Delhi District Court
Fir No. 69/2010 State vs . Noor Hasan Etc. Page No. 1 Of 44 on 9 June, 2023
IN THE COURT OF SH. PANKAJ ARORA-04: ADDL.
SESSIONS JUDGE-04: NORTH-EAST:
KARKARDOOMA:DELHI
SESSIONS CASE NO. 44539/15
CNR No. DLNE01-000047-2010
FIR No: 69/2010
P.S. Seemapuri
U/s : 186/307/332/353/394/
395/147/148/149/152/412 IPC
STATE
Versus
1. Noor Hasan @ Chhotu @ Tulli
s/o Sh. Sheikh Ishmayel
r/o E-44/A-164, New Seemapuri, Delhi
(Expired & proceedings abated vide order dt. 16-03-2017)
2. Kale s/o Sheikh Ishmayel
r/o E-44/A-149, New Seemapuri, Delhi
(expired & proceedings abated vide order dt. 08-09-2015)
3. Rafiq s/o Ahara
r/o E-44/B-120, New Seemapuri, Delhi
(Expired & proceedings abated vide order dt. 27-08-2022)
4. Nanhe s/o Noor Mohd.
r/o E-44/A-153, New Seemapuri, Delhi
(declared PO vide order dated 13-10-2017)
5. Deepak s/o Shankar Ram
r/o Village Bijwanpur, PS Deep Nagar,
Distt. Nalanda, Bihar
6. Abdul Hanif s/o Sheikh Ayub
r/o E-44/A-17, New Seemapuri, Delhi
7. Imran s/o Gufran
r/o F-46, Shalimar Garden, Shahibabad, Delhi
FIR No. 69/2010 State Vs. Noor Hasan Etc. Page No. 1 of 44
8. Sayroon Begum w/o Kale
r/o E-44/A-149, New Seemapuri, Delhi
9. Yashmeen w/o Noor Hassan @ Chhotu & Tulli
r/o E-44/A-164, New Seemapuri, Delhi
10. Mangal s/o Kishan Lal
r/o E-44/B-99, New Seemapuri, Delhi
11. Josim s/o Jahangir
r/o E-44/A-164, New Seemapuri, Delhi
12. Rajesh Vishwas s/o Ranjeet Vishwas
r/o E-423, New Seemapuri, Delhi
Date of Institution : 26-08-2010
Date of Argument : 02-06-2023
Date of Judgment : 08-06-2023
JUDGMENT
1. Brief facts of this case are that on 01-03-2010 at about 11:50 am, an information was received at PS Seemapuri through Wireless Operator regarding beating of police officials by the public. On the basis of said information, DD no. 26B (Ex. PW6/C) was registered which was marked to ASI Duli Chand, who along with Ct. Sheovir Singh reached at the spot i.e. F- Block, Fish Market, New Seemapuri where they noticed huge crowd. Ct. Bhagmal and Ct. Shambhu Dayal were found present. Ct. Bhagmal was in injured condition having injuries on his left cheek and he was drenched with blood. PCR van and other police staff had also reached at the spot. The house of Noor Hasan @ Chhotu was raided as it was a case of robbery of government revolver. Accused Noor Hasan and his family members and some other boys were beating the police officials FIR No. 69/2010 State Vs. Noor Hasan Etc. Page No. 2 of 44 with danda and they were pelting stones which resulted in riotous situation. Upon seeing that situation was going out of control, additional force was called at the spot and rioters were asked to disperse. Accused Noor Hasan @ Tulli @ Chhotu, Kale, Sayroon Begum, Nanhe, Abdul Hanif, Rafiq, and Deepak were apprehended. During the process of apprehension, accused Noor Hasan @ Chhotu had dashed his head against the wall and self- inflicted injury upon himself. Ct. Bhagmal, Ct. Shambhu Dayal and accused Noor Hasan @ Chhotu were sent to GTB Hospital for medical examination through PCR van and remaining accused persons were brought to Police Station. IO ASI Duli Chand and Ct. Shambhu Dayal also went to the hospital and collected MLC of Ct. Bhagmal, Ct. Shambhu Dayal and Noor Hasan @ Chhotu. Statement of Ct. Bhagmal (Ex. PW8/A) was recorded. Ct. Bhagmal stated that he was posted at PS Seemapuri as Constable. On 01-03-2010, he along with Ct. Shambhu Dayal were performing patrolling duty due to arrangement on account of Holi festival on government motorcycle no. DL1SN-5379. During patrolling, at about 11:30 am, when he reached at F-Block, near Raja Telecom, BC of PS namely Noor Hasan @ Tuli @ Chhotu, his brother Kale, brother- in-law Josim and his friend Mangal, Sultan, Rajesh and 5-6 more boys, to whom he can identify upon production, approached towards him from front side while using abusive language. Ct. Bhagmal stopped his motorcycle and asked them to not to use abusive language, whereupon, accused Noor Hasan @ Chhotu came towards him and told ''tu jyada police officer banta hai, aaj main Holi par tujhe dekhta hu''. Accused Noor Hasan @ Chhotu asked his companions to grab him and he was thrown on the FIR No. 69/2010 State Vs. Noor Hasan Etc. Page No. 3 of 44 ground. Accused Sultan, Kali and other boys who were carrying dandas with them started beating him and Ct. Shambhu Dayal.
Accused Noor Hasan @ Chhotu took out one knife from the dub of his pant and gave knife blow on his neck but he managed to escape. Accused Noor Hasan @ Chhotu again gave a knife blow which hit on his left cheek. Accused Noor Hasan @ Chhotu snatched loaded service revolver from him. Meanwhile, one patrolling motorcycle with siren reached there and upon hearing the siren, the accused persons fled from the spot. While running they threatened by saying ''aaj tu bach gaya hai, agli baar hamara rasta rokega to jaan se maar denge". In that manner, the accused persons obstructed Ct. Bhagmal in performing his duty. On the basis of statement of Ct. Bhagmal, present FIR was registered for the offence punishable u/s 186/307/332/353/394/ 395/147/148/149/152 IPC. Upon recovery of service revolver at the instance of accused sayrun Begum, Section 412 IPC was also added. Twelve rioters in total were arrested. COMMITTAL
2. After completion of necessary formalities, chargesheet was filed in the court of Ld. Ilaqa MM. After taking cognizance and compliance of section 207 Cr. PC, present case was committed to the court of sessions vide order dated 16-08-2010 of ld. MM/NE/KKD. Thereafter, the then Ld. District and Sessions Judge, N/E Courts allocated this case to the ld. Predecessor of this court.
CHARGE
3. On the basis of facts emerging from the chargesheet and after hearing the arguments, Ld. Predecessor had observed that prima facie case was made out against all the accused persons for FIR No. 69/2010 State Vs. Noor Hasan Etc. Page No. 4 of 44 the offence punishable u/s 147/148/149/186/332/333/353/ 307/152/395/ IPC and prima facie case u/s 412 IPC was also made out against accused Sayroon Begum. Charges were framed accordingly by ld. Predecessor vide order dt. 21-09-2010 against all the accused persons, to which all the accused persons pleaded not guilty and claimed trial. Thereafter, prosecution got examined as many as 13 witnesses.
PROSECUTION EVIDENCE
4. (i) PW1 W/Constable Geeta Rani is the investigating police official and she deposed that on 02.03.2010, she was posted as constable in Police Station Seema Puri. She was present in the Police Station at about 8:30 pm and accused Smt. Yasmin was present in the Police Station. At the instance of Head Constable Baghmal, she took personal search of accused Yasmin vide search memo Ex. PW1/A and nothing was recovered from her personal search. She deposed that accused was not arrested in her presence. However, in her cross- examination by Ld. Addl. PP for State, she admitted that IO ASI Duli Chand arrested the accused Yasmeen in her presence vide arrest memo Ex. PW1/B. She was cross-examined by Ld. Defence counsel but nothing material came out in her cross-examination.
(ii) PW-2 W/Constable Alka was police official, who had witnessed arrest proceedings of accused Sahiroon Begum. She got exhibited the arrest memo as Ex. PW2/B and personal search memo as Ex. PW2/A. During cross-examination, she admitted the suggestion that the place of arrest was thickly populated area and they reached in the area of New Seema Puri with in 10 to 12 minutes.
FIR No. 69/2010 State Vs. Noor Hasan Etc. Page No. 5 of 44
(iii) PW-3 Constable Manjeet is the police official who witnessed the arrest proceedings of accused Mangal and he got exhibited the personal search of accused as Ex. PW3/A and his arrest memo as Ex. PW3/A. During cross-examination, he deposed that accused Mangal was present in his house along with two-three boys and no other family member was present in the house. The information of the arrest of the accused Mangal was given personally and not in writing. Nothing was recovered from the possession of the accused.
(iv) PW-4 Ms. Dr. Sonal Arora, is Sr. Resident GTB Hospital New Delhi. She has proved the MLC bearing no. A- 885/10 of ASI Jagdish as Ex. PW4/A. She stated that nature of injury mentioned in the MLC as under observation was blunt.
During cross-examination, she deposed that the patient had come in the hospital himself.
(v) PW-5 Ct. Sheoveer Singh is the police official who accompanied the IO at the spot and he deposed that on 01.03.2010, he was posted as Ct. at PS Seemapuri and on receipt of DD No. 26B regarding beating of police official by the public, he alongwith IO ASI Dulichand reached at the spot at Jhuggi E- Block, New Seemapuri where they found that some boys were rioting under the supervision of Noor Hasan who was the BC of PS New Seemapuri. Ct. Bhagmal and Ct. Sambhu Dayal were also present and met them at that time and they were having injuries on their bodies. At that time, Ct. Bhagmal informed them that his service revolver was robbed. At that time, IO warned the crowd to disperse, who were assembled there at that time but they did not disperse. In the meantime, SHO also came at the FIR No. 69/2010 State Vs. Noor Hasan Etc. Page No. 6 of 44 spot and thereafter, the police officials used appropriate force for dispersing the crowd. At that time, when they tried to apprehend accused Noor Hasan, he put his head on the wall so he received some injuries. Thereafter, he was apprehended by them. Thereafter, all the three injured including two police officials and one Noor Hasan sent to Hospital through PCR. He alongwith IO reached at the hospital where IO obtained MLC of Ct. Bhagmal and Ct. Sambhu and thereafter, IO recorded statement of Ct. Bhagmal and prepared tehrir and the same was handed over to him and he was sent to PS for registration of the case at about 2.40 pm. After registration of the case, he returned back at the spot and handed over the copy of the FIR and original tehrir to IO. IO recorded his statement in this regard. PW5 has correctly identified accused Noor Hasan, who present in the court.
During cross-examination, PW5 deposed that ASI Jagdish Prasad did not meet him at the spot when he reached there at first. He admitted the suggestion that no recovery was effected from the possession of any of the accused in his presence. He admitted that there was no quarrel when he reached at the spot. He could not tell the number of persons present at the spot. He could not tell the exact distance between Ct. Bhagmal, Ct Sambhu Dayal and Noor Hasan, when he reached the spot for the first time. He volunteered that Noor Hasan was not present in the crowd and he was was present in his jhuggi, which was 5-7 jhuggi away from the place where crowd was gathered. He stated that he had not seen Noor Hasan while giving injury to Ct. Bhagmal and Ct. Bhagmal told him about the incident. He deposed that about 5-6 police officials tried to apprehend accused Noor Hasan and he was also amongst them. He deposed that he FIR No. 69/2010 State Vs. Noor Hasan Etc. Page No. 7 of 44 had not seen the motorcycle and helmet of Ct. Bhagmal on the spot. He deposed that the situation was out of control and tensed when he reached there. IO did not offer public persons to join the investigation in his presence.
(vi) PW-6 HC Dharamvir Singh was the Duty Officer posted at PS Seemapuri at the relevant time. He has proved the following documents:
(a) Present FIR as Ex. PW6/A; (b) Endorsement made by him on the rukka as Ex. PW6/B; (c) DD no. 26B as Ex. PW6/C.
During cross-examination, he deposed that Ct. Somvir remained at the PS for about 30 minutes.
(vii) PW-7 SI Surender deposed that on 01.03.2010, he was posted at PS Seemapuri as SI. On that day, due to Holi festival he was deputed in Old Seemapuri for arrangement. On that day, on receiving a message on wireless set at about 11:50 am (noon) that some public persons were beating the police officers at E-44 Jhuggi clusters, New Seemapuri, he alongwith the Additional SHO Sh. K. S. Rawat reached at the spot and found a crowd of about 200/250 public persons who were jhuggi dwellers. The face of Ct. Bhagmal was bleeding as he sustained knife injuries and his uniform shirt was smeared with blood. The jhuggi dwellers were having dandas and stone in their hands. The SHO had given warning to them for dispersal as their gathering was illegal. The jhuggi dwellers did not leave the spot and the out force was called by the Additional SHO. The crowd was made to disperse from the spot and was controlled by the staff of police. At the spot, 6-7 persons were apprehended namely Noor Hassan, Kale, Deepak, Hanif and one lady i.e. wife of Kale. Noor Hassan FIR No. 69/2010 State Vs. Noor Hasan Etc. Page No. 8 of 44 had sustained injury as he struck his head on the floor when he was tried to be apprehended by the police. Noor Hassan, Ct. Bhagmal and Ct. Shambhoo Dayal alongwith ASI Jagdish Prashad who had also sustained injuries were sent to the GTB Hospital for their treatment. He correctly identified all the accused persons present in the court that day. His statement was recorded by the IO. The knife and revolver were recovered from the jhuggi of Noor Hassan and Kale, who are brothers.
During cross-examination, PW7 deposed that he reached at the spot at about 12.00 noon time. He alongwith SHO and 8-10 police officers from the staff reached at the spot. He did not remember the name of other police officials who had accompanied them. He deposed that he remained at the spot for about 4-4.30 pm. ACP Sh. A. K. Lal also reached at the spot after their reaching there. He denied the suggestion that Ct. Bhagmal used to take liquor or that at the time of the incident, he was under the influence of the liquor. He denied that ASI Jagdish Prashad was also under the influence of the liquor. He deposed that on the day of incident, he was not a division officer in that beat. He was deputed as a Division officer in the area of occurrence from January 2009 to February 2010. He denied that MLC of Ct. Shambhoo, ASI Jagdish and Ct. Bhagmal were obtained falsely due to their acquaintance with the doctors. He further denied that accused Abdul Hanif was apprehended from his house and accused Deepak from his in-law's house.
During cross-examination on behalf of accused Noor Hassan, Kale, Yasmeen, Josin, Imran and Sayroon Begum, he deposed that he had stated before the IO that a crowd of about 200-250 public persons had gathered at the spot. He deposed FIR No. 69/2010 State Vs. Noor Hasan Etc. Page No. 9 of 44 that he had stated before the IO that the public persons were carrying dandas and stones. He admitted the suggestion that accused Noor Hassan was BC of the area. He admitted that he did not sign the recovery memos i.e. revolver and knife. He did not remember the other police officials of PS Seemapuri who had accompanied him at the time of recovery. He denied that accused Noor Hassan was given beatings mercilessly or that he was falsely implicated in the present case.
He admitted the suggestion that accused Rajesh Vishwas was not arrested from the spot. He denied the suggestion that accused Rajesh Vishwas was falsely implicated in the present case as he refused to be witness in this case. He denied the suggestion that accused Nanne was lifted from his house and he was falsely implicated in the present case. He further denied that accused Mangal was not present on the day of incident in Delhi. He denied that he had gone to his native place i.e. Bawana (Haryana).
(viii) PW8 Ct. Bhagmal is the victim as well as eye- witness in the present case. He deposed that on 01/03/2010, he was posted at PS Seemapuri as Constable. On that day, he alongwith Ct. Shambhoo was on Patrolling Duty due to arrangement in the Holi and during patrolling, they reached at STD shop of Raja situated in F-Block Jhuggies in Seemapuri. He alongwith Ct. Shambhoo on motorcycle reached in F-Block at about 11.30 am and when they reached there, Noor Hassan alongwith his brother Kale, brother-in-law of Noor Hassan namely Joshin alongwith his friend Mangal and Rajesh along with 10/12 boys were coming from the front side while using the abusive language. They stopped their motorcycle and asked them FIR No. 69/2010 State Vs. Noor Hasan Etc. Page No. 10 of 44 not to use the abusive language. On this, Noor Hassan came out in front of them and told him "tu jayada police officer banta ha"
and told his companions to assault him and his motorcycle was also thrown on the ground. Mangal, his brother Kale and his brother-in-law Joshin started giving beatings to him. He was caught hold by Rajesh, Mangal and Joshin and thrown him on the ground and given beatings. The accused Noor Hassan took out a knife and gave him a knife blow on his neck but he managed to escape. Noor Hassan again gave him a knife blow which hit him on left cheek. The accused Noor Hassan snatched his service revolver. Meanwhile, patrolling motorcycle (with siren) reached there. The accused persons ran away from the spot after beating him and threatening him to kill if he came in their way in future. Someone informed to the police and PCR reached there. IO ASI Duli Chand also reached there. Other police officials also reached at the spot and they all raided the house of the accused Noor Hassan.
He further testified that thereafter, accused persons namely Joshim, Kale, Mangal, Rajesh, Rafiq, Nanhe, Abdul Hanif, Imran and Deepak caught hold of them and started giving beatings to them. He identified accused Noor Hasan, Kale, Rafiq, Nanhe, Deepak, Abdul Hanif, Imran, Shairoon Begum, Yasmin, Mangal, Joshim and Rajesh Biswas in the court.
He further deposed that accused Noor Hasan @ Chhotu @ Tulli, Deepak, Imran, Kale, Nanhe, Abdul Hanif, and Rafiq were arrested on his identification vide arrest memos Ex. PW9/A to Ex. PW9/G. Personal search of accused Noor Hasan @ Chhotu @ Tulli, Abdul Hanif, Nanhe, Rafiq, Kale, Deepak, Imran and were taken vide Ex. PW9/H to Ex. PW9/O. He deposed that his FIR No. 69/2010 State Vs. Noor Hasan Etc. Page No. 11 of 44 robbed service revolver with four live cartridges were recovered at the instance of accused Sayroon Begum from the roof of her jhuggi and after recovery, sketch of the same was prepared vide Ex. PW9/P and thereafter recovered service revolver and cartridges were converted into sealed parcel with the seal of DCK and same were seized vide seizure memo Ex. PW9/Q. He deposed that one chhuri was recovered at the instance of accused Sayroon Begum from her jhuggi and sketch of the same was prepared vide Ex. PW9/R and thereafter, chhuri (knife) was converted into sealed parcel with the seal of DCK and same was taken into possession vide seizure memo Ex. PW9/S. One more chhuri (Knife) was recovered at the instance of Sayroon Begum from her jhuggi and sketch of the same was prepared vide Ex. PW9/T. Thereafter, said recovered chhuri (Knife) was converted into sealed parcel with the seal of DCK and same was seized vide seizure memo Ex. PW9/U. He further deposed that he had produced his blood-stained uniform shirt to the IO which was converted into sealed parcel with the seal of DCK and taken into possession vide seizure memo Ex. PW9/V. His statement was recorded vide Ex. PW8/A. PW8 identified in the court his service revolver Ex. P1 and cartridges Ex. P2 (colly) as the same which were robbed from him and were seized vide seizure memo Ex. PW9/Q; one chhuri Ex. P3 which was recovered at the instance of accused Sairoon Begum and was seized vide seizure memo Ex. PW9/S; one chhuri Ex. P4 which was recovered at the instance of accused Sairoon Begum and was seized vide seizure memo Ex. PW9/U; and blood stained uniform shirt as Ex. P5 which was worn by him at the time of incident and same was seized vide seizure FIR No. 69/2010 State Vs. Noor Hasan Etc. Page No. 12 of 44 memo Ex. PW9/V. During cross-examination, he denied the suggestion that as accused Noor Hassan was B.C. of the area, he had gone there to take money from him and on his refusal he along with his associates falsely implicated in this case. He stated that some of the accused persons already known to him as he was the beat officer of the area. Other accused persons were also known to him being the resident of same area. He admitted the suggestion that nothing was recovered from accused Rajesh.
During further cross-examination, he admitted the suggestion that no public person is a witness in this case. He was not aware if accused Rajesh had made any complaint dated 05.03.2010 to higher police officer alleging that he had been falsely implicated in this case.
He further deposed that he was carrying pistol and Ct. Shambhu was carrying danda. He did not state specific word used by the accused person. He knew the accused person since they were residents of his beat. He and Ct. Shambhu were wearing helmet. He did not remember which of the accused caught him from which side. He deposed that on that day, he kept his revolver in the revolver case and same was tied with the string. He could not state about specific role of accused person who had beaten them on that day. He volunteered that all the accused persons gave beatings to them jointly. He further deposed that about 50-60 public persons gathered at the place of incident when PCR Van reached there. ASI Dulichand alongwith Ct. Sheovir reached at the spot at about 12:10 PM. The SHO reached at the spot before arrival of ASI Dulichand. Firstly, SHO entered in the house of accused Noor Hassan. He admitted the FIR No. 69/2010 State Vs. Noor Hasan Etc. Page No. 13 of 44 suggestion that IO did not call public person / neighbor for joining investigation and IO did not record statement of any public person. He did not know whether there was any fracture in left leg of accused Noor Hassan.
(ix) PW9 Ct. Shambhu Dayal is another victim as well as eye-witness in the present case. He deposed that on 01-03-2010, he was posted as Constable in PS Seemapuri. On that day, he along with Ct. Bhagmal were on arrangement duty in the area of New Seemapuri, Jhuggi Basti and they were doing patrolling on motorcycle no. DL1SN5379. During patrolling, at about 11.30 AM, when they reached at Raja Telecom, in the meantime, 10-12 boys having dandas in their hands including accused Noor Hasan @ Chhotu @ Tillu, his brother accused Kale, accused Joshim brother-in-law of Chhotu, his friend accused Mangal, accused Rajesh, accused Rafiq, accused Nanhe accused Abdul Hanif, accused Imran, accused Deepak were seen coming while abusing and making noise. He identified accused persons namely Noor Hasan, Kale, Rafiq, Nanhe, Deepak, Abdul Hanif, Imran, Shairoon Begum, Yasmin, Mangal, Joshim and Rajesh Biswas in the court. Ct. Bhagmal, after stopping the motorcycle, asked the accused persons not to abuse and make noise. On this, accused Noor Hasan @ Chhotu @ Tulli came to Ct. Bhagmal and uttered "tu jyada police afsar banta hai, aaj holi mein, main tujhe dekhta hoon". Before they could get down from the motorcycle, accused Chhotu asked other accused persons to catch hold them saying "saale ko pakad lo". Thereafter, accused Joshim, Kale, Mangal, Rajesh, Rafiq, Nanhe, Abdul Hanif, Imran and Deepak caught hold of them and started giving beatings to them. Accused Noor Hasan @ Chhotu took out chhura from his dub and attacked with FIR No. 69/2010 State Vs. Noor Hasan Etc. Page No. 14 of 44 chhura on the neck of Ct. Bhagmal with the intention to kill him but he managed to escape. Thereafter, accused Noor Hasan @ Chhotu again attacked Ct. Bhagmal and inflicted injury on his cheek, as a result of which, Ct. Bhagmal fell down on the ground.
Accused Noor Hasan @ Chhotu @ Tulli also robbed loaded revolver of Ct. Bhagmal. In the meantime, another motorcycle while patrolling and blowing siren was seen coming and on hearing the sound of siren, accused persons leaving them there fled away with the robbed revolver and in the process accused Noor Hasan @ Chhotu @ Tulli extended threat by saying "aaj to bach gaya phir kabhi hamara raasta rokega to jaan se maar denge". PCR van, other staff as well as outer force also reached at the spot. They were removed to the hospital by the PCR officials.
He further deposed that accused Noor Hasan @ Chhotu @ Tulli, Deepak, Imran, Kale, Nanhe, Abdul Hanif, Rafiq, were arrested vide arrest memo Ex. PW9/A to Ex. PW9/G and their personal search was conducted vide memos Ex. PW9/H to Ex. PW9/O. He deposed that robbed revolver recovered at the instance of accused Sairoon Begum from the roof of the jhuggi was unloaded and four cartridges were taken out from it and sketch of recovered revolver was prepared vide Ex. PW9/P. Revolver and cartridges recovered at the instance of accused Sairoon Begum were converted into sealed parcel with the seal of DCK and same was taken into possession vide seizure memo Ex. PW9/Q. Sketch of chhuri (Knife) recovered at the instance of accused Sairoon Begum from the jhuggi was also prepared vide Ex. PW9/R. Chhuri recovered at the instance of accused Sairoon Begum was converted into sealed parcel with the seal of DCK FIR No. 69/2010 State Vs. Noor Hasan Etc. Page No. 15 of 44 and same was taken into possession vide seizure memo Ex. PW9/S. Sketch of another chhuri (Knife) recovered at the instance of accused Sairoon Begum from the jhuggi was also prepared vide Ex. PW9/T. Chhuri recovered at the instance of accused Sairoon Begum was converted into sealed parcel with the seal of DCK and same was taken into possession vide seizure memo Ex. PW9/U. Ct. Bhagmal produced his blood-stained uniform shirt with batch and name plate to the IO which was converted into sealed parcel with the seal of DCK and same was taken into possession vide seizure memo Ex. PW9/V. He identified the service revolver Ex. P1 and cartridges Ex P2 (colly) as the same which were robbed from Ct. Bhagmal and were seized vide seizure memo Ex. PW9/Q; chhuri Ex. P3 as the same which was recovered at the instance of accused Sairoon Begum and was seized vide seizure memo Ex. PW9/S; another chhuri Ex. P4 as the same which was recovered at the instance of accused Sairoon Begum and was seized vide seizure memo Ex. PW9/U; and blood stained uniform shirt of Ct. Bhagmal Ex. P5 as the same which was worn by Ct. Bhagmal at the time of incident and same was seized vide seizure memo Ex. PW9/V. During cross-examination, he deposed that Ct. Sheovir had taken Rukka to Police Station at about 2.40 p.m. He could not tell specific description i.e. clothes of accused Hanif, Rafiq and Deepak. He did not know whether accused Deepak was resident of the locality in which the spot was situated or not. He denied the suggestion that accused Deepak was not present at the spot on the day of incident or that he was falsely implicated in the present case. He did not remember whether IO of this case had made individual inquiry at the house of accused persons. He FIR No. 69/2010 State Vs. Noor Hasan Etc. Page No. 16 of 44 deposed that no public person is witness in this case. He denied the suggestion that accused Hanif, Deepak and Rafiq have been falsely implicated in this case or that they were not having lathis or dandas or that they were having colours and pichkari. He further deposed that he alongwith Ct. Bhagmal had made departure entry at about 7.00 a.m and they were in uniform on that day. He did not remember if they were wearing helmets or caps when they reached at the spot. He did not remember as to which particular accused was having lathis or dandas in their hands. He denied the suggestion that due to belonging to Muslim community, accused Noor Hassan, Joshim, Kale, Imran were not celebrating or that they were not present at the spot. The knife was measured by IO while sitting at a place in front of Raja Telecom. He could not say if he had done writing work while sitting on which object. Raja Telecom was situated at the distance of less than 1 km from Police Station. He did not remember as to whether Ct. Bhagmal was having his service revolver placed on his left side or right side. He denied the suggestion that accused Noor Hassan did not rob loaded revolver of Ct. Bhagmal. He could not tell as to for how long the scuffle continued. However, so far as he remember, it continued for about 10-15 minutes. Public persons had assembled during the incident but he could not tell how many public persons had assembled. He deposed that he had finally left the spot at about 4.30-4.45 p.m. He had not beaten any accused persons in his self defence. He did not remember whether Ct. Bhagmal had beaten any accused in his self defence. He did not remember whether any damage was caused to the motorcycle or not during the incident. Statement of Ct. Bhagmal was recorded in the hospital FIR No. 69/2010 State Vs. Noor Hasan Etc. Page No. 17 of 44 but he could not tell the exact time. He denied the suggestion that he had not seen the accused Mangal while being catch hold by the police official or that accused Mangal was not present at the spot or that he was mentioning the name of accused Mangal at the instance of beat officer. Outer force i.e. Rapid Action Force reached at the spot in his presence at about 12:10 p.m. RAF consisting of about 40 members with arms including lathi, dandas etc. He admitted the suggestion that at that time police had surrounded the spot. Police had searched house of accused Noor Hassan in his presence. He did not remember along with whom he had accompanied during the search of accused Noor Hassan. He again said that he along with HC Bhagmal and other police officials had entered in the house of accused Noor Hassan. Police had tried to call the neighboring persons to join the investigation by knocking their doors but no one came forward. He could not tell whether IO had recorded the name and address of the persons who had not come forward after knocking their doors. He did not remember how many documents were prepared in the jhuggi of accused Noor Hassan in his presence. He did not remember if he had put his signature on any documents inside the jhuggi of accused Noor Hassan. He did not remember if writing work was done in jhuggi in his presence. He denied the suggestion that the police officials had beaten the accused Noor Hasan and when he became unconscious, this case was registered by the police officials to save themselves. He deposed that knife was measured with a plastic scale. He admitted that he had signed the document Ex. PW9/P and Ex.PW9/R after preparation from top to bottom and nothing was added or deleted after his signature.
FIR No. 69/2010 State Vs. Noor Hasan Etc. Page No. 18 of 44
(x) PW-10 Dr. Renu Chaudhary, Durga Puri Dispensary, Delhi Health Services, Delhi deposed that on 01.03.2010, she was posted in GTB Hospital as J.R. On that day, she had examined patient Ct. Bhagmal who was brought in the GTB Hospital with the alleged history of assault. She found two injuries on his person. One incised wound of 7cm x 1 was on the left side of the cheek, near chin and abrasion on the left knee. Thereafter, the patient was referred to surgery department after first aid. She proved the MLC prepared by her in this regard as Ex.PW10/A. She deposed that on that day, she had also examined patient Ct. Shambhu Dayal, who was brought to the hospital with the alleged history of assault. She had noticed injury i.e. abrasion on his left elbow with swelling and tenderness. She had recommended X-ray and he was referred to Ortho. Department. Pw 10 has proved the MLC prepared by her in this regard as Ex.PW10/B. During cross-examination, she deposed that as per MLC, the patients had not told her as to how they had sustained injuries. She volunteered that on examination, history of patients was assault. She could not say as to many police officials were present in casualty as she was busy in the treatment of patients.
(xi) PW-11 ASI Duli Chand is the first IO of the present case. He deposed that on 01.03.2010, he was posted with PS Seemapuri and on that day DD no. 26-B Ex. PW6/C was assigned to him. He alongwith Ct. Sheovir went to the spot i.e. F-Block, Jhuggi New Seemapuri where a lot of crowd was present. Ct. Bhagmal and Ct. Shambhu Dayal were also present. Ct. Bhagmal was in injured condition and was having a injury of his left cheek and was bleeding. PCR van had also come at the FIR No. 69/2010 State Vs. Noor Hasan Etc. Page No. 19 of 44 spot alongwith the other staff. Ct. Bhagmal had stated about the incident to him. There was tension in the crowd. More force was called at the spot to disperse the crowd and to make the law and order. Force was used on the rioters. Noor Hasan, Kale, Imran and four others were apprehended. He did not remember the names of other apprehended persons. During the process of apprehension, Noor Hasan had dashed his head against the wall and caused injury to himself. Ct. Bhagmal and Ct. Shambhu Dayal and Noor Hasan were sent to hospital for medical examination.
He further deposed that he alongwith Ct. Sheovir also went to the hospital and collected the MLC of Ct. Bhagmal, Ct. Shambhu Dayal and Noor Hasan. He had recorded the statement of Ct. Bhagmal regarding the incident vide Ex. PW8/A. He had put his endorsement on Ex. PW11/A on the statement of Ct. Bhagmal and got the present case registered through Ct. Sheovir. He identified accused Noor Hasan and Imran in the court. Accused Kale was not present in the court on that day as he was exempted from personal appearance. The other four accused who were apprehended at the spot were also present in the court and PW11 pointed out towards four accused in the dock and IO was asked to disclose their names. He submitted that he did not remember their names. In response to the court question, the four accused have disclosed their names as Rajesh, Mangal, Deepak and Joshim.
Thereafter IO again submitted that two other accused persons standing in the first dock were to be brought to the second dock and the two persons standing in the second dock were sent back to the first dock. IO stated that he did not FIR No. 69/2010 State Vs. Noor Hasan Etc. Page No. 20 of 44 remember the names of these four accused persons. In response to the court question, the accused persons disclosed their names as Imran, Rafiq, Joshim and Deepak.
He further deposed that after registration of the case, he had brought Ct. Bhagmal, Ct. Simbhu Dayal and accused Noor Hasan to the spot. In the meanwhile, Ct. Sheovir had come at the spot with copy of FIR and Rukka. Thereafter, he had interrogated Sayroon Begum at her jhuggi situated at E-Block, Seemapuri and she had produced service revolver from the roof of the jhuggi. Accused Sayroon Begum had also produced two knives from her jhuggi. He had drawn the sketch of the service revolver vide Ex. PW9/P. He also drawn the sketch of two knives Ex. PW9/R and PW9/T. After opening the revolver, he found four live cartridges. He converted the revolver with live cartridges and two knives in three separate cloth parcels and seized vide memos Ex. PW9/Q, Ex. PW9/S and Ex. PW9/U respectively prepared site plan at the instance of Ct. Bhagmal vide Ex. PW11/B. He further deposed that accused persons who were apprehended at the spot were sent to the police station. They were arrested in the police station vide arrest memos Ex. PW9/A, PW9/B, C, D, E, F and PW9/G. The personal search of the accused persons namely Noor Hasan, Abdul Hanif, Nanhey, Rafiq, Kale, Deepak and Imran were also conducted vide memos Ex. PW9/H, PW9/J, PW9/K, PW9/L, PW9/M, PW9/N and PW9/O. The accused persons except Noor Hasan were got medically examined at GTB hospital.
He further deposed that next day, he had arrested accused Yasmin and Sayroon Begum vide memos Ex. PW1/B and Ex.
FIR No. 69/2010 State Vs. Noor Hasan Etc. Page No. 21 of 44 PW2/B and got their personal search conducted vide memos Ex. PW1/A and Ex. PW2/A. He had also seized the blood stained uniform shirt of Ct. Bhagmal on 01.03.2010 itself vide memo Ex. PW9/V. During the course of investigation, he had also arrested accused Rajesh Vishwas and accused Joshim vide memo Ex. PW11/C. On 09.04.2010, he alongwith Ct. Manjeet and Ct. Bhagmal reached in jhuggies, New Seemapuri where, on the identification of Ct. Bhagmal, accused Mangal was apprehended. He arrested the accused Mangal vide arrest memo Ex. PW3/B and conducted his personal search vide memo Ex. PW3/A. Ct. Manjeet got the accused Mangal medically examined. Accused Mangal was sent to lock- up. He identified accused Mangal in the court. On 13.04.2010, accused Joshim was formally arrested vide memo Ex.PW11/PX and his personal search was effected vide memo Ex.PW11/PY. He collected opinion on the MLCs of injured persons and placed MLCs on record. He obtained permission under section 195 Cr.P.C. on his application Ex. PW11/PZ. After completing the investigation, he prepared charge-sheet and submitted it in the Court. PW11 identified the case property i.e. service revolver Ex. P-1 and cartridges Ex. P-2 (colly.) as the same which were recovered from accused Sahiroon Begum and seized vide seizure memo Ex.PW9/Q; one chhuri Ex.P-3 as the same which was recovered at the instance of accused Sairoon Begum and was seized vide seizure memo Ex.PW9/S; one another chhuri Ex.P-4 as the same which was recovered at the instance of accused Sairoon Begum and was seized vide seizure memo already Ex.PW9/U; blood stained uniform shirt Ex. P-5 as the same which was worn Ct. Bhagmal at the time of incident FIR No. 69/2010 State Vs. Noor Hasan Etc. Page No. 22 of 44 and same was seized vide seizure memo Ex. PW9/V. During cross-examination, he deposed that he did not take the photograph of the wall where accused Noor Hassan dashed his head and did not lift blood stains from the wall. He did not call any public person / neighbor to join the proceedings. No public person came to the jhuggi of Sairoon Begum. He admitted the suggestion that Ex. PW9/P and Ex. PW9/R do not bear thumb impression or signature of the accused Sairoon Begum. He did not remember the time when he prepared Ex.PW9/P. Ex.PW9/R. He admitted that he did not prepare the sketch of cartridge. He handed over the seal to Ct. Bhagmal after use and he returned the same to him in the police station on the same day. He did not send blood-stained shirt of Ct. Bhagmal to FSL. He admitted that Ct. Bhagmal was also discharged from the hospital on the same day. He further admitted that he did not obtain complaint under section 195 CR.P.C. He denied the suggestion that accused Noor Hasan did not quarrel with the Ct. Bhagmal and Ct. Shambu Dayal nor he caused injury to Ct. Bhagmal. He admitted that there were several residential houses and several persons were passing through at the time of their arrest. No one disclosed physical appearance of the accused Deepak, Hanif and Rafiq before their arrest. He admitted that Noor Hasan sustained injury only. He denied the suggestion that he had made false statement being an officer of Delhi Police as it was a police case. He denied that accused Rajesh Vishwas and Mangal were lifted from their houses and falsely implicated in this case.
(xii) PW-12 SI Jagdish Prasad is the investing police official. He deposed that on 01-03-2010, he was posted as FIR No. 69/2010 State Vs. Noor Hasan Etc. Page No. 23 of 44 Assistant Sub-inspector in police station Seemapuri. On that day, his duty hours from 8.00 a.m. to 10.00 p.m. He did not remember the exact time but it was evening time. Duty Officer told him that there was a riot in jhuggi of New Seemapuri and asked him to reach at the place of incident immediately. He reached at the place of incident. Inspector K.S. Rawat, SHO, PS Seemapuri also reached at the place of incident. There was riot in F-Block jhuggi in New Seemapuri. Inspector K.S. Rawat asked rioters to disperse from there but they did not disperse. The police force from police station Seemapuri was present. Noor Hassan, Kale, Sharul, Abdul, Haneef, Nanhe, Deepak, Rafique etc. were apprehended by the police force from the place of incident. Noor Hassan struck his head against a wall while he was being apprehended. The revolver snatched from Ct. Bhagmal was recovered from jhuggi of Kale. In the meanwhile, he sustained an injury on his right hand while apprehending the accused persons. The injury was caused by the accused persons but he could tell as to who was the person who caused injury to me. He went to GTB Hospital for treatment and his MLC was prepared. His statement was recorded in the night of 02.03.2010 by IO ASI but he was unable to recall his name.
During cross-examination, he deposed that he did not make any departure entry in the police station while leaving the police station. He could not say the land mark where the incident had occurred. He did not know whether Ct. Bhagmal returned to the spot from hospital or not. He left the spot for hospital at about 1.45 p.m. He admitted the suggestion that revolver was not recovered in his presence. Accused Noor Hassan, Kale, Sharul Begum, Abdul Haneef, Nanhe, Deepak and Rafique were sent to FIR No. 69/2010 State Vs. Noor Hasan Etc. Page No. 24 of 44 police station at about 1.30 p.m. The accused Noor Hassan was apprehended by the police at Main Road, F-Block, New Seemapuri.
(xiii) PW-13: Inspector K.S. Rawat deposed that on 01/03/2010, he was posted as Inspector (Investigation) in PS Seemapuri and on that day, he was looking after work of Officer- in-charge (SHO) as Inspector Dara Singh, SHO was on leave. He deposed that on 01.03.2010, it was Holi festival, the staff was deployed in the area of the police station to maintain law and order. He alongwith SI Surender Kumar and other police staff was patrolling in the area of the police station. On that day, at about 11.30 a.m., he received a message on his wireless-set that public persons were beating police officials in F-Block, Jhuggi, New Seemapuri near Fish market. On receipt of the said message, he immediately reached at the place of incident. He instructed Duty Officer to send the entire staff at the place of incident. He reached at the place of incident and found that several persons had gathered there. He asked the crowd to disperse from there but the crowd did not disperse despite his direction. Then, he instructed Duty Officer to arrange outer force and send it to the place of incident. When he reached at the place of incident, he found that Ct. Bhagmal sustained sharp injury on his right cheek with some sharp object and he was bleeding profusely. Ct. Bhagmal told him that when he was patrolling, 10- 12 persons armed with lathis were making noise and when he asked them not to make noise, then they pushed his motorcycle and caused sharp injury on his cheek and snatched his revolver. In the meanwhile, additional police force from the police station reached there. Ct. Bhagmal told him that Noor Hassan, his FIR No. 69/2010 State Vs. Noor Hasan Etc. Page No. 25 of 44 brother Kale and their associates snatched his revolver. A raid was conducted in the house of Noor Hassan and Kale and revolver belonging to Ct. Bhagmal was recovered from the house of Kale. At that time, he was in front of house of Kale and controlling the situation. Noor Hassan and Kale were apprehended in his presence. He also received message at the place of incident regarding apprehension of Abdul, Haneef, Nanhe, Deepak etc. Noor Hassan hit his head against a wall during his apprehension and he was sent to GTB Hospital for treatment. He deployed force for maintenance of law and order.
During cross-examination, he deposed that he reached at about 11.40 a.m. at the place of incident. ASI Jagdish Prasad reached at the spot after him. The house of accused Kale was situated at a distance of half kilometer from the spot. He admitted the suggestion that recovery of revolver from his jhuggi was not effected in his presence. IO did not prepare any document in his presence at any place. Accused Noor Hassan and Kale were apprehended by the police officials outside of their houses. He did not know whether there was any fracture in the left leg of the accused Noor Hasssan. He did not try to join any person as a witness before making announcement. STATEMENT OF ACCUSED
5. After completion of prosecution evidence, the statement of accused persons were recorded under Section 313 Cr.P.C. wherein incriminating facts emerging from the evidence were put to the accused persons, which were denied by them. The accused persons namely Joshim, Yasmin, Sahiroon Begum, deposed that they belong to Muslim Community and festival of Holi is not celebrated in their religion. Some of the police officers were in FIR No. 69/2010 State Vs. Noor Hasan Etc. Page No. 26 of 44 drunk condition and had beaten Noor Hasan very brutally and in order to save themselves, the police offficials have falsely implicated them. Other accused deposed that they are innocent and falsely implicated in this case. Accused Joshim and Rajesh opted to lead defence in their defence. However, despite several opportunities given to them, none of them have lead DE and therefore, opportunity to lead defence evidence on behalf of accused persons stood closed vide order dated 19-09-2018. FINAL ARGUMENTS
6. This court had heard Ld. Defence counsel as well as Ld. APP for State. This court has also perused written submission filed by the Ld. Defence Counsel Sh. Pankaj Bhushan. It is submitted by Ld. APP for State that testimonies of prosecution witnesses are sufficient to bring home the guilt of the accused persons for the offence punishable u/s 147/148/149/186/332/ 333/353/307/152/395/412 IPC.
7. On the other hand, Ld. Defence counsel Sh. Pankaj Bhushan on behalf of accused persons namely Rajesh, Sayroon Begum, Yasmeen and Josim has submitted that the prosecution has failed to prove its case beyond reasonable doubt. No independent person was examined as witness despite the fact that PW7 SI Surender stated in his examination that crowd of about 200-250 public persons had gathered at the spot. As per prosecution case, accused Noor Hasan had hit his head against the wall. However, PW7 had stated that accused Noor Hasan had sustained injury as he struck his head on the floor. It is submitted that injuries received by the police officials are self-inflicted. There is contradiction in the testimony of PW8 Ct. Bhagmal regarding the number of public persons who gathered at the spot.
FIR No. 69/2010 State Vs. Noor Hasan Etc. Page No. 27 of 44 In his cross-examination, he stated that about 50-60 persons had gathered whereas PW7 in his cross-examination, stated that about 200-250 public persons had gathered at the spot. It is submitted that PW8 had handed over his uniform to the IO but not to the doctor at the time of his medical examination, which clearly shows that false evidence has been created in the present case. There is contradiction in the testimony of PW9 Ct. Shambhu Dayal regarding the place at which the knives were measured. The accused persons are falsely implicated as PW9 failed to give description of the house of accused Noor Hasan. There is contradiction in the testimony of PW9 Ct. Shambhu Dayal and PW8 Ct. Bhagmal regarding the material of scale with which the knife was measured. No photographs of the wall where the accused Noor Hasan dashed his head has been taken and even blood stains were not lifted from the wall. No complaint u/s 195 Cr.P.C. has been filed. No departure entry has been made by the IO while leaving the police station. There is contradiction in the testimony of PW13 Inspector K. S. Rawat regarding the time at which he reached at the spot. As per his version, he reached at the spot at about 11:40 am, however, time mentioned in DD no. 26B is 11:50 am. The IO failed to join the Driver and Operator, who accompanied PW13 at the spot, in the investigation of the present case. No photograph of the spot has been taken. No member of Rapid Action Force has been cited as witness. Accused Noor Hasan was BC of the area and admittedly Ct. Bhagmal was the Beat Officer of the area, who used to take money from accused Noor Hasan and on their refusal to meet the illicit demand, he used to extend threats either to face dire consequences or to implicate him in false and frivolous criminal FIR No. 69/2010 State Vs. Noor Hasan Etc. Page No. 28 of 44 case. It is further submitted that on 01-03-2010, Ct. Bhagmal and Ct. Shambhu Dayal went to the house of accused Noor Hasan in drunken condition and demanded money from him and when he refused, both the police officials beat Noor Hasan very brutally and took him to PS where they again beaten accused Noor Hasan very brutally and when his condition started becoming worse and he became unconscious, they immediately took accused Noor Hasan to hospital and got prepared MLC no. B-810/10 from the doctor who asked the police officials as to who gave beatings to him. Thereafter, they brought accused Noor Hasan to PS and created a false and frivolous case against him. The MLC of accused Noor Hasan bearing no. B-810/10 has been placed on record but the same was not marked as exhibit because the IO did not want to examine the said doctor in the present case, who is material and essential witness in the present case. In light of above-stated submissions, it is prayed that accused persons be acquitted On behalf of accused Deepak, Abdul Hanif, Imran and Mangal, Ld. Defence counsel Sh. Sandeep Srivastava has stated that not a single prosecution witness has testified on the point of specific role of accused persons in the commission of alleged offence. It is submitted that for proving an offence of rioting, the prosecution ought to have established motive or preparation on the part of accused persons. It is, therefore, prayed that accused persons be acquitted.
FINDINGS OF THIS COURT
8. Before analyzing the evidence led by the Prosecution in the present case, this court deems it proper to refer to some provisions of law and citations of Superior courts, which are FIR No. 69/2010 State Vs. Noor Hasan Etc. Page No. 29 of 44 found to be applicable to the facts of the present case.
''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 Fifth--By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.
Explanation--An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.
146. Rioting--Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting.
147. Punishment for rioting--Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
148. Rioting, arms with deadly weapon--Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a terms which may extend to three years, or with fine, or with both.
149. 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.
299. Culpable homicide--Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
300. Murder--Except in the cases hereinafter excepted, FIR No. 69/2010 State Vs. Noor Hasan Etc. Page No. 30 of 44 culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or - Secondly--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--
Thirdly--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-- Fourthly--If the person committing the act knows that it is so imminently dangerous that is must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
307. Attempt to murder--Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to [imprisonment for life], or to such punishment as is hereinbefore mentioned.
332. Voluntarily causing hurt to deter public servant from his duty--Whoever voluntarily causes 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 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, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.''
9. It is observed that the prosecution has got examined two eye-witnesses namely PW8 Ct. Bhagmal and PW9 Ct. Shambhu Dayal. Both PW8 and PW9 have correctly identified all the accused persons. It is not in dispute that PW8 and PW9 were performing patrolling duty at the time of incident. PW8 categorically deposed that when they reached there, Noor Hassan alongwith his brother Kale, brother-in-law of Noor Hassan namely Joshin alongwith his friend Mangal and Rajesh along with 10/12 boys were coming from the front side while using the abusive language. They stopped their motorcycle and asked them FIR No. 69/2010 State Vs. Noor Hasan Etc. Page No. 31 of 44 not to use the abusing language. On this, Noor Hassan came out in front of them and told him "tu jayada police officer banta ha"
and told his companions to assault upon him and his motorcycle was also thrown on the ground. Mangal, his brother Kale and his brother-in-law Joshin started given beating to him. He was caught hold by Rajesh, Mangal and Joshin and thrown him on the ground and given beatings. The accused Noor Hassan took out a knife and gave him a knife blow on his neck but he managed to escape. Noor Hassan again gave him a knife blow which hit him on left cheek. The accused Noor Hassan snatched his service revolver. Meanwhile, patrolling motorcycle (with siren) reached there. The accused persons ran away from the spot after beating him and threatening him to kill if he came in their way in future. His version is inconsonance with his statement Ex. PW8/A recorded by the IO. His testimony finds corroboration with the version of PW9 Ct. Shambhu Dayal. Both PW8 and PW9 have correctly identified the case property i.e. robbed service revolver along with four live cartridges, knives recovered at the instance of accused Sayroon Begum, blood-stained uniform of Ct. Bhagmal. MLC Ex. PW10/A also corroborates the version of Ct. Bhagmal. As per MLC Ex. PW10/A, Ct. Bhagmal had sustained two injuries on his person. One incised wound of 7 x 0.1 cm in the left side of his cheek, near chin and there was abrasion on his left knee.
10. PW9 Ct. Shambhu Dayal has also categorically deposed that accused Joshim, Kale, Mangal, Rajesh, Rafiq, Nanhe, Abdul Hanif, Imran and Deepak caught hold of them and started giving beatings to them. His version is consistent with his MLC Ex. PW10/B wherein it is reported that there is abrasion on his left FIR No. 69/2010 State Vs. Noor Hasan Etc. Page No. 32 of 44 elbow with swelling and tenderness.
11. It is pertinent to note that both PW8 and PW9 have stated that accused Noor Hasan had told his companions (co-accused persons) to assault upon them and whereupon, all the accused persons had joined him in beating PW8 and PW9. Thus, it is apparent that the common object was formed at the spot i.e. to beat the police officials who were performing patrolling duty as the police officials were objecting them for using abusive language.
12. Further, it is pertinent to note that there is nothing on record to indicate that other co-accused persons who had joined accused Noor Hasan in beating the police officials, who were performing patrolling duty, have shared common intention of robbing the service revolver of Ct. Bhagmal. From the testimony of PW8 and PW9, it is apparent that common object of all the accused persons was to cause assault upon the police officials at the instigation of accused Noor Hasan. In the case of Mrinal Das Vs. State of Tripura, AIR 2011 SC 3753:(2011) 9 SCC 479: (2011) 10 SCALE 55, it was held that the burden lies on prosecution to prove that actual participation of more than one person for commission of criminal act was done in furtherance of common intention at a prior concert. Further, in the case of Jai Bhagwan Vs. State of Haryana, AIR 1999 SC 1083, it was held that to apply section 34, apart from the fact that there should be two or more accused, two factors must be established: (i) common intention, and (ii) participation of accused in the commission of an offence. If common intention is proved but no overt act is attributed to the individual accused, section 34 will be attracted as essentially it involves vicarious liability but if FIR No. 69/2010 State Vs. Noor Hasan Etc. Page No. 33 of 44 participation of the accused in the crime is proved and common intention is absent, section 34 cannot be invoked.
13. The proceedings against accused Noor Hasan have already been abated. In these circumstances, this court is of the opinion that prosecution has failed to establish the fact that all the accused persons except accused Noor Hasan have shared common intention with the accused Noor Hasan in robbing the service pistol of Ct. Bhagmal. Nor there is any evidence to indicate that all the accused persons conjointly committed robbery on the person of Ct. Bhagmal. Thus, there is no evidence to prove commission of offence punishable u/s 395 IPC.
14. Since the prosecution has failed to establish the fact that the recovered pistol was the one which was used in the commission of offence of dacoity, section 412 IPC which is pertaining to dishonestly receiving property stolen in the commission of offence of dacoity could not be attracted against accused Sayroon Begum. However, there is sufficient evidence to indicate that accused Sayroon Begum had dishonestly retained the stolen property, the possession whereof has been transferred by commission of robbery by accused Noor Hasan. Thus, the ingredients of Section 411 IPC are attracted. However, ingredients of section 412 of IPC are not attracted as the prosecution has failed to prove commission of offence of dacoity on the part of accused persons.
15. As regards the contention of Ld. Defence counsel regarding contradictions in the testimony of PW7 SI Surender on the aspect of place where the accused Noor Hasan had struck his head is concerned, it is pertinent to note that as per the prosecution case, the accused Noor Hasan had struck his head at FIR No. 69/2010 State Vs. Noor Hasan Etc. Page No. 34 of 44 the time of his apprehension. At that time, it is not in dispute that the situation was tense due to gathering of huge crowd. The testimony of PW11 ASI Duli Chand, PW12 SI Jagdish Prasad, PW13 Inspector K. S. Rawat is consistent on this aspect. They all have stated that accused Noor Hasan had hit head on the wall. Thus, the above-mentioned contention regarding contradiction in the testimony of PW7 SI Surender fails to inspire the confidence of this court.
16. It is also contended by Ld. Defence counsel that there is discrepancy as regards the number of public persons, who gathered at the spot, non-handing over of uniform by Ct. Bhagmal to the doctor who examined him, discrepancy regarding the material of scale used for measuring recovered knife. In this regard, it is pertinent to note that these discrepancies do not pertain to the main incident, which in the present case is assault upon the police officials Ct. Bhagmal and Ct. Shambhu Dayal, who were performing patrolling duty. In order to prove MLCs of victims, the prosecution has got examined PW10 Dr. Renu Chaudhary. Perusal of her cross-examination reveals that no query was put to her to ascertain as to whether she had asked the victims to hand over their blood-soaked clothes or not. No defence witness has been examined by the accused persons despite having given the opportunity.
17. It is noted that none of the contradictions referred by ld. Defence counsel pertains to the material aspect of the case. There is no contradiction as regard the entire sequence of events testified by the victims whereby they have received the injuries due to commission of assault by the accused persons.
18. In the case of State of H.P. v. Lekhraj and another FIR No. 69/2010 State Vs. Noor Hasan Etc. Page No. 35 of 44 reported in JT 1999 (9) SC 43, it was observed by the Hon'ble Supreme Court of India that:-
"In the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like.........
.......The traditional dogmatic hyper technical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial." Further, in the case of Surender Singh v. State of Haryana reported in JT 2006 (1) SC 645, the Hon'ble Supreme Court of India has observed as under :- "It is well-established principle of law that every discrepancy in the witness statement cannot be treated as a fatal to the prosecution case. The discrepancy, which does not affect the prosecution case materially, does not create infirmity."
As far as minor inconsistencies are concerned in the statement of the witnesses it is held in Ousu Varghese v. State of Kerala, reported in (1974) 3 SCC 767 that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. In the case of Jagdish v. State of Madhya Pradesh, reported in AIR 1981 SC 1167, the Supreme Court has held that when the discrepancies were comparatively of minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions. Also in the case of State of Rajasthan Vs. Kalki, reported in (1981) 2 SCC 752 it has been held that in the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person.
(133) Even otherwise, when an eye witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non discrepant. But Courts should bear in mind that it is only when discrepancies in evidence of witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
FIR No. 69/2010 State Vs. Noor Hasan Etc. Page No. 36 of 44 (134) The Supreme Court had an opportunity to discuss as to why discrepancies arise in the statements of witnesses. In the judgment of Bharwada Boginbhai Hijri Bhai Vs. State of Gujarat, reported in 1983 (CRI) GJX 0252 SC: AIR 1983 SC 7453 (1), the Supreme Court pointed out the following reasons as to why the discrepancies, contradictions and improvements occur in the testimonies of the witnesses:
(a) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(b) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(c) The powers of observation differ from person to person.
What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.
(d) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
(e) In regard to exact time of an incident, or the time duration of an occurrence, usually people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time sense of individuals which varies from person to person.
(f) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
(g) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, of fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him perhaps it is a sort of psychological defence mechanism activated on the moment.
19. It has been held by the Hon'ble High Court of Delhi in the case of Sonu Arora Vs. State on 21 July, 2010 in Crl. A. No. 241/1997 that:-
"If the discrepancies found in the testimony of a witness are normal and attributable to loss of memory with the passage of FIR No. 69/2010 State Vs. Noor Hasan Etc. Page No. 37 of 44 time or they are on matters which are peripheral or trivial, not forming the core of the case, his testimony cannot be rejected on account of such minor variations or infirmities. But, where the contradiction relates to the main incident forming core part of his testimony, that could depending upon the nature of the contradiction and other facts and circumstances of the case, seriously affect the credibility and truthfulness of the witness since he is not expected to give contradictory version with respect to the important material parts of the incident which he claims to have witnessed."
Under these circumstances, the above-mentioned contentions, in the opinion of this court, are devoid of any merit.
20. It is apparent from the testimony of PW8 Ct. Bhagmal and PW9 Ct. Shambhu Dayal that accused Noor Hasan had asked other accused persons to catch hold the victims. Thereafter, at the behest of accused Noor Hasan, the remaining accused persons started giving beatings to the victims. The accused Noor Hasan had also tried to give knife blow on the neck of Ct. Bhagmal. However, Ct. Bhagmal somehow managed to escape. Service revolver of Ct. Bhagmal was also snatched by accused Noor Hasan. It is only on the appearance of another patrolling motorcycle with siren, the accused persons left the victims. Thus, it is established, from the above-stated circumstance, that there was intention on the part of accused persons to kill the victims.
21 In the case of Vasant Virthu Jadhav Vs. State of Maharashtra, (1997) 2 Crimes 539 (Bom.), it was held that the important thing to be borne in mind in determining the question whether an offence under section 307, is made out is the intention and not the injury (even if simple or minor).
22. In the case of Ansarudin Vs. State of Madhya Pradesh, (1997) 2 Crimes 157, it was held that it is not necessary that injury, capable of causing death, should have been inflicted.
FIR No. 69/2010 State Vs. Noor Hasan Etc. Page No. 38 of 44 What is material to attract, the provisions of section 307 is the guilty intention or knowledge with which the all was done, irrespective of its result. The intention and knowledge are the matters of inference from totality of circumstances and cannot be measured merely from the results.
23. It is further contended by Ld. Defence counsel that no independent public witness was joined in the investigation and therefore, the prosecution has failed to prove its case beyond reasonable doubt. In this regard, it is pertinent to note that as per the prosecution case, riotous situation had arisen and huge crowd had gathered at the spot. Extra force was called at the spot to disperse the rioters. In these circumstances, it cannot be expected from the police officials to request any independent public person to join the investigation. Moreover, one of the investigating police official namely SI Jagdish Prasad had also sustained injury on his right hand while he was apprehending the accused persons during the course of investigation of the present case. His MLC has been proved as Ex. PW4/A.
24. Hon'ble Delhi High Court in judgment titled "Jhodha Sahney Vs. State of NCT of Delhi 2011 (1) Crimes 382", it has been observed as under:-
"7. The next ground taken by the Counsel for the appellant is that no public witness was joined at the time of recovery. The accused had started moving quickly towards the village on the seeing police party and police party therefore stopped the accused/appellant and checked his gunny bag. On checking it was found that gunny bag held by the accused contained charas. Merely because the police party did not associate public persons in this "chance recovery" cannot be a ground to disbelieve the case of prosecution. Moreover, there is normal tendency of public persons not to associate themselves with police investigation as the investigation and the trials in this country are the source of great harassment to the witnesses who are often not taken care of by the Courts or by the police. The witnesses are normally scared to join any investigation or give testimony FIR No. 69/2010 State Vs. Noor Hasan Etc. Page No. 39 of 44 even of what they have witnessed in broad daylight because of the repeated summoning in the Courts and sending them unexamined in a routine and casual manner by the Courts."
25. Dealing with the aspect of reluctance of the public persons to join the police proceedings, this Court in Jawahar vs. State (2007) ILR 2 Delhi 146 observed as under:-
"As far as non association of public witnesses at the time of recovery is concerned, I consider that this is not an infirmity sufficient to throw out the case of the prosecution. It is very hard these days to get association of public witnesses in criminal investigation. Investigation itself is a tedious process and a public witness, who is associated, has to spend hours at the spot. Normally, nobody from public is prepared to suffer any inconvenience for the sake of society. The other reason for the public witness not readily agreeing to associate with investigation is harassment of public witness that takes place in the courts. Normally a public witness should be called once to depose in the court and his testimony should be recorded and he should be discharged. But experience shows that adjournments are given even in criminal cases on all excuses and if adjournments are not given, it is considered as a breach of the right of hearing of the accused. These adjournments are specifically taken by counsels for accused persons, when witnesses are present, just to see that witnesses get harassed by calling them time and again. The excuses normally given in the courts are; the counsel having urgent personal work, left the court; death of some near relatives etc; the counsel being busy in arguing other matter in other court or cross examining other witness in some other court. This attitude of the courts of sending witness back is a major cause of harassment which discourages public from associating in the investigation of any case. Since the police is faced with this handicap, the police cannot be blamed for not associating public witness. There is no presumption that the police witnesses are not credible witnesses. The testimony of every witness, whether from public or police, has to be judged at its own merits and the court can believe or disbelieve a police witness considering the intrinsic value of his testimony. Police witnesses are equally good witnesses and equally bad witnesses as any other witness and the testimony of police witness cannot be rejected on the ground that they are official witnesses".
Thus, the contention regarding non-joining of public witnesses fails to inspire confidence of this court.
FIR No. 69/2010 State Vs. Noor Hasan Etc. Page No. 40 of 44
26. It is further contended on behalf of accused persons that the prosecution has failed to prove that there was any prior meeting or preparation on the part of accused persons in committing the alleged offence. In this regard, it is pertinent to note that from the testimony of victims i.e. PW8 Ct. Bhagmal and PW9 Ct. Shambhu Dayal, it is apparent that accused Noor Hasan had asked his companions to beat the victims. Remaining accused persons had followed his command and started beating the victims mercilessly. Thus, unlawful assembly with the common object of beating the police officials who were performing patrolling duty was formed on spur of the moment.
27. In the case of Ram Chandran Vs. State of Kerala, AIR 2011, SCC 3581, it has been held by the Hon'ble Supreme Court of India that common object may form on spur of the moment. Prior concert in the sense of meeting of unlawful assembly members is not necessary.
28. In the case of Madhya Pradesh Vs. Bhagwan Singh, 2000 Crl.LJ 123 (MP), it was held that where the presence of injured eye witnesses at the place of occurrence was undoubtful and their evidence corroborated by medical evidence supported by prompt FIR against all 16 accused, merely non-explanation of injuries sustained by accused persons by these witnesses is not fatal for prosecution and as such common object of unlawful assembly to cause death is establish.
29. In the case of Allauddin Mian Sharif Mian Vs. State of Bihar, (1989) Crl.LJ 1466, AIR 1989 SC 1456, it was held that there must be nexus between the common object and the offence committed and if it is found that the same was committed to accomplish the common object every member of the assembly FIR No. 69/2010 State Vs. Noor Hasan Etc. Page No. 41 of 44 will become liable for the same.
30. In the case of Waman Vs. State of Maharashtra, AIR 2011 SC 3327: (2011) 7 SCC 295; JT 2011 (7) SC 24: (2011) 6 SCALE 594: 2011 Crl.L.J 4827, it was held that in order to attract Section 149 of the Code it must be shown that the incriminating act was done to accomplish the common object of unlawful assembly. If 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.
31. In the case of Yunis alias Kariya Vs. State of Madhya Pradesh, AIR 2003 SC 539, it was held that when the charge is under section 149, the presence of the accused as part of unlawful assembly is sufficient for conviction even if no overt act is imputed to him.
32. Even if no overt act is imputed to a particular person, when the charge is under section 149, the presence of the accused as part of unlawful assembly is sufficient for conviction.
33. In the case of State of Maharashtra Vs. Joseph Mingel Koli, (1997) 2 Crimes 228 (Bom.), it was held that it is well settled that once a membership of an unlawful assembly is established, it is not incumbent on the prosecution to establish whether any specific overt act has been assigned to any accused. Mere membership of the unlawful assembly is sufficient.
34. Every member of an unlawful assembly is vicariously liable for the acts done by others either in the prosecution of the common object of the unlawful assembly or such which the FIR No. 69/2010 State Vs. Noor Hasan Etc. Page No. 42 of 44 members of the unlawful assembly knew were likely to be committed.
35. In the case of Amerika Rai Vs. State of Bihar, AIR 2011 SC 1379: (2011) 4 SCC 677: JT 2011 (5) SC 406: (2011) 2 SCALE 696, it was held that even the presence in the unlawful assembly, but with an active mind, to achieve the common object makes such a person vicariously liable for the acts of the unlawful assembly.
36. Thus, from the above-mentioned rulings, it is apparent that in the circumstances as alleged in the prosecution case, the prosecution is not required to prove that there was prior meeting or preparation on the part of the accused persons in committing the alleged offence. The contention in this regard is misconceived.
37. As per Section 195 of Cr.P.C, there is requirement of compliant in writing of public servant concerned or some other public servant to whom he is administratively subordinate. In the present case, public servant concerned are Ct. Bhagmal and Ct. Shambhu Dayal. The present FIR was registered on the basis of written complaint of Ct. Bhagmal which is Ex. PW8/A. Thus, compliance of section 195 Cr.P.C. has been made in the present case. The contention in this regard is misconceived.
38. As per MLC Ex. PW10/A, Ct. Bhagmal is victim as he received injury on his face. However, there is neither any oral testimony of Ct. Bhagmal nor in the MLC to indicate that there is any permanent disfiguration of his face. In these circumstances, the prosecution has failed to establish the fact that Ct. Bhagmal has received grievous injury, as defined in Section 320 of IPC.
FIR No. 69/2010 State Vs. Noor Hasan Etc. Page No. 43 of 44 DECISION OF THE COURT
39. In the opinion of this court, the testimony of prosecution witnesses comes out to be clear, convincing, trustworthy and inspires confidence of this court. Nothing material came out in their respective cross-examination. There is no reason to disbelieve the version of prosecution witnesses. All the ingredients of section 147/148/149/152/186/332/353/307/34 IPC are satisfied. The prosecution has successfully proved beyond reasonable doubt its case against the accused persons. Accordingly, accused Deepak, Abdul Hanif, Imran, Sayroon Begum, Yashmeen, Mangal, Joshim and Rajesh Vishwas are hereby convicted of the offences punishable u/s 147/148/149/152/186/332/353/307/34 IPC. Accused Sayroon Begum is also convicted for the offence punishable u/s 411 IPC. However, all the accused persons are acquitted for the offence punishable u/s 333/395 IPC. Let the convicts be heard on the quantum of sentence and grant of compensation on the next date of hearing.
ANNOUNCED IN THE OPEN COURT
ON 08-06-2023
PANKAJ Digitally signed by PANKAJ
ARORA
Location: Karkardooma Court,
ARORA Delhi
Date: 2023.06.09 18:27:02 +0530
(PANKAJ ARORA)
ADDL. SESSIONS JUDGE-04: NORTH-EAST/
KARKARDOOMA/08-06-2023.
FIR No. 69/2010 State Vs. Noor Hasan Etc. Page No. 44 of 44