Delhi District Court
State vs . Anil Bharti & Ors. on 28 June, 2022
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IN THE COURT OF MS. SURBHI METROPOLITAN
MAGISTRATE-12, SOUTH WEST, DWARKA COURTS, DELHI
FIR No. 58/08
PS Jaffarpur Kalan
State Vs. Anil Bharti & Ors.
U/s 147/148/149/186/332/353/435 IPC
CIS No. 422416/16
CNR No. DLSW02-0001002-2009
JUDGMENT
(a) CIS No. 422416/16
(b) Date of offence 10.06.2008
(c) Complainant ASI Mahender Singh
(d) Accused persons 1) Anil Bharti S/o Rameshwar
Dayal.
2.)Rajender Singh S/o Parmanand
3.) Jaswinder @ Mandu S/o shri
Kishan
4.) Jagbir Singh S/o Attar Singh
5.) Kuldeep Singh Dagar, S/o Ran
Singh
6.) Shamsher Singh @ Bhondu S/o
Chander Singh
7.) Ramesh Sehrawat S/o Prahlad
Singh
8.) Amit Kumar S/o Ajit Singh
(e) Offences 147/148/149/186/332/353/435 IPC
(f) Plea of accused Plead not guilty
(g) Date of Institution 05.10.2009
(h) Final Order Acquitted
(i) Date when judgment was 07.04.2022
reserved
(j) Date of judgment 28.06.2022
FIR No. 58/08 State Vs. Anil Bharti Page no.1 of 50
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BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. By this judgment, I shall dispose of the case of the prosecution based on FIR no. 58/08 PS Jaffapur Kalan against the accused persons for the offence U/s 147/148/149/186/332/353/435 IPC.
FACTUAL MATRIX
2. The allegations against the accused persons as per the story of prosecution are that on 10.06.2018 at Mundhela Road, in the fields near to Village Mundhela Kalan, New Delhi, within the jurisdiction of PS JP Kalan, Delhi they all in prosecution of common object after constituting an unlawful assembly to resist the execution of legal process used force and violence and used criminal force to obstruct public servant in discharge of public duty and voluntarily caused mischief by destroying the truck bearing no. HR-26J-0116 by putting it on fire and thereby committed an offence punishable u/s 147/148/149/186/332/353/435 IPC within the cognizance of this court.
INVESTIGATION AND APPEARNACE OF ACCUSED
3. After completion of the investigation, charge-sheet was filed. Cognizance was taken vide order dated 05.10.2009. The accused persons were supplied with copies of challan along with annexures in compliance of Section 207 of The Code of Criminal Procedure, 1973 and Charge for the offence u/s 147/148/149/186/332/353/435 IPC was put to the accused persons vide order dated 20.03.2013 to which accused persons pleaded not guilty and claimed trial.
FIR No. 58/08 State Vs. Anil Bharti Page no.2 of 50
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PROSECUTION EVIDENCE
4. In order to prove its case, prosecution has examined 11 witnesses and relied on the following documentary evidences:-
Ex.PW1/A RUKKA
Ex.PW1/B ARREST MEMO OF ACCUSED SHAMSHER
SINGH
Ex. PW2/A SEIZURE MEMO OF STONES
Ex.PW2/B SEIZURE MEMO OF BURNT TRUCK
Ex. PW2/C SEIZURE MEMO OF VIDEO CASSETTES
Ex.P2/1, P2/2 and PHOTOGRAPHS OF THE BURNT TRUCK
P2/3
Ex.P2/4 PUNCHNAMA OF BURNT TRUCK
Ex. P3/1 CASE PROPERTY(stones)
Ex. PW4/A, B and C MLCs No. 775/08,776/08 AND 777/08 of injured police officials.
Ex. PW6/A SITE PLAN
EX. PW6/1 AND CDs (which did not work)
PW 6/2
EX.PW 7/A COMPLAINT U/S 195 CrPC
EX.PW8/A ARREST MEMO OF ACCUSED JASWINDER
EX.PW 8/B ARREST MEMO OF ACCUSED ANIL BHARTI
EX.PW 8/C ARREST MEMO OF ACCUSED RAJENDER
SINGH DAGAR
EX.PW11/A ENDORSEMENT ON TEHRIR
EX.PW11/B FIR NO.58/2008
5. SI MAHENDER SINGH has been examined as PW1. He deposed that on 10.06.2008, he was posted at PS JP Kalan as ASI and on that day he alongwith ASI Hanuman, HC Dharampal, HC Rajender, Inspector Satender, Ct. Sanjeev, Ct. Naval were present at Rawta Mor along with government gypsy whose driver was HC Rajbir and thereafter they went from Rawta Mor Road to Mundela Kalan Village where ahead of Mundela Kalan village, there was a mob of about 100-150 persons, gathered in one agricultural field surround one truck bearing No. HR 26J 0116. He further deposed that few FIR No. 58/08 State Vs. Anil Bharti Page no.3 of 50 4 cows i.e. five six in numbers, were also present there which were stated to be evacuated from the truck standing over there by the public present over there. He further deposed that the mob was getting agitated and the number of mob was also kept on increasing and they all tried to pacify the mob. PW1 deposed that from the mob one Kuldeep Dagar who was present in the Court, (correctly identified by the witness) was saying that "iss truck mey gayon ko dhoos ke bhra hua tha aur gayon ke sath karurta ki gai hey, dayein humari mata hey, inko ye log katne ke liye le ja rahe they, esa krne walon ko faasi honi chahiye'. He deposed that Inspector Satender Yadav also gave the warning that was illegal and they were interfering in the police work. He further deposed that thereafter, the mob further got agitated because of the highly instigating speeches of Kuldeep Dagar and from the mob few persons namely Anil, Jaswinder, Rajinder, Jagbir, Shamsher Singh @ Bhondu, Ramesh Sehrawat and son of Ajeet Kharkhari (whose name was later found to be Amit Kumar) started throwing bricks and stones on the police party as well as on the truck. PW1 correctly identified all the accused persons in the court except accused Shamsher Singh @ Bhondu. He further deposed that they broke the windowpanes of truck and on being stopped they also had a scuffle (hathapai) with the police officials. He deposed that Mandu son of Krishan took the petrol in a dibba from a motorcyle and then threw the petrol in the driver cabin and then lightened up a match stick and threw the same in the cabin because of which the truck caught fire and Mandu ran away from the spot after mixing himself in the mob. He further deposed that SHO called the photographer as well as the fire brigade and fire brigade arrived and doused the fire and the photographer also came at the spot and recorded the event. He further deposed that the police official who suffered injury in the scuffle were ASI Hanuman, HC Dharampal and Ct. Sanjeet. He further deposed that he prepared the rukka on the instructions of SHO, as Ex.
FIR No. 58/08 State Vs. Anil Bharti Page no.4 of 50 5 PW1/A which bears his signatures at point A and handed over to Ct. Naval who went to PS and got the case registered and came back with copy of FIR and original rukka and handed over the same to Inspector Satender Yadav to whom investigation was marked. He further deposed that he seized few bricks and stones and the same were put in a katta and the same was sealed with the seal of SS and the truck was also taken into possession by Inspector Satender Yadav. He further deposed that on the instructions of IO, he took the injured ASI Hanuman, HC Dharampal and Ct. Sanjeet to RTRM Hospital for their medical examination. Thereafter, he collected the MLC and then handed over the same to IO in the PS. He further deposed that after few days of the incident, he along with IO and one police official were present at Toll Tax where he saw the accused Bhondu over there on which on his instance he was apprehended and then was arrested by IO vide arrest memo as Ex.PW1/B. He further deposed that his statement was recorded by IO in this context .
5.1 PW1 was cross examined by ld. Defence Counsel. In his cross examination, PW1 stated that he could not tell the period in which he remained in PS JP Kalan and he was not having any chowky under him in PS JP Kalan. PW1 denied the suggestion that he was not assigned with any investigation during his posting in PS JP Kalan. PW1 further stated that he reached at the spot at about 10 am along with Inspector Satender, ASI Hanuman, HC Rajender and one-two more police officials and he went with SHO Inspector Satender. He further stated that they used to record the vehicle used for official purpose and its kilometeres whenever the vehicle was taken out of PS, in Rojnamcha and HC Rajbir was driving the vehicle. He further stated that they were already present at Rawta Mor before SHO gave directions and the above mentioned staff including SHO were present at that time. He further stated that he remained at the spot for about four FIR No. 58/08 State Vs. Anil Bharti Page no.5 of 50 6 five hours for doing all the proceedings. He further stated that he prepared tehrir on the directions of SHO and Ct. Nawal had taken the rukka from the spot and the tehrir was his own version and it was not dictated by any other police person. He further stated that the spot was approximately 20 yards away from the service road of village and approximately 150 persons were there when he reached at the spot. PW1 further stated that ASI Ramesh Chand and one constable were present at the spot before they reached there. He further stated that only one truck was there in the field and the truck was empty and the cows were gathered near by the truck. He further stated that there were only 7-8 officials as such they could not secure the whole area. He further stated that SHO had given the directions to the mob to pacify but they did not listen. He further stated that SHO had called Senior Officer as well as police officials from the nearby police station. Vol. He further stated that he had not measured the distance of circumference surrounding the truck but the officials had surrounding the truck and every police official was about at distance of 5-7 feet from the truck. PW1 denied the suggestion that the public was not in the field but at the road and that he had not seen who had burned the truck. PW1 had pointed towards accused Jasvinder @ Mandu and stated that he burnt the truck. He further denied the suggestion that he could not tell how truck was burn as he was not present. He voluntarily stated that he brought the oil from motorcycle but the motorcycle from which the oil was taken was not seized by him. He further stated that he does not know the registration number of motorcycle as it was recorded during investigation and the can in which the petrol was taken could not be seized as the same was also thrown in the cabin of burning truck. He further stated that the fire-brigade and photographer was called by SHO. He stated that he had not recorded the statement of photographer krishan Dagar. He denied the suggestion that the fire was extinguished by the public before FIR No. 58/08 State Vs. Anil Bharti Page no.6 of 50 7 arrival of fire-brigade. He further stated that the public was not allowing the fire officials to go for extinguishing the fire. He further denied the suggestion that he called the fire-brigade not the SHO and that he had seized bricks from the spot. He further stated that he did not bring the truck to PS. PW1 further stated that the mob was having bricks and stones in their hand but he could not tell which person throw how many stones and bricks. He further stated that that none of accused present had thrown any bricks and stones and HC Dharmpal, ASI Hanuman and Ct. Sanjeet had received injury. He stated that he had taken them to Hospital after they assaulted and SHO had told him to take them to hospital. He further stated that when he took them to hospital the proceedings were going at the spot and thereafter he had come to the spot along with MLC. He further denined the suggestion that no police official had received any injury or false MLCs were prepared in connivance with Doctor and that that none of the accused person were part of the mob at the spot. He further denined the suggestion that the accused persons have been falsely implicated because of political rivalry and that since all the accused persons were RSS workers and to give hindu-muslim clash scenariro, he had named them in complaint. He further stated that the police persons were already injured when he prepared the tehrir and he had mentioned their names in his tehrir. He further stated that the police had tried to apprehend the aggressors but since they were in large in numbers as such no one could be apprehended. PW1 further stated that at the time of incident SHO was Inspector Satender and was with him when they reached at spot. I had taken the MLCs of the injured. He further stated that he could say if FIR. 57/2008 was for offence u/s 279, Prevention of Cruelty to Anilmal Act and 12 DACP Act and 3/8 CS Act. PW1 further stated that he was one of the IO in that FIR and the matter in that case pertains to the incident of the present case. He further stated that he had FIR No. 58/08 State Vs. Anil Bharti Page no.7 of 50 8 brought the accused persons from Mewat in that case and as he was staff in- charge in that area as such as he knew them prior to the incident. He further denied the suggestion that on that day Haryana Police was also present at the spot and he deliberately did not record their statement. He stated that Dhirpal did not meet him on the spot who was stated to be the witness of the incident. He further denied the suggestion that accused persons were never known to him or that he could not identify the accused persons by their names. PW1 stated witness names and identified Anil Bharti, Mandu ( the person who sprinkled oil), Amit ( Ajit Kharkhari ka Ladka), Kuldeep Singh Dagar. He further stated that Kuldeep Singh was the MLA of the area at that time. He denied the suggestion that he was identified Mandu because he was having one of his case. He further stated that when they reached at the spot there were two police persons already present there and cows were already deboarded from truck. He denied the suggestion that he had not taken IO bag with him as he was not deputed IO in this case. He voluntarily stated that he used to carry his IO kit with him as it was routine to carry the same in case of any incident, being a member of special staff. He further stated that all these articles were stationery items and his bag was not containing any article through which public was to be warned. He further stated that videography was done before he gave the complaint and the medicals of the police officials were not conducted prior to the tehrir and he had joined the investigation of this case with IO i.e. Inspector Satender for about3-4 times and with Inspector Meena for about 2 times. He further stated that he could not tell when he was transferred to PS Chhawla. He further denied the suggestion that he did not know the accused persons and implicated them after getting their names from other persons and that the accused persons were neither the members of crowd nor they were present at the spot. He further stated that no police person suffered burn injuries by FIR No. 58/08 State Vs. Anil Bharti Page no.8 of 50 9 lathi or sharp weapon. He denied the suggestion that he was deposing falsely at the instance of senior officials or that he was not present at the spot.
6. HC Dharam Pal has been examined as PW2. He deposed that on 10.06.2008, he was posted at PS J.P Kalan as Head Constable and on that day, he alongwith SHO Satender, ASI Mahender, ASI Hanuman, HC Rajender, Ct. Sanjeet, Ct. Naval and Driver HC Rajbir reached near field at Mundela, Rawta Mod where one truck was standing and it was loaded with the five cows. He further deposed that they reached at the spot in pursuance of the call made by ASI Ramesh who was already at the spot to attend the call from the spot where they found there gathering of 100-150 public persons. He further deposed that at that time Counselor Kuldeep Dagar and Teacher Anitl Bharti were also present at the spot and they were instigating by saying words "Gau hamari mata hai, ye log inhe katne ke liye le ja rahe hai, inhe fasi honi chaiye". He further deposed that on this issue SHO tried to pacified the crowd but crowd did not obey the instructions of the SHO and crowd was increasing gradually and suddenly, crowd started pelting stones and bricks on the truck and police party. He further deposed that one person whose name later revealed as Jaswinder @ Mandu took out the petrol from one motorcycle standing at the spot and thrown upon the truck body and get fire to the truck and thereafter, a fire brigade was called at the spot and photography of the spot was also conducted by photographer namely Krishan Dagar. He further deposed that he, ASI Hanuman and Ct. Sanjeet sustained injuries in the incident. PW2 correctly identified accused persons namely Anil Bharti, Amit Kharkhari, Jaswinder @ Mandu, Bhondu Kuldeep Dagar, Rajender. He further deposed that they brought in the RTRM hospital from the vehicle of SHO and got medical treatment and FIR No. 58/08 State Vs. Anil Bharti Page no.9 of 50 10 after medical examination they returned at the spot. He further deposed that ASI Mahender Singh prepared a rukka and handed over to Ct. Naval from registration of the FIR and after registration of the FIR and original rukka to SHO. He further deposed that the laying stones near the spot which were thrown by the accused persons were seized vide seizure Memo as Ex.PW2/A and the burnt truck was seized vide seizure Memo Ex.PW2/B, Video cassettes shoot by the photographer Krishan Dagar was also seized vide seizure Memo as Ex. PW2/C. He further deposed that the accused persons were pelting the stones on police party and truck in pursuance of instigation made by the accused Anil Bharti and Kuldeep Dagar. PW2 identified six accused persons by name and by face.
For the identification of the remaining accused persons, at request of Ld. APP for the State all the accused persons are asked to come at the bar.
At this stage Sh. J. S. Dagar, Ld. Counsel for all the accused persons states that all accused persons will not come forward at the bar.
At this stage, the court has personally asked all the accused persons to come forward at the bar. To this, Sh. J.S. Dagar has asked the accused persons not to come forward at the bar despite orders of the court. PW2 cross examined by Ld. APP on the point of identification of accused Jagbir Singh. In his cross examination, he correctly identified accused Jagbir and stated that he was the same person who also joined the crowd and thrown the stones on the police party and truck. PW2 stated that he could identify the case property if shown to him. He further denied the suggestion that the persons who were pelting stone on police party had also manhandled and beat police staff. He further stated that he, Ct. Sanjeev and ASI Hanuman Sahai sustained injuries by throwing stones by the crowd. PW2 correctly identified the photographs of the same as Ex. P2/1, P2/2 and P2/3 and the puchnama as Ex. P2/4. At this stage, defence counsel objected FIR No. 58/08 State Vs. Anil Bharti Page no.10 of 50 11 the procedure applied by the police for preparing the punchnama as witnesses has not been called properly.
6.1 PW2 cross examined by Ld. Defence counsel. In his cross examination, he stated that punchnama Ex.P2/4 dated 28.07.2016 was not prepared in his presence neither he had been summoned to join punchnama proceedings. He further stated that the photographs of the panchnama was not attested/ authenticated by any police officials and that the color of the truck, make, size, dimension was neither mentioned nor legible in the photographs. He further stated that no public person got injured in the said case. He further stated that he went in a police gypsy in the hospital but he does not remember the time of our admission in the hospital. He stated that stones were pelted/ thrown by the public. He further stated that he could not tell the kind of soil of the field in which the truck was parked and the truck was parked around 50-60 yards inside from the road. He further stated that he alongwith SHO and other police personals went at the spot at about 07:00-7:30 am in the gypsy of SHO. He further stated that they stayed there up to 3-4 hours i.e. maximum up to 11:00 am. PW2 further stated that the Truck was carrying cows, there were five cows in the truck. He further stated that he did not remember whehter the police i.e. IO carried out any legal proceedings at the spot. He further stated that he could not tell exactly who was giving slogans to abide the public. PW2 denied the suggestion that he was not the member of the police party neither he received any injury and got prepared the MLC in convenience of the doctor of JP Kalan. He further denied the suggestion that the truck was set on fire by the public. PW2 further stated that no accused person was arrested in front of him except Jasvinder @ Madu. He further stated that his statement was recorded by the IO i.e. Inspt. Satender Yadav and Inspt. Om Prakash Meena on 08.08.2009 and 16.06.2008. He further stated that no site plan was prepared at his FIR No. 58/08 State Vs. Anil Bharti Page no.11 of 50 12 instance. Thereafter gain said that on 10.06.2008 the site plan was prepared in his presence, but it was not got signed by him. He stated that he sustained injury from pelting of the stone (pattar) and those stones were not seized by the IO in his presence. He further stated that that he did not know who call the fire brigade and at what time it reached the spot. He further denied the suggestion he was deposing falsely at the instance of the IO. He further stated that he did not file any document pertaining to his attendance/ posting at PS JP Kalan on dated 10.06.2008 and on that day he was on day shift. He further stated that he did not had any information regarding the call made by ASI Ramesh. PW2 furrther stated that he did not mention the name of accused Anil Bharti in any statement prior to the statement before the court. He further stated that he did not tell any record/ dairy number through which it appears that the vehicle of SHO was alloted to him or that the motorcyle which was used in the incident was not seized by the IO during the investigation, even the details of the same were also not mentioned in the charge sheet. He further stated that he was not aware about the proceedings conducted with regard to the sending of the cows to the cowshed (Gaushala). PW2 further stated that he did not mention/ stated any name of the accused at the time of my statement U/s 161 Cr.P.C on dated 10.06.2008. He further denied the suggestion that name of the accused Anil Bharti was mentioned at the instance of the IO and another police officer and that he was deposing falsely.
7. ASI Rajender Prasad has been examined as PW3. He deposed that on 10.6.2008, he was posted at PS JP Kalan as HC and on that day at around 08:00am he alonwgith SHO/Insp. SAtender Yadav, ASI Mahender Singh, ACI Hanuman Sahay, HC Dharampal, Driver HC Rajbir, Ct. Sanjeet and Ct. Nawal went in a police zypsy bearing regn. No. DL-3CJ-4864 to fields FIR No. 58/08 State Vs. Anil Bharti Page no.12 of 50 13 located at village Mundhela Khurd where they saw one truck bearing regn. No. HR-26J-0116 inside a field and about 150 public persons were gathered there and 5 cows were already taken out from the truck by the persons. He further deposed that Kuldeep Dagar was given an instigating speech "Gaaye hamari mata hai, inko kaatne ke liye log le ke ja rahe hain, jinko hum chhodenge nahin". He further deposed that IO/Insp. Satender Yadav had already called the photographer and he tried to make the public persons understand that their acts are illegal and further requested them to disperse from the spot else legal action would be taken against them. He further deposed that during that period public persons started pelting stones on the police team due to which ASI Hanuman Sahay, HC Dharam Pal and Ct. Sanjeet sustained injuries and IO Insp. Satender sent the injured persons to RTRM hospital for their treatment. He deposed that at about 10:00am, accused persons namely Jaswinder @ Mandu took out the petrol in a cane from the motorcycle and poured the same in the cabin of the truck and lighted a matchstick due to which the truck caught fire. He further deposed that fire brigade came at the spot and more police personnel were called and came to the spot. He further deposed that at about 12:30 am ASI Mahender Singh prepared a tehrir and sent Ct. Nawal Singh to the PS for the registration of the FIR. Thereafter, the investigation was carried out by IO/Insp. Satender Yadav, the original Tehrir and copy of FIR was handed over to Insp. Satender. He further deposed that photographs of the spot were taken and the pelted stones were seized from inside the truck vide seizure memo already as Ex.PW1/A bearing his signature at point A and the truck was also seized vide seizure memo already Ex.PW1/B bearing his signature at point A, the video cassette (DVD cassette) was seized vide seizure memo already Ex.PW2/C bearing his signature at point A. he further deposed that ASI Ramesh and Ct. Suresh also reached at the spot and FIR No. 58/08 State Vs. Anil Bharti Page no.13 of 50 14 Ct. Nawal came alongwith them. Accused persons Anil Bharti, Ramesh , Rajender, Jaswinder @ Mandu, Kuldeep Singh Dagar and other accused persons were present at the spot and were involved in the entire incident. All the abovementioned accused persons were correctly identified by the PW 3. Thereafter, the seal of the Insp. Satender Yadav was handed over to ASI Mahender Singh and his statement was recorded u/s 161 CrPC by the IO. He deposed that he did not remember the name of other three accused persons due to lapse of time as the matter was pertaining in the year 2008. The three accused persons were also standing with the abovementioned named accused persons, however, he did not remember their names but witness correctly identified the said three accused persons. He further deposed that one of the accused namely Jaswinder @ Mandu was arrested in FIR bearing no.76/09 on 08.08.2009 and he identified at the PS and told the IO/ASI Sita Ram that he was the same person who put fire on the truck. PW3 correctly identified the truck from the photographs shown to him as ExP2/1 to Ex.P2/3. PW3 also correctly identified the case property i.e stones sealed with the seal of SS, the same as Ex.PW3/1 (colly). Accused Amit, Shamsher, Anil Bharti,, Jaswinder @ Mandu, Rajender, Ramesh, Kuldeep Singh Dagar and Jagbir were correctly identified by PW3. 7.1 He was cross examined by the Ld. Defence counsel. In his cross examination he stated that his full name was Rajender Prasad and his PIS No. was 28820482 and the PIS remains same. He further stated that his name was Rajender Prasad and the statement u/s 161 CrPC was in the name of Rajender Singh. Statment of witness PW3 as Ex.PW3/D1. At this stage, PW3 produced the official ID card in which his name was mentioned as Rajender Prasad and copy of ID Card as Ex.PW3/D2 and the signature of the witness upon all the seizure memos Ex.PW1/A, Ex.PW1/B and Ex.PW2/C. He further stated that he had made those signatures in the FIR No. 58/08 State Vs. Anil Bharti Page no.14 of 50 15 memos in initials only and his number was 424/SW, PS JP Kalan. PW3 further stated that he was working as a reserve head constable at the PS and he has worked an IO as well and at the time of incident, he was beat incharge of Mundela Village. He denied the suggestion of Ld. Counsel that he had mentioned earlier that he was working as a reserve HC on that day. He further stated that he reached the spot where 150 public persons were gathered at the spot and five cows already taken out from a truck and the truck were present at the spot. He stated that truck was empty at that time since the cows had already ben taken out from the truck. PW3 denied the suggestion of Ld. Counsel that when they reached the spot, there were about 1000-2000 public persons present at the spot. He further stated that only police officers sustained injuries and he did not know whether public persons also sustained injuries or not and public persons were not carrying weapon like danda, stick, jelli(pitch fork) etc with them. He stated that the truck was parked at about 100 mts away from the main road inside the field and accused persons pelted stones on the police official and due to which they sustained injuries. He stated that at the time when stones were being pelted on the police officials, videography of the incident was done. He denied the suggestion of Ld. Defence counsel that neither the accused persons nor the mob pelted stones on the police officials and that pelted stones were collected from the road on the day of evidence and made the case property by the IO. Vol. Those stones were collected by the IO from the cabin of the truck after the truck caught fire. He stated that all the entire paper work were conducted at the spot not at the PS. He further stated that no motorcycle was seized by the IO in his presence and he had seen accused persons leaking out petrol in a Dabba from the motorcycle but he do not remember whether the said dabba was seized by the IO or not. He denied the suggestion that he was posted at PS Chhawla and not at PS JP Kalan and FIR No. 58/08 State Vs. Anil Bharti Page no.15 of 50 16 was not IO of any case while he was posted at PS JP kalan and that due to this reason he was not able to give details of any case that he investigated during his posting at PS JP Kalan. PW3 further stated that police officials sustained injures at about 10:00am and they were taken to RTRM hospital immediately in the police vehicle bearing no.4864 and the said vehicle was registered having the Delhi registration number. Againsaid, DL-1CP-4864. He further stated that the injured persons were taken to hospital by ASI Mahender Singh village Kair at a distance of about 2 km from village Mundhela. He denied the suggestion that the distance between the village kair and village Mundhela was 7km. He further stated that they tried to take out the truck from the said fields but the said truck was struck inside the field and the public persons intervene in between and the driver of the truck had ran away from the spot. He denied the suggestion that the cows were unloaded from the truck to the MCD truck at the time of incident. He stated that he did not know whether the truck was on fire at the time when stones being pelted by public persons and how many police officials were present at the spot when the truck was on fire, however, there were police officials of other PS as well. He stated that they had made a boundary with the help of human chain to protect the truck and the cows from the public persons. Thereafter, ACP Najafgarh came to the spot when the truck had already caught fire. He denied the suggestion that no human chain was formed by the police officials at the spot. He further stated that the accused persons and the other public persons present at the spot set the said truck on fire and the accused Jaswinder @ Mandu threw a burning matchstick in the cabin of the said truck due to which the truck caught fire. He denied the suggestion that the public persons tried to extinguished the fire of the said truck by throwing sand at the said truck. Police officials tried to extinguished the fire of the said truck by throwing sand at the said truck and fire brigade was FIR No. 58/08 State Vs. Anil Bharti Page no.16 of 50 17 called at the spot which finally extinguished the fire of the said truck. He denied the suggestion that by the time the fire brigade arrived, the fire of the said truck was already extinguished but he did not remember whether any MCD/DJB water tankers also came at the spot. He further stated that he did not remember whether any police official present at the spot was bleeding due to the injuries or not and no police official fainted at the spot. He denied the suggestion that no police officials received any injury at the spot and due to this reason he was not able to recall the same. He further stated that through public addressing system, Insp. Satender Yadav directed the public persons to disburse, since the gathering was unlawful and he did not remember whether any public person demanded that the senior police officials of the ran of Joint CP should be called at the spot, except for the local counselor , no other politician was present at the spot. He denied the suggestion that none of the accused persons made any inflammatory speech/instigating speech. Vol. Accused Kuldeep Dagar made such a speech at the spot. He further denied the suggestion that no warning was givne to the public through public addressing system or through any other medium. He further stated that he did not remember the date of investigation joined by him in the present and how many times. He stated that after the date of incident, except accused Jaswinder @ Mandu he saw all other accused persons for the first time in the court. He further stated that he had not seen the printout of the photographs in the case and same was not on record. He stated that he did not know the made of DVD cassette which was seized by the IO or whether that the DVD cassete was actually CD or a cassette. He denied the suggestion that the name of accused persons which were mentioned in his statement were stated to him by the Senior police officials to falsely implicated them and to save their own skin. He further stated that the registration number of police vehicle were contradictory. He denied the FIR No. 58/08 State Vs. Anil Bharti Page no.17 of 50 18 suggestion that he was deposing falsely at the instance of police official and investigating officer of this case. After cross examination, he was discharged.
8. Sh. Jagdish Chander Vashisht has been examined as PW4, who deposed that he was working as a record keeper in RTRM hospital since 2007. He further deposed that Dr. B.B.Prasad was working as a CMO in the year 2008 and present he was not working in RTRM hospital and have left the hospital. He further deposed that he can identify the handwriting and signature of Dr. B.B. Prasad as he had seen him in due course of his duties and MLC no. 775/2008, 776/2008, 777/2008 has been prepared by Dr. B.B.Prasad as Ex.PW4/A, Ex.PW4/B and Ex.PW4/C respectively bearing signature of Dr. B.B.Prasad at point A. 8.1 PW4 has been cross examined by the Ld. Defence counsel. In his cross examination he stated that it is true that he did not have any personal knowledge about the abovementioned MLCs. He was working in medical record department that MLC was not prepared in his presence. He further stated that medical prescription was not prepared in his presence. He denied the suggestion of Ld. Defence counsel that he had never seen the doctor concerned writing MLC and prescription. He further stated that he did not know whether any record qua permanent address of doctors was maintained by RTRM hospital with regard to joining and leaving of doctors working in the hospital. He further stated that he did not know whether any record was maintained by the hospital to keep the permanent address of the doctors who had left the hospital.
9. Shri Laxman has been examined as PW5 who deposed that in the year 2008, he was working as Sub Officer at Delhi Fire Services and was FIR No. 58/08 State Vs. Anil Bharti Page no.18 of 50 19 posted at Najafgarh Fire Station. He further deposed that he did not know the exact date of incident and he did not know anything about the incident due to lapse of time.
PW5 has been cross examined by Ld. APP for the State as he was resiling from his statement. In his cross examination, he stated that he was working as a sub officer, Fire Station, Najafgarh on 10.06.2008 and on that day Shri Balraj was the station officer of Fire Station, Najafgarh. He denied the suggestion that on 10.06.2008 at about 10:53 am, he received a PCR call with regard to burning of a truck at Mundhela Village and after receiving the information he alongwith his staff Harbir Singh, Virender Singh and Driver Rajinder singh left the station at 10:45am and reached the fields of village Mundhela at about 11:20am. He further denied the suggestion that when they reached the fields, he saw that crowd had gathered at the spot and a truck bearing no. HR-26J-0116 was on fire and when his staff tried to put off the fire, public persons intervened in between and started pelted stones due to which the police staff got injured. He further denied the suggestion that he made a call to SO Moti Nagar, Sh. Sanjay Duggal and asked for another fire brigade but before they had controlled the fire. He further denied the suggestion that his statement was recorded by the police. Witness was read over his statement u/s 161 CrPC and stated that the statement was not recorded by the police. He further denied the suggestion that he had stated to the IO that he can identify the accused persons who had intervened in the duties of the police and had caused injuries to them by pelted stones. Accused persons namely Anil Bharti, Rajender Singh, Jaswinder, Jagbir Singh, Kuldeep Singh, Shamsher Singh, Ramesh Sehrawat and Amit Kumar were shown to the witness but witness had failed to identified all the accused persons and stated that he had seen the accused persons first time. He further denied the suggestion that he was deposing FIR No. 58/08 State Vs. Anil Bharti Page no.19 of 50 20 falsely as he had won over by the accused persons and to save the accused persons from the legal implications of the present case. He was discharged after Nil Cross Examination on behalf of accused persons.
10. ACP Satender Singh has been examined as PW6. He deposed that on 10.06.2008, he was posted at PS J P Kalan as an Inspector where he received an information from ASI Ram Kishan that a truck was carrying cows and the truck was struck in the field and thereafter he alongwith ASI Mahender and ASI Hanuman, HC Rajender, Ct. Naval and Ct. Sanjeet went on the road which was going to Rawat Mor towards Mundhela Village where he met ASI Ram Kishan and HC Suresh and one truck bearing no. HR 26 JA 0116 in which few cows i.e. five cows were present. He further deposed that the photographer and vediographer were called at the spot and thereafter, the crowd/ mob got agitated. He further deposed that after some time, the mob started pelting stones on the truck and before doing so, they had already taken out the cows from the truck. He further deposed that some persons namely Prem, Rajender, Ramesh, Jagbir, Ram Kishan, Kuldeep Dagar, Anil, Ashok, Shamsher @ Bhondu, Amit and one Madu @ Jasvinder from the crowd also had a scuffled with them and pushed them. He deposed that accused Kuldeep Dagar who was the then the counselor of the area gave a highly instigated speech " Gaye ke saath atyachar karte hai aur gayo ko katal karte hai" and after listening to the said speech, the mb got insitgated and the atmosphere got heated and tense. He further deposed that accused persons started pelting bricks on the truck and when they tried to stop them, they pushed them and one of the accused namely Mandu @ Javinder took petrol from the petrol tank of the motorcycle and threw the petrol in the driver's cabin and thereafter lightened the matchstick in the cabin. He further deposed that ASI Mahender Singh prepared a rukka and sent Ct.
FIR No. 58/08 State Vs. Anil Bharti Page no.20 of 50 21 Naval came to the PS for the registration of FIR and Ct. Naval came to the PS along with rukka and copy of original FIR. PW6 correctly identified the accused Amit, Kuldeep Dagar, Rajender, Ramesh Sehrawat, Jagbir in the court. PW6 prepared the site plan as Ex. PW6/A bearing his signature at point A and the truck bearing registration no HR 26 J 0116 was seized vide memo as already Ex.PW2/B bearing his signature at point B, the pelted stones from the cabin of truck were seized vide memo already as Ex. PW2/A bearing his signature at point A, the Video cassette/ DVD cassette was seized vide memo as Ex. PW2/C bearing his signature at point A and the same was sealed with the seal of SS. He deposed that injured persons including ASI Hanuman, Ct. Sanjeet, HC Dharmapal the police officials were shifted to RTRM Hospital by ASI Mahender. He further deposed that statement of the witnesses got recorded and search of accused persons were made. The DVD which was seized by him during the investigation of the present case bearing the seal of V and FSL were Ex.PW6/1 and Ex. PW6/2. PW6 correctly identified photographs of the truck as Ex. PW2/1 to Ex. PW2/3. PW6 further deposed that on 14.06.2008 on a secret information, accused Jagbir was arrested vide memo as already Ex. PW1/A bearing his signature at point A. PW6 deposed that he could identify the pelted stones if shown to him and same were already Ex.Pw3/1 colly.
10.1 PW6 cross examined by Ld. Defence counsel. In his cross examination, he stated that on the day of incident, he was working as a SHO PS J.P. Kalan and he received the call at about 5 am approximately. He further stated that he did not remember whether all the police officials including him were in uniform or in civil dress. He further stated that he reached the spot at about 5.25-5.30 am alongwith ASI Hanuman, Ct. Naval, Ct. Sanjeet reached the spot in a govt. Gypsy and came back to the PS at the evening i.e. about 9 pm. He further stated that he did not remember FIR No. 58/08 State Vs. Anil Bharti Page no.21 of 50 22 whether all his staff came to PS along with him or not. He further stated that he did not prepare any document at about 8 pm and he was knowing some of the accused persons whose name he had stated before the court prior to the date of incident. He stated that there were about 1500 persons at the spot. He further stated that all the persons were scattered in the fields and they were not jointly standing at any single space. He voluntarily stated that the owner of the field was one Sh. Jiyasadh but he had not recorded the statement of Jiyasadh and somebody told him about the owner of the field. He further stated that accused persons were pelting stones on truck and on them and all the accused persons were standing in same direction. He further stated that he had not prepared the list of witnesses. During his cross examination, witness was asked, about the identity of the accused Prem and Ram Kishan among the accused persons standing in the court. PW6 had pointed out towards Shamsher and told that the is accused Ram Kishan and stated that he could not identify accused Prem from the accused persons. He further stated that he knew accused Kuldeep prior to the incident as he was Counselor of the area and he knew the other accused persons prior to date of incident as he was SHO of the area. During his cross examination, the Ld. Defence counsel for the accused persons had pointed towards one of the accused persons and asked the witness to tell his name on which PW6 had told his name to be Ramesh. PW6 again said that he was not sure about the name of accused persons. He further stated that he did not know whether any of the accused persons was involved in any other FIR. He further denied the suggestion that accused persons have been falsely implicated in this case on the suggestions of other public persons and the actual culprits have been let off. PW 6 correctly identified the case property i.e. stones pelted in a white sac sealed with the seal of RS as already Ex. PW3/1 colly. PW6 further stated that he did not remember whether he had got the photographs FIR No. 58/08 State Vs. Anil Bharti Page no.22 of 50 23 done of the burnt truck and whether the photographs of the burnt truck and the mob were got done or not, however, the whole incident was videographed. He further stated that he did not remember how the truck was brought to the PS. PW6 further denied the suggestion that the burnt truck was not brought to the PS at any time nor it was deposited at PS Malkhana. He denied the suggestion that he had not got the brunt truck photographed or not brought to the malkhana and that the truck was brought to the PS in a moving condition and therafter it was burnt. He further stated that he did not know whether the photographs record were the same photographs which were got clicked at the time of seizure or superdari or at the PS. He further stated that he could not tell whether the same got clicked in the year 2016 by the direction of the court and that was the reason he had not taken any steps to knew the ownership of the said truck. PW6 denied the suggestion that the cassette which was placed on record, was placed on record after the opinion from the prosecution branch before the court during my examination-in- chief and no incident was recorded in the said CD or that the Cds were provided later on to the counsel for the accused persons during trial of the case and not filing of chage-sheet by the IO. He further stated that he did not remember whether he had given any notice to any public person to join the investigation. He denied the suggest that he did not remember the names of public persons as I had not asked anyone to join the investigation in the present case. He further denied the suggestion that the said truck was chased by the toll tax inspector and due to the overheating it got burnt. He further denied the suggestion that while the truck was bring burnt, the cows/ cattles were being taken out by the public persons. He stated that he called the fire brigade from his wireless set and a message was given from his wireless set to the control room with regard to the fire brigage. He further stated that he could not tell the exact time when the brigade reached the FIR No. 58/08 State Vs. Anil Bharti Page no.23 of 50 24 spot, however, it was about 12 noon. PW6 again said, 11-12 noon. He denied the suggestion that before fire brigade reached the spot, the public persons and the police got the fire extinguished. He further stated that he did not know whether he had seized the motorcycle or not or he seized the container from which the petrol was taken out from the motorcycle and also did not remember whether the witnesses whose statement he recorded u/s 161 Cr.P.C. categorically stated the none of the accused persons pelted stones on the truck or that accused persons burnt the truck or that none of the accused persons instigated the mob. He further stated that three police officials were injured in the accident and he did not remember how many public persons were injured in this incident and also did not remember what was type of injury sustained by the police officials and also did not remember whether the injured persons reached the spot after getting treatment from the hospital. He further stated that he had not collected the MLC of the injured persons. PW6 further denied the suggestion that he did not know what type of injury sustained by the police officials as none of them was injured or that he had got all MLCs made to strengthen the present case. He further denied the suggestion that0 accused persons had been falsely implicated in the present case due to the local politics of the village. He further stated that No FIR was registered except the present FIR in which the same case property was involved, however, one separate FIR was registered against the accused persons who ran away leaving their cows on the spot as it was presumed that cows were being taken for the slaughtering purpose. He further stated that he did not know whether this FIR was lodged prior to that FIR or not. He further stated that no toll tax employee or officials of toll tax were present at the spot at the time of incident. He denied the suggestion that they were present at the spot and he intentionally did not get their statement recorded or that none of the accused persons were part of FIR No. 58/08 State Vs. Anil Bharti Page no.24 of 50 25 the unlawful assembly. He further denied the suggestion that the said mob was standing in group and another was standing in the field. He stated that he could not tell which of the groups were pelting stones on the truck and which group burnt the said truck or another part was unloading the cows. PW6 denied the suggestion that one of the groups of the mob were feeding the cattle. He denied the suggestion that employees/ volunteers of an NGO and one govt. Veternity Doctor reached at the spot. He further stated that no weapon was used by the mob. PW6 further stated that some sticks/ danda were lying in the police sypsy and ante riots equipment were also available in the gypsy. He further stated that he had sent wireless message to his senior officer with regard to the incident. He further stated that he did not remember whether he was IO of FIR no. 57/08 with regard to PS J P Kalan and denied the suggestion that he was intentionally not disclosed this fact. PW6 has shown the photocopy of chargesheet of FIR no. 57/08 PS J P kalan and he stated that he was one of the IO of that case. He further denied the suggestion that no such investigation was ever carried out by him at any point of time or entire paper work was done by him at the PS and not the spot. He also denied the suggestion that accused persons had been falsely implicated. PW6 discharged after cross examination.
11. Sh. Rakesh Khera has been examined as PW7 . He deposed that he was posted as ACP Najafgarh from February 2009 to November 2010 and SHO PS JP Kalan came to his office and told him the facts of the present case. He further deposed that after perusal of the police file, he gave the complaint u/s 195 Cr.P.C as EX PW7/A bearing his signature at point A and B and the same was handed over to SHO JP Kalan.
11.1 PW7 has been cross examined by ld. Defence Counsel. In his cross examination, he stated that the incident in the present case occurred on FIR No. 58/08 State Vs. Anil Bharti Page no.25 of 50 26 10.06.2008. He further stated that he was not posted as ACP Najafgarh at that time. He further stated that he did not had any personal knowledge with regard to present incident and he did not remember whether any such application was moved by SHO concerned for seeking complaint u/s 195 Cr.P.C. with regard to the present case. PW7 further stated that he had not written in the said complaint that SHO PS JP Kalan came to his office and narrated the entire facts of the present case. He denied the suggestion that the notice u/s 195 Cr.P.C. was issued on the basis of false and fabricated facts to save the skin of police officials. He was discharged after cross examination.
12. Inspector O.P. Meena has been examined as PW-8. He deposed that on 16.02.2009, he was posted at PS JP Kalan as an inspector and on that day, investigation of the present case was marked to him. He further deposed that pn 20.02.2009, he had issued a notice u/s 160 Cr.P.C to all the by named persons in the complaint for attending his office on 04.03.2009, however, notice only served to Jaswinder @ Mandu. He further deposed that did not visit at his office as per compliance of notice u/s 160 Cr.P.C . He further deposed that on 08.08.2009 accused Jaswinder @ Mandu had already arrested in case FIR no. 76/09, u/s 342/ 376/ 506 IPC. He further deposed that HC Dharampal and HC Rajender Prasad identified accused Jaswinder @ Mandu when he was in the custody of case FIR no. 76/09 and thereafter, on 08.08.2009 accused Jaswinder @ Mandu was arrested vide arrest memo as Ex. PW8/A bearing his signature at point A. PW8 deposed that he recorded the statement u/s 161 Cr.P.C. of HC Dharmpal and HC Rajender Prasad. He further deposed that on 28.08.2009 accused Anil Bharti was arrested vide arrest memo as Ex.PW8/B bearing his signature at point A and he was sent to JC and thereafter, he recorded the statement of Laxman FIR No. 58/08 State Vs. Anil Bharti Page no.26 of 50 27 Singh Sub-fire Officer, Najafgarh. He further deposed that thereafter, he collected the report of Fire-Sub- Officer through net as Mark X. He further deposed that on 12.09.2009 accused Rajender Singh Dagar was arrested vide arrest memo as Ex. PW8/C bearing his signature at point A and thereafter, he obtained a complaint u/s 195 Cr.P.C. from ACP Najafgarh and same as already Ex.PW7/A. PW8 further deposed that he initiated against accused Shamsher @ Bhondu and after recording the statement of witnesses, I prepared chargesheet and filed the same. PW8 was discharged after Nil Cross examination.
13. HC Naval has been examined as PW9. He deposed that on 10.06.2008 he was posted at PS J P Kalan as a constable and on that day, he joined the investigation alongwith Inspector Satender and other staff members reached at Mundhela Road, Village Mundhela Kalan on road in a govt. Gypsy where they found one truck no. HR 26 J 0116 found stationed in the field and 150 persons were gathered there and five cows were also found at the spot which were unloaded from the truck by the public persons. He further deposed that some public persons tried to instigate the mob for quarrel and they were shouting that the " gayo (cow) ko kaatne ke liye le jaa rahe thhey, gaye hamari mata hai". Counselor Dagar trying to instigate the mob and thereafter, mob pelted stone on the truck due to which lights and mirror of the truck had stone on the truck due to which lights and mirror of the truck had broken. He further deposed that thereafter, they all police officials pacified the situation, however, mob was out of control and started manhandling with the police officials. He further deposed that 3-4 police personnels namely Sanjeet, Hanuman Sahai, Dharampal received injuries. PW9 further stated that one boy took petrol from the motorcylce and burnt fire to the truck with the petrol and thereafter, he fled away in the mob. He FIR No. 58/08 State Vs. Anil Bharti Page no.27 of 50 28 further deposed that fire brigade reached at the spot. He deposed that SI Mahender prepared a rukka and handed over to him for the registration of FIR and after registration of FIR, he returned to the spot and handed over copy of FIR and original rukka to Inspector Satender. He further deposed that IO seized the pieces of the stones vide memo as Ex. PW2/A bearing his signature at point A with the seal of SS, truck no. HR 26 J 0116 seized vide memo as Ex. PW2/B bearing his signature at point C. He further deposed that IO obtained the DVD cassette from photographer and same was seized vide memo as already Ex. PW2/C bearing his signature at point C. During his examination in chief, PW9 correctly identified the truck in the photographs as Ex. PW9/A. PW9 also correctly identified case property i.e stone of light black colour and the said stones were already Ex.PW3/1(colly). During the examination in chief of PW9 one brown envelope bearing the half seal with the writing of Delhi and the said envelope can also bears impression of two seals at two different places. However, the seal was not present at the two places, however the seal was present at the first place and the seal at the first place was removed and the envelope was opened and one white cassette box bearing the details of the case and one empty white pullinda bearing the seal of SS. The DVR cassette also contained one marking as Ex.1, FSL-2013/P-0341/PHY-13/13. During the examination in chief of PW9 the DVR which was sealed in a brown envelope sealed with a seal of the court and a plastic case bearing the FIR no. 58/08 was taken out and the said DVR was taken out and was played on a T.V. PW9 stated that Kuldeep Dagar, Anil Bharti, Amit Kharkari, Rajender and Jaswinder could be seen in the video. Witness also stated that a person who was wearing a white colour shirt with black strips and was present in the court could be seen raising slogan and instigating the crowd assembled at the spot. On being asked the person wearing white FIR No. 58/08 State Vs. Anil Bharti Page no.28 of 50 29 colour shirt with black strip was stated his name Rajender. At this stage, the court observed that accused Amit Kharkhari can be seen raising slogan "
Delhi Police Haye Haye". Witness stated that a person who was wearing red colour t-shirt in the video recording was the one who had lit fire in the truck and stated that person was present in the court wearing pink colour shirt. On being asked by the court that person had disclosed his name as Jaswinder. He further deposed that fire Brigade also reached at the spot and ASI Mahender Singh prepared a tehrir and handed over to him for the registration of FIR. He further deposed that he went to PS J P Kalan and handed over the same to Inspector Satender Yadav and thereafter, he alongwith Inspector Satender Yadav both came to the spot. He further deposed that site plan was prepared by IO Inspector Satender Yadav. PW9 failed to recall the other three accused persons other than those identified by him in the court due to lapse of time, however, they were very much present at the spot and they were very much involved in the incident. He further deposed that his statement was recorded u/s 161 Cr.P.C. 13.1 PW9 was cross examined by Ld. Defence Counsel. In his cross examination, he stated that in the entire DVR played the slogan " Gayo ko katney ke liye le ke ja rahe they, Gaye hamari mata hai" cannot be heard therein. He further stated that in the entire DVR played no one had been seen pelting stones on the truck and breaking the glasses of the truck and no person was seen manhandling any of the police official present there. He further stated that in the entire DVR, the mob was not seen out of control and the said alleged person who poured the petrol on the truck and lit it on fire cannot be seen doing so. He further stated that in the entire DVR played the motorcycle from which the petrol was taken out by the said alleged accused persons cannot be seen and he had not seen the registration number of the truck in the video specifically and that was the reason he could not tell FIR No. 58/08 State Vs. Anil Bharti Page no.29 of 50 30 whether the registration number of the truck can be seen in the DVR played in the court. PW9 denied the suggestion that the pelted stones were not seized in his presence or that he did not have any personal knowledge in this regard. He further stated that in the entire DVR played no time, date and duration was visible and that accused Anil Bharti was neither raised any slogan nor was instigating the mob assembled there. He further denied the suggestion that in the DVR played accused Anil Bharti was seeing folding hands in the front of the mob and also tried to pacify the mob. PW9 further denied the suggestion that none of the accused persons were not present at the spot of the incident on the relevant date and time and none of them pelted stones or manhandled the police party. He further denied the suggestion that the name of the accused persons which were mentioned in his statement were stated to him by his senior police officials to falsely implicate them and to save their own skin. He further denied the suggestion that the seized stones were planted by him at the instance of his senior police officials. He stated in his cross examination that he did not know whether the pelted stones were sent to FSL or not. Pw9 denied the suggestion that he was deposing falsely at the instance of senior police officials and the Investigation officers of the case. He further denied the suggestion that the public persons were came at the spot and were also leaving the spot or that public persons/mob came from all directions of the spot. Vol. The said persons were coming from one side of the road. He further stated that the mob was scattered around the spot from all the side. He denied the suggestion that when he gave the tehrir at the PS the entire investigation had already been conducted by the IO. He further stated that he gave the tehrir at about 11:00-11:30 AM. He stated that the injured persons were shifted to the hospital around 12:30-1:00 PMA. He again said that he did not remember when the injured persons were shifted to the hospital. He FIR No. 58/08 State Vs. Anil Bharti Page no.30 of 50 31 further stated that he alonwith entire police team left the spot at about 3:00- 4:00 PM. He stated that the stones were being pelted from all sides of the truck and most of the stones were being pelted from the cabin side of the truck and his statement was recorded at the spot by Inspector Satender Yadav. PW9 further denied the suggestion that his statement was recorded at the PS after two days of the incident and that he was not known some of the accused persons prior to the incident. He further stated that accused persons did not reach the spot together. He voluntarily stated that the mob was increasing in numbers, the accused persons also reached the spot. He denied the suggestion that the truck got over heated and caught fire on its own due to the spark. He further denied the suggestion that he was deposing falsely. After his cross examination, PW9 was discharged.
14. Rtd Inspector Tara Chand Khola has been examined as PW10. He deposed that on 25.08.2008 he was posted at PS J P Kalan as a Inspector ATO and the present case was marked to him by the SHO for further investigation. He further deposed that he perused the file and visited village Mundhela Kalan in search of accused namely Ramkishan S/o Sh. Chandan where he came to know that the accused was not residing at the village. He further deposed that thereafter he came back to the PS and he narrated the proceedings to the SHO. He further deposed that on 09.09.2008 he went to PTS Wazirabad for recruitment of police staff and he came back to PS
11.09.2008 thereafter he went to village Mundhela Khurd in search of accused Ashok but accused Ashok was not traceable. He further stated that he came to know that accused Ashok belongs to village to Mundhela Kalan. Thereafter he again narrated the entire proceedings to the SHO. He further stated that thereafter he was further transferred to PS Dwarka North.
14.1 PW10 cross examined by Ld. Defence counsel. In his cross
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examination, he stated that he received the file from MHCR and he has not given written report qua the above mentioned investigation to the SHO.
15. W/ASI Sunita has been examined as PW11. She deposed that on 10.06.2008 he was posted at PS J P Kalan as a W/HC and on that day she was working as DO and her duty timings were from 08:00 am to 04:00pm, at about 12:50pm, Ct. Naval came to the PS and gave her a tehrir which was forwarded by ASI Mahender. She further deposed that she made endorsement on the said tehrir vide DD No. 15A as Ex.PW11/A bearing her signature at point A and she registered FIR no. 58/2008 PS J P Kalan in the present case and same as Ex.PW11/B (OSR) bearing her signature at point A. She further deposed that after registration of FIR she handed over the tehrir and the copy of FIR to Ct. Naval, who handed over the same to Insp. Satender Yadav.
15.1 PW11 has been cross examined by Ld. Defence counsel. In her cross examination, she stated that she had not brought her duty roster as the same was not summoned and she had also not brought DD register. She further stated that she knew how to type on computer. She further stated that she had not given any certificate u/s 65B Indian Evidence Act. Vol. the same was not required to given at that time. PW11 denied the suggestion that she had not done any kind of typewriting course in her department and that she got the present FIR typed through some third person. She further denied the suggestion that the FIR of the present case was tempered one. She stated that she could not produce any documents with regard to the typing course which she had done in her department. She stated that she can produce her duty register and DD entry register in the court, if the same are available. PW11 was discharged after cross examination.
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STATEMENT OF ACCUSED
16. Prosecution Evidence was thereon closed by the Court vide order dt. 14.02.2020 and statement of accused persons were recorded u/s 313 r/w 281 Cr.P.C vide order dated 19.02.2020 in which all the incriminating evidences on record including all the depositions of PWs were put to the accused persons for seeking their explanation. Wherein the accused persons denied all the incriminating evidence against them and stated that they have been falsely implicated in this case. The accused persons did not wish to lead DE.
ARGUMENTS
17. Final arguments were heard at length. I have gone through the documents on record, evidence and submissions forwarded by counsel for the accused and Ld. APP for the State.
18. As per the Ld. Counsels for accused persons, the prosecution examined 11 witnesses, however, still failed to bring the guilt of the accused persons beyond reasonable doubt. They submitted they are material improvements as well as inconsistencies/contradictions in the prosecution evidence. It was further argued that the departure and arrival roznamcha entries were not placed on record and therefore the presence of the particular police officials of the spot at the date and time of the incident is not established beyond reasonable doubt. It is also argued that the prosecution case was that at the time of the incident there were more than 100 people on the spot however, no one of them was made witness in the present matter. Moreover no independent witness whatsoever has been examined by the prosecution and all the witnesses examined are official in nature. It is also FIR No. 58/08 State Vs. Anil Bharti Page no.33 of 50 34 argued that the photographs and videographs placed on record are not duly proved as the concerned photographer was never examined by the prosecution. Ld. Counsels further submitted that no TIP proceedings were conducted to prove the identities of the accused persons. It is also argued that the accused persons were arrested after one and a half year of the alleged incident and no reasons for such delay on part of the investigating agency is explained by the prosecution. Ld. Counsels also submitted that as per the prosecution theory itself, there were around 100-150 people atleast who were pelting stones, however, the reason why only the present accused persons were implicated in the present matter is not explained by the prosecution. It is also submitted that originally the charge-sheet was filed against 11 persons however, out of those 11 only 8 persons were prosecuted. It is also submitted that SI Mahender Singh is the complainant in the present matter and he is the one who initially investigated the present case which is contrary to law.
19. The Ld. Counsels also argued that the case property I.e the burnt truck and pelted stones recovered from the burnt truck are very crucial to be proved beyond reasonable doubt to support the theory of the prosecution, however, the same were not proved by the witnesses. It is argued that the pelted stones were recovered from the burnt cabin of the truck however the stones produced before this court and identified by the witnesses were not burnt neither there were any sign or ashes on those stones to prima facie prove that they were being recovered from a burnt cabin. It is also argued that as per the prosecution theory, accused Jaswinder @ Mandu took out oil from a motorcycle and poured the same on the truck and thereafter lighted the truck however neither the mug in which the oil was taken by accused Jaswinder nor the motorcycle from which the oil was taken were seized by FIR No. 58/08 State Vs. Anil Bharti Page no.34 of 50 35 the IO concerned rather there is no evidence whatsoever on record which can prove the identity of the motorcycle. There is no registration number recorded by the IO anywhere in the charge-sheet of the alleged motorcycle and therefore it is argued that the prosecution theory is fictitious and imaginary in nature. It is also argued that PW2 HC Dharmabir in his cross examination stated that the punchnama of the burnt truck Ex.P2/4 is not prepared in his presence neither he was summoned to join punchnama proceedings. Moreover no registration number, chasis number or engine number is visible on the photographs of the punchnama and therefore the identity of the burnt truck is also remained unproved.
20. Ld. Counsels submitted that there are material contradictions in the testimonies of the witnesses and no one testimony is corroborating the others testimony in real sense. It is submitted that that according to PW1 and PW3 there were 150-200 people at the spot whereas as per PW6 who is the IO in the present matter says that there were around 1500 people at the spot at the relevant point of time. It is also submitted that PW6 in his testimony stated that the crowd pelted bricks whereas the recovered case property in the present matter is not bricks but stones. It is also submitted that almost all the witnesses stated that it was the crowd in general who pelted stones on the truck and not the accused persons in particular.
21. It was further argued that the witnesses stated that the injured persons namely ASI Hanuman, HC Dharampal and Ct. Sanjeet were taken to the RTRM hospital immediately as soon as they received injuries I.e at around 11:00 am however, the MLC recorded the time as 04:20 pm. Ld. Counsels argued that such delay proves that the present case is a result of afterthought strategy and the same was registered just to implicate the present accused FIR No. 58/08 State Vs. Anil Bharti Page no.35 of 50 36 persons. The Ld. Counsels further submitted that there is material inconsistency qua the time of reaching at the spot by the concerned police officials. As per PW1 they reached at the spot at around 10:00am whereas as per PW2 they reached at the spot at 07:00-07:30 am. PW3 stated that the police officials reached at the spot at around 08:00am while PW6 stated that they reached at the spot at around 05:00 to 05:30 am. Ld. Counsel also submitted that the departure time of the police officials is also different. Ld. Counsels further submitted that the present case is registered to wrongly implicate the present accused persons because of political rivalry and nothing else. He further submitted that the accused persons were named in the original tehrir on the personal information of complainant ASI Mahender who in his examination himself stated that he knew the accused persons prior to the incident. Ld. Counsels argued that no accused persons were arrested on the spot.
22. On the other hand, Ld. APP for the state submitted that prosecution has proved the case against the accused persons beyond reasonable doubt. Ld. APP for the state submitted that identity of accused persons are duly established, case property are duly identified, MLCs of the injured police officials are duly proved.
23. This court went through all the testimonies of the witnesses minutely alongwith the evidences on record. In brief the prosecution theory is that on 10.06.2008 a mob of about 100-150 people were gathered in one agricultural field surrounding one truck bearing regn. no. HR-26J-0116 in which it was alleged that some cows were taken. The prosecution further alleged that the accused persons gave instigating speech by which the mob agitated and pelted stones/bricks on the truck and the truck was burnt. The FIR No. 58/08 State Vs. Anil Bharti Page no.36 of 50 37 prosecution further alleged that when the police official present on the spot tried to pacify the mob, accused persons assaulted them and also prevent/deter them from discharging their duties as public servants. The charge was framed against all the accused persons u/s 147/148/149/186/332/353/435 IPC. To prove all these allegations, the prosecution examined total of 11 witnesses.
24. Section 147 of IPC punished persons guilty of act of rioting as defined u/s 146 of IPC with imprisonment for either description for a term which may extend to 2 years or with fine or with both.
25. Section 148 further punished the persons guilty of rioting, being armed with a deadly weapon or with anything which used as a weapon of offence is likely to caused death with imprisonment of either description for a term which may extend to 3 year or with fine or with both.
26. Section 149 says that if an offence is committed by any member of unlawful assembly in prosecution of the common object of that assembly or such as the member of that assembly knew to be likely to be committed in prosecution of that object then every person who at the time of committing that offence is the member of same assembly is guilty of that offence.
27. Section 186 further provides punishment for voluntarily obtructing any public servant in discharge of his public functions with imprisonment of either description for a term which may extend to 3 months or with fine which may extend to Rs.500/- or with both.
28. Section 332 of IPC punishes people who voluntarily causes hurt to FIR No. 58/08 State Vs. Anil Bharti Page no.37 of 50 38 any person being a public servant in the discharge of his duty as such public servant or with intent to prevent or deter that person or any other public servant from discharging his duties as such public servant with imprisonment of either description for a term which may extend to 3 years or with fine or with both.
29. Section 353 IPC provides punishment for assaulting or using criminal force to any public servant to deter that person from discharging his duties as such public person with imprisonment which may extend to 2 years or with fine or with both.
30. Section 435 of IPC provides punishment for committing mischief by fire or any explosive substance to any property having value of more than Rs.100/- with imprisonment of either description which may extend to 7 years and shall also be liable to fine.
31. To prove Section 147 to 149 IPC two facts need to be proved by the prosecution beyond reasonable doubt : (1) forming of unlawful assembly and (2) Common object.
Unlawful Assembly is defined u/s 141 of IPC, the ingredients of which are as follows:-
(1) there is an assembly of 5 or more persons;
(2) the assembly had a common object;
(3) the said common object was to consist one or more of the 5 illegal objects specified in Section 141 of IPC.
32. The common object would mean the purpose or design shared by all the members of such assembly and can be formed on the spur of the FIR No. 58/08 State Vs. Anil Bharti Page no.38 of 50 39 moment. However, a mere presence or association with other members alone does not per se sufficient to hold everyone of them criminally liable for the offence committed by the other unless there is sufficient evidence on record to show that each member intended to or knew the likelihood of the commission of such an offending act. It is also relevant to determine whether the assembly consists of some persons which were merely passive witnesses and had joined the assembly as a matter of ideal curiosity without intending to entertain the common object of the assembly.
33. The essence of the above-mentioned offences is the common object of the persons forming the assembly. The accused persons had a common object or purpose is a sine qua non for an offence of rioting punishable u/s 147 as also u/s 148 IPC. Determination of the common object of an unlawful assembly or the determination of the question whether a member of the unlawful assembly knew that the offence which was committed was likely to be committed is essentially a question of fact that has to be decided keeping in view the nature of assembly, the arms carried by the members and the behaviour of the members at or near the scene. The common object of an assembly can also be ascertained from the acts and languages of the members composing it and may also be gathered from the course of conduct adopted by those members.
34. However, to prove particular offences, the prosecution needs to prove the alleged illegal acts on part of the accused persons as well as the circumstances as enumerated in the charge-sheet. However, in view of this court, after going through all the testimonies as well as the documentary proofs on record, this court is of the view that the prosecution is hopelessly failed to prove the allegations against the accused persons neither the FIR No. 58/08 State Vs. Anil Bharti Page no.39 of 50 40 circumstances in which the alleged incident happened was proved by the prosecution beyond reasonable doubt.
35. There are material contradictions in the testimonies of the police officials. It is pertinent to mention here that in the present matter, all the eye witnesses examined are police officials and no independent eye witness was examined by the prosecution except PW5 who turned complete hostile to the prosecution and nothing material could be elucidated from his cross examination by the Ld. APP for the State.
Contradictions qua the timings of arrival and departure as well as the strength of the mob.
36. As per the testimony of PW1 namely SI Mahender Singh, he alongwith one ASI Hanuman, HC Dharampal, HC Rajender, Insp. Satender, Ct. Sanjeet, Ct. Naval and driver HC Rajbir were present at Rawta mod in a govt. gypsy and when they reached to Mundhela Kalan village they saw a mob of around 100-150 persons gathered in agricultural field surrounding one truck from which some cows were stated to be evacuated. He further stated that one Kuldeep Dagar was saying that 'is truck me gayon ko dhus dhus ke bhara hua tha aur gayon ke saath krurta ki gayi hai, gai hamari mata hai or inko ye log kaatne ke liye le ja rahe the or aisa karne walo ko fansi honi chahiye'. PW1 stated that because of his instigating speech the mob agitated and the other accused persons present in the mob started throwing bricks and stones on the police parties as well as on the truck. He also stated that accused Jaswinder took the petrol in a dabba from a motorcycle and then threw the same in the driver cabin of the truck and lighten up a matchstick because of which the truck caught fire. Photographer FIR No. 58/08 State Vs. Anil Bharti Page no.40 of 50 41 and fire brigade was called and the police official who suffered injuries were taken to the hospital. In his cross examination, he stated that it was around 10:00am in the morning when he alongwith other police officials reached at the spot. However, as per the testimony of PW2 namely HC Dharampal who is one of the eye witness as well as injured in the present matter and who alongwith PW1 and other police officials reached at the spot stated in his examination that it was around 07:00-07:30am when they reached at the spot. He also stated that he stayed on the spot till 11:00am and again returned to the spot after their medical examination after which the rukka was prepared. He further stated that it was accused Kuldeep Dagar and Anil Bharti who gave instigating speech after which the mob starting pelting stones and bricks on the police party. However again in his cross examination, he stated that he cannot tell exactly who were giving the slogans. As per the testimony of PW3, he alongwith other police officials reached at the spot at 08:00am and left the spot at around 03:00-04:00 pm. He also stated that it was Kuldeep Dagar who gave instigating speech. In his examination, he also stated that there were about 1000-2000 public persons at the spot. In his cross examination, he also stated that he had seen accused persons leaking out petrol in a dabba from the motorcycle. He also stated that the police officials sustained injuries at around 10:00am and were taken to the hospital immediately thereafter. He also stated that it was the accused persons and other public persons present on the spot who set the said truck on fire. As per PW6, who was the then SHO and first IO in the present matter and who alongwith other police officials present at the spot stated that he alongwith other police officials reached at the spot at around 05:25-05:30am and left the spot at around 09:00pm. He also stated that there were around 1500 persons at the spot. The other eye witness PW9 stated that there were around 150 persons in the field surrounding the truck and some FIR No. 58/08 State Vs. Anil Bharti Page no.41 of 50 42 public persons trying to instigate the mob and shouting that 'gayon ko katne ke liye le ja rahe the, gai hamari mata hai' . He also stated that accused Kuldeep Dagar trying to instigate the mob, however, the manner is not mentioned in his entire examination.
37. By going through the above testimonies., it is clear that there are material contradictions qua the testimonies of the eye witnesses. The arrival and departure timings of the police officials at the spot were not matched neither any DD entries qua the arrival and departure of the concerned police officials were placed on record by the prosecution. The strength of the crowd is also not clear as some witnesses stated that there were 100-150 people while other stated that there were 1000-2000 public persons at the spot. The testimonies are also not corroborated qua the fact of giving instigating speech. Some witnesses says it was accused Kuldeep Dagar who gave instigating speech, some says that it was Kuldeep Dagar and Anil Bharti who gave instigating speech and some says some public persons were trying to instigate the mob by giving instigating speech.
38. As far as the fact of giving instigating speech is concerned, the testimony of PW9 is very crucial in whose testimony the DVR allegedly recording the entire incident is played. It is also pertinent to mention here that there are two CDs and one DVR cassette on record, however, only the two CDs were exhibited as Ex.PW6/1 and Ex.PW6/2 and the DVR cassette was never taken on record. The two CDs were failed to play before the court and therefore could not be perused. Though the DVR cassette was not exhibited, however, the same was played while the examination of PW9 was going on. In his cross examination, PW9 stated that it is correct that the slogan ' gayon ko katne ke liye le ja rahe hain gai hamari mata hai' cannot FIR No. 58/08 State Vs. Anil Bharti Page no.42 of 50 43 be heard. No one could be seen pelting stones on the truck and breaking the glasses of the truck in the video. No one is seen manhandling with the police officials neither the mob could be seen out of control. It is also stated by PW9 that the alleged persons cannot be seen litting the truck on fire.
39. As far as the videography of the entire incident is concerned, it is clear from the testimonies of all the eye witnesses that the videographer/photographer was called on spot before the incident however, despite the same the incident as alleged by the prosecution was not recorded. It is also pertinent to mention here that this court is dependent upon the observations made in the examination of PW9 qua the DVR as the same was never played before the undersigned.
The case property not duly proved
40. There are material contradictions qua the case property as well. As per the testimony of PW1 and PW2, the instigated mob pelted bricks and stones on the truck and the police personal while as per the testimony of PW3 and PW9 the mob pelted stones on the police team and there were no mentioning of brick in their testimony. As per the testimony of PW6, accused persons pelted bricks on the truck.
41. It is also pertinent to mention here that the case property in the present matter consist of stones only and no bricks were seized. It is also important to mention here that PW2 in his examination in chief stated that the laying stones near the spot which were thrown by the accused persons were seized vide seizure memo Ex.PW2/A while other witnesses stated that the stones were seized from the burnt cabin of the truck. It is also pertinent FIR No. 58/08 State Vs. Anil Bharti Page no.43 of 50 44 to mention here that the case property produced before the court does not show any signs of burning and therefore it is highly unlikely that the stones which were recovered from a completely burnt cabin have no signs of the same.
42. As far as the burnt truck is concerned, the same could not be produced physically before this court as the prosecution submitted that the truck is not in a moving condition and therefore cannot be taken to the court. However, a punchnama by the order of this court was prepared of the burnt truck and was exhibited as P2/4. It is pertinent to mention here that prosecution is hopelessly failed in proving the identity of the burnt truck as no RC of the burnt truck was taken on record neither the registered owner of the truck was examined. The photographs attached with the punchnama does not show the registration number or chasis or the engine number of the truck to prove its identity. Moreover, the burnt truck was seized vide seizure memo Ex. PW2/B however, PW2 in his cross examination stated that neither the punchnama was prepared in his presence nor he was summoned to join the punchnama proceedings and therefore in view of the above observations, the prosecution is failed to prove the identity of the said truck.
No Independent witness
43. The prosecution case is that on the fateful day there were around 100- 200 people on the spot,however, despite the same there is no independent witness in the present matter. It is also pertinent to mention that the entire incident was alleged to be captured in the video despite the same no efforts were taken to identify the persons in the mob or the witnesses on the road.
FIR No. 58/08 State Vs. Anil Bharti Page no.44 of 50 45
44. This Court is, however, mindful of this fact that the prosecution case cannot be thrown out or doubted on the sole ground of non-joining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable, as has been held in "Appabhai and another v. State of Gujarat", AIR 1988 SC 696. However, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution but there are other circumstances too, as discussed herein before and after, which raise suspicion over the prosecution version.
Discrepancies in the timing of MLCs of injured police officials
45. From the testimonies of all the eye witnesses, it is clear that the injured police officials namely ASI Hanuman, Ct. Sanjeet and HC Dharampal were sustained injuries at around 10:00-12:00 pm and were taken to the RTRM hospital immediately, however, their MLCs recorded the timing as 04:20 pm. No explanation or circumstances have been explained by the prosecution to fill this 4-5 hours gap.
46. It is also pertinent to mention here that ASI Hanuman and Ct. Sanjeet sustained simple swelling on their right hand and HC Dharampal sustained minor abrasion. It is also pertinent to mention here that the theory of the prosecution is that all the available police officials on spot created a human chain around the truck to save the truck from the mob and the mob from all sides were pelting stones and bricks on the truck due to which the police official sustained injuries.
47. This court is of the view that it is highly unlikely that only three police officials sustained injuries and that to as minor as swelling on the FIR No. 58/08 State Vs. Anil Bharti Page no.45 of 50 46 hands by pelting stones and bricks by a crowd of 200 people. It is clear from the testimonies of the witnesses that beside the above-mentioned three police officials, no other police official sustained any kind of injuries on the spot. This also raises suspicion on the version of the prosecution.
Delay in Investigation
48. The incident is of 10.06.2008, however, most of the accused persons were arrested in 2009 and no reason for such delay has come on record by the prosecution. It is also pertinent to mention here that PW1 in his cross examination clearly stated that the original tehrir was of his own version and was not dictated by any other police official. He also stated that he knew all the accused persons prior to the incident being the police officer posted in the PS JP Kalan. Despite the same, the accused persons were not arrested for almost about 1 year. It is also pertinent to mention here that the original charge-sheet was filed against 11 accused persons however, in those 11 persons 3 persons were untraceable at that time and no supplementary charge-sheet qua them was filed before this court till date. The prosecution did not explain the efforts taken by the police officials to trace those accused persons. No investigation qua those accused person was being conducted from ASI Mahender who stated those persons name in the tehrir. This also raised doubts on the version of the prosecution.
Circumstances in which the truck was burnt not proved beyond reasonable doubt
49. There were also discrepencies in the testimonies of the eye witnesses qua the circumstances in which the truck was burnt. As per PW1 and PW2 it FIR No. 58/08 State Vs. Anil Bharti Page no.46 of 50 47 was Jaswinder @ Mandu who took out oil from a motorcycle in dabba and poured the same into the cabin of the truck and after that set the truck on fire whereas PW3 in his cross examination stated that he has seen accused persons leaking out petrol in a dabba from a motorcycle. It is also an admitted fact that the motorcycle from which it is alleged that the oil was taken was never seized neither its registration number is on record. No investigation is infact qua the said motorcycle conducted by the IO concerned. In the cross examination of PW9, he stated that it is correct that in the entire DVR, the alleged persons cannot be seen pouring the petrol on the truck and setting the same on fire. This fact also was in the favour of the accused persons and against the prosecution.
Arrival of the fire brigade was not duly proved
50. It is the case of the prosecution that the fire brigade was called on the spot by the SHO after the truck was set on fire,however, the witness I.e PW5 who was called to prove the said fact was turned complete hostile. No other witness or document was placed on record by the prosecution to prove the said fact.
No 65 B of IEA Certificate on record
51. There is no 65 B certificate on record qua the videograph/DVR cassette allegedly recording the entire incident neither the videographer was examined by the prosecution. Infact, the DVR cassette was never exhibited in the present matter.
FIR No. 58/08 State Vs. Anil Bharti Page no.47 of 50
48
Other Discrepancies
a.) As per PW6, the then SHO, one of the eye witness and the first IO in the present matter, the accused persons not only pelted bricks on the truck rather they were involved in scuffling with the police officials as well and when the police officials tried to stop them, they pushed the police officials. However, as per the testimonies of other witnesses there was no direct scuffling between the police officials and the accused persons or the mob in general and that no police officials were manhandled or beaten by the accused persons or the mob.
b.) It is the prosecution theory that after police official sustained injuries ASI Mahender took them to the RTRM hospital and returned on the spot alongwith the MLCs of the injured police officials after which he prepared the rukka and handed over the same to Ct. Naval for registering of the FIR. However, the MLCs recorded the timings as 04:20pm and therefore it is only possible that the rukka is prepared after 04:20pm and was handed over to Ct. Naval after 04:20 pm, however as per the testimony of Ct. Naval he alongwith entire police team left the spot at around 03:00-04:00 pm. Also as per the testimony of PW11, Ct. Naval came to PS at around 12:50 pm alongwith the rukka for the registration of the FIR. There is material contradictions qua the timings of the preparation of the rukka and registration of FIR.
c.) PW1 in his examination stated that he alongwith other police officials including the SHO were present at Rawta mod at the relevant point of time, however, why 8 police officials alongwith govt. gypsy were present at Rawta mod at one particular time was not explained by the prosecution. No DD enty whatsoever were placed on record to prove their presence at Rawta Mod at the relevant point of time.
FIR No. 58/08 State Vs. Anil Bharti Page no.48 of 50 49 d.) the prosecution is also utterly failed in proving the reason of moving the concerned police official from Rawta Mod to Mundhela Kala at the spot. It is stated by PW1 that the information of the incident was received by SHO and he alongwith other police officials went on the spot with the SHO only, however, the SHO in his examination stated that he has received an information from ASI Ram Kishan that a truck was carrying cows and stuck in the field after which he alongwith other police officials reached at the spot. However, ASI Ram Kishan was neither mentioned in the list of witnesses nor examined by the prosecution. Except SHO no other police officials named SI Ram Kishan in their testimonies.
e.) PW6 also stated that sticks danda, anti riots equipment, gas gun, gas shelves, cane shields etc. were available with him in the govt. gypsy however, no circumstances or reasons were explained by the prosecution for not using the same to disburse the violent mob.
f.) PW2 in his examination in chief stated that the burnt truck was seized vide seizure memo Ex.PW2/B and PW6 in his cross examination stated that the same was taken to the PS malkhana. However, on being asked PW6 could not reply through what means the entirely burnt truck was taken to the PS.
52. All the gaps in investigation as well as contradictions in the evidences on record discussed herein above create a doubt on the very happening of the alleged incident. The lapses are material one and cannot be ignored. It is settled proposition of law that if the investigation suffers from taint then the entire prosecution case becomes open to serious doubts and challenges. The materials are insufficient to record a finding of guilt of the accused persons. Accordingly, I hold that the prosecution has failed to prove its case against the accused persons beyond reasonable doubt. Accordingly, FIR No. 58/08 State Vs. Anil Bharti Page no.49 of 50 50 all the accused persons Anil Bharti S/o Rameshwar Dayal, Rajender Singh S/o Parmanand, Jaswinder @ Mandu S/o shri Kishan, Jagbir Singh S/o Attar Singh, Kuldeep Singh Dagar, S/o Ran Singh, Shamsher Singh @ Bhondu S/o Chander Singh, Ramesh Sehrawat S/o Prahlad Singh and Amit Kumar S/o Ajit Singh are acquitted of the offence u/s 147/148/149/186/332/353/435 IPC.
53. The original documents of the sureties, if any on record, be released to the said sureties after cancellation of the endorsements thereupon as and when so applied.
Announced and Signed in the Open Court Digitally signed on 28.06.2022.
SURBHI by SURBHI
Date: 2022.06.28
18:00:42 +05'30'
(Surbhi)
MM-12/DWK/SW/New Delhi
28.06.2022
FIR No. 58/08 State Vs. Anil Bharti Page no.50 of 50