Delhi District Court
State vs . Akhilesh Pati Tripathi & Ors. 1/175 on 9 April, 2021
IN THE COURT OF MS. GEETANJLI GOEL,
ADDITIONAL SESSIONS JUDGE / SPECIAL JUDGE
(PC ACT OF 2008) CBI-24, ROUSE AVENUE DISTRICT COURT,
NEW DELHI.
IN THE MATTER OF:
S.C. No. 04/2019
FIR No. 260/2013
Police Station Model Town
Under Sections 147/148/149/186/308/
332/333/353/34 IPC &
3/4 of Prevention of
Damage to Public
Property Act 1984
State
Versus
1. Akhilesh Pati Tripathi
S/o Shri Abhinandan Tripathi
R/o N-25/A-277, Lal Bagh
Azadpur, Delhi.
2. Akash Verma
S/o Shri Dina Nath
R/o 1104/10, Govind Puri
Kalkaji, New Delhi.
3. Malik Mohd. Fahad
S/o Shri Mohd. Qamer
R/o A-6, CC Colony
Ist Floor, Rana Pratap Bagh
Delhi.
4. Suraj
S/o Shri Chob Singh
R/o C-294, Lal Bagh
Azadpur, Delhi.
State Vs. Akhilesh Pati Tripathi & Ors. 1/175
5. Sachin
S/o Shri Krishan Dutt Sharma
R/o H. No. 419/16, Gali No.5
Uttam Nagar, Gohana
Distt. Sonipat
Haryana.
6. Lal Babu
S/o Shri Laxman Prasad
R/o A-9/A96, Lal Bagh
Azadpur, Delhi.
7. Hari Chand (since deceased)
S/o Shri Jai Ram
R/o N-13/117, Kishore Nagar
Rana Pratap Bagh, Delhi.
8. Sachin Gupta
S/o Shri Chetan Kumar
R/o H. No.181, Mohalla Chowk
Amroha, UP.
9. Radhey Shyam
S/o Shri Madhuvan Prasad
R/o A-402, Holambi Kalan
Delhi.
10. Rahul Kumar
S/o Shri Vishwanath Jha
R/o A-135, Lal Bagh
Azadpur, Delhi.
11. Mithlesh
S/o Shri S.P. Singh
R/o H. No.A-82, CC Colony
Model Town, Delhi.
12. Vijay (PO)
S/o Shri Daya Ram
R/o H. No.106, Rajpura Gurmandi
Delhi.
State Vs. Akhilesh Pati Tripathi & Ors. 2/175
13. Sanjeev
S/o Shri Shatrughan
R/o H. No.2, Mukandpur
Delhi.
14. Himanshu Jain
S/o Shri Manish Jain
R/o H. No.11/2, Rana Pratap Bagh
Delhi.
15. Naresh
S/o Shri Mohan Lal
R/o 54 Duplex Flats
Gurmandi, Delhi.
16. Raman Deep (Discharged)
S/o Shri Kirpal Singh
R/o D-4, Rana Pratap Bagh
Delhi. (Discharged)
17. Salman
S/o Shri Irfan
A-157, Gandhi Vihar
Delhi.
18. Smt. Geeta
W/o Shri Roop Ram
R/o 225, Rajpura Gurmandi
Delhi.
19. Prempal
S/o Shri Niranjan
R/o 206, Jhuggi Rajpura
Gurmandi, Delhi.
20. Kamal
S/o Late Shri Mewa Ram
R/o 107, Jhuggi Rajpura
Gurmandi, Delhi.
State Vs. Akhilesh Pati Tripathi & Ors. 3/175
21. Somwati (since deceased)
W/o Late Shri Mewa Ram
R/o 107, Jhuggi Rajpura
Gurmandi, Delhi.
.....Accused
Date of Institution 18.01.2018
Received by Transfer on 15.10.2020
Judgment reserved on 24.03.2021
Judgment Pronounced on 09.04.2021
JUDGMENT
1. Brief facts of the case of the prosecution are that on 09.09.2013 at about 12.30 p.m. Inspector Ashok Kumar ATO/ Model Town had received DD No.46B that around 100 to 150 persons had blocked the road in front of CC Colony, Tripoliya Gate. One Smt. Kamlesh had been murdered at GTK Road, CC Colony near Tripoliya Gate in respect of which FIR No.258/13 under Section 302 IPC was registered at PS Kingsway Camp/ Model Town. After the postmortem was conducted, the dead body was handed over to the relatives. However, the relatives of the deceased instead of cremating the dead body kept the same in the middle of the road and blocked the road. They had alleged that the police had not taken appropriate action to catch the culprits. They had put the body in front of Tripoliya Gate at GTK Road and jammed the traffic on both sides of the road. Police persons reached the spot and found that around 200/250 persons had blocked the traffic. After the crowd started State Vs. Akhilesh Pati Tripathi & Ors. 4/175 increasing more force was called at the spot and hearse van was also called to remove the dead body. The Senior Officers present at the spot requested the people to maintain peace and to remove the dead body and allow the traffic to move but the said persons were not willing to listen.
2. In the meantime, 40-50 persons belonging to Aam Aadmi Party who were wearing caps of Aam Aadmi Party and having lathis and dandas led by Shri Akhileshpati Tripathi (A1) reached the spot and they started shouting provocative slogans 'Delhi police hai hai, Dead body nahi hategi aur na hi kahi jayegi '. They were also advised to maintain peace, law and order and that it was necessary to remove the dead body and to allow the traffic to move as the public was facing a lot of harassment. However, Shri Akhilesh Pati Tripathi along with his associates kept shouting slogans. At that time the members of AAP in a pre-planned manner started pelting stones on the police force and police vehicles and they along with anti-social elements who had mingled with the crowd with lathis and dandas attacked the police force due to which 13 police persons received injuries and police vehicle No.DL1CJ-7174, Hearse van and other vehicles were damaged. Some persons were apprehended at the spot and others managed to escape. At around 3/3.15 p.m., the dead body was sent to cremation ground in Hearse Van.
3. After completion of investigation, charge sheet was filed against 21 persons under Sections 147/148/149/186/353/332/333/308/34 IPC and State Vs. Akhilesh Pati Tripathi & Ors. 5/175 Sections 3 & 4 of Prevention of Damage to Public Property Act in the court of the Ld. MM-03 (N), Rohini on which cognizance was taken. During investigation, accused Somwati died. Vide order dated 12.1.2018, the accused Vijay was declared to have absconded. After completion of proceedings under Section 207 Cr.P.C., the matter was committed to the Court of Sessions. Thereafter the matter was received on transfer by the designated court dealing with cases of MPs/ MLAs on 6.3.2018.
4. After hearing arguments, vide detailed order dated 05.01.2019 of my Ld. Predecessor, charge was framed against the accused persons for the offences under Sections 147/186/353/332/333 IPC read with Section 149 IPC and Section 3 (1) of the Prevention of Damage to Public Property Act, 1984 read with Section 149 IPC to which the accused persons pleaded not guilty and claimed trial. Accused No.16 Ramandeep Singh was discharged. The accused persons were also discharged for the offence under Section 308 IPC. During trial A7 Hari Chand expired.
5. The prosecution in support of his case has examined 35 witnesses. It may be mentioned that while the statement of accused persons was being recorded under 313 Cr.P.C., an application under Section 311 Cr.P.C. was filed by the prosecution which was partly allowed vide order dated 28.11.2020 and PW27 was allowed to be recalled for further examination and Shri K.R. Meena, the then ACP Model Town was allowed to be examined. Witness at State Vs. Akhilesh Pati Tripathi & Ors. 6/175 Serial No.23 SI Amit Rathi was dropped by the prosecution vide order dated 06.01.2020.
PROSECUTION EVIDENCE
6. PW1 Retd. SI Naresh Pal deposed that on 09.09.2013, he was posted at District North West as SI Crime Team and on receipt of information from Control Room, he alongwith Ct. Parvinder, photographer, Ct. Dinesh Kumar, finger print expert reached at the spot i.e. G. T. Karnal Road, near Tripoliya Gate where IO Inspector Ashok Kumar met him. A large number of other police personnel were already present. He observed certain broken pieces of glass and pieces of bricks and stones. There was a broken ice slab also. Two or three government vehicles were also seen by him in damaged condition. At the instructions of the IO, he inspected the site and prepared his detailed report Ex.PW1/A. Ct. Parvinder clicked the photographs of the spot.
7. PW2 Ct. Anil Kumar deposed that on 09.09.2013, he was deputed on hearse van bearing No.DL 1CJ 7174 from 8 a.m. to 8 p.m. as wireless operator. On receipt of a call regarding a dead body at Tripoliya Gate, he along with HC Mahavir (driver of the van), reached at the spot i.e. Tripoliya Gate at around 12 noon or 1 p.m. in the said van. He saw that there was a dead body lying on the road surrounded by the crowd comprising of 100 to 200 persons. When they tried to remove the dead body to the hearse van, persons from the crowd did not allow them to remove the dead body, rather started State Vs. Akhilesh Pati Tripathi & Ors. 7/175 pelting stones on the hearse van as a result of which rear glass of the van was broken and the van was dented. With the help of police personnel present there the dead body was removed to the hearse van and the damaged hearse van was handed over to the IO of the case. IO seized the hearse van vide seizure memo Ex.PW2/A. He identified the hearse van from eight photographs of the hearse van bearing No.DL 1CJ 7174 and there was a Court observation that the rear glass of the hearse van was broken as visible in the photographs. Photographs of the hearse van are Ex.P1 (colly).
8. PW3 WHC Puneeta deposed that on 09.09.2013, on receipt of message from SHO in respect of the incident at Tripoliya Gate, she accompanied the SHO Inspector Ram Niwas and other police officials and they reached at GTK Road near Tripoliya Gate. There she saw that there was a crowd comprising of 250 to 300 persons and a dead body was lying in the middle of the crowd on the road and the traffic was blocked. 40 to 50 persons of the said crowd were wearing caps belonging to Aam Aadmi Party and they were sloganeering "Delhi Police hai hai, dead body nahi hategi". Senior officers tried to make them understand in order to clear the traffic and remove the dead body. The said persons did not agree to remove the dead body and clear the traffic. The said persons were having bamboos and sticks in their hands and suddenly they started pelting stones as a result of which she sustained injury on her head and forehead. SHO PS Bharat Nagar was also present at the spot who took the injured persons including her to Babu Jag State Vs. Akhilesh Pati Tripathi & Ors. 8/175 Jeevan Ram Hospital where she was medically examined vide MLC Ex.PW3/A.
9. PW4 Ct. Parvinder deposed that on 09.09.2013, he was posted at Mobile Crime Team, North West District as photographer. On receipt of a call from wireless set to I/c, Crime Team, he along with I/c SI Naresh Pal and Ct. Dinesh reached the spot i.e. CC Colony, GTK Road, Near Tripoliya Gate at 3.40 p.m. He saw that some bricks and stones were lying on the road and ice slabs were also there at the spot. Ambulance and some police vehicles were in damaged condition at the spot. Glasses and the head lights of the vehicles were damaged. At the instance of IO and I/c Crime Team, he clicked the photographs of the spot through his government camera. On 30.12.2015, he joined the investigation of the present case in respect of certificate under Section 65B of the Indian Evidence Act. IO recorded his statement u/s 161 of Cr.P.C. Total 21 photographs were developed and were given to IO through office. One CD containing the said photographs was also handed over. The CD is Ex.PW4/A and 21 photographs are collectively Ex.PW4/B. The certificate under Section 65B of IE Act is Ex.PW4/C.
10. PW5 Inspector Rajender Prasad Yadav deposed that on 09.09.2013 he was posted as SHO of Police Station Bharat Nagar and on receipt of a message from Control Room, North West District asking SHO Bharat Nagar, Keshav Puram, Adarsh Nagar and Mukharjee Nagar to reach at G.T.K. Road State Vs. Akhilesh Pati Tripathi & Ors. 9/175 near Tripoliya Gate along with staff at once to handle a law and order problem, he along with staff from PS Bharat Nagar reached at the spot wherein he found that a dead body was kept on G.T.K. Road near Tripoliya Gate and there was gathering of about 200-250 people including ladies and the traffic was blocked on both the carriage ways. SHO Model Town along with ACP were already present along with their staff and they were appealing to the people to remove the dead body from the main road so that the free passage to general public may take place, but they were not listening to the repeated warnings and did not bother to remove the dead body from the thoroughfare. Thereafter more force was also called at the spot as the crowd was increasing and message was also flashed to divert the traffic from G.T. Karnal Road so that the public may not suffer. When he also along with his staff tried to make understand the people to remove the dead body for smooth flow of traffic and not to cause harassment to the passersby the crowd was not ready to remove the dead body from the main road.
11. PW5 further deposed that meanwhile a group of 40-50 people also reached at the spot in the leadership of Akhilesh Tripathi and all of them were wearing the cap of Aam Aadmi Party and representing themselves to be volunteers of Aam Aadmi Party. After reaching at the spot Akhilesh Tripathi started to raise slogan speaking out 'Delhi Police Hi-Hi, dead body nahi hategi, yahi rahegi yahi rahegi' and his supporters were also raising the same slogan repeatedly. They tried to aggravate the situation and the mob present at State Vs. Akhilesh Pati Tripathi & Ors. 10/175 the spot was getting violent and excited. He along with senior officers told Akhilesh Pati Tripathi and his supporters not to give exciting speech and slogans due to which serious law and order problem could arise, but they did not follow the appeal given to them. After sometime the people from the crowd started pelting stones and the supporters of Akhilesh Tripathi were also carrying wooden canes in their hands when they reached at the spot and they started manhandling and beating the police staff present at the spot to perform law and order duty. When they were doing so he was also appealing to the public not to become violent and meanwhile a lady present at the spot lifted a heavy stone and threw towards him and he tried to protect himself but he sustained injury in his left toe and got injured. The lady who threw stone upon him was apprehended by lady HC Rajwati at the spot along with other female staff. The other SHOs present at the spot also used suitable force to handle the situation and to control the lawlessness at the spot and they had also apprehended the miscreants at the spot. He with the help of his staff also apprehended three persons at the spot who were actively involved and participating in the stone pelting and beating of police staff. He identified the apprehended lady as Smt. Geeta wife of Roopram. The names of the three miscreants who were apprehended by him with the assistance of his staff were revealed as Naresh son of Mohan Lal, Salman son of Irfan, Ramandeep son of Kirpal. He identified Naresh as one of the three persons who was apprehended at that time. Identity of A-17 Salman was not disputed and Ramandeep had State Vs. Akhilesh Pati Tripathi & Ors. 11/175 been discharged vide order dated 05.01.2019. Identity of Akhilesh Pati Tripathi was not disputed.
12. PW5 further stated that one Tavera police vehicle was badly damaged by the rioters and the dead body was removed from the spot after a great difficulty at around 3.15 p.m. and the mob was dispersed. He took the injured police officials to BJRM Hospital, Jahangirpuri as he was also injured in the incident and got the medical examination done. Before going to the hospital he handed over the apprehended lady Geeta and other three male accused to Inspector Ashok Kumar posted at PS Model Town. Thereafter he returned from hospital and his MLC was prepared by the treating doctor and x-ray to the left toe was done. Inspector Ashok Kumar being IO of the case recorded his statement on 09.09.2013. He proved the MLC Ex.PW5/A. The Ld. Addl. PP sought to re-examine the witness with regard to the identification of the accused Salman which was allowed and PW5 admitted that due to lapse of about six years' time and confusion, he could not identify the accused Salman before the court.
13. PW6 Inspector Ram Niwas deposed that on 09.09.2013, he was posted as SHO PS Keshav Puram and on receipt of wireless message to reach at Tripoliya Gate where a huge crowd was gathered and had blocked the traffic, he along with 3 to 4 lady constables and some other gents constables reached at the spot i.e. Tripoliya Gate near CC Colony at GTK road at around State Vs. Akhilesh Pati Tripathi & Ors. 12/175 1 p.m. He further deposed to the same effect as PW5. He stated that several police officials including SHO PS Bharat Nagar, Inspector Rajender, SHO PS Adarsh Nagar, Inspector Parveen, lady constables Babita and Jaishree sustained injuries in the incident. He stated that the said persons took law and order in their hands. Some miscreants were apprehended by the police officials. Akhilesh Pati Tirpathi was present at that time but he was not able to identify him in the court. He pointed out towards Sachin Gupta (A-8) as one of the accused who was present at the site of incidence on the said date. However, he had not identified him by name. He stated that he had not apprehended any of the rioters but they were apprehended by other police officials who were present with him on the said day.
14. The Learned Additional PP for the State sought permission to put questions to the witness which was allowed and he stated that when the crowd led by Akhilesh Pati Tripathi came to the spot they were having sticks and rod in their hands. The attention of the witness was sought to be drawn towards Akhilesh Pati Tripathi present in the court as he stated that if the said accused was wearing glasses and Aam Aadmi Cap he could have identified him. PW6 had already stated that he could not identify the accused for the said reasons and it was observed that no useful purpose would be achieved if the Learned Additional PP pointed towards A-1 Akhilesh Pati Tripathi present in the court and asked whether he is the same accused. However, on the request of the Learned Additional PP it was recorded that on that day A-1 Akhilesh Pati State Vs. Akhilesh Pati Tripathi & Ors. 13/175 Tripathi was neither wearing glasses nor Aam Aadmi Party cap nor beard which he was keeping at that time.
15. PW7 SI Sandeep deposed that as on 09.09.2013, he was posted as SI Police Station Model Town, Delhi. On that day at around 12.30 p.m., a call was received that about 200 persons had gathered at Tripoliya Gate, GTK Road and had placed the dead body of a woman on the road due to which traffic was blocked. The woman was murdered the previous night. He accompanied Inspector Ashok Kumar and other staff of PS Model Town and reached at the spot i.e. Tripoliya Gate, GTK Road at around 12.35 p.m. He further deposed to the same effect as PW5 and PW6. He stated that in the said incident, several police officials sustained injuries. He also sustained injuries on his left hand and his back with sticks. The police force controlled the public at the spot by suitable force and the dead body was removed in the hearse van. Some miscreants were apprehended at the spot by the police force and thereafter, the injured police officials were taken to BJRM Hospital, Jahangirpuri for their medical treatment. He was also medically treated there vide MLC No.65184/13 which is Ex.PW7/A. He identified the husband of the deceased Shri Prem Pal (who is accused No.19). He also identified Smt. Geeta, mother of the deceased (who is accused No.18) as parts of the assembly on the date of the incident. He stated that he could also identify accused Akhilesh Pati Tripathi who was not present in the court.
State Vs. Akhilesh Pati Tripathi & Ors. 14/175
16. PW8 WASI Raj Rani deposed that on 09.09.2013, she was posted at PS Model Town as Duty Officer. At about 5.15 a.m., Inspector Ashok Kumar had sent a tehrir to her through HC Narender Dhama on the basis of which she registered FIR No.260/2013 under Sections 147/148/149/308/353/332/186 IPC and Sections 3/4 of PDPP Act. After registration of the FIR, she handed over the copy of FIR along with the Tehrir to further handover to Inspector Ashok Kumar. True printout of the FIR is Ex.PW8/A endorsement on the Tehrir is Ex.PW8/B. She had issued true certificate under Section 65B of IE Act and the same is Ex.PW8/C. She had also recorded DD Entry in the DD Register in respect of the present FIR at Serial No.16 and copy of the DD entry is Ex.PW8/D.
17. PW9 Inspector R.S. Meena deposed that on 09.09.2013, at about 12.45 p.m., on receipt of one message from the control room that 250-300 persons were demonstrating at GTK road near Tripoliya Gate with a dead body, he went to the spot with staff in a government vehicle. He stated that the 40/50 persons who were led by Akhileshpati Tripathi were having 'lathi dandas' in their hands. ACP Model Town Shri Deepak Yadav and all of them tried to convince them and pacify them. They requested them to remove the dead body for cremation and to clear the road for movement of traffic. In the meanwhile, the forty/ fifty workers of Aam Aadmi Party started pelting stones upon the police officials. The said 40/50 persons were being instigated by Akhileshpati Tripathi to attack upon the police officials. Many police officials State Vs. Akhilesh Pati Tripathi & Ors. 15/175 got injured due to stone pelting. He also apprehended three persons whose names he came to know as Vijay s/o Shri Daya Ram, Sanjeev s/o Shri Shatrughan, Himanshu s/o Shri Manish Jain. All the apprehended persons were handed over to Inspector Ashok Kumar. The other persons who were attacking the police officials and damaging the government vehicles had managed to escape from the spot. Four government vehicles were also damaged in that incident. Akhileshpati Tripathi was also apprehended at the spot. The apprehended persons were taken to PS Model Town.
18. PW9 stated that accused Himanshu Jain was arrested in his presence vide arrest memo Ex.PW9/A. He was personally searched vide personal search memo Ex.PW9/B. Accused Vijay was arrested vide arrest memo Ex.PW9/C. He was personally searched vide personal search memo Ex.PW9/D. Accused Sanjeev was arrested vide arrest memo Ex.PW9/E. His personal search was conducted vide personal search memo Ex.PW9/F. IO recorded his statement under Section 161 Cr.P.C. He had apprehended the accused Vijay, Himanshu and Sanjeev and they were put under arrest by the IO in his presence. He stated that he could identify the accused persons. Accused Vijay is proclaimed offender. The identity of accused Sanjeev was not disputed. He stated that the accused Himanshu was present in the court but he could not identify amongst the accused who were present which one was Himanshu. He stated that the accused Akhileshpati Tripathi was apprehended in his presence and he identified him.
State Vs. Akhilesh Pati Tripathi & Ors. 16/175
19. PW10 Ct. Satish Rathee deposed that on 09.09.2013, on arrangement duty, he went to GTK Road falling in the jurisdiction of PS Model Town where he saw that a dead body of one lady was lying on the road. He deposed to the same effect as PW5 and PW6. He stated that in the said incident, he also sustained injury. He was taken to Babu Jag Jeevan Ram Hospital, where he was medically examined vide MLC No.30537 which is Ex.PW10/A. He stated that the said 30 to 40 persons were having bamboo sticks in their hands when he came to the spot.
20. PW11 HC Narender Dhama deposed that on 09.09.2013, at about 12.30 p.m., after receipt of DD No.46B, he along with Inspector Ashok Kumar and other staff went to GTK Road near Tripoliya Gate. He deposed to the same effect as PW5 and PW6. He stated that Inspector Ashok Kumar had prepared a complaint/ Tehrir and handed over the same to him for the registration of FIR. He went to PS Model Town and handed over the Tehrir/ complaint to Duty Officer for registration of FIR who got the FIR registered. After registration of FIR, copy of FIR and the original Tehrir/ complaint were handed over to him by the duty officer for further handing over the same to Inspector Ashok Kumar, as the investigation of the case was marked to him. He went back to Tripoliya Gate where he handed over the copy of FIR and original complaint/ Tehrir to Inspector Ashok Kumar.
21. PW12 HC Dinesh Kumar deposed that on 09.09.2013, in the State Vs. Akhilesh Pati Tripathi & Ors. 17/175 afternoon, he along with SHO PS Mukherjee Nagar and other staff went to GTK Road near Tripoliya Gate where 200-250 persons had gathered and were protesting by placing the dead body in the middle of the road. He stated to the same effect as PW5 and PW6. He stated that the public started pelting stones upon the police officials. He sustained injury on his left arm due to pelting of stones. Some government vehicles were also damaged. He was taken to Babu Jag Jeevan Ram Memorial Hospital where he was medically examined and received the medical treatment vide MLC bearing No.65806 which is Ex.PW12/A. After medical treatment, he was discharged. His statement was recorded by the IO in the hospital.
22. PW13 Ct. Neeraj deposed that on 09.09.2013, he had gone to GTK Road near Tripoliya Gate along with other staff. He deposed to the same effect as the other witnesses and stated that the persons gathered there started pelting stones on the police officials and the vehicles. They started beating the police with rods and sticks. As a result of this, he suffered injuries on his both legs. He was taken to Babu Jagjeevan Ram Hospital, Jahangirpuri where he was treated vide MLC No.65812/13 which is Ex.PW13/A.
23. PW14 HC Jitender deposed that the date of incident was 09.09.13. He had gone with other staff to GTK Road, Tripoliya Gate where he found a gathering of 200/250 persons. They had blocked the traffic by sitting in the middle of the road. Thereafter, he saw 40 to 50 persons wearing AAP caps.
State Vs. Akhilesh Pati Tripathi & Ors. 18/175 They were having rods and sticks in their hands. The senior officers of the police tried to explain to the crowd gathered there. However, the crowd started pelting stones and started raising slogans 'Delhi Police hai hai'. As a result of stone pelting, he suffered injuries on his upper limbs and lower limbs. Thereafter, he was removed to BJRM Hospital for treatment where he was treated vide MLC No.65811/13 which is Ex.PW14/A.
24. PW15 W/Ct. Neetu deposed that on 09.09.2013, she was assigned duty for law and order with SHO Keshav Puram. They reached at GTK Road, near Tripoliya Gate where they saw crowd of about 200/250 gathered there. One dead body was put on the road. About 40/50 Aam Admi Party workers reached over there. They started raising slogan "Delhi Police hai hai". The senior police officers tried to make them understand but they did not agree. Thereafter, the said persons started pelting stones on the police staff due to which she received injury on her right hand. Thereafter, along with SHO PS Bharat Nagar she went to BJRM hospital for her treatment and her MLC is Ex.PW15/A. She stated that she could not identify the persons who were part of the crowd on the said date. She did not remember whether any member of the said gathering was doing anything else.
25. PW16 W/Const. Jayshree deposed to the same effect as other witnesses. She stated that some persons were beating the police personnel with sticks. One of the members of the crowd also hit her with the stick on State Vs. Akhilesh Pati Tripathi & Ors. 19/175 her right leg, due to which she received injury. She stated that SHO PS Bharat Nagar took her to BJRM Hospital, where she was medically examined vide MLC No.66030 which is Ex. PW16/A. She stated that she could not identify the person who had hit her with stick due to passage of time. She was not able to identify amongst the accused present in the Court, who had hit her with stick.
26. PW17 ASI Mahavir Singh deposed that on 09.09.2013, he was on duty from 8.00 A.M to 8.00 P.M. along with Ct. Anil, Operator Wireless at Hearse Van and he was driving the said van. On receipt of the message from Control Room, he along with Ct. Anil reached GTK Road near Tripoliya Gate by the said van. There they saw that a crowd of 250-300 persons had gathered. They had put the dead body on the road and they were raising slogans against the police. The Senior Police officer asked him to park the said van near the dead body in order to remove the said dead body. As soon as he parked the said van and started removing the dead body, the crowd started pelting stones on the Hearse Van and they were also hitting the van with sticks. As soon as they started from the spot while carrying the dead body away, the crowd started pelting stones due to which one stone hit the rear glass of the Hearse Van and damaged it. Due to throwing of the stones, the Hearse Van also got damaged on different parts. Thereafter, they managed to succeed in carrying the said dead body from the spot in the Hearse Van. He stated that he gave information regarding the said incident through message in District Line. He State Vs. Akhilesh Pati Tripathi & Ors. 20/175 produced the Hearse Van bearing last four digits of registration No.F7174 before the IO Inspector Ashok Kumar and he seized the said Hearse Van vide seizure memo already Ex.PW2/A. 8 photographs of the Hearse Van bearing No.DL 1CJ 7174 were shown to him and he correctly identified the Hearse Van through the photographs. The photographs are Ex.P-1 (colly.).
27. PW18 Inspector Praveen Kumar deposed to the same effect as the other witnesses. He stated that in order to control the situation, mild force was used by the police. During the said course, they apprehended three persons namely Radhey Shyam, Rahul and Mithilesh. They were handed over to Inspector Ashok Kumar. PW18 further deposed that due to assault on the police staff by the crowd, he received injuries on his left shoulder and hand. He along with other injured staff namely Ct. Abhishek, one Rathi and other constable went to BJRM hospital where he was medically examined vide MLC No.65807 which is Ex.PW18/A. He could identify only Shri Akhileshpati Tripathi who was leading the crowd on that day but due to passage of time i.e. nearly six years he may not be in a position to identify the three accused apprehended by him named in his examination-in-chief. The learned Additional PP for the State sought permission to put a leading question in the form of pointing out the three accused for the purpose of identification by the witness which was allowed and he had identified on the pointing out of the learned Additional PP for the State only A-11 Mithilesh and expressed inability to identify A-9 Radhey Shyam and A-10 Rahul.
State Vs. Akhilesh Pati Tripathi & Ors. 21/175
28. PW19 HC Abhishek Sharma also deposed about the incident of 09.09.2013. He stated that he sustained injury on his left hand and leg. Thereafter, he along with SHO Adarsh Nagar went to BJRM Hospital for medical examination where he was medically examined vide MLC No.65813/13 which is Ex.PW19/A. He stated that he could not identify the said 40/50 persons who pelted stones on the police personnel due to long span of time.
29. PW20 HC Bijender Singh deposed about the incident of 09.09.2013. He stated that the public persons started pelting stones on the police staff as well as on the vehicles belonging to the police due to which the said vehicles got damaged and many police personnel including him received injuries. He sustained injury on his left hand. Thereafter, he along with SHO PS Adarsh Nagar went to BJRM Hospital for medical examination. He was medically examined vide MLC No.65803/13 which is Ex.PW20/A.
30. PW21 W/HC Rajwati deposed that on 09.09.2013 a quarrel (jhagda) had taken place at Tripoliya Gate. She along with the police staff of PS Model Town reached there. The crowd had pelted stones on the police staff. Her senior officer namely Rajender sustained injuries due to pelting of stones on his foot. Some other police personnel also received injuries due to continuous pelting of stones and use of lathis. One lady namely Geeta was arrested vide arrest memo Ex.PW21/A. Personal search of accused Geeta was State Vs. Akhilesh Pati Tripathi & Ors. 22/175 conducted vide personal search memo Ex.PW21/B. She identified the accused Geeta. (There was a Court Observation that there was only one lady accused in the court and she had been identified by the witness as Geeta.). The Ld. Addl. PP for the State sought permission to cross examine the witness as she was stated to be not deposing the entire facts which was allowed and during cross-examination PW21 stated that her statement was recorded by the IO of the case which is Ex.PW21/C. She stated that one dead body had been put in the middle of the road. She could not tell as to whether the members of AAP were also present there. She was confronted with her statement Ex.PW21/C wherein she had stated 'the member of AAP were present at the spot'. She could not say as to whether the members of AAP were instigating the public persons at the spot. She was confronted with her statement Ex.PW21/C wherein she had stated 'the member of AAP were instigating the public persons'. She denied the suggestion that the members of AAP were present at the spot or that they were instigating the public persons at the spot.
31. PW22 SI Sushil Kumar had been summoned to produce the record of the log book with regard to date 09.09.2013 of North West District Control Room Ashok Vihar. As per the official record, the said record had already been destroyed vide order No.13451/Genl.(II)/DCP/Ops & Comn dated 09.10.2018 and the order of Control Room Incharge NWCR regarding the destruction of the said record of log book of North West District Control Room. The copy of the order of Asst. Commissioner of Police: HQ OPS. & Communication:
State Vs. Akhilesh Pati Tripathi & Ors. 23/175 Delhi regarding the destruction of older records of all Districts, Unit Control Room and its Wireless Establishment for the period from 01.01.2013 to 30.06.2015 is Mark-PW22/A and the copy of the order of Incharge, NWCR is Ex.PW22/B.
32. PW23 Retd. ASI/ Tech. Devender Kumar deposed that on 11.09.2013, on being called by Inspector Ashok Kumar, he went to PS Model Town and conducted the mechanical inspection of the vehicle i.e. Tavera bearing registration No.DL1CJ7174. He prepared the detailed report of mechanical inspection which is Ex.PW23/A and handed over the same to Inspector Ashok Kumar. He was not cross-examined on behalf of the accused persons despite opportunity being given.
33. PW24 HC Raj Kumar deposed that on 11.09.2013, after hearing on the bail application, Shri Rishikesh Kumar, Advocate handed over a CD containing the incident of 09.09.2013 to Inspector Ashok Kumar who seized the same vide seizure memo Ex.PW24/A. He was not cross-examined on behalf of the accused persons despite opportunity being given.
34. PW25 Inspector Ashok Kumar deposed that on 09.09.2013, he was posted at PS Model Town as Inspector, ATO. On that day at about 12.30 p.m., on receiving DD No.46-B regarding the gathering of about 100/150 public persons in front of CC Colony, Tripoliya Gate, he reached there along with Inspector Ram Avtar, SHO PS Model Town, SI Sudhir, SI Amit, SI State Vs. Akhilesh Pati Tripathi & Ors. 24/175 Sandeep, ASI Joginder and other staff. He deposed to the same effect as the other witnesses. PW25 deposed that due to the gathering of public persons, the traffic was jammed. He sent a message to traffic police to divert the traffic from the spot. He stated that the senior police officer declared the gathering of the said public persons unlawful by announcing the same on loud hailer. He stated that after the incident they started apprehending accused persons. He along with the staff apprehended Akash Verma, Suraj and Malik Mohd. Insp. Ram Avtar/SHO PS Model Town apprehended A-1 Akhileshpati Tripathi and Sachin. Insp. Ram Niwas/SHO PS Keshav Puram apprehended accused Lal Babu, Hari Chand and Sachin Gupta. Insp.Praveen/SHO PS Adarsh Nagar apprehended Radhey Shyam, Rahul and Mithilesh. Insp. R.S. Meena/SHO PS Mukherjee Nagar apprehended Vijay, Sanjiv and Himanshu Jain. Insp. Rajender Prasad/SHO PS Bharat Nagar apprehended Naresh, Salman and Ramandeep. W/HC Rajwati apprehended Geeta.
35. PW25 stated that police officials received injuries due to stone pelting and beating by the apprehended persons along with other persons. Some of the names of the police officials who received injuries are Insp. Praveen, Insp. Rajender Prasad, SI Sandeep, W/Ct. Jaishree etc. The injured police officials were sent for their medical examination. He prepared the rukka Ex.PW25/A (colly) and the same was handed over to HC Narender for registration of case. Crime Team was also called at the spot and the concerned officials conducted the investigation there and photographs of the spot were State Vs. Akhilesh Pati Tripathi & Ors. 25/175 also clicked by them. He obtained the report from the Crime Team along with photographs clicked at the spot and one CD containing the still photographs. The report of Crime Team is Ex.PW1/A and 21 photographs are Ex.PW4/B (colly) and CD is Ex.PW4/A. After the apprehension of the accused persons, the dead body was shifted to cremation ground through hearse van. During investigation, he seized the sticks, stones and glass pieces which were lying on the road by making pullanda sealed with the seal of 'AK' vide seizure memo Ex.PW31/A. Further, the damaged hearse van bearing registration No.DL 1CJ 7174 was seized vide seizure memo Ex.PW2/A. He also prepared the site plan Ex.PW25/B.
36. PW25 stated that the accused persons were arrested and their personal searches were also conducted. The accused Himanshu Jain was arrested vide arrest memo and personal search memo Ex.PW9/A and Ex.PW9/B respectively; accused Akash Verma was arrested vide arrest memo and personal search memo Ex.PW25/C and Ex.PW25/D respectively; accused Malik Mohd was arrested vide arrest memo and personal search memo Ex.PW25/E and Ex.PW25/F respectively; accused Sachin S/o Shri Krishan Dutt Sharma was arrested vide arrest memo and personal search memo Ex.PW31/C and Ex.PW31/E respectively; accused Akhileshpati Tripathi was arrested vide arrest memo and personal search memo Ex.PW31/B and Ex.PW31/D respectively; accused Lal Babu was arrested vide arrest memo and personal search memo Ex.PW25/G and Ex.PW25/H State Vs. Akhilesh Pati Tripathi & Ors. 26/175 respectively; accused Hari Chand was arrested vide arrest memo and personal search memo Ex.PW25/I and Ex.PW25/J respectively; accused Sachin Gupta was arrested vide arrest memo and personal search memo Ex.PW25/K and Ex.PW25/L respectively; accused Radhey Shyam was arrested vide arrest memo and personal search memo Ex.PW25/M and Ex.PW25/N respectively; accused Rahul Kumar was arrested vide arrest memo and personal search memo Ex.PW25/O and Ex.PW25/P respectively; accused Mithilesh was arrested vide arrest memo and personal search memo Ex.PW25/Q and Ex.PW25/R respectively; accused Vijay was arrested vide arrest memo and personal search memo Ex.PW9/C and Ex.PW9/D respectively; accused Sanjiv was arrested vide arrest memo and personal search memo Ex.PW9/E and Ex.PW9/F respectively; accused Naresh was arrested vide arrest memo and personal search memo Ex.PW25/S and Ex.PW25/T respectively; accused Ramandeep was arrested vide arrest memo and personal search memo Ex.PW25/U and Ex.PW25/V respectively; accused Geeta was arrested vide arrest memo and personal search memo Ex.PW21/A and Ex.PW21/B respectively; accused Salman was arrested vide arrest memo and personal search memo Ex.PW25/X and Ex.PW25/Y respectively; and accused Suraj was arrested vide arrest memo and personal search memo Ex.PW25/Z and Ex.PW25/Z1 respectively.
37. PW25 deposed that he also recorded the statements of witnesses under Section 161 Cr.PC. MLCs of the injured police officials were obtained State Vs. Akhilesh Pati Tripathi & Ors. 27/175 and the same were placed on record. Final results regarding the nature of the injuries of the injured on their MLCs were obtained. Accused persons were sent to JC on 10.9.2013. Further on 11.9.2013, Shri Rishikesh Kumar, Advocate for all the accused except Salman and Ramandeep had handed over to him one CD of the incident dated 09.9.2013 which was seized by him vide seizure memo Ex.PW24/A. The envelope with the words 'Two DVD of Rioting' written on it is which contained the CD was opened and it was found containing two CD/DVD. On one of them the words 'Rishikesh Advocate, 11.9.2013' were written and on the second the words 'DVD Pratap Bagh, 09.9.2013' were written. He stated that Shri Rishikesh had handed over to him the CD on which the words 'Rishikesh Advocate, 11.9.2013' were written. He had played this CD which was containing the videography of the incident. He stated that it was handed over to him for identification of the persons who were involved in the incident. However, the identity of the persons other than the accused who were arrested could not be established from the said CD. The said CD is Ex.PW25/Z2.
38. PW25 further stated that he got conducted mechanical inspection of the hearse van on 11.9.2013 and report from Mechanical Expert is Ex.PW23/A. Further, during investigation, he also seized one memory card along with CD which was handed over by Shri Prem Singh vide seizure memo Ex.PW32/B. Memory card is Ex.PW32/BX1 and CD is Ex.PW7/DB and Certificate under Section 65-B of Indian Evidence Act is Ex.PW32/A which State Vs. Akhilesh Pati Tripathi & Ors. 28/175 was also given by Shri Prem Singh. He stated that during investigation, he tried to trace other accused persons who could not be traced. After seeing eight photographs of the damaged hearse van bearing registration No.DL 1CJ 7174 which are Ex.P1 (colly), he correctly identified the hearse van which was seized vide seizure memo Ex.PW2/A]. He identified the 14 dandas which are Ex.PW31/P1 (colly) as the same dandas which were seized from the spot. He identified pieces of bricks and stones as the same stones which were seized from the spot which are collectively Ex.PW31/P2. He identified broken pieces of glass Ex.PW31/P3 (colly) as pieces of glass which were seized from the spot. He identified the accused Akhileshpati Tripathi, Naresh, Prem Pal and Ms. Geeta. When asked to identify accused Himanshu, he identified accused Lal Babu as Himanshu. He stated that he could not identify the other accused by their name as the matter was six years old but the accused present in the court were the same who were arrested by him and other police officers.
39. Memory card Ex.PW32/BX1 was played which contained the videography of the incident and PW25 stated that the said memory card was handed over to him by Shri Prem Singh who had video recorded the incident. The incident in the said memory card was of the date 09.9.2013 of Tripoliya Gate, GTK Road. CD Ex.PW7/DB was played which contained videography of the incident and he stated that the CD was handed over to him by Shri Prem Singh who had video recorded the incident. The incident in the said CD was of the date 09.9.2013 of Tripoliya Gate, GTK Road.
State Vs. Akhilesh Pati Tripathi & Ors. 29/175
40. PW26 Dr. R. S. Mishra, CMO BJRM Hospital, Jahangirpuri deposed that on 09.09.2013, the patient Punita was brought by Inspector Rajender Prasad for medical examination with alleged history of physical assault by mob. The said patient was examined by Dr. Munindra Kumar, the then JR under supervision of Dr. Ronal Kori, the then Casualty Medical Officer. He identified the signatures of Dr. Munindra Kumar as well as Dr. Ronal Kori as he had seen them signing during the course of his duties. He had also given his opinion on the MLC 'Injury simple'. The MLC No.66028 is Ex.PW3/A. He also proved the MLCs of Neetu brought by Inspector Rajender Prasad as Ex.PW15/A; of Jayshri brought by Inspector Rajender Prasad as Ex.PW16/A; of Inspector Praveen Kumar brought by HC Karamvir as Ex.PW18/A; of SI Sandeep brought by Inspector Rajender Prasad as Ex.PW26/A; of Ct. Abhishek Sharma brought by Inspector Praveen Kumar as Ex.PW19/A; of Ct. Neeraj Kumar brought by Inspector Praveen Kumar as Ex.PW13/A; of Ct. Jitender brought by Inspector Rajender Prasad as Ex.PW14/A; of Ct. Digvijay Singh brought by Inspector Rajender Prasad as Ex.PW26/B; of Ct. Satish Rathee brought by Inspector Praveen Kumar as Ex.PW10/A; of Ct. Bijender Singh brought by Inspector Rajender Prasad as Ex.PW20/A; of Ct. Dinesh brought by Inspector Rajender Prasad as Ex.PW12/A. PW26 further stated that patient Inspector Rajender Prasad came for medical examination with alleged history of physical assault by mob. The said patient was examined by Dr. Munindra Kumar, the then JR under State Vs. Akhilesh Pati Tripathi & Ors. 30/175 supervision of Dr. Ronal Kori, the then Casualty Medical Officer. He had given his opinion on the MLC 'Nature of injury is Grievous. Fracture of proximal phalanax of great toe'. The MLC No.66026 is Ex.PW5/A.
41. PW27 Dr. Shipra Rampal, Radiologist, Bhagwan Mahavir Hospital, Pitampura deposed that on 09.09.2013, she was working as Radiologist at BJRM Hospital. She stated that she could depose further only when any report authored by her was shown to her. PW27 was recalled under Section 311 Cr.P.C. and she was shown two X-ray plates along with one report (produced by the IO after procuring from the hospital concerned). On the basis of the X-ray plates that were produced before her, she had given her report which is Ex.PW27/A. As per the same, the patient Rajender Prasad had suffered hairline fracture, proximal phalanx great toe. X-ray plates are Ex.PW27/B (colly). She was not cross-examined on behalf of the accused persons despite opportunity being given.
42. PW28 ASI Ram Niwas deposed that on 09.09.2013, he was posted at PS Model Town as HC and worked as MHC(M) CP. On that day, seizure memo of sticks, stones and glass pieces of the present case was handed over to him by Inspector Ashok Kumar along with the said seized articles in sealed condition to deposit the same in the Malkhana. On the same day, Inspector Ashok Kumar handed over to him one sealed pullanda containing Memory Card and CD along with its seizure memo as well as hearse van along with its State Vs. Akhilesh Pati Tripathi & Ors. 31/175 seizure memo to deposit the same in the Malkhana. Inspector Ashok Kumar also handed over the personal search memos of the accused persons along with the articles found during their personal search to deposit the same in the Malkhana. Accordingly, he deposited the case property as well as the articles of personal search memos of the accused persons in the Malkhana and made the entry No.3252/13 regarding the deposit of the said articles in Register No.19. He had brought the original register No.19 of PS Model Town which contained the original entry No.3252/13 dated 09.09.2013. The copies of the same are Ex.PW28/A (colly).
43. PW29 Retd. Inspector Jagminder Singh deposed that on 08.9.2013, at around 8-9 a.m., he received a call regarding murder of a lady at CC Colony, Ramleela Park. He visited the spot and found the dead body of a lady namely Kamlesh. Thereafter, FIR No.258/13 under Section 302 IPC was registered at PS Model Town regarding the incident. The dead body was sent to hospital for post-mortem. They formed 3-4 teams to search the accused persons and to conduct the investigation. On 09.9.2013, post mortem on the dead body was conducted and thereafter, the dead body was handed over to the relatives of the deceased. It came to his knowledge that the dead body of Kamlesh was kept at Tripoliya Gate near Rajpura village by some persons. His statement was recorded. He stated that all the accused persons involved in case FIR No.258/13 were arrested on 15.9.2013.
State Vs. Akhilesh Pati Tripathi & Ors. 32/175
44. PW30 HC Digvijay Singh deposed about the incident of 09.9.2013. He stated that he also received an injury from the stone on his right leg on his thigh. He went to BJRM Hospital for medical examination. He stated that A-1 Akhileshpati Tripathi was leading the mob. IO recorded his statement on the same day. He identified A-1 Akhileshpati Tripathi. His MLC No.65810 of BJRM Hospital dated 09.9.2013 is Ex.PW26/B.
45. PW31 Retired ACP Ram Avtar Yadav deposed to the same effect as the other witnesses about the incident of 09.09.2013. He stated that 12/13 police officials received injuries. They also damaged the hearse van and some other vehicles. To control the crowd, minor force was used. PW31 further deposed that he apprehended the accused Akhileshpati Tripathi and Sachin. At around 3 p.m., the mob was brought under control and the dead body of the deceased was got removed from the spot and sent for cremation in the hearse van. Inspector Ashok Kumar got the case registered against the protesters who were apprehended at the spot. Lathis, dandas, stones and broken glasses were picked up from the spot and seized. Accused Akhileshpathi Tripathi and Sachin were handed over to IO/ Inspector Ashok Kumar. They were arrested by the IO and he had signed their arrest memos and personal search memos. He identified the accused Akhileshpathi Tripathi but he could not identify the accused Sachin. On the accused Sachin being asked to stand up, he stated that he might be the same person who was apprehended by him but he was not very sure. The seizure memo of stick, stones, and glass pieces is Ex.PW31/A. State Vs. Akhilesh Pati Tripathi & Ors. 33/175 The seizure memo of hearse van is Ex.PW2/A. The arrest memos of accused Akhileshpati Tripathi and Sachin s/o Sh. Krishan Dutt Sharma are Ex.PW31/B and Ex.PW31/C respectively. The personal search memos of accused Akhileshpati Tripathi and Sachin are Ex.PW31/D and Ex.PW31/E respectively. He identified the photographs Ex.P1 (colly) as those of the hearse van. He identified the dandas being 14 in number which are collectively Ex.PW31/P1. He identified the pieces of broken bricks and stones of different size as the same stones which were pelted by the crowd at the time of the incident and were seized and the same are Ex.PW31/P2 (colly). He identified broken pieces of glasses as Ex.PW31/P3 (colly).
46. PW32 Prem Singh deposed that he worked in Vijay Sales in the year 2013. On 09.09.2013, he was present in his office at HD-2, Model Town, Delhi when Beat Constable of PS Model Town Ct. Ajeet Singh had come to his office. He said that it being Monday the market was closed and he asked for one Handycam camera. But as per the policy, they were not supposed to give the items of the shop to any third person. Then, he asked his Branch Manager Shri Deepak Bhagat to depute somebody along with the Handycam camera in view of an urgent requirement of recording. He was instructed by Shri Deepak Bhagat, Branch Manager to accompany Beat Constable along with the Handycam camera. He was taken by Beat Constable to the place where a lot of persons had already gathered. The place was near a Gurdwara and there were some old gates. Crowd was pelting stones towards the police.
State Vs. Akhilesh Pati Tripathi & Ors. 34/175 The dead body of a lady was kept covered with a white cloth on the chowk. Beat constable asked him to record the incident at the spot. Accordingly, he had videographed the incident with the Handycam camera. He remained at the spot for about 1 ½ to 2 hours. Thereafter, he was sent back along with a constable to his shop. On the next day, he had given the Memory Card of the Handycam camera to a police official in the police station. Again said, he had handed over the Memory Card on the same day. The certificate under Section 65B of the Indian Evidence Act is Ex. PW-32/A. However, the CD mentioned in the Certificate was neither prepared by him nor he handed over the CD to the police. He identified a small memory card box containing one memory card on which 'Sandisk, SDHC Card 4 GB' was mentioned as the one which was given by him to the IO and which was seized by the IO through seizure memo Ex.PW32/B. Memory Card is Ex.PW32/BX1. He stated that the incident was recorded by him through his Handycam and this was the memory card of the said Handycam and he had handed over it to the IO of the case. The memory card was played and it contained 17 video files, having 958 MB Data in total.
47. The Ld. Addl. PP sought permission to cross examine the witness as he was stated to be resiling from his statement which was allowed and during cross-examination the CD Ex.PW7/DB was played and he denied the suggestion that the CD Ex.PW7/DB was prepared by him from the said memory card Ex.PW32/BX1 and the same was handed over by him to the IO State Vs. Akhilesh Pati Tripathi & Ors. 35/175 which was seized by the IO vide seizure memo Ex.PW32/B. He denied the suggestion that he had signed the certificate under Section 65B of IE Act after understanding and reading the contents of the same. He denied the suggestion that he was not able to recollect the fact that CD was prepared by him and was handed over by him to the IO due to lapse of time as the case pertained to the year 2013 or that the said memory card and CD were seized by the IO on 11.09.2013 and not on 09.09.2013 and that he was not able to recollect the said fact due to lapse of time.
48. PW33 SI Devi Lal deposed that on 18.3.2014, investigation of the present case was transferred to him. During investigation, he tried to search the absconding accused persons on the basis of photographs and footage which were the part of the file. On 09.02.2015, he moved an application before the concerned ACP for issuance of complaint under Section 195 Cr.P.C. which is Ex.PW33/A (colly). On 23.02.2015, he was transferred and he handed over the case file to MHC(R).
49. PW34 Inspector Naresh Kumar deposed that on 08.07.2015 investigation of the case was assigned to him. With the permission of DCP (Communication), he had obtained the photocopy of the Log Book of Wireless Set messages dated 09.09.2013 of the area related to PS Model Town. The same is Mark PW34/A (colly). He also obtained photocopy of the registers in the Malkhana showing the issuance of equipment to police officials of PS State Vs. Akhilesh Pati Tripathi & Ors. 36/175 Model Town. The same is Mark PW34/B. He also obtained copy of the DD Entries of Daily Diary Register with regard to rioting which took place on 09.09.2013 at Tripoliya Gate within the jurisdiction of PS Model Town from PS Model Town as well as other Police Stations i.e. PS Bharat Nagar, PS Keshavpuram and PS Adarsh Nagar. Attested copy of DD Entry No.46B PS Model Town is Ex.PW34/A, of DD Entry No.48B PS Model Town is Ex.PW34/B, of DD Entry No.50B PS Model Town is Ex.PW34/C, of DD Entry No.51B PS Model Town is Ex.PW34/D, of DD Entry No.61B PS Model Town is Ex.PW34/E, of DD Entry No.63B PS Model Town is Ex.PW34/F, of DD Entry No.35B PS Bharat Nagar is Ex.PW34/G, of DD Entry No.39B PS Keshavpuram is Ex.PW34/H, of DD Entry No.19A PS Keshavpuram is Ex.PW6/DA and of DD Entry No.48A PS Adarsh Nagar is Ex.PW34/I. Copy of the complaint under Section 195 Cr.P.C. filed by Shri K.R. Meena, ACP, PS Model Town on the application of SI Devi Lal is Mark PW34/C.
50. PW34 further deposed that during investigation, he had interrogated the accused Prem Pal and Kamal. He had not put them under arrest. He could not identify the accused Prem Pal and Kamal as lot of time had passed. But thereafter he identified the accused Kamal. He stated that during investigation, one of the accused namely Somwati had died. He obtained her death certificate and attached with the file. The copy of the same is Mark PW34/D. He examined Inspector Jagminder Singh and recorded his State Vs. Akhilesh Pati Tripathi & Ors. 37/175 statement U/s 161 of Cr.P.C. He also recorded the statement of Ct. Parminder who had videographed the incident. He also obtained the certificate under Section 65B of Indian Evidence Act from Ct. Parminder Singh which is Ex.PW4/C. After completing the investigation, he filed the charge-sheet.
51. PW35 Shri K.R. Meena, ACP (Retired) deposed that in the year 2015, he was posted as ACP, Model Town, Sub Division. Case file of the present case FIR, after conclusion of investigation was handed over to him for consideration of complaint under Section 195 Cr.P.C. to be filed in the court. He perused the file and found that the accused persons had obstructed the police officers from discharging their official duty apart from other offences. He made complaint under Section 195 Cr.P.C. which is Ex.PW35/A. List of the witness was also attached with the complaint and detailed facts were mentioned in the complaint itself. He was not cross-examined on behalf of the accused persons despite opportunity being given.
STATEMENT OF ACCUSED PERSONS
52. Prosecution evidence was closed on 7.3.2020. After prosecution evidence was closed, statement of the accused persons was recorded under Section 313 Cr.P.C. and additional statement of some of the accused persons was also recorded wherein all the incriminating material existing on record including exhibited documents were put to the accused persons which they denied. The accused persons stated that the contents of the FIR were not State Vs. Akhilesh Pati Tripathi & Ors. 38/175 correct and the time of registration was manipulated. A1 Akhilesh Pati Tripathi stated that he was never present at the alleged place of occurrence or the spot. He was falsely implicated and was illegally picked up belatedly from the office of AAP, Model Town Constituency, situated at A-6, CC Colony, Rana Pratap Bagh, Delhi which was merely 100 metres away from the alleged place of occurrence and was on the opposite side of Tripoliya Gate along with some other AAP workers who were also present inside the office or just outside the office near the entry gate of the said office, by the concerned police officials who were under immense political pressure to foist a false case against the AAP workers at the instance of senior police officers of Police Station Model Town who were acting at the behest of as well as under the pressure of the erstwhile ruling dispensation and the then MLA of Model Town Constituency Kanwar Karan Singh at the alleged place of occurrence which was actuated by the then ruling dispensation, whereby the pressure was exerted upon the police officials as he was declared as the prospective candidate to contest elections from the Model Town Constituency in August 2013 by AAP. He stated that the statement with regard to his identification by the witnesses PW5, PW7, PW9, PW18, PW25, PW30 and PW31 was an attempt to create a smoke screen and was utterly misleading and he was making a capital out of his absence in the court. He submitted that he was directly taken to the PS by the concerned police along with AAP workers from the office wherein his signatures were obtained on blank papers and he State Vs. Akhilesh Pati Tripathi & Ors. 39/175 was frantically searched. Also, the videographic evidences produced by the prosecution itself did not show his presence at the spot.
53. A1 further stated that he was identified by PW9, PW18, PW25, PW30 and PW31 as he was known across the board in the capacity of the MLA of Model Town and also widely known publicly for discharging his duties as the MLA fairly and expeditiously. He stated that he along with some other AAP workers was taken to Police Station Model Town and they were also beaten up inside PS Model Town. Moreso, there was not even semblance of evidence against him as falsely alleged by the prosecution witnesses. With respect to PW18 Insp. Praveen Kumar, he knew him personally for more than 8 years as also admitted by him during his deposition before the court. He stated that there was nothing in the deposition of PWs against him that even remotely imputed the false allegations unfurled by the prosecution. Moreso, the depositions had been given to toe the line of the then ruling dispensation as well as the local MLA Kanwar Karan Singh who was deeply threatened by his upsurge politically and it was an attempt to demolish his political career at the very threshold as he was declared the prospective candidate of AAP for Legislative Constituency Model Town in August 2013 and the false case was foisted on him in September 2013. There was not a semblance of evidence against him and he had been unwarrantedly made a scapegoat. He submitted State Vs. Akhilesh Pati Tripathi & Ors. 40/175 that the entire case was a manifestation of deeply ingrained insecurity of the rival political parties in the face of ever growing political upsurge and the popularity of AAP in general as well as its foot soldiers. He stated that the entire case of the prosecution was demolished by their own evidences including the electronic evidences submitted by them. He stated that he wanted to lead evidence in defence but thereafter no evidence was led on his behalf.
54. A2 Akash Verma stated that he was wrongly picked up by the police while he was going for his teaching classes from Model Town to Kamla Nagar coming from the Azadpur side on his bike. He stated that the police forcefully dragged him out of the bike when he was taking U-turn as the road was completely blocked. He could see a lot of affray at that moment of time. He was forcefully taken to the police station thereafter leaving his bike on the road. He stated that he was falsely implicated in the present case. He had no connection whatsoever with any political party or any association nor he knew any of the persons in the case. He was wrongly framed and made an accused in the present case. He stated that no witness had identified him and no incriminating evidence had come on record against him. He stated that he was wrongly picked up and made an accused without any involvement in the alleged incident. He was just a passer-by and he was facing the litigation for the previous 7 years that had ruined his career. He stated that he wanted to lead defence evidence but thereafter no defence evidence was led.
State Vs. Akhilesh Pati Tripathi & Ors. 41/175
55. A3 Malik Mohd. stated that he was wrongly picked up by the police as he was residing in the nearby locality Lal Bagh, Azadpur and came out for taking some household articles from the shop on the road. Suddenly, affray arose there. People were running haphazardly. Meanwhile, he was forcefully picked up and taken to the police station. He stated that he had done no wrong and had no role in the incident. He stated that he was made to sign blank papers in the police station. He stated that he was falsely implicated in the case. He was a student preparing for civil services examination. He stated that he was falsely implicated and wrongly picked up and made an accused without any involvement in the alleged incident. He stated to the same effect as A2. He stated that he wanted to lead evidence in defence but thereafter no defence evidence was led on his behalf.
56. A4 Suraj stated that he was never present at the alleged place of occurrence or the alleged spot. He was falsely implicated and illegally picked up belatedly from the office of Aam Aadmi Party (Model Town Constituency), situated at A-6, CC Colony, Rana Pratap Bagh, Delhi-07, which was merely 100 meters away from Tripoliya Gate (alleged place of incident). He was illegally picked up along with some other AAP workers who were also present inside or just outside the said office by the concerned police officials who were under immense political pressure to foist a false case against the AAP workers at the instance of senior Delhi police officials. The said officials were acting at the behest as well as the pressure of the then ruling dispensation State Vs. Akhilesh Pati Tripathi & Ors. 42/175 through MLA of Model Town constituency Mr. Kanwar Karan Singh which eventually impelled the former to haphazardly and illegally pick him up along with some other Aam Aadmi Party workers. He stated that the present case was falsely manufactured after the arrival of the said MLA actuated by the erstwhile ruling dispensation whereby the said MLA pressurized the police officials to falsely implicate the AAP workers in order to wreak political vengeance. He stated that he along with some other AAP workers were taken to police station Model Town wherein he was frantically searched at the police station whereafter his articles were taken and his signatures were obtained on blank papers in the police station itself. He stated that they were even thrashed inside the police station and illegitimate police force was used on them. There was not even a semblance of evidence against him and he had been falsely implicated only on account of his association with Aam Aadmi Party. That was the reason, the prosecution witness miserably failed to identify him in the court and hid behind the veil of lapse of time as a lame excuse. He stated that he had been unwarrantedly made a scapegoat. He stated that he did not want to lead evidence in defence.
57. A5 Sachin Sharma stated that he was a diploma holder in Civil Engineering. He had come to Delhi on 08.09.2013 only for the purpose of inquiry about AIEEE's coaching, pursuantly he had stayed at his relative's place at Daya Basti, Delhi. On his birthday on 09.09.2013, he had gone to Gurudwara Nanak Piao which was about 100 metres away from Tripoliya State Vs. Akhilesh Pati Tripathi & Ors. 43/175 Gate to offer prayers and to render sewa. Thereafter, on his way back to Daya Basti, while he was jostling his way through Tripoliya Gate route on account of traffic jam, with a view to hire an auto from the other side of Tripoliya Gate, he was suddenly and unexpectedly picked up illegally by the police officials deployed in heavy number at the said place. He was thereafter taken to the police station wherein he was frantically searched and his belongings were taken away. His signatures were obtained on blank papers in the police station itself. He stated that he had never had any acquaintance whatsoever with Akhileshpati Tripathi nor any member of Aam Admi Party. He heard his name only after the false case was foisted against him. It is for the said reason, he was not identified by PW31 and with a view to create a smoke screen, he was setting out false narrative. He stated that the present case was falsely foisted against him at the instance of Senior Police Officials of Police Station Model Town who were acting at the behest as well as the pressure of the ruling dispensation which eventually impelled them to haphazardly and illegally pick him up from Tripoliya Gate. He stated that there was not a semblance of evidence against him and he had been unwarrantedly made a scapegoat. He stated that he wanted to lead evidence in defence but thereafter no defence evidence was led on his behalf.
58. A6 Lal Babu stated that he resided at N-9A, 96, Lal Bagh, Azadpur, Delhi and his sister used to reside at H. No.5508, Street No.5, New Chandrawal Nagar, Delhi -110007. On 09.09.2013, he visited his sister's place State Vs. Akhilesh Pati Tripathi & Ors. 44/175 in the morning at around 11:00 a.m. to offer presents and blessings to his infant nephew as a customary ritual. He used to work as a waiter. On the same day, while he was returning from her place in an E-rickshaw at around 4:00 p.m. to go to work, there was a huge traffic jam in Tripoliya Gate and many police officials were there on the spot. In the meanwhile, police lathi charged on the people which led to a stampede like situation. Meanwhile, he was suddenly and unexpectedly picked up illegally by the police officials and he was taken to Police Station Model Town. He was frantically searched at the police station and his articles were taken. In the meantime, his signatures were obtained on blank papers in the police station itself. Therefore, PW25 failed to identify him in the court and he was hiding behind the veil of lapse of time as a lame excuse. He further stated to the same effect as A5. He stated that he wanted to lead evidence in defence but thereafter no defence evidence was led on his behalf.
59. A7 Hari Chand had expired during the trial.
60. A8 Sachin Gupta stated that after completing engineering studies from NIET, Greater Noida, he started preparing for UPSC/SSC pursuant to which he came to Delhi for preparations. He was residing at Azadpur and to sustain himself was giving Maths tuition to class 9 th and 10th students residing at Rana Pratap Bagh which was about 200 metres away from Tripoliya Gate. While passing through Tripoliya Gate on 09.09.2013 on foot from the said State Vs. Akhilesh Pati Tripathi & Ors. 45/175 route as there was a traffic jam, when he was on his way to R.P Bagh to take tuitions, he saw a huge gathering of police officials at Tripoliya Gate. He was thereafter suddenly and unexpectedly picked up illegally by the police officials present there and was taken to police station Model Town. The witnesses failed to identify him in the court and were hiding behind the veil of lapse of time as a lame excuse. He further stated to the same effect as A5 and A6. He stated that he wanted to lead defence evidence but thereafter no defence evidence was led.
61. A9 Radhey Shyam stated that he used to reside at A-402, Hollambi Kalan, Phase-II, Metro Vihar, Delhi in the year 2013. He had taken admission in B.Com at School of Open Learning, University of Delhi on 02.09.2013 pursuant to which he required to purchase books and study material for the said course. In view thereof, on 09.09.2013 at around 3:00 p.m., he boarded a DTC bus bearing No.171 from Hollambi Bus Stand to buy books from Shakti Nagar Red Light Chowk. After almost an hour when the bus reached near Nanak Piao Gurudwara, the route of the bus was diverted by the Traffic police present there as there was heavy traffic jam. He had to get down there and he started walking on foot towards Shakti Nagar Red Light which was barely 700-800 metres away from Nanak Piao Gurudwara. When he reached near Tripoliya Gate, there was a huge gathering of police officials and when he was trying to pass through Tripoliya Gate suddenly he observed the crowd present there went helter skelter on account of the police lathi State Vs. Akhilesh Pati Tripathi & Ors. 46/175 charging on people. In the meanwhile, while he was trying to save himself from stampede like situation, he was suddenly and unexpectedly picked up illegally by police officials present there and he was taken to Police Station Model Town. PW25 failed to identify him in the court and he was hiding behind the veil of lapse of time as a lame excuse. He stated to the same effect as A5 and A6. He stated that he wanted to lead evidence in defence but thereafter no defence evidence was led on his behalf.
62. A10 Rahul stated that he was never present at the alleged place of occurrence or the alleged spot. He stated to the same effect as A4. He stated that they were even thrashed inside the police station and illegitimate police force was used on them. He stated that there was not even a semblance of evidence against him and he had been falsely implicated only on account of his association with Aam Aadmi Party. That was the reason, the prosecution witness miserably failed to identify him in the court and was hiding behind the veil of lapse of time as a lame excuse. He stated that there was nothing in the deposition of PWs against him that even remotely imputed the false allegations unfurled by the prosecution. He stated that he did not want to lead evidence in defence.
63. A11 Mithlesh stated that he was never present at the alleged place of occurrence or the alleged spot. He stated to the same effect as A4 and A10. He stated that there was nothing in the deposition of PWs against him that State Vs. Akhilesh Pati Tripathi & Ors. 47/175 even remotely imputed the false allegations unfurled by the prosecution. He stated that he had been unwarrantedly made a scapegoat. He stated that he did not want to lead evidence in defence.
64. A12 Vijay was declared an absconder.
65. A13 Sanjeev stated that he lived at T-39, T-Huts, Rajpura Gurmandi. He was a tailor and stitched clothes for Swastic Creations, B-14, G. T. Karnal Road, Rana Pratap Bagh, Delhi. His house was barely 100-200 metres away from Tripoliya Gate. As per the contract, he had to transport the stitched clothes to the aforementioned show room. On 09.09.2013, while he was going to the godown to supply the clothes in E-rickshaw at around 4:00 p.m. and was trying to cross the huge gathering at Tripoliya Gate, he observed the crowd present there went helter skelter on account of police lathi charging on people. In the meanwhile, he was trying to save himself from stampede like situation. He stated to the same effect as A5 and A6 and that the witness failed to identify him in the court and he was hiding behind the veil of lapse of time as a lame excuse. He stated that he wanted to lead defence evidence but thereafter no defence evidence was led.
66. A14 Himanshu Jain stated that his house was 200 metres away approximately from Tripoliya Gate and he was picked up wrongly by the police officials while he had gone to purchase sweets from nearby shop namely Meghraj which was then located in and around Tripoliya Gate and State Vs. Akhilesh Pati Tripathi & Ors. 48/175 about late in the evening between 7 to 8 p.m. He stated that his signatures were obtained on blank papers after wrongly picking him up from the said place. He was taken to the police station. He stated to the same effect as A5 and A6.
67. A15 Naresh stated that he was never present at the alleged place of occurrence or the alleged spot. He stated to the same effect as A11 Mithlesh. He further stated that the identification was manipulated and effected during the course of registering his attendance aloud by name by the court staff before the court in the presence of PW5 and PW25 which gave them a window of opportunity to identify him in the court. Moreso, he was closely associated with the office of Shri Akhilesh Pati Tripathi who is a public figure making his visibility in public space extremely potent. He stated that he did not want to lead evidence in defence.
68. A16 Ramandeep had been discharged.
69. A17 Salman Ahmed stated that he was wrongly picked up by the police from Tripoliya Gate when he was returning from Punjab National Bank located at Rana Pratap Bagh which was about 100 metres away from Tripoliya Gate. He had gone to the bank to deposit money in his brother Mr. Shahnawaz's account bearing No.0812001500140602. He was returning to his salon located at Rajpura, Delhi. He stated that he was taken to the police station and frantically searched by the concerned police officials whereafter State Vs. Akhilesh Pati Tripathi & Ors. 49/175 his articles were taken. He stated that for the said reason PW25 failed to identify him in the court and he was hiding behind the veil of lapse of time as a lame excuse. He stated to the same effect as A5 and A6. He stated that he wanted to lead evidence in defence.
70. A18 Geeta stated that she was the mother of the deceased Kamlesh and she had been falsely implicated in the present case. She was never present at the spot. She was illegally apprehended belatedly by the police officials from her residence after the cremation of her deceased daughter. She was apprehended and falsely implicated by the police officials with the view to wreak vengeance against her as she along with her son-in-law reasoned out with the police officials and vehemently addressed her grievance at Police Station Model Town, in the face of inefficient and lackadaisical investigation conducted by the IO with respect to the brutal murder of her daughter. Thereafter, she was taken to Police Station Model Town wherein she was frantically searched at the Police Station and her articles were taken by them. She stated that her fingerprints were obtained on blank papers. Her identification done by the police officials in the present case was baseless and illogical as she was the only lady present amongst all the accused persons in the court. She stated that she had no connection whatsoever with any political party or any association with them. She had been falsely implicated in the present case. She further stated to the same effect as A5 and A6. She stated that she did not want to lead evidence in defence.
State Vs. Akhilesh Pati Tripathi & Ors. 50/175
71. A19 Prem Pal stated that except the fact that he was the husband of the deceased Kamlesh, he had no role in the incident. He had been falsely implicated in the present case. He stated that he was belatedly implicated after 2 years of the incident. He was not present at the time of the incident. He was falsely implicated because he was the complainant in the FIR related to the death of his wife Kamlesh. He stated that he had no connection whatsoever with any political party or any association nor he knew any of the persons in the case. He stated that all were police witnesses and they had deposed falsely against him. He stated that he wanted to lead evidence in defence but thereafter no defence evidence was led on his behalf.
72. A20 Kamal stated that he was the brother of the deceased Kamlesh and falsely implicated in the case after a period of 2 years from the date of the incident and he was not present on the spot. He stated that his identification was just for the reason that he was a family member of the deceased Kamlesh. He had no association with any group or any political party and he did not know any of the other accused except Prempal who was the husband of his deceased sister Kamlesh. He stated that all were police witnesses and they had deposed falsely against him. He stated that he wanted to lead evidence in defence but thereafter no defence evidence was led.
73. A21 Somwati had expired during the course of investigation.
74. As regards defence evidence, the same was led only by A17 State Vs. Akhilesh Pati Tripathi & Ors. 51/175 Salman Ahmed who was examined as DW1 under Section 315 Cr.P.C. and he deposed that he worked in a Saloon at Rajpura Gurmandi. On 09.09.2013, he had gone to deposit money in the account of his brother Shah Nawaz at Punjab National Bank, about 100200 metres from Tripoliya Gate. Account number of his brother is 0812001500140602. Around 3 to 4 p.m. he came out of the bank and some police officials apprehended him. They took him to PS Model Town. He was detained there for 1½ to 2 hours and his signatures were obtained on some papers and thereafter he was put in custody. He lost the slip by which he had deposited the amount in the bank when he was taken to PS but he had brought the bank statement of his brother which showed that the amount was deposited in his account on the said date. Copy of the passbook is Ex.DW1/A. (Objected to by Ld. Additional PP for State on the ground that the document was not supported by any certificate from the bank). ARGUMENTS
75. I have heard arguments from the Ld. Addl. PP for State Shri Manoj Garg, the Ld. Counsels Sh. Prashant Manchanda, Sh. Parey Kaushik, Ms. Radha and Ms. Aditi Sharma for the accused Akhilesh Pati Tripathi (A-1), Suraj (A-4), Sachin (A-5), Lal Babu (A-6), Sachin Gupta (A-8), Radhey Shayam (A-9), Rahul Kumar (A-10), Mithilesh (A-11), Sanjeev (A-13), Himanshu Jain (A-14), Naresh (A-15), Salman (A-17) and Geeta (A-18); Sh. Vikas Saini, Ld. Counsel for accused Akash Verma (A-2) and Malik Mohd.
State Vs. Akhilesh Pati Tripathi & Ors. 52/175 Fahad (A-3); and Sh. Mohd. Irshad Ld. Counsel for the accused Prempal (A-
19) and Kama(A-20) and perused the record. Written submissions were also filed on behalf of some of the accused persons which I have perused.
76. The Ld. Addl. PP for State had argued that police officials are competent witnesses and there was no embargo to rely on their testimony. It was submitted that the witnesses had corroborated the testimony of each other and duly proved the incident. The police personnel were also injured in the present case and testimony of an injured witness is placed on a higher pedestal. It was further argued that there were nothing to show that the witnesses had any enmity with the accused persons in order to falsely implicate them and they would also have no purpose to save the actual culprits if it was the contention that the accused persons had been implicated in order to let off the real culprits. It was submitted that the hearse van was damaged which had been duly proved. Further grievous injuries received by police official were duly proved as also simple injuries to several other officers. It was further submitted that there was an unlawful assembly and the complaint under Section 195 Cr.P.C. to attract the offence under Section 186 IPC stood duly proved. It was argued that the police officers were repeatedly asking the persons gathered to move but they did not move and indulged in stone pelting.
77. The Ld. Addl. PP further submitted that PW Prem Singh had video recorded the incident but it would not be possible that the entire scene would State Vs. Akhilesh Pati Tripathi & Ors. 53/175 be covered in the video so there was a possibility that Aam Aadmi Party members were not seen with dandas and lathis. As regards the presence of MLA Kanwar Singh, there was nothing about his involvement in the incident and even if he had not been made an accused and given a clean chit that would not absolve the accused persons of their guilt. As regards the identification of the accused persons, the documents on record proved the same. It was contended that the testimony of the witnesses was recorded 4 to 5 years after the alleged incident so it may not be possible for the witnesses to identify all the accused persons and there were documents on record such as the arrest memo and personal search memos which proved the arrest of the accused persons.
78. The Ld. Counsel for A2 and A3 had argued that even from the order on charge it was clear that there was no involvement of A2 and A3. As regards the injury to the police persons, the FIR was registered on the basis of the complaint of Inspector Ashok Kumar and the name of A2 and A3 was there but no specific role had been attributed to them and there was no specific evidence against them. The video footage was seen at the stage of charge and also evidence but none of the witnesses had identified A2 and A3 from the same. No role was attributed to them and the only allegation against them was that they were arrested at the spot though the presence of A2 and A3 and their role was not established in the video. None of the witnesses identified A2 and A3 or said anything against them. It was submitted that the accused Akash State Vs. Akhilesh Pati Tripathi & Ors. 54/175 was only a passerby and the documents would show that the key of his bike was recovered. The road was blocked and when he tried to reverse his bike he was caught. There was nothing to show that A2 and A3 had any link with AAP and only on the basis of Section 149 IPC as A2 and A3 were nabbed from the spot, they had been implicated. There was nothing to show that they participated in shouting slogans. Statement was recorded of SI Amit Rathi under Section 161 Cr.P.C. but he was never examined in court though as per the case of prosecution he was the one who had arrested A2 and A3 and as such it did not establish that A2 and A3 were arrested from the spot. The names of A2 and A3 were only there in the statements of Inspector Ashok Kumar and SI Amit Rathi.
79. The Ld. Counsel for A2 and A3 had further argued that it was for the prosecution to establish the identification of the accused persons with unlawful assembly; that they were arrested from the spot and the person who arrested them should have identified them. In his statement under Section 161 Cr.P.C. SI Amit Rathi had stated that he had apprehended A2 and A3 from the spot whereas PW25 in his testimony before the court had stated that he had apprehended A2 and A3 and even PW25 had not identified A2 and A3 as the accused persons. As such the only person who had deposed about A2 and A3 had failed to identify them. Further no lathi or danda was recovered from A2 or A3 and even from the video they were not pointed out as the persons throwing the stones. The prosecution had only stated about the presence of A2 State Vs. Akhilesh Pati Tripathi & Ors. 55/175 and A3 at the spot but there was nothing against them. It was submitted that as per the settled law mere presence in the gathering could not make a person liable unless there was something to show that the accused shared a common object with the unlawful assembly. There was never direct evidence of common object or intention but the inference had to be drawn from the circumstances. However, in the present case, the prosecution had failed to establish that A2 and A3 were part of the crowd or the unlawful assembly or there was any common object. It was not shown that A2 and A3 were related either to 40 to 42 persons of AAP or 200 or so persons related to the deceased. No cap of AAP was recovered from A2 and A3 which would show that they were members of AAP. It was submitted that the incident had taken place at a public place during day time. One co-accused Ramandeep had been discharged which showed that public persons were also present and in the instant case, there was no reason to put reverse burden on the accused persons to establish that they were not at the spot.
80. The Ld. Counsel had further submitted that only police witnesses were examined and no public persons were joined though the incident had taken place in broad day light. There were shops and residences close to the place of incident. Charge sheet had been filed after more than three years of the incident but no public witness was joined. Reliance was placed on several authorities. It was submitted that Section 149 IPC had not been established in the present case and even though the presence of A2 and A3 was shown and State Vs. Akhilesh Pati Tripathi & Ors. 56/175 they were allegedly apprehended at the spot but there was nothing to show that they shared a common object with the unlawful assembly. It was contended that when videos were shown to the witnesses, none of the accused persons were seen doing any overt act. In the instant case common object and knowledge both were not proved and there was nothing to show the connection of A2 and A3 with the unlawful assembly.
81. The Ld. Counsel for accused No.19 and 20 had submitted that though accused Kamal had been identified but he was identified only by the IO of the case pertaining to murder of Kamlesh and accused Prem Pal had not been identified. 39 witnesses had been cited but no one had stated anything against accused No.19 and 20 specifically except SI Jagminder who was the IO in FIR No.258/13 and obviously knew them as they were the relatives of the deceased in that FIR. It was submitted that after SI Jagminder was joined in the investigation, Prem Pal was given notice under Section 41 Cr.P.C. on 21.12.2015 but even the said witness had not stated anything specific against the accused No.19 and 20 and the said IO was not even present at the spot. It was contended that 20-25 videos were played in the court and none of the witnesses had identified accused No.19 and 20 from the said videos. It was submitted that as the accused Prem Pal was the witness and the victim in the other case so he was falsely implicated in the present case. Moreover, both the said accused persons were not even arrested and they came to know that they had been arrayed as accused in the present case when they got notice from the State Vs. Akhilesh Pati Tripathi & Ors. 57/175 court.
82. The Ld. Additional PP for State in rebuttal to the submissions made on behalf of A2, A3, A19 and A20 had submitted that SI Amit Rathi had only assisted Inspector Ashok Kumar in apprehension and had not himself apprehended A2 and A3. As per the Indian Evidence Act no particular number of witnesses was required and the case of the prosecution was based not only on videographic evidence. Moreover, in unlawful assembly it was not possible to prove overt act by everyone and for Section 149 IPC it was only necessary to show that the accused was a member of the unlawful assembly. It was submitted that the incident continued for 3 hours and the accused persons remained present there. When public persons were themselves committing offence, it would not be possible to get public witnesses.
83. The Ld. Counsel for A1 and other accused persons had submitted that as per the case of prosecution the dead body had been kept on the road and the place was thronged by 200- 250 persons and the crowd galloped to 600-700 persons. 40 to 50 persons wearing caps of AAP came randomly and they had lathis and dandas and were shouting slogans and threw stones. General statements were made but it was not stated who had done what. It was submitted that under Section 149 IPC the burden of proof was on the prosecution to prove Sections 141 and 142 and only if it was proved that the accused was a member of the unlawful assembly then even if it was shown State Vs. Akhilesh Pati Tripathi & Ors. 58/175 that he had knowledge, he could be convicted. As such the prosecution had to be extra agile to prove the unlawful assembly and that the accused persons were members of unlawful assembly. Reference was made to the difference between Sections 34 and 149 IPC. It was submitted that as per Section 141 IPC unlawful assembly and common object to commit offence had to be there and the same could be proved by the nature of the assembly, arms used by the assembly, behaviour of the assembly and overt act and there had to be a sense of commonness. It was submitted that there were no call detail records to show that there were concerted acts between the members of the unlawful assembly or even to show how the accused persons who were bystanders were connected to a dead body. It was contended that it was for the prosecution to show that the accused were not bystanders but were related to the dead body or were members of the AAP. The CDR location would have been clinching evidence for the case of the prosecution but the same had been deliberately withheld.
84. The Ld. Counsel had further submitted that a perusal of the order on charge would show that at 3:00 p.m. the dead body was removed and Ramandeep had reached at 3.15 p.m. No overt act was alleged against him so he was discharged. It was observed in the order that the persons wearing white cap were on the other side of the gate and the only overt act alleged against AAP members was that they were shouting slogans. It was accepted that they were not throwing stones and were not carrying lathis and dandas. It was State Vs. Akhilesh Pati Tripathi & Ors. 59/175 submitted that A1, A4, A11 and A15 were members of AAP while the others were passing from there. It was submitted that no public witnesses were joined who could state about any overt act to show the behaviour pattern. Moreover, the last SHO would have reached the spot when huge police force was already there and it was not possible how 40-50 people could tear into the police force and create ruckus. It was submitted that the accused persons had been falsely implicated due to political motive and in 2013 AAP was making inroads into politics and creating a political storm and had ruffled the feathers of other political parties. It was argued that no statement of MLA Kanwar Karan Singh was recorded though he had come to the spot for which there was no explanation.
85. The Ld. Counsel had argued that the Crime Team had first reached the spot but it made no mention of dandas and did not say who hurled lathis; who injured who; how and who got lathis in hand. PW1 had stated about presence of fingerprint expert but no chance prints were lifted from the dandas and as such he either saw no dandas or he saw dandas but did not take chance prints. It was submitted that the entire case was foisted at the instance of one political party through the local MLA and the incident was exploited to make A1 the scapegoat. It was submitted that the office of A1 was just a stone's throw away from the place of incident and the police wanted to rope in the budding leader of AAP. There was diversion in the time of arrest of the accused persons and they were only apprehended from 3 to 8 p.m. and there State Vs. Akhilesh Pati Tripathi & Ors. 60/175 were no explanation why the IO waited for so long to show the arrest. It was submitted that all the statements were recorded belatedly and as an afterthought. There were discrepancies in the testimony of the witnesses as some stated that statement was recorded at PS Model Town and others stated that their statements were recorded at hospital while some stated that it was recorded at the spot. PW6 had stated that his statement was recorded at the spot and the statement of other SHOs was recorded in his presence. It was contended that it was not possible that the IO could have recorded the statement of 40 persons in 12 hours especially when he had left the spot at 8.30 p.m. and gone to different police stations such as Keshavpuram, Adarsh Nagar, Bharat Nagar and also to the hospital and he could not have gone to all the places in such a short time. PW25 had stated that the statement of Jayshree was recorded at the spot whereas she had stated that her statement was recorded at the hospital.
86. It was argued that the IO had not gone to the house of the relatives of the deceased even once to find out how the dead body had come at the spot. PW25 had identified MLA Kanwar Karan Singh in the video. It was argued that there was no explanation why public persons were not joined. Further PW32 had stated about taking the photographs but he did not say about the incident. The driver of the hearse van also did not say about the presence of members of Aam Aadmi Party at the spot. The Ld. Counsel had relied upon the judgments in Masalti and Ors v. State of UP AIR 1965 SC 202 and State Vs. Akhilesh Pati Tripathi & Ors. 61/175 Baladin and Ors. v. State of Uttar Pradesh AIR 1956SC 181 and it was submitted that the general law was that an overt act was not required for the offence to be made out with the aid of Section 149 IPC whereas in Baladin's case (supra) it had been held that an overt act was also required. It was submitted that the accused Ramandeep who had been discharged was in the category of onlookers so there was a chance of someone being a bystander or an onlooker. The accused persons had taken their defence in their statement under Section 313 Cr.P.C. and the burden was on the prosecution to prove the presence of the accused persons as members of the unlawful assembly but the prosecution had not discharged the burden. It was submitted that none of the accused persons were visible in the videos and even the IO was not able to identify anyone. The accused Geeta was identified as in the entire crowd, she was the only lady. The witnesses were not able to state as to how many amongst the crowd were relatives or bystanders. It was also a question to be considered whether it was an unlawful assembly earlier or later on it became so. It was for the prosecution to prove that some member of the unlawful assembly committed an offence and to prove that the accused No.1 and his group were carrying dandas, lathis and whether they committed the act. It was submitted that the crime team which first visited the spot did not find dandas and PW1 had not stated about finding any dandas or lathis at the disposal of the accused, so no chance prints were lifted.
87. It was further argued that it was for the prosecution to show that State Vs. Akhilesh Pati Tripathi & Ors. 62/175 the accused persons had some relation with each other. The accused persons were staying at different places and having different professions so no motive could be attributed to them. No CDRs were collected. There was nothing to show any communication between the different accused persons. The common object was not shown or even who threw the first stone. Moreover, it was the admitted case of the prosecution that 200 to 250 persons had gathered, senior officials and 8 SHOs had already arrived at the spot and even the last SHO had arrived at the spot when more than 40 Aam Aadmi Party members allegedly arrived at the spot. As such the persons of the Aam Aadmi Party came only when the police staff and security arrangements were already there and in fact in that scenario it could not be possible for them to create a ruckus as alleged. Moreover, admittedly the office of A1 was at a distance of only 40 metres from the spot. Admittedly, MLA Kanwar Singh had arrived at the spot at 5 to 6 p.m. and one SHO had contradicted himself as he had stated that he had left by 6 p.m. but then he also identified Kanwar Singh as coming in his presence. It was submitted that the witnesses were evasive and most of the witnesses stated that they did not know if Kanwar Singh had come there. The IO was at the spot till 8.30 p.m. and stated that Kanwar Singh had not come at the spot but later on recognized him in the video and acknowledged his presence. It was argued that there was no explanation why Kanwar Singh was not made a witness and his statement was not recorded and even no senior police official was joined as a witness. The statement of the members of the State Vs. Akhilesh Pati Tripathi & Ors. 63/175 Crime Team were not recorded at the spot but at the police station.
88. The Ld. Counsel had further argued that PW31 had stated regarding the arrest of accused persons but had contradicted PW25. It was the admitted case that the spot of incident was surrounded by bus stop, Gurudwara but there was not a single independent witness to any memo or to the proceedings. The video footage showed the Aam Aadmi Party members on the other side of the road from where the dead body was kept and amongst those persons not a single identifiable person was arrested. The family members of the deceased were arrested only in 2015 and if the police had wanted they could have been arrested from the spot. There was no statement of any witness as to from where the dead body had come. The presence of Kanwar Singh explained that the present case had been foisted on the accused persons and political colour was given. It was contended that the IO had failed to carry out any investigation and the investigation was concluded in 24 hours. The SHOs were not called again. This showed that the IO was working with a pre- mediated mind. Moreover the video footage showing sloganeering was of PS Model Town. It was submitted that the prosecution was concealing important facts and it could be assumed that the same was done as the said facts were adverse to them. Reference was made to the order on charge and that the only overt act was sloganeering but the video was of PS Model Town.
89. The Ld. Counsel had further submitted that PW25 had stated in his State Vs. Akhilesh Pati Tripathi & Ors. 64/175 cross examination that he was at the spot till 8 to 8.15 p.m. but it was not stated what was the rush to conclude the investigation in 24 hours. The witnesses had stated that even Ramandeep was at the spot and was pelting stones whereas he was discharged. There was no answer as to what steps were taken to identify the people who were seen in the CD. As per the case of the prosecution, ACP Model Town had declared the assembly as unlawful assembly but even his statement was not recorded nor he was joined as a witness. The police officers were seen shooing away the protestors and as such it would have been easy for them to arrest the protestors but that was not done. It was argued that the number of witnesses did not matter and it was the quality which mattered. It was argued that the prosecution had not even been able to prove that the accused persons were present at the spot. Reliance was also placed on the judgment of the Hon'ble High Court of Delhi in Mahesh v. State (Govt. of NCT) of Delhi and it was argued that law does not insist on plurality of witnesses. CDR locations were not collected which could have shown that the accused persons were present at the spot.
90. It was submitted that the prosecution had miserably failed to even prove the basic contours of Sections 141, 142 and 149 of IPC. As such the case of the accused persons stood on a much better footing premising on the yardsticks enunciated by the well-established cannons of law on the premise of case involving unlawful assembly. It was submitted that except for the bald, vague, general and omnibus allegations against the accused persons, State Vs. Akhilesh Pati Tripathi & Ors. 65/175 there was nothing on record to signify circumstances which even remotely attributed any motive, role, conduct, behavioural pattern to any accused person in order to invoke Section 149 IPC, much less the other offences falsely alleged by the prosecution. More so, the video footage produced by the prosecution demolished the very narrative of the prosecution that allegedly around 40-50 members of AAP led by accused No.1 suddenly appeared at Tripoliya Gate carrying dandas and bamboos and they started hurling stones, raised sloganeering and attacked police officials which stood absolutely contradicted from the video footage. Reliance was placed on the judgment of Hon'ble Supreme Court in Subal Ghorai and Ors. v. State of West Bengal, Criminal Appeal No.88/2007 (SC); and on the judgment of Hon'ble High Court of Delhi in Kush Hori and Ors. v. State (NCT of Delhi) 2006.
91. It was submitted that the prosecution had miserably failed to impute unlawful assembly or that either of the accused persons were at any stage members of unlawful assembly and that it would naturally entail acquittal of every accused person regardless to any selective targeting of an individual amongst the 20 accused persons, more precisely accused No.18 Geeta. It was contended that in the absence of any specific charge framed against her, any imputation against her individually would fail. Reliance in this regard was placed on the judgments of Hon'ble Supreme Court in Ram Bilas Singh and Ors. v. The State of Bihar [1964] 1 SCR 775; Nanak Chand v. The State of Punjab AIR 1955 SC 274: [1955] 1 SCR 1201; Suraj State Vs. Akhilesh Pati Tripathi & Ors. 66/175 Pal v. The State of Uttar Pradesh AIR 1955 SC 419: [1955] 1 SCR 1332. It was further submitted that the deposition of all the witnesses was manifestly redolent of inconsistencies, improbabilities and serious contradictions. Therefore, it irresistibly sieved through the incredibility of the witnesses in the teeth of the incredible and shaky grounds on which the prosecution case hinged. Reliance was placed on the judgment of Hon'ble High Court of Madras in J. Xavier Raj v. State 2012; and of the Hon'ble High Court of Delhi in Mahesh v. State of (G.N.C.T) of Delhi 2007. It was also submitted that the prosecution must prove its case beyond reasonable doubt and presumptive evidences must be taken with adequate caution. Reliance was placed on the judgment of Hon'ble High Court of Allahabad in Meera @ Ashmeer and 4 Ors v. The State of UP 2019; and Sheo Raj Singh v. State of U.P. 2015.
92. The Ld. Additional PP for State had submitted in rebuttal that contradictions were only of a minor nature and did not go to the root of the case. The accused Ramandeep had been discharged as he had reached late. There was nothing to show that the accused persons were not present at the spot. It was argued that overt act was not required to attract Section 149 IPC. Moreover, any person could join the unlawful assembly at any stage and it was not necessary that every person should be there from the beginning. The traffic jam was continuing so the offence was continuing. Moreover, no permission of earlier members of unlawful assembly was required for others State Vs. Akhilesh Pati Tripathi & Ors. 67/175 to join. It was argued that the prosecution had to prove its case beyond reasonable doubt and not beyond hypothetical doubt and it was only to be seen if the evidence available was sufficient. It was contended that no defence was taken by the accused persons that they had reached the spot after 3.30 p.m. DISCUSSION ON MERITS
93. The accused persons in the instant case have been charged with the offences under Sections 147/186/353/332/333 IPC read with Section 149 IPC and Section 3 (1) of the Prevention of Damage to Public Property Act, 1984 read with Section 149 IPC. Section 146 IPC can be invoked in case of rioting i.e. whenever force or violence is used by an unlawful assembly or any member thereof, in prosecution of the common object of such assembly and Section 147 IPC stipulates the punishment for rioting. Section 186 IPC lays down the punishment for voluntarily obstructing any public servant in the discharge of his public functions. Section 353 punishes assaults or use of criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or as consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant. Section 332 lays down the punishment for voluntarily causing hurt to any person being a public servant in the discharge of his duty as such public servant, or with intent to prevent or deter that person State Vs. Akhilesh Pati Tripathi & Ors. 68/175 or any other public servant from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by that person in the lawful discharge of his duty as such public servant. Section 333 IPC likewise punishes voluntarily causing grievous hurt to a public servant as in Section 332 IPC. Section 3 (1) of the Prevention of Damage to Public Property Act, 1984 punishes causing of damage to public property.
94. At the outset, it may be mentioned that at the time of arguments on charge, one contention raised on behalf of the accused persons was that the prosecution was vitiated because of the infraction of the constitutional guarantee of a fair investigation in as much as the complainant in this case Inspector Ashok Kumar himself investigated the case. The said contention was duly considered by my Ld. Predecessor in the order on charge dated 05.01.2019 in detail and after referring to the judgments of the Hon'ble Supreme Court in Mohan Lal v. State of Punjab AIR 2003 SC 3853 and Annabelle Analista Malibago v. DRI 2018 SCC OnLine Delhi 12114, it was held that the prosecution in the present case was not vitiated for the reason that the complainant and the investigator were one and the same person. This issue was not agitated at the time of final arguments and in view of the findings of my Ld. Predecessor, it need not be gone into at this stage.
95. It is the case of the prosecution as deposed by most of the witnesses i.e. PW3, PW5, PW6, PW7, PW9, PW10, PW11, PW12, PW13, State Vs. Akhilesh Pati Tripathi & Ors. 69/175 PW14, PW15, PW16, PW18, PW19, PW20, PW21, PW25, PW30 and PW31 that one lady Kamlesh had been murdered in respect of which FIR No. 258/13 under Section 302 IPC was registered at PS Model Town. After the post- mortem was conducted, the dead body was handed over to the relatives of the deceased but instead of cremating the dead body, the family members placed the dead body on the road near Tripoliya Gate and started protesting. The IO of the said case was examined as PW29 Retd. Inspector Jagminder Singh and he had stated about the registration of the FIR in the said case and the dead body being sent to hospital for post-mortem. He had also stated that on 09.9.2013, post mortem on the dead body was conducted and thereafter, the dead body was handed over to the relatives of the deceased. It came to his knowledge that the dead body of Kamlesh was kept at Tripoliya Gate near Rajpura village by some persons. During cross-examination by the Ld. Counsel for A-1, A-4 to A-18 PW29 stated that the case was registered on the statement of the mother of the deceased Kamlesh. He did not know as to who was the informant as he had received the call at 100 number of PCR. He did not know as to how the mother of the deceased obtained knowledge about the dead body lying at CC Colony. Again said, during investigation the mother of the deceased had told that she was informed by some public person about the dead body of her daughter. He did not remember if he had stated to the police in his statement that the dead body of the deceased was kept on Tripoliya Gate on the ground that police was not investigating the case properly. He was State Vs. Akhilesh Pati Tripathi & Ors. 70/175 confronted with the statement Ex.PW29/DX where it was so recorded. The dead body of the deceased was handed over to the relatives after the post- mortem on 09.9.2013. He had handed over the dead-body to the relatives. He admitted that he was not present at Tripoliya Gate where the protest was taking place. Thus he had stated about the dead body being handed over to the relatives of the deceased after the post-mortem though he was not present at the spot where the protest had taken place.
96. PW29 was cross-examined on the recording of his statement and he stated that he was called for the statement in the present case after 2-3 months perhaps in the month of December. He admitted that his statement in the present case was recorded in December 2015. He denied the suggestion that his statement was recorded belatedly as a hogwash by the senior police officials with a view to fit into the false narrative of the investigating agency in FIR No.258/13 or that he had carried out inept and inefficient investigation which infused the family members, the known acquaintances as well as the residents of the deceased's vicinity to carry out the protests. However nothing much turns on the same and as per the deposition of PW29 the accused persons in the said FIR were arrested on 15.09.2013. Even otherwise the testimony of PW29 is material to the extent that he had stated that the dead body was handed over to the relatives of the deceased after post-mortem on 09.09.2013.
State Vs. Akhilesh Pati Tripathi & Ors. 71/175
97. Further as per the case of the prosecution, 200-250 persons had gathered at the spot and 40-50 members of Aam Aadmi Party had also joined who were carrying lathis and dandas and had started shouting slogans against Delhi Police. Further the crowd had started pelting stones which resulted in injuries to several policemen and damage to hearse van and government vehicles. Also several persons were apprehended at the spot. PW11 had deposed about Inspector Ashok Kumar preparing the complaint/ tehrir and handing over the same to him for registration of FIR and he went to PS Model Town and handed over the tehrir to Duty Officer for registration of FIR who got the FIR registered. Thereafter copy of FIR and original tehrir/ complaint were handed over to him for handing over to Inspector Ashok Kumar as the investigation of the case was marked to him and he went back to Tripoliya Gate and handed over the same to Inspector Ashok Kumar. PW8 had proved the FIR as Ex.PW8/A and endorsement on the Tehrir as Ex.PW8/B and certificate under Section 65B of IE Act as Ex.PW8/C. She had also recorded DD Entry at Serial No.16 and copy of the DD entry is Ex.PW8/D.
98. During cross-examination by the Ld. Counsel for A2 and A3, PW8 stated that after receiving the tehrir, she registered the FIR at around 5.20 p.m. No MLC was received along with the Tehrir. The investigation was assigned to Inspector Ashok Kumar but the copy of FIR was sent through HC Narender Dhama. She did not remember the exact time when she sent HC Narender Dhama along with copy of FIR and Tehrir. She stated that the certificate under State Vs. Akhilesh Pati Tripathi & Ors. 72/175 Section 65B of IE Act was executed at the time of registration of the FIR. She did not lodge any DD entry in respect of departure of HC Narender Dhama from PS along with copy of FIR and Tehrir. She admitted that certificate under Section 65B of IE Act Ex.PW8/C was not bearing any date of issuance and volunteered that it was issued at the time of registration of the FIR. She admitted that there was a date underneath the signatures of the SHO which is 03.07.2013 on Ex.PW8/C. She denied the suggestion that the certificate under Section 65B of IE Act was not prepared on the date of incident i.e. 09.09.2013 and on some other date or that the same was not as per the Indian Evidence Act. Though there was a different date on the certificate under Section 65B of the Evidence Act there is no reason to dispute the same. Further she stated that she did not note who was brought arrested in the PS during her duty hours on that date. She had not paid any attention whether there was any sloganeering audible at her place on the said date of incident or not. She stated that there was no entry of arrival made by the police official pertaining to the incident during the course of her duty. She denied the suggestion that she was deliberately not answering the questions with a view to toe the lines set out by the investigating officer or that the present FIR was ante timed and concocted at the instance of senior police officials present at the PS with a view to falsely implicate the accused persons. However there is nothing to suggest that the FIR was ante-dated.
99. In the instant case, the application for the complaint under Section State Vs. Akhilesh Pati Tripathi & Ors. 73/175 195 Cr.P.C. which is essential for the offence under Section 186 IPC to be made out was moved before the concerned ACP by SI Devi Lal which is Ex.PW33/A. Further the complaint had been proved through PW35 Shri K.R. Meena, ACP (Retired) as Ex.PW35/A. He was not cross-examined on behalf of the accused persons despite opportunity being given nor any arguments were advanced in respect of the complaint under Section 195 Cr.P.C. Further it cannot be disputed that several police officers being public servants had suffered hurt in the discharge of their duty as such public servant when they were trying to control the situation. PW3 WHC Puneeta had deposed that the persons present at the spot were having bamboos and sticks in their hands and suddenly they started pelting stones as a result of which she sustained injury on her head and forehead. She was taken to Babu Jag Jeevan Ram Hospital where she was medically examined vide MLC Ex.PW3/A. During cross- examination she denied the suggestion that none of the accused persons had caused any violence or any injury whatsoever to anyone. However, she had also not stated specifically about the person who had caused injury to her.
100. PW6 Inspector Ram Niwas had also stated that due to pelting of stones, several police officials including SHO PS Bharat Nagar, Inspector Rajender, SHO PS Adarsh Nagar, Inspector Parveen, lady constables Babita and Jaishree sustained injuries in the incident. PW7 SI Sandeep deposed that workers of Aam Aadmi Party and some persons from the gathering attacked the police party by using bamboos and sticks and started pelting stones. In the State Vs. Akhilesh Pati Tripathi & Ors. 74/175 said incident, several police officials sustained injuries. He also sustained injuries on his left hand and his back with sticks. He was medically treated in BJRM Hospital vide MLC No.65184/13 which is Ex.PW7/A. PW9 deposed that the 40/50 workers of Aam Aadmi Party started pelting stones upon the police officials and many police officials got injured due to stone pelting. PW10 Ct. Satish Rathee stated that the persons present started pelting stones on the police party and in the incident, he also sustained injury. He was taken to BJRM Hospital where he was medically examined vide MLC Ex.PW10/A. No suggestion was put to him during cross-examination that he had not sustained any injury in the incident.
101. PW11 HC Narender Dhama deposed about some officials sustaining injuries due to stone pelting. PW12 HC Dinesh Kumar had stated that the public started pelting stones upon police officials and he sustained injury in his left arm due to the pelting of stones. He was taken to BJRM Hospital where he was medically examined vide MLC Ex.PW12/A and received medical treatment. PW13 Ct. Neeraj had stated that the persons gathered at the spot had started pelting stones on police officials and the vehicles and they started beating the police with rods and sticks. He suffered injuries on both his legs and he was taken to BJRM Hospital where he was treated vide MLC Ex.PW13/A. During cross-examination he denied the suggestion that he suffered injuries by the relatives and known acquaintances of the deceased. However, he had not stated about anyone specifically causing State Vs. Akhilesh Pati Tripathi & Ors. 75/175 injuries to him. PW14 HC Jitender had stated that the crowd started pelting stones and as a result he suffered injuries on his upper limbs and lower limbs and he was taken to BJRM Hospital where he was treated vide MLC Ex.PW14/A. During cross-examination he denied the suggestion that he suffered injuries by the relatives and known acquaintances of the deceased. However, he had also not stated about anyone specifically causing injuries to him.
102. PW15 W/Ct. Neetu had stated that the persons gathered at the spot had started pelting stones on the police staff due to which she received injury on her right hand and she went to BJRM Hospital where she was treated vide MLC Ex.PW15/A. During cross-examination she denied the suggestion that she suffered injuries by the relatives and known acquaintances of the deceased. However, she had not stated about anyone specifically causing injuries to her. PW16 W/Ct. Jayshree had stated that the workers of Aam Aadmi Party started pelting stones on the police staff and some persons were beating the police personnel with sticks. One of the members of the crowd also hit her with the stick on her right leg due to which she received injury on her right leg and she was taken to BJRM Hospital where she was treated vide MLC Ex.PW16/A. During cross-examination she denied the suggestion that she suffered injuries by the relatives and known acquaintances of the deceased. However, she had not stated about anyone specifically causing injuries to her. PW18 Inspector Praveen Kumar stated that due to assault on State Vs. Akhilesh Pati Tripathi & Ors. 76/175 the police staff by the crowd, he received injuries on his left shoulder and hand and he went to BJRM Hospital where he was treated vide MLC Ex.PW18/A.
103. PW19 HC Abhishek Sharma stated that the 40/50 public persons wearing white caps started pelting stones on the police staff due to which many police personnel received injuries. He also sustained injury on his left hand and leg and he went to BJRM Hospital where he was treated vide MLC Ex.PW19/A. During cross-examination he denied the suggestion that the sloganeering and its ensuing outcome was on account of the protest made by the relatives of the deceased only on account of which he had sustained the injuries. PW20 HC Bijender Singh deposed that the public persons started pelting stones on police staff and the vehicles belonging to the police and many police personnel including him received injuries. He sustained injury on his left hand and he went to BJRM Hospital where he was examined vide MLC Ex.PW20/A. During cross-examination he denied the suggestion that he had sustained injuries only on account of the outcome of the protest carried out by the relatives of the deceased person. PW21 had stated about her senior Rajender sustaining injuries due to pelting of stones and some other police personnel also receiving injuries due to continuous pelting of stones and use of lathies. PW25 had deposed that the public persons started beating the police personnel with sticks (lathi and danda) and by pelting stones on them due to which some police personnel sustained injuries.
State Vs. Akhilesh Pati Tripathi & Ors. 77/175
104. PW30 HC Digvijay Singh had stated that the public persons started beating police officials with dandas and pelted stones and he also received injury from the stone on his right leg on his thigh. He went to BJRM Hospital for his medical examination vide MLC Ex.PW26/B. During cross- examination he denied the suggestion that he did not receive any injury. PW31 had deposed that the protesters started pelting stones on the police force with dandas and lathis and 12/13 police officials received injuries. The MLCs of the persons who were injured have also been proved through PW26 Dr. R. S. Mishra, CMO BJRM Hospital, Jahangirpuri who proved the MLCs of Punita, Neetu, Jayshri, Inspector Praveen Kumar, SI Sandeep, Ct. Abhishek Sharma, Ct. Neeraj Kumar, Ct. Jitender, Ct. Digvijay Singh, Ct. Satish Rathee, Ct. Bijender Singh and Ct. Dinesh as Ex.PW3/A, Ex.PW15/A, Ex.PW16/A, Ex.PW18/A, Ex.PW26/A, Ex.PW19/A, Ex.PW13/A, Ex.PW14/A, Ex.PW26/B, Ex.PW10/A, Ex.PW20/A and Ex.PW12/A and he had given his opinion on all the said MLCs of injury being simple. During cross- examination by the Ld. Counsel for A-1, A-4 to A-18 PW26 stated that the patients examined in the hospital had not come directly to him. The timings of their examination were mentioned in the MLC. Thus, even nothing had come out in cross-examination to doubt the testimony of PW26 or that several police officers had received simple injuries and it stands established that PW3, PW7, PW10, PW12, PW13, PW14, PW15, PW16, PW18, PW19, PW20 and PW30 had sustained injuries in the incident.
State Vs. Akhilesh Pati Tripathi & Ors. 78/175
105. It also cannot be disputed that Inspector Rajender Prasad being a public servant had suffered grievous hurt in the discharge of his duty as such public servant when he was trying to control the situation. PW5 had deposed that the people from the crowd started pelting stones and the supporters of Akhilesh Tripathi were also carrying wooden canes in their hands when they reached at the spot and they started manhandling and beating the police staff present at the spot to perform law and order duty. When they were doing so he was also appealing to the public not to become violent and meanwhile a lady present at the spot lifted a heavy stone and threw towards him and he tried to protect himself but he sustained injury in his left toe and got injured. He stated that his MLC was prepared by the treating doctor and X-ray of his left toe was done. The MLC is Ex.PW5/A. During cross-examination he stated that he was treated for the injury suffered by him in the incident. He denied the suggestion that the injuries noted in the hospital were not due to pelting of stones in the incident but because of other reasons.
106. The MLC of PW5 had further been proved through PW26 Dr. R. S. Mishra who stated that patient Inspector Rajender Prasad came for medical examination with alleged history of physical assault by mob. He had given his opinion on the MLC 'Nature of injury is Grievous. Fracture of proximal phalanax of great toe'. The MLC No.66026 is Ex.PW5/A. During cross- examination PW26 stated that any injury including fall can result in fracture of proximal phalanax of great toe. His reporting depended on availability of State Vs. Akhilesh Pati Tripathi & Ors. 79/175 radiologist's report. The examination was on 09.09.2013 and he had given his report on 11.09.2013. He denied the suggestion that he had not given correct opinion with regard to injuries of the patients including Inspector Rajender Prasad at the instance of police officials. Thus PW26 had stated that any injury including fall could result in fracture of proximal phalanx of great toe. However, in the instant case, Inspector Rajender Prasad had been taken for medical examination soon after the incident and no specific suggestion was put to Inspector Rajender Prasad that he had sustained the injury due to a fall. Further PW27 had proved the X-ray plates Ex.PW27/B and her report Ex.PW27/A as per which the patient Rajender Prasad had suffered hairline fracture, proximal phalanx great toe. She was not cross-examined on behalf of the accused persons despite opportunity being given. As such it is clear that PW5 had suffered grievous injury in the incident.
107. A perusal of the evidence on record also shows that the witnesses had consistently stated about damage to hearse van and police vehicles. PW2 had specifically deposed that he was deputed on the hearse van bearing No.DL1CJ 7174 on 09.09.2013 and when they tried to remove the dead body to the hearse van, the persons from the crowd did not allow them to remove the dead body rather they started pelting stones on the hearse van as a result of which the rear glass of the van was broken and the van was dented. He had identified the hearse van through the photographs Ex.P-1 (colly) and there was a court observation that the rear glass of the hearse van was broken as visible State Vs. Akhilesh Pati Tripathi & Ors. 80/175 in the photographs. During cross-examination he admitted that the photographs were not showing any stone or any piece of broken glass inside the hearse van. A suggestion was put to him that neither the rear glass of the van was broken nor any damage was caused to the van at the alleged place of occurrence which he denied. However no suggestion was put to him that there was no stone pelting by the crowd.
108. PW17 was driving the hearse van and he deposed that as soon as he parked the van and started removing the dead body, the crowd started pelting stones on the hearse van and they were also hitting the van with sticks. As soon as they started from the spot while carrying the dead body away, the crowd started pelting stones, due to which one stone hit the rear glass of the hearse van and it damaged it. He stated that due to throwing of the stones, the hearse van also got damaged on different parts. He also identified the hearse van through the photographs Ex.P-1 (colly). During cross-examination as well he stated that stones were pelted on the van and no suggestion to the contrary was put to him or that the van did not get damaged due to pelting of stones.
109. PW4 was posted as photographer with Mobile Crime Team and he stated that ambulance and some police vehicles were in damaged condition at the spot. Glasses and head lights of the vehicles were damaged. At the instance of the IO and I/c Crime Team, he clicked the photographs of the spot through his government camera. He stated about 21 developed photographs State Vs. Akhilesh Pati Tripathi & Ors. 81/175 being given to the IO through office as also a CD containing the photographs and he also proved the certificate under Section 65 B Ex.PW4/C in respect of the same. During cross-examination he denied the suggestion that he had stated facts selectively as also only produced selective photographs at the instance of the IO with a view to manufacture a false case against the accused persons. He admitted that the photographs were not given on 09.09.2013 to the IO. He did not remember the date when he had handed over the CD and photographs to the IO. The records of handing over would be available in the Crime Team office. The device used for taking the photographs was not given to the IO. He had not mentioned the device used for taking the photographs in certification under Section 65B of IE Act. Though the photographs were not given to the IO on 09.09.2013 that would not create any doubt on the photographs moreso as no suggestion was put to PW4 that the photographs were not of the incident of 09.09.2013 and rather by the suggestion that he had produced selective photographs, there was an admission that the photographs were of the incident in question.
110. PW23 had proved the mechanical inspection report in respect of the hearse van which is Ex.PW23/A. He was not cross-examined on behalf of the accused persons. PW9 had also stated that four government vehicles were damaged in the incident though he did not give details of the vehicles. He was not even cross-examined in this respect. PW12 had stated that the public started pelting stones upon the police officials and some government vehicles State Vs. Akhilesh Pati Tripathi & Ors. 82/175 were also damaged. PW13 also stated that the persons gathered started pelting stones on the police officials and vehicles. PW16 stated that the workers of Aam Aadmi Party started pelting stones on the police staff as well as the vehicles belonging to Delhi Police. PW20 had stated that public persons started pelting stones on the police staff as well as on the vehicles belonging to the police due to which the said vehicles got damaged. PW25 had stated that public persons started beating the police personnel with sticks and by pelting stones on them due to which government vehicle as well as some private vehicles were also damaged due to pelting of stones. He had stated about getting the mechanical inspection of the hearse van conducted and further identified the same through the photographs Ex.P1 (colly). No suggestion was put to him during cross-examination that the hearse van or other vehicles were not damaged due to pelting of stones.
111. PW31 stated that the protesters started pelting stones on the police force and they also damaged the hearse van and some other vehicles. However no suggestion was put to him that no damage was caused to the hearse van or any other vehicle in the alleged incident. As such other than PW2 no suggestion was put to any of the witnesses who had deposed about damage to the hearse van and other vehicles in the incident that the hearse van had not been damaged in the incident. At the same time the prosecution has also not produced any details of any other vehicle which was allegedly damaged in the incident and damage has only been proved to the hearse van. Looking to the State Vs. Akhilesh Pati Tripathi & Ors. 83/175 testimony of the witnesses and the corroborative material on record in form of photographs and mechanical inspection report, there can be no doubt that the hearse van had been damaged in the incident of 09.09.2013.
112. The question that arises is whether the prosecution has been able to establish that the accused persons were members of an unlawful assembly and thereby guilty of the offences under Sections 147/186/353/332/333 read with Section 149 IPC and Section 3(1) of the Prevention of Damage to Public Property Act, 1984 read with Section 149 IPC. Section 141 IPC defines "unlawful assembly" as under:
"141. Unlawful assembly.- An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is- First -To overawe by criminal force, or show of criminal force, the Central or any State Government or Parliament, or the Legislature of any State, or any public servant in the exercise of the lawful power of such public servant; or Second.- To resist the execution of any law, or of any legal process; or Third.- To commit any mischief or criminal trespass, or other offence; or Fourth.- By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right, or State Vs. Akhilesh Pati Tripathi & Ors. 84/175 Fifth.- By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do which he is legally entitled to do.
Explanation.- An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly."
In the present case, all the witnesses had repeatedly stated that there were around 250/300 persons who were further joined by 40/50 workers of Aam Aadmi Party who were wearing white caps. Even the video clippings which were produced on record show the presence of more than five persons at the spot. Further the witnesses had stated that the said mob had placed the dead body in the middle of the road and thereby blocked the traffic and despite senior police officials trying to pacify them and repeatedly requesting them to remove the dead body from the road and to disperse, they did not do so.
During cross-examination by learned counsel for A-2 and A-3 PW5 stated that the traffic was blocked by the mob at the spot. On being asked whether the vehicles were stranded at the place due to placing of dead body on the road, he stated that the traffic was diverted from Nanakpiyau towards Model Town and from Shakti Nagar chowk towards Roop Nagar. He stated that the road was not opened for traffic even after removal of dead body by 3.30 p.m. as there was apprehension that the mob may gather again and create disturbance. As such PW5 had even during cross-examination stated about the traffic being blocked by the mob at the spot.
State Vs. Akhilesh Pati Tripathi & Ors. 85/175
113. PW25 had specifically deposed that due to the gathering of the said public persons, the traffic was jammed and he sent a message to traffic police to divert the traffic from the spot. He had also stated that the senior police officers made them understand with the request to remove the dead body but they did not comply with the request. Quite clearly the object of the assembly was to block the traffic and thereby compel the police to discharge its duty of nabbing the persons guilty of murder of Smt. Kamlesh and to compel the police to omit to do what it was legally entitled to do i.e. remove the protesters and dead body of the deceased from the road and ensure free flow of traffic. As such the gathering of persons could be termed as an "unlawful assembly". PW25 had in fact also deposed that the senior police officer declared the gathering of the said public persons unlawful by announcing the same on loud hailer. During cross-examination PW25 stated that the fact that ACP Model Town or any other senior officer had declared the gathering of the public persons as unlawful was not mentioned in the rukka Ex.PW25/A (colly). Though the same was not mentioned in the rukka nor any officer has been examined as a witness who deposed that he had declared the gathering of the public persons as unlawful, but looking to the testimony of the witnesses and the definition of unlawful assembly, there is not even an iota of doubt that the gathering of persons near Tripoliya Gate could be called an "unlawful assembly". The Ld. Counsel for the accused persons had argued that the prosecution had to be extra agile to prove unlawful assembly but there State Vs. Akhilesh Pati Tripathi & Ors. 86/175 is no doubt that the gathering in the instant case was an "unlawful assembly".
114. Since the accused persons in the present case have been charged with the aid of Section 149 IPC, reference may be made to Section 149 IPC which provides as under:
"Every member of unlawful assembly guilty of offence committed in prosecution of common object.- If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence."
Thus the prosecution under Section 149 IPC is for vicarious liability or constructive liability. It may be mentioned that in the order on charge dated 05.01.2019, it was clarified that "the accused have been charged with the aid of Section 149 not because the offences were committed by the member of an unlawful assembly in prosecution of the common object but only for the offences which the member of that assembly knew to be likely to be committed in prosecution of that object" and even the charge was framed accordingly against the accused persons. As such the culpability of the accused persons, if any would have to be judged on that yardstick. In Waman v. State of Maharashtra (2011) 7 SCC 295 it was held that in order to attract Section 149 of the Code it must be shown that the incriminating act was done State Vs. Akhilesh Pati Tripathi & Ors. 87/175 to accomplish the common object of unlawful assembly. It must be within the knowledge of the other members as one likely to be committed in prosecution of common object. If members of the assembly knew or were aware of the likelihood of a particular offence being committed in prosecution of a common object, they would be liable for the same under Section 149 IPC. Reference may be made to the judgment of the Hon'ble Supreme Court in State of Punjab v. Sanjiv Kumar dated 14.06.2007 in Appeal (Crl.) 822-825 of 2001 wherein paras 8, 9 and 10, the Hon'ble Supreme Court has held as under:
"8. The pivotal question is applicability of Section 149 IPC. Said provision has its foundation on constructive liability which is the sine qua non for its operation. The emphasis is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section
141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section
149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall State Vs. Akhilesh Pati Tripathi & Ors. 88/175 within the purview of Section 141. The word object means the purpose or design and, in order to make it common, it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression in prosecution of common object as appearing in Section 149 have to be strictly construed as equivalent to in order to attain the common object. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to certain point beyond which they may differ in their objects and the knowledge, possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object, and as a consequence of this the effect of Section 149 IPC may be different on different members of the same assembly.
9. Common object is different from a common intention as it does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The common object of an assembly is to be ascertained from the acts and language of the members composing it, State Vs. Akhilesh Pati Tripathi & Ors. 89/175 and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. Under the Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly which, at its commencement or even for some time thereafter, is lawful, may subsequently become unlawful. In other words it can develop during the course of incident at the spot eo instante.
10. Section 149, IPC consists of two parts. The first part of the section means that the offence to be committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. In order that the offence may fall within the first part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was member. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 141, if it can be held that the offence was such as the members knew was likely to be committed and this is what is required in the second part of the section.
The purpose for which the members of the State Vs. Akhilesh Pati Tripathi & Ors. 90/175 assembly set out or desired to achieve is the object. If the object desired by all the members is the same, the knowledge that is the object which is being pursued is shared by all the members and they are in general agreement as to how it is to be achieved and that is now the common object of the assembly. An object is entertained in the human mind, and it being merely a mental attitude, no direct evidence can be available and, like intention, has generally to be gathered from the act which the person commits and the result therefrom. Though no hard and fast rule can be laid down under the circumstances from which the common object can be culled out, it may reasonably be collected as noted above from the nature of the assembly, arms carried and behaviour at or before or after the scene of occurrence. The word knew used in the second limb of the section implies something more than a possibility and it cannot be made to bear the sense of might have been known. Positive knowledge is necessary. When an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object. That, however, does not make the converse proposition true; there may be cases which would come within the second part but not within the first part. The distinction between the two parts of Section 149 cannot be ignored or obliterated. In every case it would be an issue to be determined, whether the offence committed falls within the first part or it was an offence such as the members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second part. However, there may be cases which would be within first part of the offences committed in prosecution of the common object would also State Vs. Akhilesh Pati Tripathi & Ors. 91/175 be generally, if not always, within the second part, namely, offences which the parties knew to be likely committed in the prosecution of the common object. (See Chikkarange Gowda and others v. State of Mysore AIR 1956 SC
731)(emphasis supplied)
115. The Ld. Counsel for A2 and A3 had relied on the judgment in Rajendra Shantaram Todankar v. State of Maharashtra & Ors. AIR 2003 SC 1110 where in para 15 it was held as under:
"Section 149 of the Indian Penal Code provides that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who at the time of the committing of that offence, is a member of the same assembly is guilty of that offence. The two clauses of Section 149 vary in degree of certainty. The first clause contemplates the commission of an offence by any member of an unlawful assembly which can be held to have been committed in prosecution of the common object of the assembly. The second clause embraces within its fold the commission of an act which may not necessarily be the common object of the assembly nevertheless the members of the assembly had knowledge of likelihood of the commission of that offence in prosecution of the common object. The common object may be commission of one offence while there may be likelihood of the commission of yet another offence the knowledge whereof is capable of being safely attributable to the members of the unlawful assembly. In either case every member of the assembly would be vicariously liable for the offence actually State Vs. Akhilesh Pati Tripathi & Ors. 92/175 committed by any other member of the assembly. A mere possibility of the commission of the offence would not necessarily enable the court to draw an inference that the likelihood of commission of such offence was within the knowledge of every member of the unlawful assembly. It is difficult indeed, though not impossible, to collect direct evidence of such knowledge. An inference may be drawn from circumstances such as the background of the incident, the motive, the nature of the assembly, the nature of arms carried by the members of the assembly, their common object and the behaviour of the members soon before, at or after the actual commission of the crime. Unless the applicability of Section 149 either clause is attracted and the Court is convinced, on facts and in law both, of liability capable of being fastened vicariously by reference to either clause of Section 149 of IPC merely because a criminal act was committed by a member of the assembly every other member thereof would not necessarily become liable for such criminal act. The inference as to likelihood of the commission of the given criminal act must be capable of being held to be within the knowledge of another member of the assembly who is sought to be held vicariously liable for the said criminal act. These principles are settled. Applying these tests to the facts found proved beyond reasonable doubt the accused nos. 1 to 5 can be held liable for the offence under Section 302/149 IPC for the assault resulting in death of Gopi Krishna while accused nos. 6 and 7 can be held liable for their individual acts of assault committed on Sanjay Patil."
In the instant case, as observed above, the question is whether the likelihood of the commission of the given criminal act was capable of being held to be State Vs. Akhilesh Pati Tripathi & Ors. 93/175 within the knowledge of the accused persons, provided that the accused persons could be regarded as members of an unlawful assembly and thereby be held vicariously liable for the said criminal acts. Reliance was also placed on the judgment in Kanshi Ram v. State (supra) in this regard.
116. The Ld. Counsel for A1, 4, 5, 6, 8, 9, 10, 11, 13, 14, 15, 17 and 18 had tried to contend that an overt act was necessary in order to implicate the accused persons and reliance in this regard was placed on the judgment of the Hon'ble Supreme Court in Baladin and Ors. v. State of Uttar Pradesh AIR 1956 SC 181 wherein it was observed as under:
"It would thus appear that the place of occurrence is surrounded on all the sides by the houses of the appellants. If members of the family of the appellants and other residents of the village assembled, all such persons could not be condemned 'ipso facto' as being members of that unlawful assembly. It was necessary, therefore, for the prosecution to lead evidence pointing to the conclusion that all the appellants before us had done or been committing some overt act in prosecution of the common object of the unlawful assembly.
The evidence as recorded is in general terms to the effect that all these persons and many more were the miscreants and were armed with deadly weapons, like guns, spears, pharsas, axes, lathis, etc. This kind of omnibus evidence naturally has to be very closely scrutinised in order to eliminate all chances of false or mistaken implication. That feelings were running high on both sides is beyond question.
That the six male members who were done to State Vs. Akhilesh Pati Tripathi & Ors. 94/175 death that morning found themselves trapped in the house of Mangal Singh has been found by the courts below on good evidence. We have, therefore, to examine the case of each individual accused to satisfy ourselves that mere spectators who had not joined the assembly and who were unaware of its motive had not been branded as members of the unlawful assembly which committed the dastardly crimes that morning."
117. The Ld. Counsel had further relied on the judgment of the Hon'ble High Court of Delhi in Kush Hori & Ors. v. State (NCT of Delhi) 2006 where it was observed that "at the highest the case against the petitioners is that they were present in the dharna and that in a lathi charge, they were injured. There is no statement of any of the witnesses which shows that these persons, i.e. the accused, were responsible for any specific act of assault or use of criminal force. In fact, no specific overt act has been ascribed to the petitioners. Therefore, if the prosecution case is taken to be proved and established, all that is proved, is that the petitioners were present at the scene and that they received injuries. From what is available on the record, it cannot be established that it is the petitioners who caused injuries to the six police personnel. Neither can it be established that they were responsible for any overt act, which would amount to an assault or use of criminal force."
118. Reliance was also placed on Mohd. Shariff Suleman Nadaf Vs. State, AIR 1969 Bombay 383 where it was held that particular overt act was required to be attributed to the accused to show active participation in the riot.
State Vs. Akhilesh Pati Tripathi & Ors. 95/175 Where there was nothing on record to show that the accused were not merely passive (and perhaps ideal and curious) spectators, they cannot be prosecuted under Section 147/148 and 149 of IPC. However, it is the settled law that an overt act is not necessary on the part of a person who is a member of an unlawful assembly to make him liable for the offences committed by others (Yunis alias Kariya v. State of Madhya Pradesh AIR 2003 SC 539; Amerika Rai v. State of Bihar AIR 2011 SC 1379). The Ld. Counsel had then referred to the judgment in Masalti's case (supra) wherein it was held that the observations made in the case of Baladin (supra) must be read in the context of the special facts of that case and could not be treated as laying down an unqualified proposition of law that before a person was held to be member of an unlawful assembly, it must be shown that he had committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object of the assembly. It was also observed:
"While determining the question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly."
Reference may also be made to the judgment of the Hon'ble Supreme Court in Dani Singh And Ors. v. State of Bihar dated 12 March, 2004 in Appeal (Crl.) 284-286 of 2003 on which reliance was placed by the Ld. Counsel State Vs. Akhilesh Pati Tripathi & Ors. 96/175 for A1, 4, 5, 6, 8, 9, 10, 11, 13, 14, 15, 17 and 18 wherein it was observed as under:
"The emphasis in Section 149 IPC is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149.
The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of an unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall with the purview of the Section 141. The word "object" means the purpose or design and, in order to make it "common", it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified State Vs. Akhilesh Pati Tripathi & Ors. 97/175 or altered or abandoned at any stage. The expression "in prosecution of common object" as appearing in Section 149 has to be strictly construed as equivalent to "in order to attain the common object". It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to a certain point beyond which they may differ in their objects and the knowledge possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object, and as a consequence of this the effect of Section 149 IPC may be different on different members of the same assembly."
119. While an overt act may not be necessary, mere presence does not make the person a member of the unlawful assembly and there should be something more to show that the accused shared a common object with the other members of the unlawful assembly or there was a community of common object. In Rajendra Shantaram Todankar v. State of Maharashtra & Ors. (supra) where the localities to which the accused persons, the deceased and the witnesses belonged were adjoining each other, it was held that the presence of the accused persons at the place of incidence was natural. In Subal Ghorai & Ors. v. State of West Bengal Criminal Appeal No.88/2007 decided on 02.04.2013 on which reliance was placed by the Ld. Counsel for A1, 4, 5, 6, 8, 9, 10, 11, 13, 14, 15, 17 and 18, the State Vs. Akhilesh Pati Tripathi & Ors. 98/175 Hon'ble Supreme Court had held as under:
"30. But this concept of constructive liability must not be so stretched as to lead to false implication of innocent bystanders. Quite often, people gather at the scene of offence out of curiosity. They do not share common object of the unlawful assembly. If a general allegation is made against large number of people, Court has to be cautious. It must guard against the possibility of convicting mere passive onlookers who did not share the common object of the unlawful assembly. Unless reasonable direct or indirect circumstances lend assurance to the prosecution case that they shared common object of the unlawful assembly, they cannot be convicted with the aid of Section 149 of the IPC. It must be proved in each case that the person concerned was not only a member of the unlawful assembly at some stage, but at all the crucial stages and shared the common object of the assembly at all stages. The court must have before it some materials to form an opinion that the accused shared common object. What the common object of the unlawful assembly is at a particular stage has to be determined keeping in view the course of conduct of the members of the unlawful assembly before and at the time of attack, their behaviour at or near the scene of offence, the motive for the crime, the arms carried by them and such other relevant considerations. The criminal court has to conduct this difficult and meticulous exercise of assessing evidence to avoid roping innocent people in the crime. These principles laid down by this Court do not dilute the concept of constructive liability. They embody a rule of caution."
Thus, the Hon'ble Supreme Court had categorically laid down that the courts must guard against the possibility of convicting mere passive onlookers who State Vs. Akhilesh Pati Tripathi & Ors. 99/175 did not share the common object of the unlawful assembly and it must be proved in each case that the person concerned was not only a member of the unlawful assembly at some stage, but at all the crucial stages and shared the common object of the assembly at all stages and further the court must have before it some materials to form an opinion that the accused shared common object. It is pertinent that the contention of the accused persons is that they were not even part of the unlawful assembly and some of them have contended that they happened to be at the spot as they had gone there for some other work or resided close to the place of occurrence while some of the accused persons had denied their presence at the spot. Further as per the case of the prosecution itself accused A19 Prempal, A20 Kamal and A21 Somwati (since expired) were not arrested at all and were charge-sheeted without arrest. Moreover it cannot be lost sight of that A16 was duly discharged in the instant case observing that his presence there as an onlooker/ bystander was possible. In the instant case, it is seen that the evidence that has come on record is mostly in general terms to the effect that there were 250/300 persons gathered at the spot who were joined by 40-50 persons wearing white caps worn by members of Aam Aadmi Party and they were carrying lathis and dandas and persons from the crowd started pelting stones. Thus as observed in Baladin's case (supra) "this kind of omnibus evidence naturally has to be very closely scrutinized in order to eliminate all chances of false or mistaken implication".
120. A perusal of the evidence which has come on record shows that State Vs. Akhilesh Pati Tripathi & Ors. 100/175 PW3 had deposed about the incident but she had neither stated specifically about the presence of any of the accused persons nor referred to any overt act by any one of them nor identified any of the accused persons in the court and had only stated about the presence of 250 to 300 persons and 40 to 50 persons of the said crowd were wearing caps belonging to Aam Aadmi Party. PW4 had clicked the photographs of the spot but he had also not stated about any of the accused persons specifically.
121. PW5 had deposed about there being a gathering of about 200-250 people including ladies who were joined by a group of 40-50 people in the leadership of Akhilesh Tripathi and all of them were wearing the cap of Aam Aadmi Party. He had stated that after reaching at the spot Akhilesh Tripathi started to raise slogan speaking out 'Delhi Police Hi-Hi, dead body nahi hategi, yahi rahegi yahi rahegi' and his supporters were also raising the same slogan repeatedly. He stated that a lady present at the spot lifted a heavy stone and threw towards him and he tried to protect himself but he sustained injury in his left toe and got injured. The lady who threw stone upon him was apprehended by lady HC Rajwati at the spot along with other female staff. He stated that with the help of his staff he apprehended three persons at the spot who were actively involved and participating in the stone pelting and beating of police staff namely Naresh son of Mohan Lal, Salman son of Irfan, Ramandeep son of Kirpal. He identified the apprehended lady as Smt. Geeta wife of Roopram. He identified Naresh and Ramandeep who had been State Vs. Akhilesh Pati Tripathi & Ors. 101/175 discharged vide order dated 05.01.2019. Identity of Akhilesh Pati Tripathi was not disputed. The Ld. Addl. PP sought to re-examine him with regard to the identification of the accused Salman which was allowed and PW5 admitted that due to lapse of about six years' time and confusion, he could not identify the accused Salman before the court. As such he had identified only Naresh and Geeta and identity of A1 was not disputed. During cross-examination PW5 could not say how many of the crowd were from the family of the deceased and others from general public who were part of the crowd. He stated that it was not possible to identify the family members of the deceased from the others who were present at the spot at the time of the incident. However, that would anyway not have been possible given the number of persons stated to be present.
122. During further cross-examination PW5 stated that the three persons were apprehended by him with the help of other staff around 3 p.m. to 3.10 p.m. His statement was recorded at around 7 p.m. He stated that Ramandeep A16 was also pelting stones towards the police party. He could have identified him, if he was present in the Court. However, it is significant that A16 Ramandeep was discharged by the Ld. Predecessor of this Court with a specific observation in the order dated 05.01.2019 that his presence at the place of incidence "as an on looker/ bystander is possible. No particular overt act is attributed to him which amounts to active participation in the riot. Mere presence in an assembly does not make such a person a member of unlawful State Vs. Akhilesh Pati Tripathi & Ors. 102/175 assembly unless it is shown that he had done something or omitted to do something which would make him a member of an unlawful assembly, or unless a case falls under Section 142 of IPC." PW5 stated that Smt. Geeta A18 was apprehended at the spot as stated by him in his examination in chief. He stated that other accused persons were also arrested by other police personnel present there. The crowd was dispersed and active participants were apprehended by him and other SHOs with the help of other staff by the time he left for hospital. Again PW5 had stated about the arrest of active participants but as observed above, accused Ramandeep already stood discharged though PW5 had categorized him as an 'active participant'. He did not know the time taken by the IO for preparing the arrest memo with regard to the accused who were apprehended by him as they were handed over to Inspector Ashok Kumar for moving to the hospital for MLC. He stated that the three persons were apprehended by him at the time of removing the dead body from the road when the crowd had become violent. The time gap may be of hardly five minutes. The three persons were apprehended by him before removal of the dead body. He did not know whether any of the accused was got medically examined as the same would be known to the IO.
123. It is pertinent that on being asked to identify the accused Salman who was one of the accused apprehended by him on the spot at the time of incident, he identified A5 Sachin as Salman whereas Salman, A17 was also present in the court. He denied the suggestion that he had failed to identify the State Vs. Akhilesh Pati Tripathi & Ors. 103/175 accused Salman as he had not apprehended either Salman or Naresh or Ramandeep on the date of incident from the spot or that a false case was made out under political pressure. As observed above, during re-examination by the Ld. Addl. PP for State, PW5 had failed to identify A17 Salman. During cross- examination PW5 denied the suggestion that he was taking the excuse of lapse of time for his failure to identify the accused Salman but the fact of the matter is that he had failed to identify the accused Salman. It would be contended on behalf of the prosecution that the same was due to lapse of time and PW5 had also stated to that effect but it is imperative that the witness is able to identify the accused in court, moreso as he had apprehended the accused.
124. The prosecution had relied on video footage of the incident but when clip No.5 was shown to PW5 he could not say whether any of the persons shown in the clip were arrested because their faces were not clearly visible for identification. However, the clip recorded his presence also controlling the mob. While PW5 denied the suggestion that the place shown to him from clip No.12 to 17 wherein some persons wearing white caps along with public persons were raising slogans were not the accused persons, he could not even say whether the persons raising slogans were the relatives of those who were apprehended by the police. He could not say that the clippings from 12 to 17 were at the boundary gate of PS Model Town. As such PW5 could not say anything from the clips except that they recorded his presence at the spot. PW5 also denied the suggestion that accused Naresh was identified State Vs. Akhilesh Pati Tripathi & Ors. 104/175 by him on 14.02.2019 in the court only at the instance of the investigating officer or that the identity of Naresh was shown to him by the IO under the pretext of marking the presence of accused on the said date. (The learned Addl. PP for the State had submitted that the IO had not attended the hearing on the said date.)
125. As regards A1 PW5 stated that he did not know the distance between the place of incident and the office of Akhilesh Pati Tripathi who was one of the accused in the present case. He denied the suggestion that the accused Akhilesh Pati Tripathi was implicated belatedly and under the pressure of the political dispensation. He denied the suggestion that the accused persons were never involved in any sloganeering or causing any violence or disruption or that Akhilesh Pati Tripathi was illegally picked up from his office which was less than 50 meters away from the place of incident. As such he had denied the suggestion that A1 was picked up from his office. PW5 also denied the suggestion that he had not apprehended the real culprit or that the person who had pelted stone at him was not arrested and some other person was wrongly apprehended or that innocent persons were apprehended under political pressure.
126. PW6 had deposed that when he reached the spot he noticed that the crowd was not allowing to remove the dead body from the main road blocking the traffic. Meanwhile, Akhilesh Pati Tripathi alongwith 40-50 other State Vs. Akhilesh Pati Tripathi & Ors. 105/175 supporters also joined the crowd who started provoking and exciting the public. Akhilesh Pati Tripathi was present at that time but he was not able to identify him in the court. He pointed out towards Sachin Gupta (A8) as one of the accused who was present at the site of incidence on the said date. However, he had not identified him by name. He stated that he had not apprehended any of the rioters but they were apprehended by other police officials who were present with him on the said day. The Learned Additional PP for the State drew his attention towards Akhilesh Pati Tripathi present in the court as he had stated that if the said accused was wearing glasses and Aam Aadmi Cap he could have identified him. It was observed that PW6 had already stated that he could not identify the accused though it was recorded that on that day A1 Akhilesh Pati Tripathi was neither wearing glasses nor Aam Aadmi Party cap nor beard which he was keeping at that time. As such PW6 could not identify A1 and only identified A8 as one of the persons present at the spot though not by name.
127. During cross-examination PW6 did not remember whether he had written the name of any of the accused who were apprehended at the spot, however, he could answer after seeing the record. He could not say without seeing the records, whether he had not mentioned the name of any accused in the incident. He was shown the arrival entries made by him on reaching the PS where name of any of the accused was not mentioned. The DD entry No.19-A dated 09.09.2013 is Ex.PW6/DA. He stated that it was a matter of record that State Vs. Akhilesh Pati Tripathi & Ors. 106/175 raising of slogans was not noted and role of accused persons was also not described. He stated that he had no knowledge about the medical examination of the accused persons apprehended at the spot. PW6 stated that in his presence several accused were apprehended by other police officials at the spot. He was shown the video clips and on being asked if he could identify A1 Akhilesh Pati Tripathi or A8 Sachin Gupta in the said video or any other accused person who was apprehended at the spot (there were 17 clippings of the recording), he stated that he could not identify any of the accused apprehended in the recordings shown to him in the court. He could not identify anyone in the CD who was apprehended from the spot. As such none of the accused persons were visible in the video clippings according to him. He denied the suggestion that the accused persons were arrested belatedly only under the influence and pressure of the then political dispensation.
128. Further PW6 denied the suggestion that the place shown from video No.12 to 17 wherein some persons wearing white caps and public persons were raising slogans were not the accused persons but their family members making protest outside PS Model Town in the face of illegal arrest of their family members or that such CDs were deliberately cherry picked and super imposed with a view to give a false impression of sloganeering done by the accused persons instead. He denied the suggestion that accused persons were not carrying lathis or danda with them and none of the accused persons either raised any slogans or hurled any stones or that belatedly and isolatedly State Vs. Akhilesh Pati Tripathi & Ors. 107/175 some random public persons and on lookers were falsely arrested with a view to foist case against the accused persons. He denied the suggestion that like other accused persons A8 Sachin Gupta was wrongly picked up, hence, he had failed to see his presence in the videos shown to him. As such PW6 had denied all the suggestions put to him but it is also pertinent that he had failed to identify any of the accused persons except one and that too not by name.
129. PW6 stated that since the place of incident was not under the jurisdiction of PS Keshav Puram where he was the SHO, he could not tell whether A1 Akhilesh Pati Tripathi had his office nearby the place of incident. He denied the suggestion that the accused persons were never involved in any sloganeering or causing any violence whatsoever or that A1 Akhilesh Pati Tripathi was illegally picked up from his office which was less than 50 meters away from the alleged place of incidence. He denied the suggestion that on the date of the alleged incident A1 Akhilesh Pati Tripathi was wrongly picked up from his office as he was not present there neither was he wearing glasses nor supporting beard. Thus PW6 had denied suggestions of A1 being wrongly picked up from his office but then it is also not the case of the prosecution that PW6 had apprehended A1 and PW6 had not identified A1 in the court.
130. PW7 had deposed about presence of 200 persons at the spot and that 40-50 workers of Aam Aadmi Party wearing white caps and having bamboo and lathis in their hands had joined the said gathering and started State Vs. Akhilesh Pati Tripathi & Ors. 108/175 raising slogans where upon the gathering became more violent. Shri Akhilesh Pati Tripathi was leading the said mob. Workers of Aam Aadmi Party and some persons from the gathering attacked the police party by using bamboos and sticks and started pelting stones. He identified the husband of the deceased Shri Prem Pal (who is accused No.19). He also identified Smt. Geeta, mother of the deceased (who is accused No.18) as part of the assembly on the date of the incident. He stated that he could also identify accused Akhilesh Pati Tripathi who was not present in the court. During cross- examination PW7 stated that the crowd of 200 persons comprised of husband of the deceased namely Shri Prem Pal and mother of the deceased namely Smt. Geeta and other neighbours of the deceased. PW7 had identified Prem Pal but it is noteworthy that he was not arrested from the spot but was charge- sheeted without arrest and if he was present at the spot, there is no reason why he was not apprehended from the spot.
131. PW7 further stated that the distance of place of incident and office of Akhileshpati Tripathi leader of Aam Aadmi Party was approximately 100 metres. He denied the suggestion that the accused Akhilespati Tripathi was never present at the place of incident or that he along with some random persons, onlookers and party workers were picked up from their office belatedly for the said reason or that no time was deliberately set out in the complaint with a view to falsely implicate the accused at the instance of the Senior Police officers or that the police machinery had deliberately super State Vs. Akhilesh Pati Tripathi & Ors. 109/175 imposed an out of context instance of sloganeering and protest outside police station carried out by the family members of the arrested persons in the face of their illegal arrest or that none of the accused persons indulged in any sloganeering or force or violence or disrupting peace and harmony. Thus PW7 had denied the suggestions put to him but he had stated about the office of A1 being at a distance of only 100 metres from the spot.
132. PW9 had deposed that there were 250-300 public persons at the spot when he reached there and they were joined by 40/50 persons who were wearing the white caps of Aam Aadmi Party who had come at the spot with Akhileshpati Tripathi and were being led by him. He also stated about the said persons carrying lathi dandas in their hands and that they started pelting stones upon the police officials and that they were being instigated by Akhileshpati Tripathi to attack upon the police officials. He stated that he apprehended three persons whose names he came to know as Vijay s/o Shri Daya Ram, Sanjeev s/o Shri Shatrughan, Himanshu s/o Shri Manish Jain. All the apprehended persons were handed over to Inspector Ashok Kumar. Akhileshpati Tripathi was also apprehended at the spot. The apprehended persons were taken to PS Model Town. He had apprehended the accused Vijay, Himanshu and Sanjeev and they were put under arrest by the IO in his presence. Accused Vijay was a proclaimed offender. The identity of accused Sanjeev was not disputed. He stated that the accused Himanshu was present in the court but he could not identify amongst the accused who were present State Vs. Akhilesh Pati Tripathi & Ors. 110/175 which one was Himanshu. He stated that the accused Akhileshpati Tripathi was apprehended in his presence and he identified him. As such he had identified A1 and identity of Sanjeev was not disputed but he could not identify Himanshu.
133. During cross-examination PW9 stated that the accused persons namely Vijay (PO), Sanjeev and Himanshu were apprehended at about 3 p.m. in the afternoon. Thereafter, the aforesaid persons were arrested late in the evening around 8 p.m. No public witness was joined while arresting the aforesaid accused persons. The personal search of the accused was conducted around the same time. He admitted that no public witness was joined while carrying out the personal search of the accused persons. He denied the suggestion that the accused persons were belatedly picked up in a pre- designed manner at the instance of his senior officers who were acting at the behest of the then local MLA of Model Town Shri Kanwar Karan Singh with a view to falsely implicate them. He stated that no white caps of Aam Aadmi Party were recovered from the said accused persons. He denied the suggestion that since no incriminating material or no nexus could be even remotely established with the accused persons, the public persons were deliberately kept at arms' length. As such according to PW9 there was a gap of almost five hours between the alleged apprehension of the accused persons and their arrest and no public persons were joined while arresting the accused persons or conducting their personal search. Further no caps of Aam Aadmi Party were State Vs. Akhilesh Pati Tripathi & Ors. 111/175 recovered from the said accused persons which meant that they were not of the group of Aam Aadmi Party.
134. During further cross-examination PW9 stated that on reaching the spot while coming across around 250-300 people demonstrating therein, he could not identify as to how many of them were bystanders, onlookers, or the relatives of the deceased whose body was kept on the road. He stated that no video was shown to him by the investigating officer to identify the accused persons though that would have been the best material available from which to identify the accused persons. He did not know the distance of Aap Aadmi Party office from the said spot. He denied the suggestion that he was deliberately feigning ignorance to the said fact with a view to cover up his false narratives. He denied the suggestion that the accused Akhilesh Pati Tripathi was belatedly as an after-thought under extreme political pressure, picked up from his office with a view to falsely implicate him or that he had identified accused Akhilesh Pati Tripathi in the court as he was a serving MLA and a public figure. He denied the suggestion that the accused persons were never involved in any sloganeering or causing any violence whatsoever or that some random bystanders, onlookers were also picked up by the investigating officer to foist a false case against the accused persons or that the IO in complete patronage provided by the other SHOs including him let the real culprits off the hook for the said reasons. As such PW9 denied the suggestions put to him but he could identify only A1 in the court and the identity of State Vs. Akhilesh Pati Tripathi & Ors. 112/175 accused Sanjeev was not disputed.
135. PW10 had stated about the incident but he had neither stated specifically about the presence of any of the accused persons nor referred to any overt act by any one of them nor identified any of the accused persons in the court and had only stated about the presence of 200-250 persons and 30 to 40 persons of Aam Aadmi Party wearing AAP caps coming there. During cross-examination PW10 could not tell who were the relations of the deceased or their number and the number of shopkeepers of adjoining shops and onlookers. He stated that no one was apprehended or arrested in his presence. There was an AAP office near the place of incident and there were other shops also. He denied the suggestion that the forty/ fifty persons who were said to be wearing AAP caps were not involved in stone pelting or damage to the government vehicles or that all the accused had been falsely implicated for political vendetta. Thus PW10 had denied the suggestion about the accused persons being falsely implicated but he had stated about an AAP office being there near the place of incident.
136. PW11 had stated about the incident but he had neither stated specifically about the presence of any of the accused persons nor referred to any overt act by any one of them nor identified any of the accused persons in the court and had only stated about the presence of 200-250 persons and 40 to 50 persons wearing the caps of Aam Aadmi Party who were holding sticks in State Vs. Akhilesh Pati Tripathi & Ors. 113/175 their hands becoming aggressive and pelting stones upon police officials. During cross-examination PW11 could not tell as to who were the relatives, onlookers or bystanders amongst the crowd of 200-250 people. He stated that the mob had gathered at the spot with the dead body as they were protesting to get justice for the deceased. Some of the persons who were sitting next to the dead body may be the relations and others were members of general public. Thus he had stated about the presence of both the relations of the deceased and of the members of general public. PW11 stated that the persons were apprehended before he left for PS Model Town with the Tehrir/ complaint. It may be around 3.30 to 4 p.m. He did not know anything about the arrest of the apprehended persons. No papers were prepared in his presence. He stated that the agitators were sought to be pacified by assuring them that justice would be meted out to them. He denied the suggestion that the accused persons were never involved in any sloganeering or causing any violence whatsoever and they were illegally picked up from the office of AAP situated about 50 meters from the place of occurrence with a view to falsely implicate them or that the sloganeering and its natural outcome was only carried out by the relatives and other known persons of the deceased which was incentivised by the local MLA to implicate the accused persons. As such he had denied the suggestions put to him about the accused persons not having role in the incident but he had also not stated about the arrest or presence of any of the accused persons specifically at the spot.
State Vs. Akhilesh Pati Tripathi & Ors. 114/175
137. PW12 had stated about the incident but he had neither stated specifically about the presence of any of the accused persons nor referred to any overt act by any one of them nor identified any of the accused persons in the court and had only stated about the presence of 200-250 persons and 40 to 50 persons wearing caps of Aam Aadmi Party coming there. During cross- examination PW12 stated that no one was apprehended or arrested in his presence. PW12 stated that he would not be able to identify the persons who were gathered at the spot and could not say how many of them were the relations of the deceased or shopkeepers of nearby shops or onlookers. He denied the suggestion that the forty/ fifty persons who were said to be wearing AAP caps were not involved in stone pelting or damage to the government vehicles. He denied the suggestion that all the accused had been falsely implicated for political vendetta. As such PW12 had stated that he would not be able to identify the persons who were gathered at the spot.
138. PW13 had stated about the incident but he had neither stated specifically about the presence of any of the accused persons nor referred to any overt act by any one of them nor identified any of the accused persons in the court and had only stated about the presence of 200-250 persons and 40 to 50 persons wearing caps of Aam Aadmi Party coming there. During cross- examination PW13 stated that a large crowd was gathered there and it was difficult to tell how many of them were the relatives of the deceased, onlookers or bystanders. He denied the suggestion that sloganeering and State Vs. Akhilesh Pati Tripathi & Ors. 115/175 thereafter its natural outcome ensued only on account of the relatives and the other known acquaintances of the deceased in the face of inept investigation carried out by the police agencies or none of the members of Aam Admi Party were either present at the spot, raised any slogans or caused any violence or carried dandas or lathis in their hands. As such PW13 had also not identified any of the accused persons.
139. PW14 had stated about the incident but he had neither stated specifically about the presence of any of the accused persons nor referred to any overt act by any one of them nor identified any of the accused persons in the court and had only stated about the presence of 200-250 persons and 40 to 50 persons wearing caps of Aam Aadmi Party coming there. During cross- examination PW14 stated that the crowd was getting agitated but he did not know about the relatives of the deceased. A crowd of 200 or so was sitting in the middle of the road surrounding the dead body. He did not know how many of them were the relations of the deceased. PW14 could not thus tell how many of the persons present were the relations of the deceased but that would not have been possible to tell when such a large number of persons were present. Apart from that similar suggestions were put to him as to PW13 which he denied. However, even PW14 had failed to identify any of the accused persons.
140. PW15 had stated about the incident but she had neither stated State Vs. Akhilesh Pati Tripathi & Ors. 116/175 specifically about the presence of any of the accused persons nor referred to any overt act by any one of them nor identified any of the accused persons in the court and had only stated about the presence of 200-250 persons and 40 to 50 persons wearing caps of Aam Aadmi Party reaching there. She stated that she could not identify the persons who were part of the crowd on the said date. During cross-examination PW15 could not tell how many of the persons of the crowd were relations or mere on-lookers or by standers. Similar suggestions were put to her as to PW13 and PW14 which she denied. However, even PW15 had failed to identify any of the accused persons and had categorically stated that she could not identify the persons who were part of the crowd on the said date.
141. PW16 had stated about the incident but she had neither stated specifically about the presence of any of the accused persons nor referred to any overt act by any one of them nor identified any of the accused persons in the court and had only stated about the presence of 250-300 persons and 40 to 50 persons wearing caps of Aam Aadmi Party reaching there. She stated that she could not identify the person who had hit her with stick due to passage of time and she was not able to identify amongst the accused present in the Court who had hit her with the stick. During cross-examination PW16 stated that a large crowd was gathered there and it was difficult to tell how many of them were the relatives of the deceased, onlookers or bystanders. Similar suggestions were put to her as to PW13, PW14 and PW15 which she denied.
State Vs. Akhilesh Pati Tripathi & Ors. 117/175 However, even PW16 had failed to identify any of the accused persons.
142. PW18 had deposed about the presence of 200 to 250 people at the spot who were joined by about 40 to 50 public persons being led by Shri Akhileshpati Tripathi who were raising slogans against Delhi police and were carrying lathi/danda in their hands and thereafter started pelting stones on police staff. He stated that at that time, Shri Akhileshpati Tripathi was leading the crowd. They apprehended three persons namely Radhey Shyam, Rahul and Mithilesh who were handed over to Inspector Ashok Kumar. He could identify only Shri Akhileshpati Tripathi who was leading the crowd on that day but due to passage of time i.e. nearly six years he may not be in a position to identify the three accused apprehended by him named in his examination-in-chief. The learned Additional PP for the State pointed out the three accused for the purposes of identification by the witness but he identified only A11 Mithilesh and expressed his inability to identify A9 Radhey Shyam and A10 Rahul. As such PW18 could not identify even the accused persons who were apprehended by him and identified A11 only on the pointing out by the Ld. Addl. PP.
143. During cross-examination PW18 stated that the three persons were apprehended approximately at the same time when the dead body was being removed from the road. He could not tell about the apprehension of other accused. PW18 stated that Shri Akhileshpati Tripathi was apprehended in his State Vs. Akhilesh Pati Tripathi & Ors. 118/175 presence and volunteered he was cordoned. He had seen his statement where he had not stated about the apprehension of Shri Akhileshpati Tripathi. He had no idea whether the Aam Aadmi Party had office near the place of incident or its distance therefrom. He did not remember the DD arrival entry in the PS and volunteered that the same would be evident from PS records. It was not mentioned perhaps in the DD arrival entry that 40 to 50 Aam Aadmi Party workers had also reached the spot led by Shri Akhileshpati Tripathi and volunteered that the same was not mentioned as the matter pertained to jurisdiction of other PS. He admitted that in the DD entry of his arrival at about 11 p.m. on the said date, he had mentioned that a crowd of 200 to 250 people had raised slogans whereafter the said crowd hurled stones and lathis during the course of ruckus created by them. However, there was no mention of the accused persons or Aam Aadmi workers. PW18 admitted that he had met Shri Akhileshpati Tripathi on numerous occasions with regard to official work and that he also knew him personally on account of personal acquaintance with him. He denied the suggestion that he had identified Shri Akhileshpati Tripathi only on account of his past acquaintance with him and not because he was one of the accused persons present at the spot on 09.09.2013. As such in his statement PW18 had not stated about the apprehension of A1 though during cross-examination PW18 had stated that A1 was apprehended in his presence. Further he had admitted having past acquaintance with A1.
State Vs. Akhilesh Pati Tripathi & Ors. 119/175
144. PW18 was also shown the video clips and in the recording the presence of Shri Akhileshpati Tripathi or Mithilesh was not seen. Thus even in the clips which were shown to him A1 or A11 could not be seen. In clip No.2 he identified his presence as well as the presence of SHO PS Keshav Puram, Inspector Ram Niwas and Addl. DCP-II. He could not identify from the crowd as to how many of them were the relatives, by-standers, onlookers. He did not see the presence of Shri Akhileshpati Tripathi or Mithilesh in the said video. He could not say whether the persons in the crowd were apprehended by the police. In clip No.5 he saw the presence of SHO PS Bharat Nagar, Keshav Puram and other police officials. In the said clip, he had not seen the presence of Shri Akhileshpati Tripathi and Mithilesh. He denied the suggestion that the accused persons were arrested belatedly under political pressure or that accused persons were not carrying lathis/ dandas with them and neither any accused raised any slogans nor hurled any stones or that belatedly some random public persons, onlookers were unwarrantedly arrested with a view to foist a false case or that on the date of the alleged incident, the accused Akhilesh Tripathi was wrongly picked up from his office belatedly as he was not present at the spot or that the same was done after the arrival of local MLA of Congress Kanwar Karan Singh as he was acting on the behest of erstwhile political dispensation. He denied the suggestion that he had failed to identify the accused persons as they were not present at that time. Thus even in the video clips the presence of A1 and A11 was not seen. It is pertinent that PW18 State Vs. Akhilesh Pati Tripathi & Ors. 120/175 had identified A11 only on the pointing out of the Ld. Addl. PP and he had past acquaintance with A1 and he had not been able to identify any of the other accused persons.
145. PW19 had stated about the incident but he had neither stated specifically about the presence of any of the accused persons nor referred to any overt act by any one of them nor identified any of the accused persons in the court and had only stated about the presence of 200-250 public persons and 40 to 50 public persons wearing white caps reaching there. He stated that he could not identify the 40/50 persons who pelted stones on the police personnel due to long span of time. During cross-examination PW19 stated that he could not tell how many persons were the relations of the deceased out of 200/250 persons who had gathered at the spot. He could not make any difference between the protesters or the bystanders amongst the 200/250 public persons. The senior officers were telling 200/250 protesters not to block the traffic. Similar suggestions were put to him as to PW13, PW14, PW15 and PW16 which he denied. However, PW19 had failed to identify any of the accused persons.
146. PW20 had also stated about the incident but he had neither stated specifically about the presence of any of the accused persons nor referred to any overt act by any one of them nor identified any of the accused persons in the court and had only stated about the presence of many public persons and State Vs. Akhilesh Pati Tripathi & Ors. 121/175 40 to 50 public persons wearing the cap of AAP reaching there. During cross- examination PW20 stated that it was difficult to tell how many of the said demonstrators were family members of the deceased or bystanders/ onlookers. He denied the suggestion that he was deliberately at the instance of his senior police officers falsely mentioning AAP or that none of the members of AAP arrived at the spot or were present carrying out any sloganeering or causing any violence whatsoever. He denied the suggestion that he had sustained injuries only on account of the outcome of the protest carried out by the relatives of the deceased person. However, PW20 had not identified any of the accused persons.
147. PW21 had deposed about the arrest of accused Geeta and she identified the accused Geeta. (There was a Court Observation that there was only one lady accused in the court and she had been identified by the witness as Geeta). It may be mentioned that the said witness had not supported the case of prosecution other than stating about arrest of accused Geeta and identifying her and during cross-examination by the Ld. Addl. PP for State PW21 could not tell as to whether the members of AAP were also present there. She was confronted with her statement Ex.PW21/C wherein she had stated 'the member of AAP were present at the spot'. She could not say as to whether the members of AAP were instigating the public persons at the spot. She was confronted with her statement Ex.PW21/C wherein she had stated 'the member of AAP were instigating the public persons'. She denied the State Vs. Akhilesh Pati Tripathi & Ors. 122/175 suggestion that the members of AAP were present at the spot or that they were instigating the public persons at the spot. As such she had denied that members of AAP were present at the spot. During cross-examination PW21 stated that the accused Ms. Geeta was arrested in the evening hours. She could not tell the time of her arrest. There were several women protesters but she could not tell their numbers. In her presence, no other woman protester except Geeta was arrested by the police. She denied the suggestion that the accused Geeta was never present at the spot, she was illegally picked up belatedly at the instance of her senior officers or that she was identifying her only to suit the false narrative of her senior or that given that there was only one female accused in the court, she had randomly named her. However, PW21 had identified Geeta in court.
148. PW25 who is the IO had stated about 200-250 public persons having gathered at the spot and further that about 40/50 public persons led by A1 Akhilesh Pati Tripathi also reached the spot. The said 40/50 persons were carrying sticks (lathi and danda) in their hands. As soon as they reached the spot, they started sloganeering. He stated that they started apprehending the persons who were involved in pelting the stones and beating the police personnel. He along with the staff apprehended Akash Verma, Suraj and Malik Mohd. Insp. Ram Avtar/SHO PS Model Town apprehended A1 Akhileshpati Tripathi and Sachin. Insp. Ram Niwas/SHO PS Keshav Puram apprehended accused Lal Babu, Hari Chand and Sachin Gupta. Insp. Praveen/SHO PS State Vs. Akhilesh Pati Tripathi & Ors. 123/175 Adarsh Nagar apprehended Radhey Shyam, Rahul and Mithilesh. Insp. R.S. Meena/SHO PS Mukherjee Nagar apprehended Vijay, Sanjiv and Himanshu Jain. Insp. Rajender Prasad/SHO PS Bharat Nagar apprehended Naresh, Salman and Ramandeep. W/HC Rajwati apprehended Geeta. He also stated that the accused persons were arrested and their personal searches were conducted. He stated that on 11.9.2013, Shri Rishikesh Kumar, Advocate had handed over to him one CD of the incident dated 09.9.2013 which was seized by him vide seizure memo Ex.PW24/A. He had played the said CD which was containing the videography of the incident. He stated that it was handed over to him for identification of the persons who were involved in the incident. However, the identity of the persons other than the accused who were arrested could not be established from the said CD. The said CD is Ex.PW25/Z2. He also stated that during investigation he tried to trace other accused persons who could not be traced. He identified the accused Akhileshpati Tripathi, Naresh, Prem Pal and Ms. Geeta. When asked to identify accused Himanshu, he identified accused Lal Babu as Himanshu. He stated that he could not identify the other accused by their name as the matter was six years old but the accused present in the court were the same who were arrested by him and other police officers. Thus PW25 who was the IO had wrongly identified Lal Babu as Himanshu. It is pertinent that he had stated about apprehending Akash Verma, Suraj and Malik Mohd. but he did not identify the said persons. He had identified A1, Naresh Prem Pal and Geeta.
State Vs. Akhilesh Pati Tripathi & Ors. 124/175
149. During cross-examination PW25 stated that amongst the 200-250 public persons gathered at the spot, he could not identify as to how many of them were relatives, bystanders or mere onlookers but that would not be possible. PW25 stated that no public person was joined at the time of preparation of arrest memos and personal search memos. He stated that the accused persons were taken to the police station after 8 p.m. PW25 could not tell at what time Ramandeep (the accused who was discharged by the court) was arrested. He had informed the family members of the accused persons who were arrested at the time of preparing the arrest memos. He could not tell how much time was taken in preparing the arrest memos of the accused persons. The mobile phones, if any, recovered during the personal search of the accused were mentioned in the personal search memos. He did not obtain the call record details of the mobile phones recovered from the accused in the personal search nor he obtained the CDR location. He did not remember the exact time when the accused persons were apprehended but it was before 3/3.15 p.m. Thus PW25 had stated about the apprehension of the accused persons before 3/3.15 p.m. whereas the arrest was around 8.00 p.m. Further he did not obtain the CDR location of the mobile phones of the accused persons. It was argued on behalf of the accused persons that the same would have shown where the accused persons were present and at what time and there is no reason forthcoming why the same was not collected.
150. It is significant that during further cross-examination PW25 stated State Vs. Akhilesh Pati Tripathi & Ors. 125/175 that the persons who were throwing stones and wielding danda who were being controlled by Inspector Rajender Prasad and other police officials and seen in the memory card could not be arrested for want of their identification. As such according to him the persons who were throwing stones and wielding danda were not arrested in the present case. He denied the suggestion that they made the accused persons as the scape goats at the instance of his senior police officials or that upon the aforesaid instructions, they deliberately, let the real culprits off the hook. He denied the suggestion that the real culprits who were acting at the instance of Congress MLA were never interrogated since he conducted a biased and unfair investigation with a pre-meditated mind set affected under the pressure of his senior officials. Though PW25 denied the suggestion that the real culprits had been let off the hook, he had himself stated that the persons throwing stones and wielding danda could not be arrested. As regards the identification of A1 PW25 denied the suggestion that he identified Akhilesh Tripathi as he is a public figure known across the board. PW25 denied the suggestion that none of the accused persons indulged in any sloganeering or used any force or violence or that belatedly and isolatedly some random public persons or some onlookers and passer-byers were arrested to falsely implicate the accused persons but he had also stated that the persons throwing stones could not be arrested for want of identification.
151. During cross-examination by the Ld. Counsel for the accused 2 and 3 PW25 denied the suggestion that A2 and A3 were just passers-by and State Vs. Akhilesh Pati Tripathi & Ors. 126/175 were not involved in any manner in the present case or that they were not associated or connected either with the relatives of the deceased or Aam Aadmi Party. He stated that he did not conduct any investigation to establish that A2 and A3 were members of Aam Aadmi Party. He denied the suggestion that A2 and A3 were arrested randomly after the incident to falsely implicate in the present case. He admitted that in the personal search of A2 and A3, no cap of Aam Aadmi Party was recovered. As such it is seen that there is nothing on record to establish that A2 and A3 were members of Aam Aadmi Party as no investigation was conducted by the IO in the said regard and there is also nothing to show that they were the relatives of the deceased. During cross- examination by Ld. Counsel for accused No.19 and 20 PW25 denied the suggestion that he had identified the accused Prem Pal because he was the husband of the deceased. It may be mentioned that Prem Pal was not arrested at the spot and was charge-sheeted without arrest.
152. PW30 had also stated about the incident but he had neither stated specifically about the presence of any of the accused persons nor referred to any overt act by any one of them nor identified any of the accused persons in the court except A1 and had only stated about the presence of around 200-250 people and 40 to 50 public persons who were present there were wearing caps of Aam Aadmi Party. He stated that A1 was leading the mob and he identified him. During cross-examination PW30 could not tell how many relatives of the deceased were present at the spot as it was a huge crowd. He also could not State Vs. Akhilesh Pati Tripathi & Ors. 127/175 tell how many of them were simply by-standers in the crowd for the said reason. He denied the suggestion that none of the accused persons or members of AAP including A1 Akhileshpati Tripathi was present at the spot or that the members of the AAP were picked up belatedly along with random on-lookers and by-standers at the instance of senior police officials who were acting at the behest of the then political dispensation. However, PW30 had not identified any of the accused persons except A1.
153. PW31 deposed that 200-250 persons including ladies were present at the spot. In the meantime, Akhileshpati Tripathi (A1) came along with 40/50 persons at the spot. They were having lathis and dandas in their hands. They started shouting slogans. He stated that he apprehended the accused Akhileshpati Tripathi and Sachin. He identified the accused Akhileshpathi Tripathi but he could not identify the accused Sachin. On the accused Sachin being asked to stand up, he stated that he might be the same person who was apprehended by him but he was not very sure. As such PW31 had identified only A1 but he could not identify the accused Sachin though he had apprehended him and even when Sachin was asked to stand up, he was still not sure if he was the same person.
154. During cross-examination PW31 could not tell as to from amongst the 200 to 250 people gathered at Tripoliya Gate how many of them were relatives of the deceased, by-standers or mere on-lookers. PW31 stated that State Vs. Akhilesh Pati Tripathi & Ors. 128/175 they had apprehended the accused A1 Akhileshpati Tripathi as well as Sachin S/o Shri Krishan Dutt Sharma simultaneously at 2.30 p.m. The arrest memo of the said accused persons was prepared at the spot at about 5 p.m. It took about 15 minutes to prepare the same. He admitted that no public person was joined at the time of preparation of the said memos. PW31 admitted that even while preparing the search memos, no public person was asked to join. He stated that the search memos of the accused persons were prepared at about 6 p.m. The accused persons were taken to the police station by the IO at about 6.30 to 7 p.m.
155. PW31 stated that the office of Aam Aadmi Party was located at around 300 meters from Tripoliya Gate. Again said, it was the office of A1 Akhileshpati Tripathi. He denied the suggestion that none of the members of Aam Aadmi Party or A1 Akhileshpati Tripathi was present at the spot or that they were belatedly picked up from the Aam Aadmi Party office along with random on-lookers and by-standers at the instance of the then political dispensation. Thus PW31 had admitted that the office of Aam Aadmi Party was located around 300 meters from Tripoliya Gate. He denied the suggestion that none of the accused persons or the members of Aam Aadmi Party carried out any sloganeering or caused any violence or that the said incident ensued in the face of the relatives and the known acquaintances of the deceased person setting out protests in the face of inept and inefficient investigation by PS Model Town or that the entire records including search, seizure and arrest State Vs. Akhilesh Pati Tripathi & Ors. 129/175 memos were prepared belatedly at the PS at the instance of senior police officials for vested political designs. PW31 stated that he did not remember as to whether the mobile phones of the accused persons were seized but as noted above the IO himself had stated that he had not obtained the call details record or the CDR location of the mobiles of the accused persons. PW31 stated that he had not joined any Test Identification Parade of any accused. He denied the suggestion that on the date of the alleged incident, A1 Akhileshpati Tripathi was wrongly picked up from his office belatedly along with some members of Aam Aadmi Party. Similar suggestions were put to him as put to other witnesses which he denied.
156. During cross-examination by Ld. Counsel for accused No.2, 3, 19 and 20 PW31 denied the suggestion that some passersby/ bystanders had also been arrested in the case who had no connection with the protest or that the allegations against the accused persons were false. However, it is seen that A16 Ramandeep had been discharged on the ground that he had come at the spot later on. PW31 denied the suggestion that the accused Akash and Malik Mohd. Fahad were not protesting and were arrested simply because they were bystanders. During cross-examination by the Ld. Counsel for A-2 and A-3 PW33 stated that no list of absconders was provided to him. He identified the absconders on the basis of the footage of the incident contained in the pen drive which was part of the police file. Apart from the accused already arrested, he could not apprehend the persons who were shown in the footage State Vs. Akhilesh Pati Tripathi & Ors. 130/175 of the incident. Thus PW33 had stated that apart from the accused already arrested, the persons shown in the footage of the incident could not be apprehended. Further PW33 stated that the accused present in the court were also seen in the CD of the incident. He did not know the accused persons by name but they were visible in the footage. He denied the suggestion that the accused in the present case did not indulge in stone pelting. The CD Ex.PW7/DB was played. Clipping No.2U00010 was played and he stated that none of the accused present in the court was visible in the said clipping of the CD. Clipping No.M2U0005 was played and he did not identify any of the persons visible in the said clipping of the CD. Clipping No.M2U00010 was played and he stated that none of the accused persons was visible in the said clipping of the CD. As such PW33 had stated that the accused present in the court were seen in the CD of the incident but when the CD was played he stated none of the accused present in the court were visible in the clippings.
157. It is thus seen that A2 Akash Verma, A3 Malik Mohd. Fahad, A4 Suraj, A5 Sachin Sharma, A6 Lal Babu, A8 Sachin Gupta, A9 Radhey Shyam, A10 Rahul Kumar, A13 Sanjeev, A14 Himanshu, A17 Salman and A20 Kamal had not been identified by any of the witnesses. The Ld. Counsel for A2 and A3 had argued that no specific role had been attributed to A2 and A3 and there was no specific evidence against them and there is merit in the said contention as also that none of the witnesses identified them. PW6 had not identified A8 Sachin Gupta by name but merely stated that he was present at the spot, as State Vs. Akhilesh Pati Tripathi & Ors. 131/175 such the said identification cannot be regarded as conclusive proof of the presence of Sachin Gupta amongst the protesters more so as none of the other witnesses had identified him. PW9 could not identify A9 and A10 nor any other witness identified them. Identity of A13 Sanjeev was not disputed during the testimony of PW9 but it is also significant that none of the other witnesses including the IO could identify A13. PW9 could not identify A14 and PW25 wrongly identified him. Initially identity of A17 was not disputed during the testimony of PW5 but thereafter he had wrongly identified A5 as A17 Salman. PW34 had identified A20 Kamal but PW34 was the IO of the case pertaining to murder of Kamlesh and had not witnessed the incident in the present case. PW25 had identified A6 Lal Babu as Himanshu. PW31 was not sure if A5 Sachin was the same person who was apprehended. As such it is seen that the said accused persons have not been identified by any of the prosecution witnesses and in fact a number of prosecution witnesses, some of whom were also injured in the incident had not identified any of the accused persons.
158. PW18 had identified A11 Mithlesh only on the pointing out of the Ld. Addl. PP and as such the said identification cannot be regarded as sufficient to establish the presence of A11 as member of the unlawful assembly, more so as none of the other witnesses have identified him. It would be argued on behalf of the prosecution that the accused persons could not be identified due to lapse of considerable time. However, at least some witnesses out of the many who were examined could have identified the accused persons State Vs. Akhilesh Pati Tripathi & Ors. 132/175 but that was not so. Even they were not visible in the video clips relied upon by the prosecution as stated by the witnesses.
159. It may be mentioned that all the said accused persons had given their own explanation for their presence at the spot and apprehension from the spot while A4, A10 and A11 had stated that they were never present at the alleged place of occurrence or the alleged spot and they were illegally picked up belatedly from the office of Aam Aadmi Party situated merely 100 metres away from Tripoliya Gate along with some other AAP workers. At the same time, there was not a whisper in the evidence of any of the prosecution witnesses which could show that the said accused persons shared any common object with the unlawful assembly. It was neither shown that they were relatives of the deceased nor that they were in any other way connected with the deceased which would give them any reason to be part of the protest and the unlawful assembly. It was not even shown that they were part of the group of persons who were wearing caps of Aam Aadmi Party and it is A4, A10 and A11 who themselves had stated about being picked up from the office of Aam Aadmi Party but the prosecution witnesses had neither identified them nor deposed about any one of them being part of the group which was allegedly led by A1 nor they were identified from the video clips on which reliance was placed by the prosecution.
160. A17 had even led his evidence in defence and deposed that on State Vs. Akhilesh Pati Tripathi & Ors. 133/175 09.09.2013, he had gone to deposit money in the account of his brother Shah Nawaz at Punjab National Bank, about 100200 metres from Tripoliya gate. Around 3 to 4 p.m. he came out of the bank and some police officials apprehended him. He stated that he lost the slip by which he had deposited the amount in the bank when he was taken to PS but he had brought the bank statement of his brother which showed that the amount was deposited in his account on the said date. Copy of the passbook is Ex.DW1/A.
161. During crossexamination by Ld. Additional PP for State DW1 stated that he had deposited Rs.4000/ in the account of his brother. He had deposited the money of his own. He stated that he used to keep depositing money in the account of his brother and he had not told him (me) to deposit the amount. He denied the suggestion that he had not gone to deposit the amount in the account of his brother as stated by him and the amount as reflected in the passbook had been deposited by someone else or that for the said reason, he was not able to produce the deposit slip on that day which would show that he had not deposited the amount or that he had stated falsely that he had lost the deposit slip when he was taken to the PS. He denied the suggestion that he had stated falsely that the police had apprehended him when he had come out of the bank. He stated that he had stated to the police officials that he had come only to deposit the amount in the account of his brother and volunteered they did not pay heed to the same. He denied the State Vs. Akhilesh Pati Tripathi & Ors. 134/175 suggestion that he had stated falsely about informing the police officials about the same. He did not remember if it was mentioned in the bail application or submitted at the time of bail that he had gone to deposit money in the account of his brother. He was shown the bail application which was filed on his behalf and he could not say if it was stated therein that he had gone to purchase articles and volunteered he could not say what his family members had got written in the bail application. The bail application is Ex.DW1/P1. He denied the suggestion that he had concocted a false story about depositing the money in the bank account of his brother. He denied the suggestion that on 09.09.2013, he was a member of unlawful assembly having sticks and rods in their hands, led by Akhileshpati Tripathi and as per plan of the unlawful assembly the mob started pelting stones on the police officials and vehicles present at the spot i.e. near Tripoliya Gate as a result of which twelve police officials suffered injury and police vehicles, hearse van and other vehicles were damaged or that in furtherance of common object, road was blocked and police officials were compelled to omit to do what they were legally bound to do and obstructed them from discharging their official duty.
162. It is thus seen that DW1 had failed to produce the deposit slip by which he had allegedly deposited the money in the account of his brother. He had denied the suggestions that were put to him by the Ld. Addl. PP for State regarding his role in the incident but even the prosecution has not brought State Vs. Akhilesh Pati Tripathi & Ors. 135/175 anything on record to show how he was connected with the unlawful assembly, besides the fact that he was not identified by any of the witnesses correctly. The other accused persons had not led their evidence in defence but again, all the prosecution witnesses had made only general statements about the incident and there is nothing in the case of the prosecution how the aforesaid accused persons were connected with the unlawful assembly or shared common object with it and merely that they were apprehended from the spot would be of no avail. During cross-examination PW25 did not remember as to when the hearse van arrived at the spot however, it left the spot at about 3/3.15 p.m. He stated that the accused persons were arrested after the hearse van left the spot upon removal of the dead body. He stated that the accused persons were taken to the police station after 8 p.m. The arrest memos also show time from 5.30 p.m. till about 8.45 p.m. of arrest of the accused persons.
163. It was not even stated or established which of the accused persons were part of the group which was wearing white caps of Aam Aadmi Party led by A1 and during cross-examination PW25 admitted that in the personal search of the accused, no cap of Aam Aadmi Party was recovered. He did not conduct the investigation whether the accused persons were members of the Aam Aadmi Party. As discussed above, it has been held in a catena of judgments that the possibility of accused persons being innocent bystanders could not be ruled out. In Subal Ghorai & Ors. (supra) it was held that the State Vs. Akhilesh Pati Tripathi & Ors. 136/175 court must guard against the possibility of convicting mere passive onlookers who did not share the common object of the unlawful assembly. It was further held that the court must have before it some material to form an opinion that the accused shared common object whereas there is none in the instant case. The Ld. Addl. PP for State had argued that the documents on record proved the identity of the accused persons but merely on the basis of arrest memos and personal search memos which are on record, the accused persons cannot be held guilty.
164. A15 Naresh was identified by PW5 and also by the IO PW25 but again the prosecution had not brought anything on record to show how A15 was connected to the unlawful assembly or shared common object with the same. A15 in his statement under Section 313 Cr.P.C. had stated that he was never present at the alleged place of occurrence or the alleged spot and he was illegally picked up belatedly from the office of Aam Aadmi Party situated merely 100 metres away from Tripoliya Gate along with some other AAP workers. However, nothing had come in the evidence of the prosecution witnesses to establish how he shared common object with the unlawful assembly and mere apprehension of A15 from the spot, even if the same is accepted to be true, would not lead to any presumption that he was a member of the unlawful assembly and shared common object with it. It may also be mentioned that A15 was not even identified from any of the video clips which were shown to the witnesses and none of the witnesses had stated that he was State Vs. Akhilesh Pati Tripathi & Ors. 137/175 part of the group which was led by A1 or was part of the crowd.
165. A19 Prem Pal was identified by PW7 as part of the assembly on the date of the incident and by the IO PW25. PW34 who was also the IO of the case and had stated about interrogating A19 had also not identified him and PW34 himself had not stated about the incident. It is significant that even as per the case of the prosecution, he was never arrested which casts doubt on the case of the prosecution that he was present at the spot and it appears that he was charge-sheeted merely as he was the husband of the deceased and complainant in the FIR related to the death of his wife Kamlesh. In fact it is seen that PW7 had identified Prem Pal specifically as the husband of the deceased and Geeta as the mother of the deceased and did not identify any of the other accused persons though he stated that he could identify A1. During cross-examination PW7 stated that the crowd of 200 persons comprised of husband of the deceased namely Shri Prem Pal and mother of the deceased namely Smt. Geeta and other neighbours of the deceased. It is pertinent that Geeta is not the mother of the deceased and though PW7 had stated about the crowd of 200 persons comprising of Prem Pal and Geeta, his identification of Prem Pal as being part of the crowd raises doubts. It may also be mentioned that A19 Prem Pal was not even named in the FIR and if PW7 was aware of his presence at the spot, there is no reason why A19 was not arrested when the other accused persons were arrested. Similarly, if PW25 was aware of the presence of A19 there is no reason why he did not join him in investigation or State Vs. Akhilesh Pati Tripathi & Ors. 138/175 arrest him in the case.
166. During cross-examination PW34 stated that he interrogated the accused Prem Pal and Kamal on 21.12.2015. Investigation of the case was assigned to him on 08.07.2015. He did not recollect if the accused Prem Pal and Kamal were joined in the investigation on any date prior to his taking over the investigation of the case. He admitted that Inspector Jagminder was the IO in FIR No.258/2013 PS Model Town. He recorded the statement of Inspector Jagminder under Section 161 Cr.P.C on 21.12.2015. He joined accused Prem Pal and Kamal in the investigation after recording the statement of Inspector Jagminder. Though PW34 denied the suggestions that he made Prem Pal and Kamal as accused in the case after joining them in investigation only because they were the husband and brother respectively of the deceased Kamlesh or that they were falsely implicated in the case but it is pertinent that PW34 stated that he joined accused Prem Pal and Kamal in the investigation after recording the statement of Inspector Jagminder and there is nothing to show that Prem Pal was joined in the investigation on any day prior to PW34 taking over the investigation. If indeed the name of A19 Prem Pal was known as being part of the unlawful assembly earlier, there was no reason why he would not be joined in investigation. As such there is nothing to establish that A19 Prem Pal was indeed a part of the unlawful assembly.
167. A18 Geeta was identified by PW5, PW7, PW21 and PW25. PW5 State Vs. Akhilesh Pati Tripathi & Ors. 139/175 had stated that a lady present at the spot lifted a heavy stone and threw towards him and he tried to protect himself but he sustained injury in his left toe and got injured. The lady who threw stone upon him was apprehended by lady HC Rajwati at the spot along with other female staff and her name was revealed on interrogation. He identified the apprehended lady as Smt. Geeta wife of Roopram. During cross-examination PW5 stated that Smt. Geeta A18 was apprehended at the spot as stated by him in his examination in chief. He denied the suggestion that the person who had pelted stone at him was not arrested and some other person was wrongly apprehended. Thus PW5 had stated that the lady who had thrown a stone towards him was apprehended by HC Rajwati and also identified her and there is nothing to dispute his said statement. A18 in her statement under Section 313 Cr.P.C. had stated that she was not present at the spot but she has been identified by PW5 and even a specific role has been ascribed to her. PW7 had identified A18 as the mother of the deceased but as per the case of the prosecution itself the mother of the deceased was Somwati A21 who had expired. However, PW7 had stated about her being present as part of the crowd and no suggestion to the contrary was put to him.
168. PW21 had deposed about the arrest of accused Geeta and she identified the accused Geeta. During cross-examination PW21 had stated that in her presence, no other woman protester except Geeta was arrested by the police and it is seen that the only other woman who was charge sheeted in the State Vs. Akhilesh Pati Tripathi & Ors. 140/175 present case was A21 who was never arrested. It may be mentioned that there was a Court Observation that there was only one lady accused in the court and she had been identified by the witness as Geeta. However, it is pertinent that the signatures of PW21 were also there on the arrest memo and personal search memo of A18 Geeta and her identification of A18 cannot be doubted. PW21 had specifically deposed about the arrest of Geeta. In these circumstances it cannot be disputed that Geeta was present at the spot. PW25 had also identified A18 and no specific suggestion was put to him that A18 was not present at the spot. As such it is seen that A18 Geeta has been identified by several witnesses and her presence in the unlawful assembly cannot be disputed and PW5 had also stated about her throwing a stone at him which resulted in injuries to him.
169. It is further seen that A1 was also identified by several witnesses i.e. PW9, PW18, PW25, PW30 and PW31 and during the testimony of PW5 and PW7 his identity was not disputed though PW6 had not identified him. Not only that, most of the witnesses had consistently stated that A1 was leading the group of 40-50 persons who were wearing the white caps worn by members of Aam Aadmi Party and that the said group was raising slogans. It was sought to be contended on behalf of A1 that he had been identified by the witnesses as being an MLA he was a known personality and PW18 had stated State Vs. Akhilesh Pati Tripathi & Ors. 141/175 about having acquaintance with him from before. However, it cannot be lost sight of that most of the witnesses had specifically stated about the presence of A1 at the spot and that he was leading the group of 40-50 persons of the Aam Aadmi Party.
170. A contention was then raised on behalf of A1 that he had been picked up from his office which was barely 100 metres from the spot. During cross-examination PW7 had stated that the distance of place of incident and office of Akhileshpati Tripathi leader of Aam Aadmi Party was approximately 100 metres. PW10 stated that there was an AAP office near the place of incident and there were other shops also. PW30 stated that the office of AAP office was at a distance of less than half kilometer. PW31 stated that the office of Aam Aadmi Party was located at around 300 meters from Tripoliya Gate. Again said, it was the office of A1 Akhileshpati Tripathi. However, the witnesses had denied suggestions to the effect that A1 was picked up belatedly from his office. Even A1 had not led any evidence in support of his contention that he was picked up belatedly from his office in that no witness was examined who could depose to that effect. Further, the office of A1 being near the spot could also lend credence to the version of the witnesses that A1 was present at the spot and even the video clippings show the presence of persons who were wearing white caps worn by members of Aam Aadmi Party. As such there is no merit in this contention.
State Vs. Akhilesh Pati Tripathi & Ors. 142/175
171. It was then argued on behalf of A1 that he had been falsely implicated at the instance of the then political dispensation more particularly the then Congress MLA Kanwar Karan Singh. The witnesses were extensively cross-examined in this regard. PW5 was shown clip No.10 which was of Tripoliya Gate. The learned defence counsel had pointed out towards a person in white shirt but the witness stated that due to brief clip he was not able to identify who the said person was. He could not identify the person in white shirt at 0.54/1.55 stage of the clip. He denied the suggestion that the person shown to him in the clip was the local MLA of Model Town at whose instance and pressure the entire case was foisted on all the accused persons or that he was deliberately not identifying the then local MLA in the entire clip with a view to cover up the false theory of the police. He denied the suggestion that he was deliberately not identifying the senior police officials pacifying the MLA present in the video with a view to shield his department. During cross- examination CD was played and PW6 stated that in clip No.10 his presence was recorded. He did not know who was the MLA of that area at that time. He could not say that the person shown in the clippings was the then local MLA Shri Kanwar Karan Singh. He denied the suggestion that he was deliberately not telling the truth and he was deliberately not identifying the local MLA or at his instance the crowd was being led.
172. During cross-examination PW7 stated that he knew that the local MLA of the area was Kanwar Karan Singh. In his presence, he had not State Vs. Akhilesh Pati Tripathi & Ors. 143/175 reached the place of incident. He did not know whether he came after he had left the place of incident. The clipping M2U00010.MPG was played and it was of Tripoliya Gate. He identified the then local MLA Shri Kanwar Karan Singh. PW7 denied the suggestion that the entire case was foisted at the instance of the then political dispensation in collusion with the local Congress MLA of Model Town Shri Kanwar Karan Singh or that the accused Akhilespati Tripathi was never present at the place of incident. Though PW7 had denied the various suggestions put to him, he had identified the then local MLA Shri Kanwar Karan Singh in the video clipping.
173. During cross-examination PW9 did not remember as to when the then MLA of Model Town Kanwar Karan Singh arrived at the spot and volunteered he did not know if Kanwar Karan Singh was the MLA. He had heard his name but he could not identify him. PW11 stated that in Clip No.M2U00010, SI Sudhir Kumar's presence was recorded. He also identified ASI Joginder. He did not identify any other person or police official in the said clip. He denied the suggestion that he was deliberately not identifying the local MLA and the senior police officials present around the local MLA with a view to toe the line of his senior officials. He did not know anything about the CD as the same was not prepared by him and he could not say that an out of context recording was shown on the CD to falsely implicate the accused. As such PW11 had not identified the MLA in the video clipping. PW14 stated that he did not know the name of the local MLA of the area at that time. The State Vs. Akhilesh Pati Tripathi & Ors. 144/175 sitting MLA had come to the spot so long as he was there. He denied the suggestion that the local MLA Kanwar Karan Singh came at the spot during his presence or that he was deliberately concealing the said fact. The CD Ex.PW7/DB was played and in clip No.10 PW18 identified the presence of Kanwar Karan Singh, the then MLA of Model Town. He stated that the said recording was near Tripoliya Gate. As such PW18 had also identified the presence of the MLA in the video clipping.
174. During cross-examination PW25 stated that he did not know if Shri Kanwar Karan Singh, MLA had also come to the spot. He denied the suggestion that he was deliberately concealing the truth with a view to draw a veil on the false narratives of his seniors. Memory card Ex.PW31/BX1 was played and he identified Shri Kanwar Karan Singh, the then MLA in the memory card which was played in the court. He stated that he did not record the statement of Shri Kanwar Karan Singh as well as the people around him. PW31 stated that the MLA Kanwar Karan Singh came at the spot at about 7 p.m. He could not tell whether the IO recorded the statement of the persons who came along with the said MLA and thronged the place. He could not tell with certainty about the number of people who came along with the said MLA and thronged the place. Though he had not joined investigation with the IO after the date of incident but being the SHO of the PS the matter was discussed by the MLA with him. He stated that at the time when the MLA Kanwar Karan Singh came at the spot, he along with the ACP and other staff State Vs. Akhilesh Pati Tripathi & Ors. 145/175 members were present. As such PW31 had also stated about the presence of the local MLA at the spot.
175. PW33 did not recollect who was the local MLA in the year 2013. He did not recollect who was the Member of Parliament at that time. He could not say whether the local MLA of the area of 2013 was visible in the CD of the footage of the incident as he did not know who was the MLA. Again said, he had seen the then MLA in the footage of the incident. He did not know the name of the then MLA but he knew him by face. He denied the suggestion that the incident had taken place on the instigation of the then MLA of the area whose name was Shri Kanwar Karan Singh or that the entire incident of stone pelting was done at the instance of the then MLA Shri Kanwar Karan Singh or that he did not apprehend the person seen in the footage of the incident along with the then MLA Shri Kanwar Karan Singh under the influence of the then MLA. Clipping No.M2U00010 was played and he admitted that Shri Kanwar Karan Singh, the then MLA was visible in the said clipping of the CD. He admitted that he was MLA of Congress Party. He admitted that neither Kanwar Karan Singh nor the persons accompanying him were apprehended in the case and volunteered at the instance of the Beat Constable, he had tried to apprehend only those persons who were indulging in rioting. He stated that he did not make any inquiry from Shri Kanwar Karan Singh. He admitted that the said MLA was present at Tripoliya Gate. He did not ask any of his senior officers about the identity of the persons who were accompanying Kanwar State Vs. Akhilesh Pati Tripathi & Ors. 146/175 Karan Singh. As such PW33 had also stated about seeing the local MLA in the clipping.
176. It is pertinent that while the suggestions to the other witnesses were to the effect that the present case had been foisted on the accused persons at the instance of the MLA Kanwar Karan Singh, for the first time suggestions were put to PW33 that the incident had taken place on the instigation of Shri Kanwar Karan Singh or that the entire incident of stone pelting was done at the instance of the then MLA Shri Kanwar Karan Singh which he denied, other than the suggestion put to PW6 that at the instance of the local MLA, the crowd was being led. It may be mentioned that no inquiry was made from Shri Kanwar Karan Singh in the present case but at the same time, other than mere suggestions to the witnesses, there is nothing to show that the incident happened at the instance of Shri Kanwar Karan Singh or that A1 was implicated at the instance of Shri Kanwar Karan Singh. Moreover almost all the witnesses had consistently stated about the presence of A1 at the spot and that he was leading the group of 40/50 persons wearing white caps of Aam Aadmi Party and who were shouting slogans. As such nothing much turns on this contention raised on behalf of A1. Moreover, even if it is assumed that Shri Kanwar Karan Singh had involvement in the incident or had not been made an accused deliberately, it would not absolve A1 if his culpability is otherwise established.
State Vs. Akhilesh Pati Tripathi & Ors. 147/175
177. It was then argued on behalf of the accused persons that there were contradictions in the testimony of the witnesses which went to the root of the case. In particular it was submitted that there were contradictions as to when and where the statements of the witnesses were recorded and it was also submitted that it would not have been possible to record the statements of so many witnesses within the span of a few hours. It may be mentioned that the witnesses were cross-examined on when and where they received the message about the incident, how and when they reached the spot, who all were present at the spot, whether efforts were made to pacify the crowd, about making arrival and departure entries but nothing much turns on the same. During cross-examination PW3 did not remember if she had earlier made a mention of Aam Aadmi Party in her statement made before the IO. Her statement was recorded which is Ex.PW3/D1. She admitted that in the said statement there was no reference to Aam Aadmi Party. She was also cross-examined on the recording of her statement and she stated that her statement was recorded at PS Model Town in the evening on the date of incident but she could not tell the exact time. The SHO of PS Keshav Puram was not there at that time. However, SHOs of several other PS were present there. Several suggestions were put to her that her statement was recorded as an after-thought manufactured at the instance of senior police officials with a view to falsely implicate the accused persons under political pressure or that none of the accused persons had done any sloganeering or that none of the accused State Vs. Akhilesh Pati Tripathi & Ors. 148/175 persons had caused any violence or any injury whatsoever to anyone which she denied. She stated that the dead body was removed in the hearse van at around 3 p.m.
178. PW4 stated that his statement was recorded at PS Model Town. He had not seen any other police official's statement being recorded in his presence at the PS. He did not remember the time of recording of his statement. He did not know the number of senior officers present at that time. As such both PW3 and PW4 did not remember the time of recording of their statement. PW5 stated that his statement was recorded at PS Model Town. He did not remember the exact number of police officials who were present at that time in the Police station but there were many of them. He stated that after the date of the incident he was not called by the IO to join the investigation. PW6 stated that except for the date of the incident, he was not called for investigation in the case. His statement was recorded in the evening hours after the incident at the spot. The statement of other SHOs was also recorded who were also sitting near him at that time. He remained in the adjoining places of the place of incident as there was apprehension of re- occurrence of similar situation again. PW7 stated that his statement under Section 161 Cr.P.C was recorded after his return from the hospital in the evening at around 9 p.m. at PS Model Town. He could not say when the statements of other witnesses including SHOs of different police stations were recorded by the IO. PW9 stated that he was at the spot till late in the evening State Vs. Akhilesh Pati Tripathi & Ors. 149/175 around 8 to 8.30 p.m. His statement was recorded in PS Model Town. He went along with the IO to PS Model Town. IO recorded the statement of multiple witnesses in his presence, but he did not recollect the names of those witnesses.
179. PW10 stated that his statement was recorded at the spot itself. He did not remember the name of the officer who had recorded his statement. He denied the suggestion that his statement was recorded belatedly and as an afterthought in the PS at the instance of senior police officers. He did not remember whether the official who recorded his statement under Section 161 Cr.P.C. had also recorded about time of his arrival and departure entry from the PS. PW11 stated that his statement was recorded in PS Model Town. He stated that only Inspector Ashok Kumar was present at the PS when his statement under Section 161 Cr.P.C. was recorded. PW12 stated that it may be around 6 p.m. when his statement was recorded. His statement was not recorded by IO Ashok Kumar. He did not remember who had recorded his statement. He had seen him for the first time. PW13 stated that his statement was recorded at the hospital. Inspector Ashok Kumar and other police officials, who were injured were there in the hospital when his statement was recorded. He denied the suggestion that he had given his statement at the instance and tutoring of his senior police officials with a view to falsely implicate the accused.
State Vs. Akhilesh Pati Tripathi & Ors. 150/175
180. During cross-examination PW14 stated that around 7 p.m. he returned to PS Model Town from the hospital. No sloganeering was taking place outside Model Town PS in his presence. He stated that his statement was recorded at the hospital. Besides him, the other injured police officials were also present at that time in the hospital. PW15 stated that probably her statement was recorded in the hospital. She did not know where the statement of other police personnel who had accompanied her to the hospital was recorded. During cross-examination PW16 stated that her statement was recorded at the hospital. She stated that the statement of other police officials who had accompanied her to the hospital was also recorded at the hospital. PW18 stated that his statement was recorded at PS Model Town at around 7 to 8 p.m. in the evening. In his presence, the statement of any other PW was not recorded. He stated that the IO was present at the spot so long as he was there and he did not know for how long he was present there at the spot. During cross-examination PW19 stated that his statement was recorded in PS Model Town. He did not remember the name of the IO who recorded his statement. PW20 stated that his statement was recorded before he went to the hospital for his treatment on one side at the spot itself by the IO. During cross- examination PW21 stated that her statement was recorded by the IO under Section 161 Cr.P.C. at the spot itself.
181. During cross-examination PW30 stated that his statement was recorded at the spot but he did not recollect at what time it was recorded. His State Vs. Akhilesh Pati Tripathi & Ors. 151/175 statement was recorded by the Investigating Officer Insp Ashok Kumar. PW31 stated that his statement was recorded at the PS by the IO at about 11.30 p.m. He denied the suggestion that his statement was recorded belatedly after deliberations and at the instance of senior officials who were acting at the behest of the political dispensation. PW32 had stated that his statement was recorded on the same day at PS Model Town. Thus, some of the witnesses had stated about their statements being recorded at PS Model Town, some stated that their statements were recorded at the hospital and some stated that their statements were recorded at the spot. Similar suggestions were put to all the witnesses about their statements being recorded belatedly at the instance of senior police officers who were acting at the behest of the political dispensation which they denied.
182. The IO PW25 was also extensively cross-examined in this regard and he stated that he recorded the statements of the witnesses from their PS at the PS itself and the statements of other police witnesses were recorded in their respective police stations. He recorded the statement of Ct. Jaishree at PS Keshavpuram. He did not call all the witnesses whose statements were recorded for joining the investigation after the date of the incident. He did not remember when he recorded the statement of the last witness at the police station Model Town on the date of the incident. He went to record the statements of other witnesses at PS Keshavpuram, PS Bharat Nagar and PS Adarsh Nagar through QRT vehicle on the date of the incident. However, he State Vs. Akhilesh Pati Tripathi & Ors. 152/175 could not tell the specific time with regards to the said witnesses. He denied the suggestion that the statement of all the witnesses was recorded belatedly and as an afterthought in PS Model Town at the instance of his senior police officers who were under extreme pressure and acting at the behest of the then political dispensation with a view to falsely implicate the accused persons as well as to tarnish the image of Aam Aadmi Party. He stated that he had mentioned the dates of recording of the statement of every witness under his signature. He had recorded the statement of the injured persons on the same day. He did not remember which police station he had visited first after he left the place of incident. Again said, first he had visited PS Model Town to deposit the case property. Thereafter, he had recorded the statement of the witnesses. It took about 5-7 minutes to deposit the case property in PS Model Town. He did not recollect at what time he visited the police stations thereafter. He stated that he also went to the hospital on the date of incident. It is true that it would be next to impossible for one person to be at the spot till late evening as deposed by some witnesses and go to the hospital and to record statements of some witnesses at his PS and of others at different PS and also complete the necessary paperwork within the span of few hours. However, on that ground the case of the prosecution cannot be thrown out if there is sufficient material on record against the accused persons.
183. It was then contended on behalf of the accused persons that contrary to what was deposed by the witnesses, the persons belonging to the State Vs. Akhilesh Pati Tripathi & Ors. 153/175 group of 40-50 persons who were wearing caps of Aam Aadmi Party were not carrying dandas or sticks. PW5, PW7, PW9, PW10, PW11, PW12, PW13, PW14, PW16, PW18, PW25 and PW31 had stated about the said group carrying bamboo sticks/ lathis/ rods/ dandas while PW15, PW17, PW19, PW20, PW21 and PW30 had not stated so. PW25 and PW31 had also identified 14 dandas which were produced in court as seized from the spot and the same are Ex.PW31/P1 (colly). Bricks, stones and broken pieces of glass were also exhibited as Ex.PW31/P2 (colly) and Ex.PW31/P3 (colly). PW1 had stated that he was posted with the Crime Team and when he reached the spot he observed certain broken pieces of glass and pieces of bricks and stones. There was a broken ice slab also. Two or three government vehicles were also seen by him in damaged condition. His detailed report is Ex.PW1/A. He was extensively cross-examined on behalf of the accused persons but nothing material had come out in the same to doubt his report. During cross- examination PW4 had admitted that he had not told that broken glasses and rods were seen by him at the spot. PW28 had deposed that on 09.09.2013, seizure memo of sticks, stones and glass pieces of the present case was handed over to him by Inspector Ashok Kumar along with the said seized articles as also one sealed pullanda containing Memory Card and CD along with its seizure memo as well as hearse van along with its seizure memo to deposit the same in the Malkhana. During cross-examination PW28 stated that the articles mentioned in the seizure memo were brought to him late in the evening. The State Vs. Akhilesh Pati Tripathi & Ors. 154/175 time was not mentioned in the records available with him. He stated that the said articles were handed over to him in the PS. There were several police officials but he did not remember the same. He stated that he had not sent the articles for forensic examination.
184. PW25 stated that the dandas picked up from the spot were got examined from the Crime Team. No chance prints were taken out. He denied the suggestion that no chance prints were lifted from the dandas as it would have exposed the false narrative of the police agency. PW31 did not recollect whether the IO had collected any chance prints from the dandas recovered by him from the spot. In the instant case dandas were produced in the court and exhibited but admittedly no chance prints were lifted from the same. As such no chance prints were recovered from the dandas. It is noteworthy that though the witnesses as mentioned above had stated the persons who were led by A1 were carrying lathis and dandas and also that police persons were beaten by lathis, however, the CDs which had been relied upon by the prosecution showed that there were several persons wearing white caps which are worn by workers of Aam Aadmi Party but none of them were carrying any rod or stick in their hand nor were seen assaulting the police personnel with sticks and rods. While the CDs showed stone pelting on the police persons by the mob, from the CD it could be seen that the persons who were wearing white caps had not pelted any stone on the police. They were standing on that side of the road where the police party was also standing. The pelting of the stones was State Vs. Akhilesh Pati Tripathi & Ors. 155/175 from the other side. Even the persons who were chased away by the police were not seen wearing a white cap though the persons wearing white caps were seen raising slogans. As such though dandas were recovered in the present case, there is nothing to establish that the persons wearing white caps or A1 were carrying any dandas or lathis or had assaulted the police persons with the same.
185. The Ld. Counsel for the accused persons had argued that there were contradictions in the testimony of the witnesses regarding when the dead body was removed from the spot. PW7 had stated that the dead body was removed in hearse van around 2.30 to 3.00 p.m.; PW10 had stated that he was at the spot till the entire crowd was dispersed and traffic was opened and it may be 4-5 p.m. and the dead body was not removed in his presence; PW11 had stated that the dead body was there till 5.00 p.m. when he left for the PS with tehrir but the same was not there when he returned from PS along with the FIR; PW12 stated that the dead body was there till 5-6 p.m.; PW13 stated that the dead body was there till 5.00 p.m. when he left for the hospital; PW14 stated that the dead body was there till 5.00 p.m. when he left for the hospital; PW16 stated that by the time i.e. 5.00 p.m. he had gone to the hospital, the dead body was still there; PW19 stated that he was there till 4-5 p.m. when he was injured and the dead body was not removed in his presence and PW31 stated that the dead body was removed around 3.00 p.m. It was argued on behalf of the accused persons that PW25 had stated that the statement of State Vs. Akhilesh Pati Tripathi & Ors. 156/175 Jayshree was recorded at the spot whereas she had stated that her statement was recorded at the spot. However, when there are a large number of witnesses and it was an incident of rioting in which around 300 persons were present and given the lapse of time since the incident, it cannot be expected that the witnesses would remember the exact timings and minor contradictions are bound to occur.
186. The Ld. Counsel for the accused persons had argued that in view of the inconsistencies in the testimony of the witnesses, their testimony could not be relied upon. Reliance in this regard was placed on the judgment of the Hon'ble High Court of Madras in J. Xavier Raj v. State 2012 wherein it was observed as under:
"12. The golden rule of proof of a fact is not based on quantity of witnesses but quality of witness. Plurality of witnesses is not the test. Even there may be a sole witness. But, if the evidence of such witness is convincing, inspire confidence in him, it is enough.
14. It is appropriate here to note certain observations made by the Hon'ble Apex Court in Badri V. State of Rajasthan [AIR 1976 S.C. 560]. Hon'ble Supreme Court observed that since under the Evidence Act no particular number of witnesses are required for the proof of any fact, it is a sound and well-established rule of law that quality and not quantity of evidence matters. In each case the Court has to consider whether it can be reasonably satisfied to act even upon the testimony of a single witness for the purpose of convicting a person. If a witness, who is the only witness against the State Vs. Akhilesh Pati Tripathi & Ors. 157/175 accused to prove a serious charge of murder, can modulate his evidence to suit a particular prosecution theory for the deliberate purpose of securing a conviction, such a witness cannot be considered as a reliable person and no conviction can be based on his sole testimony."
Further reliance was placed on the judgment in Mahesh v. State of (G.N.C.T) of Delhi 2007 wherein it was observed as under:
"17. In Namdeo v. State of Maharashtra 2007(4) SCALE 337, the Hon'ble Supreme Court while discussing the relevance and admissibility of the testimony of a sole witness as the basis for conviction of accused has analyzed the legal proposition in the light of various judgments and observed:
Recently, in Bhimappa Chandappa v. State of Karnataka (2006) 11 SCC 323, this Court held that testimony of a solitary witness can be made the basis of conviction. The credibility of the witness requires to be tested with reference to the quality of his evidence which must be free from blemish or suspicion and must impress the Court as natural, wholly truthful and so convincing that the court has no hesitation in recording a conviction solely on his uncorroborated testimony. From the aforesaid discussion, it is clear that Indian legal system does not insist on plurality of witnesses. Neither the Legislature (Section 134, Evidence Act, 1872) nor the judiciary mandates that there must be particular number of witnesses to record an order of conviction against the accused. Our legal system has always laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction.
State Vs. Akhilesh Pati Tripathi & Ors. 158/175 Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence. The bald contention that no conviction can be recorded in case of a solitary eye witness, therefore, has no force and must be negatived."
The law in this regard is well settled. However, in the instant case, based on certain inconsistencies in the deposition of the witnesses, the entire case of the prosecution cannot be said to be vitiated once it cannot be disputed that an incident had taken place on 09.09.2013 in which several policemen received injuries and government vehicles were also damaged.
187. It was then submitted on behalf of the accused persons that there was already a law and order issue before A1 had even arrived at the spot as stated by PW5, PW6, PW7, PW9 and PW11. However, it is settled law that one need not be a member of the unlawful assembly from the beginning and can join it even later. It was also submitted that the motive of the crowd was to seek justice for the murder of Kamlesh and there can be no dispute about that as the witnesses themselves have stated to that effect. PW25 was also cross- examined regarding the preparation of the site plan and he stated that the site plan was prepared after the registration of the FIR after 5 p.m. He stated that he reached Tripoliya Gate at 12.45 p.m. and remained present there till 8/8.15 p.m. However, nothing much turns on the same and nothing has come out in the cross-examination to cast any doubt on the site plan.
State Vs. Akhilesh Pati Tripathi & Ors. 159/175
188. The Ld. Counsels for the accused persons had also contended that no public persons were joined in the present case. During cross-examination PW2 who was deputed on the hearse van had stated that he was there till the dead body was removed. He admitted that there were shops around the scene of occurrence but he could not tell the exact number of the said shops. PW2 stated that the police did not record the statement of any public person in his presence. He stated that the crowd was present all around including near the dead body. PW5 stated that there were shops around the place where the incident took place. There was a bus stand but that was at a distance from the place of incident around 50 to 60 meters. During cross-examination PW6 stated that in his presence the statement of any public witness was not recorded by the IO. PW9 admitted that the place of incident i.e. Tripoliya Gate was surrounded by multiple shops and there was a bus stop nearby but he could not tell the distance of the shops and bus stop from Tripoliya Gate.
189. PW11 stated that on both sides of the road, there were shops and rehri patri hawkers on the service road. There was a bus stop also. PW13 stated that there were residences adjoining the place where the incident had taken place. PW18 stated that there are several bus stops before and after Tripoliya Gate but he did not recollect the same. PW20 stated that in his presence, the statement of public witness was not recorded. He stated that the place of incident was a main road. He could not tell whether there was any bus stop or any residential houses near that. PW25 denied the suggestion that he State Vs. Akhilesh Pati Tripathi & Ors. 160/175 did not record the statement of public witnesses as he had to support the false theory set out by his Senior Police officials. PW30 stated that there is a Gurudwara near about 400-500 meters from the spot. PW31 could not tell whether the statements of public witnesses were recorded. As such it is seen that there were a number of shops and other public places near the spot of incident but no public person was joined as a witness. However, when tempers are running high and a number of public persons were part of the crowd, it may not be possible to get public witnesses. Besides, in the instant case, a number of police witnesses have been examined some of whom also suffered injuries and as such their testimony has to be given due weight. Moreover police witnesses are also competent witnesses. While in respect of A1, it was contended that he had been falsely implicated at the instance of the then political dispensation which has not been established, it is pertinent that there is also nothing to show that the police witnesses had any enmity with the other accused persons or had any motive to falsely implicate the other accused persons.
190. It was also contended on behalf of the accused persons that the identified place of sloganeering in the video clippings was PS Model Town and a false case had been foisted on the accused persons on the basis of an incident of sloganeering at PS Model Town. PW32 was cross-examined on preparing the CD and he stated that the Beat Constable approached him at the store of his employer at about 12 noon for the purpose of capturing the said State Vs. Akhilesh Pati Tripathi & Ors. 161/175 incident at Tripoliya Gate. Again said, he could not say it with certainty about the time, however, the same was in the afternoon. He reached the spot within five to ten minutes with the Beat Constable Ajit Singh. He did not know the then MLA of the area. He admitted that files No.12-17 in the memory card Ex.PW32/BX1 were with regard to the incident at PS Model Town. The Beat Constable Ajit Singh had dropped him at his showroom from PS Model Town. He did not recollect what was the time when he reached PS Model Town, however, it was in the evening. He stated that his statement was recorded perhaps on the same day in PS Model Town. He had stated to the police in his statement that he had stayed at Tripoliya Gate for capturing the incident for one/ one and a half hour. He was confronted with the statement Ex.PW32/D1 where the said fact was not so recorded. As such PW32 had also stated about some of the clippings being of the incident at PS Model Town.
191. The witnesses were shown the video clippings and extensively cross-examined. Serial No.12 of the CD was played before PW5 and a Court question was put to him whether he could tell where the iron gate was installed where the demonstrators were raising slogans but he could not tell the same. PW7 was shown the video clippings and the CD recording of the incident was played and the same is Ex.PW7/DB. He stated that the clipping M2U00012.MPG; M2U00013.MPG, M2U00016.MPG, M2U00017.MPG were of PS Model Town; he could not tell the location of the place of the clippings M2U00014.MPG and M2U00015.MPG. He could not tell the State Vs. Akhilesh Pati Tripathi & Ors. 162/175 distance between the place of incident and the nearest bus stop, if any. The CD Ex.PW7/DB was played and PW11 stated that the clip No.M2U00012, M2U00014 was outside police station Model Town. In Clip No.M2U00013, his presence was not shown. He could not tell the location of the said recording in comparison to the place where the dead body was kept on the road. In Clip No.M2U00002, the recording was of Tripoliya Gate.
192. The CD Ex.PW7/DB i.e. the clippings from CD No.M2U0012-17 were played to PW31 who stated that the place visible in the clippings was PS Model Town and volunteered the gathering of crowd was after the accused were arrested after the incident. As such some of the witnesses had stated about some of the clippings being of PS Model Town and PW31 had volunteered that the said gathering was after the accused were arrested. However, the witnesses had also stated about some of the clippings being of Tripoliya Gate which was near the spot of the alleged incident and all the witnesses had consistently stated about the 40-50 persons wearing caps of Aam Aadmi Party led by A1 shouting slogans. As noted above, none of the accused persons had been identified in the video clippings and it was contended by the Ld. Addl. PP for State that the video clippings did not cover the entire area. That may be so but even then, only the presence of A1 and A18 as part of the unlawful assembly has been established by the prosecution.
193. It was then contended on behalf of the accused persons that in the State Vs. Akhilesh Pati Tripathi & Ors. 163/175 absence of any specific charge framed against A18, any imputation against her individually would fail. Reliance in this regard was placed on the judgment of the Hon'ble Supreme Court in Ram Bilas Singh & Ors. (supra); Nanak Chand (supra) but that was a case where the accused had been acquitted of the charge of being members of an unlawful assembly and it was held that there could be no conviction of any one of them for an offence which they had not themselves committed. Reliance was also placed on Suraj Pal v. The State of Uttar Pradesh (supra) wherein it was observed as under:
"3. On the above statement of the course of these proceedings, one important fact which emerges is that there have been no direct and individual charges against the appellant for the specific offences under sections 307 and 302, Indian Penal Code. The question that arises is whether, without such direct charges the convictions and sentences for those offences can be maintained. It appears to us quite clear that a charge against a person as a member of an unlawful assembly in respect of an offence committed by one or other of the members of that assembly in prosecution of its common object is a substantially different one from a charge against any individual for an offence directly committed by him while being a member of such assembly.
The liability of a person in respect of the latter is only for acts directly committed by him, while in respect of the former, the liability is for acts which may have been done by any one of the other members of the unlawful assembly, provided that it was in prosecution of the common object of the assembly or was such as the members knew to be likely to be so committed. A charge State Vs. Akhilesh Pati Tripathi & Ors. 164/175 under section 149, Indian Penal Code puts the person on notice only of two alleged facts, viz. (1) that the offence was committed by one or other of the members of the unlawful assembly of which he is one, and (2) that the offence was committed in prosecution of the common object or is such that was known to be likely to be so committed. Whether or not section 149, Indian Penal Code creates a distinct offence (as regards which there has been conflict of views in the High Courts), there can be no doubt that it creates a distinct head of criminal liability which has come to be known as "constructive liability"- a convenient phrase not used in the Indian Penal Code. There can, therefore, be no doubt that the direct individual liability of a person can only be fixed upon him with reference to a specific charge in respect of the particular offence. Such a case is not covered by sections 236 and 237 of the Code of Criminal Procedure. The framing of a specific and distinct charge in respect of every distinct head of criminal liability constituting an offence, is the foundation for a conviction and sentence therefore. The absence, therefore, of specific charges against the appellant under sections 307 and 302, Indian Penal Code in respect of which he has been sentenced to transportation for life and death respectively, is a very serious lacuna in the proceedings in so far as it concerns him. The question then which arises for consideration is whether or not this lacuna has prejudiced him in his trial."
The law in this regard is well established and in case a person is held not to be a member of an unlawful assembly, he cannot be held liable for the offences committed by others. It would then be argued on behalf of the accused persons that less than 5 persons could not be held to be part of an unlawful assembly.
State Vs. Akhilesh Pati Tripathi & Ors. 165/175 However, it has been held by the Hon'ble Supreme Court in Dalip Singh and others v. The State of Punjab AIR 1953 SC 364 that it is not essential that five persons must always be convicted before Section 149 IPC can be applied. Where it is possible to conclude that though five persons were unquestionably at the place of offence, the identity of one or more is in doubt, a conviction of the rest with the aid of Section would be good.
194. It would also be argued on behalf of the accused persons that even if the accused persons were part of the unlawful assembly, they cannot be held liable for the acts of others. While Section 149 IPC makes every member of an unlawful assembly guilty of an offence committed by any member of an unlawful assembly in prosecution of the common object of that assembly or such as the members of that assembly knew to be likely to be committed in prosecution of that object, reference may also be made to the judgment in Mohan Lal v. State of UP 1982 Cri Law Journal 1998 wherein it was held as under:
"9. From the above resume of evidence the following inference of fact naturally follow:
A child born to one Ram Kishun and lifted from the Maternity Hospital was found murdered and the persons arrested in that connection included one Ram Chandra, a visitor to the outpost and on whose pointing out, the dead body of the child was found at the company garden. The same day Ram Chandra was arrested by head constable Jag Charan Sharma in the day sometime prior to 4.48 P.M. but he was not admitted in the State Vs. Akhilesh Pati Tripathi & Ors. 166/175 police lock-up. He was admitted in the police lock-up after the besiege of the outpost by the angry mob of about 2500-3000 persons i.e. at 8.24 P.M. The dead body of the child was also recovered in the day at the pointing out of Ram Chandra. No explanation has been given by the prosecution why Ram Chandra was not taken into custody and after the recovery of the day body at his pointing out by head constable Jag Charan Sharma who returned to the outpost at 4.48 P.M. after making the recovery. Instead, Ram Chandra was admitted in the police lock-up at 8.24 P.M. after the outpost was besieged by the angry mob demanding action against the said head constable. This fact has given rise to legitimate contention on behalf of the appellants that head constable Jag Charan Sharma had let off Ram Chandra even after recovery of dead body of the child and was hushing up the matter. Ram Chandra was taken into custody and admitted in the police lock-up after the outpost was surrounded by the accusing crowd which was demanding action and on account of which the matter had also gone to the notice of the higher authorities. It is also contended that when head constable Jag Charan Sharma did not leave the outpost after 4.48 P.M. it is evident that Ram Chandra was against arrested and admitted in the police lock-up at 8.24 P.M. because the head constable had earlier let him off after recovering the dead body of the child in a process of hushing up the matter.
He was arrested against under the pressure of the mob. The grievance of the mob was, therefore, apparently genuine. It was such a crowd of 2500-3000 persons spreading from the Maternity Hospital to the outpost which is alleged to have been led by the appellants Shakti Dutt Tyagi and Jagdish Prasad, both belonging to the opposition group of the Youth Congress. It is obvious from the above fact that intention of the crowd was not to State Vs. Akhilesh Pati Tripathi & Ors. 167/175 commit either criminal trespass, or arson, or cause any damage to the building of the outpost or to do any other act of this nature.
The crowd had assembled not only to express indignation of the public against the police (which was, in their opinion, hushing up the said crime and helping the main culprit Ram Charan) but also to demand action against such policemen who were hushing up the matter including the head constable Jag Charan Sharma. The crowd which was only 700 or so in the beginning had swelled to 2500-3000 obviously because it was not satisfied with the assurances and ultimately it had become uncontrollable and could be dispersed only after a lathi charge. It is from such a crowd that the appellants are alleged to have been arrested. In other words, the appellants were arrested from a crowd which had assembled to express indignation of the public against the police of outpost Nawabganj and its in charge head constable Jag Charan Sharma who had at least mishandled the case of a child lifting from Maternity Hospital even after arresting the main culprit responsible for it and at whose instance the dead body of the child was also recovered by him sometime in the day. This main culprit was not put up in the police lock-up, till after the besiege of the outpost by this crowd.
10. It is evident from the above fact that this crowd had assembled as a consequence of inaction of the police of O. P. Nawabganj in taking effective action in the matter even after the arrest of Ram Chandra by head constable Jag Charan Sharma. Therefore, as already stated above the intention of such a crowd was not to commit criminal trespass, arson, loot, damage or any other act of this nature. Responsible officers had tried to pacify this crowd but it had become uncontrollable. If any member of such a crowd had indulged in any act of arson or State Vs. Akhilesh Pati Tripathi & Ors. 168/175 violence, it cannot, from such an individual act, be presumed that it was either the common object of the crowd or that every member of that crowd had necessarily shared the object of that individual who had committed the act. In other words, the acts of only a few individuals of such a crowd cannot be held to be the common object of that crowd nor every member of that crowd can be presumed to have shared the object with which such acts were committed by only a few members of that crowd. A reference in this connection may be made to Musa Khan v. state of Maharashtra (AIR 1976 SC 2566) : (1976 Cri LJ 1987). The mere presence of the appellants in that crowd would not, therefore, make them responsible for any act of damage, violence or arson committed by any member of that crowd. The appellants can also not be deemed to have shared the object with which the aforesaid acts were committed by some members of the crowd. In that event the appellant cannot be held to have committed the offence of rioting also. In such a case the particular individual concerned alone will be liable for his act, for whatever offence his act may constitute. The appellants can, therefore, be held responsible only if it is proved that they or any one of them had committed any of the acts complained of." (emphasis supplied) Similar is the situation in the present case wherein the crowd had gathered to express indignation over the alleged police inaction pursuant to the murder of Kamlesh and the common object was to block the traffic and as such the presence of A1 and A18 in that crowd would not make them responsible for any act committed by any member of that crowd. To similar effect is the judgment in Jayendra Shantaram Dighe & Ors. v. The State of State Vs. Akhilesh Pati Tripathi & Ors. 169/175 Maharashtra, 1992 Cri. Law Journal 2796 wherein it was held as under:
"7. If one looks to the map as to how the procession went ahead, it can be seen that the processionists have covered virtually the whole town of Baramati. It appears that when the procession came at Panvatha Hanuman Mandir after crossing the river, the processionists wanted to go through the Bagwan Lane. But, this lane being occupied predominantly by Muslims, the Police party apprehended some trouble and out of security reasons they stopped the morcha from proceeding through the said Bagwan lane. I have already mentioned above that this morcha in fact had been through the Bagwan Lane peacefully. It might be right on the part of the police to take certain precautionary steps to prevent any disturbance, but only from this one cannot conclude that the processionists intended to go through Bhagwan Lane to harass the Muslim community or to destroy their property. It is true that when the procession was stopped by the police certain stones were pelted. But this incident has taken place all of a sudden and as I have already pointed out earlier, the procession was a long procession which went through the whole of Baramati town peacefully. It might be that few miscreants might have gone side tracking the procession and damaged the property of Muslims. But, for that one cannot blame the majority of the members of the procession. Nobody contemplated that the police will stop the morcha at Bagwan lane. The weapons used were stones lying on the street itself and, therefore, if some unidentified persons behaved in an unruly manner one cannot foist the vicarious liability on the other members in the procession carried out peacefully throughout.
8. There is another aspect of the matter State Vs. Akhilesh Pati Tripathi & Ors. 170/175 which has to be taken into consideration. If suddenly a few elements behaved in an unruly manner, which was not contemplated by the other members of the procession and in view of the fact that a huge crowd of about two thousand had assembled, it was certainly difficult for the other processionists to extricate themselves from the procession and disperse. Therefore, merely because the accused persons were there in the procession, they cannot be held guilty of the offences committed by the unidentified persons. According to me the aforesaid facts which I have discussed in detail clearly go to show that the members who took out the procession to lodge their protest peacefully could not have anticipated or contemplated the unruly behaviour of some miscreants. There is also no evidence on record to show that all the members in the procession shared the common intention of pelting stones at the police party discharging its duty."
195. Further in Muttu Naicker and Ors. v. State of Tamil Nadu AIR 1978 SC 1647: 1978 (1978) 4 SCC 385, it was observed by the Hon'ble Supreme Court as under:
"In a case where a large crowd collected all of whom are not shown to be sharing the common object of the unlawful assembly, a stray assault by any one accused on any particular witness could not be said to be an assault in prosecution of the common object of the unlawful assembly so that the remaining accused could be imputed the knowledge that such an offence was likely to be committed to prosecution of the common object of the unlawful assembly."
Similar view was also taken in Rajendra Shantaram Todankar v. State of Maharashtra & Ors. (supra).
State Vs. Akhilesh Pati Tripathi & Ors. 171/175
196. It is thus seen that in the instant case, it stands established that the common object of the assembly was to block the traffic on the road and therefore, to compel the police to omit to do what they were legally bound to do. The assembly had also voluntarily obstructed the police in the discharge of their duties and as such it could be called an unlawful assembly. It also stands established that several police persons had suffered injuries in discharge of their duties as public servants and Inspector Rajender Prasad had suffered grievous injuries. Rioting had also taken place at the spot and there was also damage to vehicles and hearse van. It further stands established from the testimony of the witnesses and the material on record that A1 and A18 were part of the unlawful assembly. However, in view of the law as discussed above and considering that it has come on record through the video clippings that the persons wearing caps of Aam Aadmi Party were not carrying any lathis or dandas, A1 cannot be held liable for all the acts of other members of the unlawful assembly. It may be mentioned that the witnesses had stated about A1 instigating the crowd but none of the witnesses except PW9 had stated about A1 instigating the crowd to attack the police officers and testimony of PW9 has not been corroborated in that respect by other witnesses.
197. In view of the above discussion, A1 would be guilty of the offence under Section 186 IPC read with Section 149 IPC for obstructing public servants in the discharge of their public functions, but he cannot be held guilty State Vs. Akhilesh Pati Tripathi & Ors. 172/175 for the offences under Sections 147/353/332/333 IPC read with Section 149 IPC and Section 3 (1) of the Prevention of Damage to Public Property Act, 1984 read with Section 149 IPC as there is nothing to show that he had caused injury to any public servant or damage to public property or used any violence.
198. As regards A18, she would be guilty of the offences under Sections 147/186/333/353 IPC read with Section 149 IPC for rioting as violence was used; for obstructing public servants in discharge of their public functions; for voluntarily causing grievous hurt to deter a public servant from his duty and for use of criminal force to deter a public servant from discharge of his duty but in view of the above discussion, she cannot be held guilty of the offences under Section 332 IPC read with Section 149 IPC and Section 3 (1) of the Prevention of Damage to Public Property Act, 1984 read with Section 149 IPC as there is nothing to show that she had caused any damage to public property.
CONCLUSION
199. In view of the above discussion, the prosecution has proved the guilt of accused No.1 Akhilesh Pati Tripathi beyond reasonable doubt for the offence under Section 186 IPC read with Section 149 IPC and he is convicted for the same while he is acquitted of the offences under Sections 147/353/332/333 IPC read with Section 149 IPC and Section 3 (1) of the State Vs. Akhilesh Pati Tripathi & Ors. 173/175 Prevention of Damage to Public Property Act, 1984 read with Section 149 IPC.
200. The prosecution has also proved the guilt of accused No.18 Geeta beyond reasonable doubt for the offences under Sections 147/186/353/333 IPC and she is convicted for the same while she is acquitted of the offence under Section 332 IPC read with Section 149 IPC and Section 3 (1) of the Prevention of Damage to Public Property Act, 1984 read with Section 149 IPC.
201. The prosecution had failed to establish the guilt of A2 Akash Verma, A3 Malik Mohd. Fahad, A4 Suraj, A5 Sachin, A6 Lal Babu, A8 Sachin Gupta, A9 Radhey Shyam, A10 Rahul Kumar, A11 Mithlesh, A13 Sanjeev, A14 Himanshu, A15 Naresh, A17 Salman, A19 Prem Pal and A20 Kamal beyond reasonable doubt and they are acquitted of the offences under Sections 147/186/353/332/333 IPC read with Section 149 IPC and Section 3 (1) of the Prevention of Damage to Public Property Act, 1984 read with Section 149 IPC. Their bail bonds are cancelled and sureties are discharged. They have already furnished bonds in terms of Section 437 A Cr.P.C. which shall remain in force for a period of 6 months.
202. Accused Vijay was declared to have absconded.
203. In terms of the judgment of the Hon'ble High Court of Delhi in State Vs. Akhilesh Pati Tripathi & Ors. 174/175 Karan v. State NCT of Delhi in Crl. A. 352/2020 decided on 27.11.2020, A1 and A18 are directed to furnish affidavits of their assets and income in format of Annexure A appended to that judgment within 10 days. The State is also directed to furnish an affidavit of expenses incurred by the prosecuting agency within 7 days (this being a matter pertaining to an MLA needs to be disposed of expeditiously). The Victim Impact Report be called for in respect of Inspector Rajender Prasad from the Ld. Secretary, Central District Legal Services Authority before the next date. Put up for arguments on the point of sentence on 27.04.2021.
ANNOUNCED IN THE OPEN COURT (GEETANJLI GOEL) On this 09th day of April, 2021 ASJ/SPL. JUDGE (PC ACT) (CBI)-24 (MPs/MLAs CASES), ROUSE AVENUE DISTRICT COURT, NEW DELHI State Vs. Akhilesh Pati Tripathi & Ors. 175/175