thereafter, that crowed had run towards the police booth and thereafter, fire was seen coming from the side of police booth and when they had reached there, they had found one car and three motorcycles burnt and police chowki damaged. Therefore, the crowd which had caused the damage to the police chowki and burning of car and motorcycles, was an unlawful assembly and accused A3 Mohd.Asgar and A4 Sakir @ Guddu had shared a common object with that unlawful assembly to cause damage to the police chowki and to burn the vehicles and, therefore, with the aid of Section 149 of IPC, A3 Mohd.Asgar and A4 Sakir @ Guddu being members of the unlawful assembly are guilty of the offence of rioting under Section 147 and Section 435 read with Section 149 IPC.

ID No. 10/2019 State Vs. Ved Prakash and Ors. 84/98 Role of accused in stone pelting and causing of injuries to police officials.

158. In this regard, evidence which has come on record from the side of prosecution i.e. of PW1 Ct.Amit, PW2 Ct.Sumit, PW3 Ct.Praveen, PW4 Ct.Vinay, PW9 Rajesh Khatri, PW12 ASI Jagbir Singh, PW16 Ct.Karamvir, PW18 HC Devender, PW19 Ct.Rajender, PW27 ACP Gulam Sabir, PW30 Sh.Narender Kumar and PW32 SI Karambir is that after the incident of damage to police booth and burning of car and motorcycles, senior police officials had reached at T point, CRPF Camp alongwith extra police force and they had convinced the father of deceased girl Shama Parveen to take away the dead body and father of deceased had agreed to take away the body but the crowd was instigating the father of deceased not to do so. However, father of deceased did not pay heed to the advice of the crowd and immediately after he had ID No. 10/2019 State Vs. Ved Prakash and Ors. 85/98 taken away the dead body, the crowd had started pelting stones in which several police officials were injured.

159. However, none of the prosecution witnesses had deposed specifically as to whether the accused were part of the crowd which had done stone pelting on the police leading to injury of police officials nor it has come on record that any of the accused persons had shared a common object with the members of the crowd to do stone pelting.

160. As per the case of the prosecution, the incident of 25.04.2015 was video graphed by PW5 Yashpal and he had produced two cassettes on record i.e. Ex.PW5/A and Ex.PW5/B which had the recording of two incidents. First cassette was having the recording of dharna at Tpoint, CRPF Camp and the second cassette was having the recording of incident of fire and stone pelting.

ID No. 10/2019 State Vs. Ved Prakash and Ors. 86/98

161. Further, PW5 Yashpal had deposed on oath that from the aforementioned cassettes, he had prepared a DVD Ex.PW5/C. Said DVD was played in the court in the testimony of PW1 Ct.Amit and after seeing the same, PW1 Ct.Amit in his cross examination had admitted that none of the accused persons seen in the video Ex.PW5/C are indulging in the act of stone pelting or setting fire to chowki.

162. The testimony of PW1 Ct.Amit was corroborated by PW19 Ct.Rajender and the investigating officer PW32 SI Karambir, who have admitted in their cross examination that none of the accused pelted stones and even no instigation was done by accused A1 Ved Prakash to the crowd to pelt stones.

163. Further, it has also come in the cross examination of prosecution witnesses that accused A1 Ved Prakash did not instigate the crowd to indulge in the act of ID No. 10/2019 State Vs. Ved Prakash and Ors. 87/98 stone pelting and some of the prosecution witnesses have deposed that even accused A1 Ved Prakash left the spot before the start of stone pelting.

164. PW2 Ct.Sumit and PW9 Rajesh Khatri have admitted in their cross examination that accused A1 Ved Prakash left the spot before the incident of stone pelting started. Therefore, from their admission, it cannot be said that accused A1 Ved Prakash had shared any common object with the members of the crowd to indulge in the act of stone pelting upon the police officials.

165. The evidence which has come on record of prosecution witnesses makes it highly doubtful that any of the accused persons were members of the unlawful assembly which indulged in the act of stone pelting leading to the injuries to the police officials.

166. PW12 ASI Jagbir Singh, who is the complainant in this case, deposed in his cross examination that he ID No. 10/2019 State Vs. Ved Prakash and Ors. 88/98 cannot tell the names of persons, who had indulged in the act of stone pelting. PW12 ASI Jagbir Singh was the beat officer at JJ Colony, Bawana and he had known the members of the locality being the beat officer. Further, PW12 ASI Jagbir Singh has specifically identified accused persons, who were present at the T point, CRPF Camp blocking the road. Therefore, he could have easily identified the accused persons, who indulged in the act of stone pelting. However, his inability to identify accused persons as members of unlawful assembly makes it doubtful that accused persons had indulged in the act of stone pelting being members of the unlawful assembly.

167. The doubt regarding the role of accused persons in indulging in the act of stone pelting is further strengthened by the deposition of PW16 Ct.Karamvir when he deposed that all the public persons had indulged in the act of stone pelting but he is doubtful as to whether it was accused persons, who had pelted ID No. 10/2019 State Vs. Ved Prakash and Ors. 89/98 stones.

168. Further, PW27 ACP Gulam Sabir, who was the area SHO and was present at the spot also could not tell as to who had pelted stones on the police officials despite naming the accused persons, who had blocked the road at Tpoint, CRPF Camp.

169. Further, as per the cross examination of PW19 Ct.Rajender, stone pelting was done by the crowd which came from the side of colony and not by the crowd which had gathered at Tpoint, CRPF Camp. Therefore, the cross examination of PW19 Ct.Rajender also makes it doubtful that accused persons, who were present at the Tpoint, CRPF Camp and had indulged in the act of stone pelting which had lead to the injury to the police officials.

170. Further, PW30 Sh.Narender Kumar is a resident of same locality and is a public witness whose car was damaged in the incident of stone pelting and he also ID No. 10/2019 State Vs. Ved Prakash and Ors. 90/98 could not identify accused persons, who had indulged in the stone pelting despite being a resident of the locality. Therefore, the evidence which has come on record makes it highly doubtful that accused persons were the members of the unlawful assembly, which had the common object of indulging in the act of stone pelting and causing injury to various police officials. Accordingly, all accused are acquitted with regard to charge of causing injury on the head of police officials for the offence under Section 308 read with Section 149 IPC, 332 read with Section 149 IPC, 148 read with Section 149 IPC.

Role of accused no.8 Siraj, accused no.10 Naeed and accused no.11 Bholu @ Salim in the offence of rioting and causing damage to public property.

171. In the entire prosecution evidence which has come on record, no role has been assigned to accused A8 Siraj, A10 Naeed and A11 Bholu @ Salim.

ID No. 10/2019 State Vs. Ved Prakash and Ors. 91/98

172. PW1 Ct.Amit, PW2 Ct.Sumit, PW3 Ct.Praveen, PW4 Ct.Vinay and PW12 ASI Jagbir Singh were the officials posted at the beat of JJ Colony, Bawana and had identified the other accused persons being residents of the locality. However, all the aforesaid prosecution witnesses have not deposed regarding the presence of accused A8 Siraj, A10 Naeed and A11 Bholu @ Salim in the unlawful assembly at Tpoint, CRPF Camp or being the member of the unlawful assembly which caused damage to the police booth and burning of vehicles or member of unlawful assembly which pelted stones on the police officials.

173. Further, the CD recording regarding the incident of stone pelting, burning and dharna at Tpoint, CRPF Camp was played in the court in the testimony of PW1 Ct.Amit, who after seeing the same, had deposed that presence of accused A8 Siraj, A10 Naeed and A11 Bholu @ Salim is not there in the said CD Ex.PW5/C. Therefore, there is no ocular or electronic evidence in ID No. 10/2019 State Vs. Ved Prakash and Ors. 92/98 the form of video recording showing the presence of accused A8 Siraj, A10 Naeed and A11 Bholu @ Salim in the unlawful assembly either at Tpoint, CRPF Camp, police booth or as member of the crowd which pelted stones.

174. Further, as per the charge sheet, the basis of charge sheeting accused A8 Siraj, A10 Naeed and A 11 Bholu @ Salim was their identification in the video recording. However, as discussed hereinabove, video recording Ex.PW5/C do not show the presence of accused A8 Siraj, A10 Naeed and A11 Bholu @ Salim being member of any of the unlawful assembly. Hence, accused A8 Siraj, A10 Naeed and A11 Bholu @ Salim are acquitted for all the offences with which they have been charged with.

175. All the accused persons are also required to be acquitted for the offence under Section 186 read with Section 149 IPC. The reason for the same is that as per ID No. 10/2019 State Vs. Ved Prakash and Ors. 93/98 Section 195(1) Cr.P.C., the court is debarred from taking cognizance of the offence under Section 186 IPC unless a complaint in writing is made of the public servant concerned who is prevented from discharging his public functions or by some other public servant to whom he is administratively subordinate.

176. In the present case, there is no specific complaint made by police officials concerned or by any other senior police officers under Section 195 Cr.P.C. Therefore, cognizance of the offence under Section 186 read with Section 149 IPC could not have been taken and the entire trial qua offence under Section 186 IPC has been rendered void ab initio. Accordingly, all accused are acquitted for the offence under Section 186 read with Section 149 IPC.

177. From the aforesaid discussion, accused A1 Ved Prakash, A2 Mehfooz, A6 Gulab, A7 Manzoor Alam and A9 Chand are convicted for the offence ID No. 10/2019 State Vs. Ved Prakash and Ors. 94/98 under Section 145 read with Section 149 IPC. However, they are acquitted for the other offences.

178. Further, accused A3 Mohd.Asgar and A4 Sakir @ Guddu are convicted for the offence under Section 4 of PDPP Act i.e. for burning of Government motorcycle bearing no. DL1SN4356 with the aid of Section 149 IPC.

179. Further, although accused A3 Mohd. Asgar and A4 Sakir @ Guddu were not charged for the offence under Section 147 IPC and Section 3 of the PDPP Act but still in the opinion of this court, they can be convicted for the said offences as they are minor offences in nature.

180. In the present case, the offence which is proved against accused A3 Mohd. Asgar and A4 Sakir @ Guddu is of rioting by indulging in the act of violence i.e. for burning of Government motorcycle, private ID No. 10/2019 State Vs. Ved Prakash and Ors. 95/98 motorcycles and a car. However, there is no evidence of indulging in rioting with deadly weapon i.e. stones. Therefore, accused A3 Mohd.Asgar and A4 Sakir @ Guddu are convicted for the minor offence under Section 147 read with Section 149 IPC although they were not charged with it, as per Section 222(2) Cr.P.C.

181. Secondly, no prejudice has been caused to accused A3 Mohd.Asgar and A4 Sakir @ Guddu by not framing of charge under Section 147 IPC as all the facts constituting the offence under Section 147 IPC were put to the accused while framing charge under Section 435 read with Section 149 IPC.

182. Further, in the present case, accused A3 Mohd.Asgar and A4 Sakir @ Guddu were only charged for the offence under Section 4 of PDPP Act on the ground of putting fire to Government motorcycle and police booth which were public properties. However, it ID No. 10/2019 State Vs. Ved Prakash and Ors. 96/98 has not been proved on record that police booth was burnt by accused A3 Mohd.Asgar and A4 Sakir @ Guddu. The only fact which has been proved on record is that damage was caused to the police booth. Further, the act of damage to the police booth was brought to the notice of accused persons while framing charge under Section 4 of PDPP Act. Therefore, they can be convicted for the minor offence of causing damage to the police booth under Section 3(1) of PDPP Act as per Section 222 (2) Cr.P.C. even though no specific charge was framed against accused A3 Mohd.Asgar and A4 Sakir @ Guddu in this regard with the aid of Section 149 IPC. Accordingly, accused A3 Mohd.Asgar and A4 Sakir @ Guddu are convicted for the offence under Section 3(1) of PDPP Act.

183. Accused A3 Mohd. Asgar and A4 Sakir @ Guddu are also convicted for the offence under Section 145 read with Section 149 IPC, Section 435 read with Section 149 IPC. However, they are ID No. 10/2019 State Vs. Ved Prakash and Ors. 97/98 acquitted for the offence under Section 308, 186, 332, 379, 436, 452, 148 read with Section 149 IPC.

184. Accused A8 Siraj, A10 Naeed and A11 Bholu @ Salim are acquitted for all the offences with which they were charged with.

Digitally signed by Announced in the open court VIKAS VIKAS DHULL Date:

Dated: 03.02.2021                               DHULL   2021.02.03
                                                        15:40:00
                                                        +0530


                                            (Vikas Dhull)
                          Special Judge (PC Act) (CBI)23
                                (MPs/MLAs Cases) RADC
                                               New Delhi




   ID No. 10/2019    State Vs. Ved Prakash and Ors.      98/98

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State vs Ved Prakash And Ors. on 3 February, 2021