Delhi District Court
State vs . Mohan Chand Tiwari & Ors. on 28 January, 2011
IN THE COURT OF MS EKTA GAUBA
METROPOLITAN MAGISTRATE (CENTRAL-06): DELHI
State Vs. Mohan Chand Tiwari & Ors.
FIR no. 114/97
U/s 451/353/186/506/342/147/189/149 IPC &
Section 3.1 (x)/3.2 (vii) SC/ST Prevention of
Atrocities Act.
PS I.P. Estate
JUDGMENT
1. Sr. No. of case : 182/2/01/10
2. Date of commission of offence : 06.03.1997
3. Name of complainant : Ram Raj.
4. Name, parentage and address
of the accused :1 Mohan Chand Tiwari S/o Lt.
Sh. Narain Dutt Tiwari, R/o 998,
Lodhi Road Complex, New
Delhi
2. Naresh Kumar S/o Sh. Tula
Ram R/o 807/18, RR Block,
Naveen Shahdra, Delhi-32
3. Devender Singh S/o Sh.
Dalip Singh R/o VPO Khera
Khurd, Delhi-82
4. Naresh Kumar Yadav S/o Sh.
Mange Ram R/o VPO
Shahjahanpur, Distt. Jhajhar,
Haryana
5. Sandeep Chauhan S/o Sh.
Jabar Singh, R/o 970, Flat No.
F-5, Shalimar Garden Extn. 1,
Sahibabad, Ghaziabad, UP.
State Vs Mohan Chand Tiwari. 1
5. Offence complained of : U/s 451/189/186/353/342/506/147/149
IPC
6. Plea of accused. : Pleaded Not Guilty
7. Final order : Convicted u/s
451/189/186/353/342/147 IPC r/w
Section 149 IPC only
8. Date of such order : 28.01.2011.
BREIF REASONS FOR SUCH DECISION:-
1. Accused have been forwarded by SHO of the Police Station I.P. Estate to face trial u/s 451/353/186/506/342/147/189/149 IPC & Section 3.1 (x)/3.2
(vii) SC/ST Prevention of Atrocities Act.
2. In a nut shell, the prosecution story is that a complaint was made by PW Ram Raj Assistant Commissioner of Income Tax that on 28.02.1997, he requested Sh. A.K. Gautam Additional Commissioner of Income Tax to transfer the peon accused Sandeep Chauhan as he has been irregular in attending office and absenting himself from duty without permission and on the same day, Sh. Gautam transferred the said peon.
PW Ram Raj stated that on 06.03.1997 at about 4 pm, 5-6 persons namely accused Naresh Yadav, Naresh Kumar, Devender Singh, Mohan Tiwari, Sandeep along with 2-3 other persons who could be identified if brought before him, forcibly entered his office and the aforesaid accused in connivance with each other aggressively told him to take accused Sandeep peon back in his office and withdraw his letter made to the Additional Commissioner of Income Tax for the transfer of said peon. PW Ram Raj stated that he told them that action has been taken in this regard by Sh. A.K. Gautam then, all the accused persons started misbehaving and abusing him and also threatened to do away with him if he do not withdraw the said State Vs Mohan Chand Tiwari. 2 letter and get the transfer order cancelled from Sh. A.K. Gautam Additional Commissioner of Income Tax New Delhi. PW Ram Raj stated that within a few minutes, the aforesaid accused person also called a large body of persons who were apparently waiting in the corridor and they also barged into his office and then accused Mohan Tiwari and Naresh Kumar threw files at him and said "you schedule caste/ untouchable people never had peons but due to constitution given by Ambedkar, you are getting this benefit". PW Ram Raj further stated that the aforesaid accused threatened to eliminate him there and then if he did not withdrew the letter of transfer of the said peon. PW Ram Raj stated that nearly one hour they confined him forcibly in his room in presence of Sh. Ramesh Chandra Inspector working in the Income Tax Department and other persons and they did not allowed him to work and humiliated and harassed him. PW Ram Raj stated that at about 5.00 pm he was physically manhandled and dragged from his office by accused Naresh Kumar, Devender Singh, Sandeep and Mohan Tiwari and others whose name he did not know but could be identified if shown to him. PW Ram Raj stated that he was forcibly taken by the aforesaid persons to the office of Chief Commissioner and in the meantime PW Rajiv Lal Deputy Commissioner of Income Tax and Mr. Anoop Dubey Assistant Commissioner of Income Tax came out from their offices and saved him and silenced them. PW Ram Raj stated that he was freed from the clutches of the aforesaid accused persons. On this complaint, FIR was registered. Accused was arrested and after completion of remaining investigation, chargesheet was filed in the court.
3. Copy of the chargesheet supplied to the accused persons free of cost u/s 207 CrPC. Accused persons were discharged u/s 3(I)(X) and 3(II)(vii) of State Vs Mohan Chand Tiwari. 3 SC/ST (POA) Act by the court of Sh. S.N. Gupta, Ld. Additional Sessions Judge, Special Court under SC/ST (POA) Act, Delhi vide order dated 01.09.2001 and the case was sent for trial to the court of MM. Finding a prima facie case, accused persons were charged u/s 451/189/186/353/342/506/147 IPC r/w Section 149 IPC to which the accused pleaded not guilty and claimed trial.
4. Prosecution in order to prove its case examined the following 19 witnesses.
PW1 Ram Kumar clerk in the office of the complainant; PW2 Bacche Ram, PW3 Inspector Inder Singh; PW4 Rajesh Kumar, Income Tax Officer; PW5 Manoj Kumar steno in the office of the complainant; PW6 Kulwant Singh Mattu Sr. T.A. in ITO; PW7 Ramesh Chander Income Tax Inspector; PW8 Rajiv Lal Additional Commissioner Income Tax; PW9 Shyam Singh Additional DCP; PW10 Devi Dayal Administrative Officer ITO; PW11 S.C.L. Dhamija Joint Commissioner Income Tax; PW12 Ram Raj complainant cum victim; PW13 J.P. Bairagi, care taker; PW14 Robin Singh Income Tax (Inspector); PW15 Surender Kumar Rai, Hindi Translator, ITO; PW16 B.S. Bindra, Inspector Vikas Bhawan; PW17 Subhash Pruthy Inspector CIT; PW18 H.C. Mahender Singh; PW19 S.I. Jaipal Singh.
5. Statement of accused u/s 313 CrPC were recorded separately in which accused denied the allegations levelled against them and pleaded that they are innocent and have been falsely implicated being members of the union and they also stated that they chose to lead defence evidence.
6. Accused in their defence evidence examined DW1 Chandan Singh, peon State Vs Mohan Chand Tiwari. 4 Income Tax Department ITO & thereby closed defence evidence.
7. I have heard the arguments advanced by Ld. APP for the State and Ld. Defence counsel and also gone through the case file carefully and thoroughly.
8. Prosecution in order to prove its case examined PW-1 Ram Kumar and he stated that in the year 1997, he was posted as a clerk with Ram Raj IRS Vikas Bhawan and there was a gathering which has been collected in the room of Ram Raj by the Union member but he did not remember who were those persons and what happened in the room immediately, in the adjacent room which was used as a staff room of Mr Ram Raj. Prosecution also examined PW-2 Bachhe Ram although he was declared hostile and cross- examined at length by Ld. APP for the state. Prosecution also examined PW-3 Inspector Inder Singh and he stated that on 07.03.1997 complaint given by Sh Ram Raj IRS was marked to him and he got the FIR registered on 08.03.97. Prosecution also examined PW-4 Rajesh Kumar, Income Tax Officer and he stated that in the year 1996-97 he was posted as Income Tax Officer in the Head Quarter and something might have asked by the police in the routine which he might have supplied. PW-4 Rajesh Kumar also stated that he did not remember what things of documents were recovered and supplied by him. He further stated that he had heard that there was some altercation between some persons and one of the officer of our office but he had not seen anything and he cannot say what documents were supplied by him. At this stage, he was declared hostile and cross-examined at length by Ld. APP for the state.
9. Prosecution examined PW-5 Manoj Kumar and he stated that on 06.03.97, State Vs Mohan Chand Tiwari. 5 he was working as stenographer in Income Tax Office, Vikas Bhawan and he was on first floor. PW-5 Sh. Manoj Kumar further stated that at that time Ram Raj was working as Assistant Commissioner and his office was situated at second floor. He further stated that he heard the noise which was coming from second floor and after hearing the noise, he went to second floor to see what was happening. He further stated that there were many employees working in the Income Tax department who were shouting "Ram Raj Chor Hai" and at that time Ram Raj was also present. He further stated that accused persons present in the court were in front of such persons who were shouting against Ram Raj. He further stated that the accused persons being Leaders of the union were leading the said employees who were shouting against Ram Raj in the aforesaid manner and their names were Devender Kumar, Mohan Chand Tiwari and Naresh and other accused present in the court today whose names he was not able to recollect. PW-5 Manoj Kumar in his cross-examination by Ld. APP for the state admitted that he had given statement Ex. PW-5/A before the IO. PW-5 Manoj Kumar in his cross-examination by Ld. APP for the state admitted that he had stated to the police that accused persons climbed on the chairs and tables in the office of Ram Raj and abused him.
10. Prosecution also examined PW-6 Kulwant Singh Mattu and he stated that on 06.03.97 he was posted as Sr. TA in Dramsay Building, 4th floor Ward no. 4(1) ITO, Delhi and at about 4.20 PM, he saw at third floor, D Block, many persons had gathered which included members of union, assessee and many other employees who were shouting slogans and abusing one IRS Officer Ram Raj and giving him abuses in the name of his mother and sister. PW-6 Kulwant Singh Mattu stated that the accused present in the State Vs Mohan Chand Tiwari. 6 court today were also the persons among those persons who were abusing Ram Raj being the leaders of the union.
11. Prosecution also examined PW7- Ramesh Chander and he stated that on 06.03.97 he was working in the CR building as Inspector. He further stated on that day he returned to his office after serving the notice at Darya Ganj and it was in the evening about 5/5.30 PM. He further stated that at that time, he was parking his scooter in the parking and he heard the noise of slogans. He further stated that he went in the direction of noise and he saw IRS Ram Raj was coming on the back side of CRA building and behind him there were more than 100/150 persons who were raising slogans against him and they were shouting that "Afsar Shahi Nahi Chalegi". PW-7 Ramesh Chander further stated that he had seen accused Devender present in the court today in the said crowd and asked Devender what has happened on which Devender told that Ram Raj Assistant Commissioner had said something to the employee therefore other employees were making the protest against the behaviour of Ram Raj. Prosecution also examined PW-8 Rajiv Lal and he stated that on 06.03.97 at about 4.30 /4.45 PM, he heard some slogans and noise, so he came out from the conference hall to see as to what has happened. He further stated that he saw group of 70/80 persons were gathered which included Devender, Mohan Tiwari present in the court today and other members of the Union but he cannot say whether the other accused present in the court today were present there or not due to lapse of time who were shouting slogans against IRS Ram Raj and shouting "Ram Raj Murdabad".
12. Prosecution also examined PW-9 Shyam Singh Additional DCP and he State Vs Mohan Chand Tiwari. 7 stated that on 15.3.97 investigation of the case was marked to him for further investigation. PW-9 Shyam Singh proved the documents Ex.PW- 9/A to Ex. PW-9/E.
13. Prosecution examined PW-10 Devi Dayal, Administrative Officer ITO and he stated that on 11.8.97 he had kept the attendance register containing the attendance of accused Sandeep Chauhan in the office table and he went to toilet and when he came back, he did not found the said attendance register on the table. PW-10 Devi Dayal was cross-examined at length by Ld. APP for the State. PW-10 Devi Dayal admitted that the copy of the dispatch register having serial number 956 and 957 on 07.03.1997 was in his own handwriting and same is Ex. PW-10/A.
14. Prosecution also examined PW-11 Sh. S.C.L. Dhamija, Joint Commissioner, Income Tax. He stated that in the year 1996-97, he was posted as Asstt. Commissioner, Income Tax Range 24, Income Tax Office, Delhi. PW-11 S.C. L.Dhamija further stated that vide his order dated 20.11.96 Sandeep Chauhan, peon was transferred to ACIT, Circle 24(2). He further stated that on the application mark--X of Ram Raj ACIT 24(2) after discussion from the Additional Commissioner, he transferred the Sandeep Chauhan vide order dated 28.2.97 from circle 24(2) to Tax Recovery Office.
15. Prosecution examined its most crucial witness complainant cum victim cum eye witness PW-12 Ram Raj. PW-12 Ram Raj stated that on 28.2.97 he was posted as Assistant Commissioner of Income Tax in Circle 24(2) and his peon Sandeep Chauhan present in the court was transferred to other charge because he remained continuously absent from his office. He further State Vs Mohan Chand Tiwari. 8 stated that on 06.03.97 the accused persons namely Mohan Tiwari, Naresh Kumar, Naresh Yadav, Devender Singh Maan and Sandeep Chauhan all present in the court today as an accused, came in his office and asked him to get the order of transfer of accused Sandeep Chauhan be cancelled which he did not agreed to. He further stated that incident took place at about 4 PM. He further stated that when he did not agree then all the accused persons called more persons and entered into his room and started shouting and humiliating him and passed derogatory words against him. He further stated that they kept him confined for an hour in his room and thereafter, they all took him to other building i.e. CR building. He further stated that on the way, they shouted and bullied and the words like "Chor Hey" He further stated that Rajiv Lal came out and interevened and rescued him from the clutches of the accused persons. PW-12 Ram Raj proved his complaint Ex.PW-12/A.
16. Prosecution examined PW-13 J.P. Bairagi, Caretaker, and he proved the photocopy of attendance roll of accused Mohan Chand Tiwari as mark 5. PW-14 Robin Singh Inspector was examined and he proved the copy of attendance register of accused Naresh Kumar vide copy Ex. PW-14/A. PW- 15 Surender Kumar Rai was examined and he proved the copy of the origianl attendance register of accused Devender Singh Maan vide copy Ex, PW-15/A. PW-16 Sh. B.S.Bindra, Inspector was examined and he proved photocopy of attendance roll of accused Naresh Kumar Yadav as Mark 3. PW-17 Subhash Pruthy Inspector proved that the original record of accused Sandeep Chauhan is not traceable. PW-18 HC Mahender Singh proved that on the basis of rukka, he got registered the case vide FIR no. 114/97 and copy of same is Ex. PW-18/A. Prosecution examined PW-19 SI Jaipal State Vs Mohan Chand Tiwari. 9 Singh Investigating Officer and he proved site plan Ex. PW-19/A and he also proved the remaining investigation conducted by him.
17. Ld. APP for the State contended that accused in their defence examined DW1 Chandan Singh peon in the income tax department. Ld. APP for the State contended that DW 1 Chandan Singh in his cross examination stated that at the relevant time all the accused persons were members of their union and all the accused persons were working with him in the same department and he had good relation with them. Ld. APP for the State contended that DW1 Chandan Singh in his cross examination stated that he do not remember the room number of the complainant but it was at Second Floor Vikas Bhawan. Ld. APP for the State contended that prosecution gave the suggestion to the DW1 Chandan Singh that he had not witnessed the incident therefore he did not remember the date. Ld. APP for the State also contended that DW1 Chandan Singh in his cross examination stated that he did not remember the exact date of incident. DW1 Chandan Singh in his cross examination admitted that he wish that all the accused persons have acquitted from the allegations. . Ld. APP for the State also contended that this shows that DW1 Chandan Singh was an interested witness and his testimony could be of no use to the accused. Ld. APP for the State contended that prosecution was able to prove its case and accused should be accordingly convicted.
18. On the other hand, Ld. Defence counsel has raised the only defence that all the accused persons are innocent and they have been falsely implicated in this case being members of the union. Ld. Defence counsel contended that DW1 Chandan Singh examined by the accused persons stated that the State Vs Mohan Chand Tiwari. 10 fact of the case is that one of the accused person Sandeep who was posted as peon with complainant and he was transferred and due to that union members raised the slogans against the complainant. DW1 Chandan Singh stated that there were around 100-150 persons who were raising slogans against the complainant and complainant had threatened the accused persons that they would face consequences and it is because of this union members gathered around him and objected. Ld. Defence counsel contended that DW1 Chandan Singh was an independent person and therefore it throws doubt on the prosecution story. Ld. Defence counsel also contended that PW12 Ram Raj in his cross examination admitted that accused Devender was General Secretary of Union and accused Mohan Chand Tiwari and Naresh Kumar were president and vice president of the union respectively at that time. Ld. Defence counsel contended that the said admission by complainant shows that accused persons have been falsely implicated in this case being members of the union.
19. Ld. defence counsel also contended that PW1 Ram Kumar, PW2 Bacchhe Ram, PW5 Manoj Kumar, PW10 Devi Dayal administrative officer ITO have not supported the prosecution story and have turned hostile. Ld. defence counsel contended that PW5 Manoj Kumar in his cross examination admitted that accused Devender was trying to pacify the persons assembled there. Ld. defence counsel further contended that PW7 Ramesh Chander the eye witness to the incident has stated that he had seen the accused Devender present in the court today in the said crowd and he asked Devender as to what has happened on which Devender has told that Ram Raj Assistant Commissioner has said something to the employee therefore other employees were making the protest against the behaviour of Ram Raj. Ld. State Vs Mohan Chand Tiwari. 11 defence counsel contended that PW8 Rajiv Lal also stated that he enquired from Devender, Mohan Tiwari and other members of the Union as to what had happened and pacified them and assured them to sort out the matter and asked them to disperse on which they dispersed. Ld. defence counsel further contended that PW12 Ram Raj complainant cum injured in his cross examination admitted that he was confined in the presence of Sh. Ramesh Chand. PW12 Ram Raj also admitted that in his complaint Ex. PW12/A, he mentioned that Mr. Anoop Dubey and Rajeev Lal freed him from the clutches of the accused persons. Ld. Defence counsel contended that the witnesses alleged by the complainant have not supported the complainant's stand. Therefore all these facts throws doubt on the prosecution story and accused are entitled to benefit of doubt and accused should be accordingly acquitted.
20. Keeping in view the contention of Ld. Defence counsel that accused have been falsely implicated being members of the union. As far as this contention is concerned, there is nothing on record to show that there was any previous ill-will going on between complainant PW Ram Raj and the accused persons. Also, the evidence led by the accused namely DW1 Chandan Singh has stated that he is the peon in the income tax department ITO and they have a union in the income tax department and at present he is the general secretary of the union. DW1 Chandan Singh has also stated that complainant Ram Raj @ Udit Raj was working as an assistant commissioner in the income tax department. Thus thereby showing that complainant had worked in the income tax department at the post of assistant commissioner but presently complainant is not working in the income tax department. Also, DW1 Chandan Singh in his cross State Vs Mohan Chand Tiwari. 12 examination stated that all the accused persons are working with him in the same department and he had a good relation with them. DW1 Chandan Singh also stated that their union belongs to class-IV employee and at the relevant time all the accused were class-IV employees and working with him at that time. This totally impeach the credibility of DW1 Chandan Singh as he is trying to safe all the accused persons who belonged to class- IV employees category while the complainant was a senior officer and also as now complainant is not working in the said department. Also, DW1 Chandan Singh has stated that he has a good relation with accused persons and he wish that all accused persons be acquitted. So, this shows that he is an interested witness and his testimony could not be relied upon.
21. Also, as far as the contention of Ld. Defence counsel is concerned that PW1 Ram Kumar, PW2 Bacche Ram and PW5 Manoj Kumar have turned hostile and not supported the prosecution story could well be explained by the fact that complainant was no longer working in the same department and accused persons were still working in the same department so all these witnesses may have tried to shield the accused persons. Also considering the judgement of Bharat Singh Vs State of Madhya Pradesh 1977 (1) MPWN 189 (M.P.) wherein it has been laid down that "the statement of a witness, who has been declared hostile has to be read with caution and whole of the statement need not be rejected outright". Also considering the testimony of PW1 Ram Kumar and PW5 Manoj Kumar they have corroborated the complainant story that some incident took place against complainant Ram Raj in which accused persons being members of the union were involved against PW Ram Raj. Also, contention of Ld. APP for the State holds good that PW7 Ramesh Chander has not stated that accused State Vs Mohan Chand Tiwari. 13 confined Ram Raj for one hour before him, was also due to the reason that complainant Ram Raj was no longer working in the same department. Also, PW6 Kulwant Singh Mattoo, PW7 Ramesh Chander and PW8 Rajiv Lal have also supported the complainant story that the accused persons were present in the incident which took place against PW Ram Raj.
22. Also considering the contention of Ld. Defence counsel that apart from PW12 Ram Raj, other eye witnesses have not fully supported the prosecution story and therefore conviction could not be based on the testimony of the sole eye witness. Considering the judgment laid down by the Hon'ble Supreme Court of India in Ramesh Krishna Madhusudan Nayar V. State of Maharashtra AIR 2008 SC 927 wherein it has been has laid down that "conviction could be based on the testimony of the sole eye witness if it is reliable". Also in State Vs Subhash Pagi & Anr. 2004(4) Crime 343, the Hon'ble Bombay High Court held that, "Evidence of a victim or injured witness stands on a different footing as injured witness generally does not have any reason to omit the real culprit and implicate other falsely." Also, no motive on the part of complainant cum victim Ram Raj has been proved by the accused persons to falsely implicate the accused persons. Also, as complainant and accused persons are well acquainted, so identity of accused persons is well proved.
23. As far as offence u/s 451 IPC r/w 149 IPC is concerned, its essential ingredient is that when five or more persons in prosecution of common object commits house trespass in order to commit offence punishable with imprisonment. To prove it, prosecution examined PW12 Ram Raj complainant cum victim and he stated that on 06.03.1997 at about 4 pm, all State Vs Mohan Chand Tiwari. 14 accused persons namely Mohan Tiwari, Naresh Kumar, Naresh Yadav, Devender Singh Maan and Sandeep Chauhan all present in the court today as accused, came in his office and asked him to get the order of transfer of accused Sandeep Chauhan be cancelled to which he did not agree to. PW12 Ram Raj further stated that when he did not agreed then all accused persons called more persons and entered into his room and started shouting and humiliating him and passed derogatory words against him. Also, PW1 Ram Kumar corroborated the testimony of PW 12 Ram Raj. PW1 Ram Kumar stated that there was a gathering collected in the room of Ram Raj by the union member. Although PW1 Ram Kumar turned hostile, but in light of judgement of Bharat Singh Vs State of Madhya Pradesh (Supra), the testimony of hostile witness to some extent could also be relied upon. Also, PW5 Manoj Kumar in his cross examination by Ld. APP for the State admitted that he had stated to the police that accused persons climbed on the chairs and tables in the office of said Ram Raj and abused him. Thus essential ingredient that all the five accused persons committed house trespass by entering into the office of PW12 Ram Raj in order to commit the offence punishable with imprisonment is fully proved by the prosecution. Thus prosecution is able to prove essential ingredients for offence u/s 451 IPC r/w Section 149 IPC.
24. As far as the offence u/s 189 IPC r/w Section 149 IPC is concerned, its essential ingredients are that the five or more accused persons gave threat of injury to public servant in order to induce such public servant to do or forbear to do any act connected with exercise of public function of such public servant. Prosecution to prove it, examined PW12 Ram Raj and he stated that on 06.03.1997 at about 4 pm, all the accused persons namely State Vs Mohan Chand Tiwari. 15 Mohan Tiwari, Naresh Kumar, Naresh Yadav, Devender Singh Mann and Sandeep Chauhan all present in the court today as accused, came in his office and asked him to get the order of transfer of accused Sandeep Chauhan be cancelled, which he did not agree to. PW12 Ram Raj stated that when he did not agree then all accused persons called more persons and entered into his room and started shouting and humiliating him and passed derogatory words against him and kept him confined for an hour in his room, thereafter they all took him to other building i.e. CR building. PW12 Ram Raj further stated that on the way they shouted and bullied and the words like "Chor Hey". PW12 Ram Raj further stated that from the office of Chief Commissioner of Income Tax, Rajiv Lal came out and rescued him from the clutches of accused persons. Also, prosecution examined PW5 Manoj Kumar and he stated that he heard the noise coming from second floor and he went to second floor to see what was happening and there were many employees working in the Income Tax Department who were shouting "Ram Raj Chor Hey" and at that time Ram Raj was also present there. Prosecution also examined PW8 Rajiv Lal and he also stated that he saw a group of 70 to 80 persons gathered which included Devender, Mohan Tiwari present in the court today and other members of Union shouting slogans against one IRS Officer Ram Raj and shouting "Ram Raj Murdabad". Prosecution also examined PW11 SCL Dhamija, Joint Commissioner Income Tax and he stated that vide his order dated 20.11.1996 Sandeep Chauhan, peon was transferred to ACIT Circle 24(2). PW11 Sh. SCL Dhamija, further stated that on the application Mark X of Ram Raj ACIT 24(2) after discussion from Additional Commissioner, he transferred Sandeep Chauhan vide his order dated 28.02.1997 from Circle 24(2) to TRO (Tax Recovery Office). Thus prosecution was able to prove State Vs Mohan Chand Tiwari. 16 that all the five accused persons have given threat of injury to public servant namely complainant Ram Raj for the purpose of inducing Ram Raj a public servant to transfer one of the accused Sandeep Chauhan back to his post as peon in the office of complainant Ram Raj. Also prosecution was able to prove that the transfer of accused Sandeep Chauhan was in fact the exercise of public function of such public servant Ram Raj. Thus, prosecution was able to prove the essential ingredient for offence u/s 189 IPC r/w Section 149 IPC.
25. In order to prove the essential ingredients of offence u/s 186 IPC r/w Section 149 IPC that all the five accused persons jointly obstructed the public servant in the discharge of his public functions. Prosecution examined PW12 Ram Raj complainant cum victim and he stated that he was posted as Assistant Commissioner of Income Tax and on 06.03.1997 at about 4 pm, all the five accused persons came in his office and asked him to get the order of transfer of accused Sandeep Chauhan be cancelled, which he did not agreed to. PW12 Ram Raj further stated that when he did not agree then all the accused persons called more persons and entered into his room and started shouting and humiliating him and passed derogatory words against him and kept him confined for an hour in his room, thereafter they all took him to other building i.e. CR building. PW12 Ram Raj further stated that on the way they shouted and bullied and the words like "Chore Hey". Thus all this shows that all the five accused persons jointly entered in the office of complainant cum public servant Ram Raj and obstructed him in the discharge of his public function. So, prosecution was able to prove the essential ingredients for offence u/s 186 IPC r/w Section 149 IPC.
State Vs Mohan Chand Tiwari. 1726. The essential ingredient for offence u/s 353 IPC are that all the accused persons assaulted or used criminal force to public servant in execution of his duty as public servant with an intent to prevent or deter that person from discharging his duty as a public servant. To prove it, prosecution examined PW12 Ram Raj complainant cum injured. PW 12 Ram Raj stated that he was posted as Assistant Commissioner of Income Tax and on 06.03.1997 at about 4 pm all the accused persons came in his office and asked him to get the order of transfer of accused Sandeep Chauhan be cancelled, which he did not agreed to. He further stated that when he did not agree then all the accused persons called more persons and entered into his room and started shouting and humiliated him and passed derogatory words against him and kept him confined for an hour in his room and thereafter they all took him to other building i.e. CR Building and on the way they shouted and bullied and the words like Chore Hey". PW12 Ram Raj further stated that from the office of Chief Commissioner of Income Tax, Rajiv Lal came out and rescued him from the clutches of accused persons. PW7 Ramesh Chander stated that on 06.03.1997 at about 5/5.30 pm, he went in the direction of noise and he saw IRS Ram Raj was coming on the back side of CRA Building and behind him there were more than 100/150 persons who were raising slogans against him, they were shouting that "Afsar Shai Nahin Chalegi". Also, the testimony of PW 12 Ram Raj was further corroborated by PW 5 Manoj Kumar and PW7 Ramesh Chander. PW 5 Manoj Kumar in his cross examination by Ld. APP for the State admitted that he has stated to the police that accused persons climbed on the chairs and tables in the office of said Ram Raj and abused him. Also, PW7 Ramesh Chander stated that on 06.03.1997 he had returned to his office after serving notice at State Vs Mohan Chand Tiwari. 18 Darya Ganj in the evening at about 5/5.30 pm and at that time he was parking his scooter in the parking and he heard the noise of slogans. PW 7 Ramesh Chander stated that he went in the direction of noise, he saw IRS Ram Raj was coming on back side of CRA Building and behind him there were more than 100/150 persons who were raising slogans against him. Thus prosecution was able to prove that all the accused persons used criminal force against the public servant Ram Raj by dragging the complainant Ram Raj from his office to CR Building at the time when Ram Raj was discharging his duty as public servant and thereby prevented such public servant to discharge his duty. Thus prosecution was able to prove the essential ingredients for offence u/s 353 IPC.
27. The essential ingredient for offence u/s 342 IPC that all the accused persons wrongfully confined the complainant Ram Raj in his room. To prove it, prosecution examined PW12 Ram Raj and he stated that on 06.03.1997 all the accused persons came in his office and asked him to get the order of transfer of accused Sandeep Chauhan be cancelled which he did not agreed to. PW12 Ram Raj stated that the incident took place at about 4 pm. PW12 Ram Raj stated that when he did not agree then all the accused persons called more persons and entered into his room and started shouting and humiliating him and passed derogatory words against him. PW12 Ram Raj further stated that all the accused persons kept him confined for an hour in his room and thereafter they all took him to other building i.e. CR Building. Also, the contention of the prosecution that complainant Ram Raj was confined in his room for about an hour from about 4 pm to 5 pm. To further corroborate it, prosecution also examined PW 6 Kulwant Singh Mattu and he stated that on 06.03.1997 at about 4.20 PM he saw many State Vs Mohan Chand Tiwari. 19 persons gathered which included members of union, assessee and many other employees, who were shouting slogans and abusing one IRS Officer, Ram Raj. PW6 Kulwant Singh Mattu also stated that accused present in the court today were also the persons among those persons who were abusing the said Ram Raj being the leaders of union. Also, PW 5 Manoj Kumar in his cross examination by Ld. APP for the State admitted that he has stated to the police that accused persons climbed on the chairs and tables in the office of said Ram Raj and abused him. Also, PW8 Rajiv Lal stated that at about 4.30/4.45 pm, he heard some slogans and noise so he came out from conference hall to see as to what has happened. PW8 Rajiv Lal also stated that he saw a group of 70-80 persons were gathered which included Devender, Mohan Tiwari present in the court today and other members of the union and they were shouting slogans against one IRS Officer, Ram Raj and shouting "Ram Raj Murdabad". Also, PW7 Ramesh Chander stated that on 06.03.1997 he had returned to his office after serving notice at Darya Ganj in the evening at about 5/5.30 pm and at that time he was parking his scooter in the parking and he heard the noise of slogans. PW 7 Ramesh Chander stated that he went in the direction of noise, he saw IRS Ram Raj was coming on back side of CRA Building and behind him there were more than 100/150 persons who were raising slogans against him. Thus this shows the fact that PW12 Ram Raj was accordingly confined by the accused in his office for about an hour by the accused person as at about 5/5.30 PM PW Ram Raj was taken to the CR Building from his office. Hence, prosecution was able to prove the essential ingredients of offence u/s 342 IPC that accused persons wrongfully confined Ram Raj in his office for about one hour.
State Vs Mohan Chand Tiwari. 2028. As far as offence u/s 147 IPC r/w Section 149 IPC is concerned, its essential ingredients are that accused being five or more persons constituting unlawful assembly, uses force or violence in prosecution of common object of such assembly. To prove it, prosecution examined complainant cum victim Ram Raj assistant commissioner of income tax as PW12. PW12 Ram Raj stated that on 06.03.1997 at about 4.00 PM the accused persons namely Mohan Tiwari, Naresh Kumar, Naresh Yadav, Devender Singh Mann and Sandeep Chauhan all present in the court today as accused came in his office and asked him to get the order of transfer of accused Sandeep Chauhan be cancelled, which he did not agreed to. PW12 Ram Raj stated that when he did not agree then all accused persons called more persons and entered into his room and started shouting and humiliating him and passed derogatory words against him. PW12 Ram Raj further stated that all the accused persons kept him confined for an hour in his room and thereafter they all took him to other building i.e. CR Building and on the way they shouted and bullied the words like "Chor Hey". PW12 Ram Raj further stated that from the office of Chief Commissioner of Income Tax, Mr. Rajiv Lal came out and intervened and rescued him from the clutches of accused persons. Also, the testimony of PW 12 Ram Raj was further corroborated by other witnesses as PW5 Manoj Kumar, PW6 Kulwant Singh Mattu, PW 7 Ramesh Chander and PW 8 Rajiv Lal as they have stated that they saw many people of the union including accused persons shouting on the complainant Ram Raj and stating the words like "Ram Raj Chore Hey". Thus, essential ingredient for offence of rioting that all five accused persons used force or violence in prosecution of common object i.e. for getting the order of transfer of accused Sandeep Chauhan cancelled, is fully proved by the prosecution. Thus, prosecution is able to State Vs Mohan Chand Tiwari. 21 establish all the essential ingredients of offence u/s 147 IPC r/w Section 149 IPC.
29. In order to prove offence u/s 506 IPC that all the accused persons has threatened the complainant to kill him. Prosecution examined PW12 Ram Raj complainant cum victim and he stated that on 06.03.1997 at about 4.00 PM, all the accused persons came in his office and asked him to get the order of transfer of accused Sandeep Chauhan be cancelled, which he did not agreed to. He further stated that when he did not agree then all the accused persons called more persons and entered into his room and started shouting and humiliating him and passed derogatory words against him and got him confined for an hour in his room and thereafter they all took him to other building i.e. CR Building and on the way they shouted and bullied the words like "Chor Hey". However, PW 12 Ram Raj complainant cum victim has nowhere stated that the accused person threatened him of causing death. So, the offence of criminal intimidation by accused persons of causing death of complainant could not be proved by the prosecution. Thus, prosecution was not able to prove the essential ingredients for offence u/s 506 IPC.
30. Thus, keeping in view the aforesaid fact and circumstances, I am of the considered view that testimony of PW 12 Ram Raj is clear, convincing and reliable and no material has come on record which falsify his evidence. Keeping in view the judgment laid down by the Hon'ble Supreme Court of India in Ramesh Krishna Madhusudan Nayar V. State of Maharashtra (Supra) wherein it has been has laid down that "conviction could be based on the testimony of the sole eye witness if it is reliable". Also all the State Vs Mohan Chand Tiwari. 22 essential ingredients of offence u/s 451/189/186/353/342/147 IPC r/w Section 149 IPC only, have been fully established. I am of the considered view that prosecution was able to prove its case beyond reasonable doubt with regard to offence u/s 451/189/186/353/342/147 IPC r/w Section 149 IPC only. All the five accused persons are accordingly convicted for the offence u/s 451/189/186/353/342/147 IPC r/w Section 149 IPC only. Let Accused persons be heard separately on the point of sentence on 29.01.2011.
Announced in the open court (EKTA GAUBA) today i.e. 28.01.2011 MM-06,Central/Delhi/28.01.2011 State Vs Mohan Chand Tiwari. 23 IN THE COURT OF MS EKTA GAUBA MM (CENTRAL-06): DELHI State Vs. Mohan Chand Tiwari & Ors. FIR No. 114/97 U/s 451/189/186/353/342/506/147/149 IPC PS I.P. Estate ORDER ON SENTENCE : 29.01.2011 Present : Sh. Sunil Dutt, Ld. APP for the state.
All the five convict in person with Ld. counsel Sh. Sandeep Srivastava. The case is fixed today for orders on the point of sentence. Arguments on the point of sentence heard.
Ld. counsel for the convict persons contended that all the convicts are public servant and are the sole bread earner of the family and they have young children to support. Ld. Counsel for convict persons contended that all the convicts are not previous convict. Ld. counsel for the convict persons also submitted that convict persons may kindly be released on probation as they are not previous convicts.
On the other hand, Ld. APP for the state contended that in the present case, allegations proved against the convict are u/s 451/189/186/353/342/147 IPC r/w Section 149 IPC only and convict persons have committed the said offence against their senior officer IRS Ram Raj. Therefore maximum punishment be given to the convict persons and convict persons do not deserves to be released on probation.
Contd.....
Page no. 2 I have carefully considered the submission made by Ld. APP for state as well as Ld. counsel for convict persons.
State Vs Mohan Chand Tiwari. 24In view of the fact that allegations proved against the convict are u/s 451/189/186/353/342/147 IPC r/w Section 149 IPC only and these are serious allegations. Also since all the convict persons have committed offence against public servant Sh. Ram Raj IRS Officer who was their senior officer. So convict persons does not deserves the benefit to be released on probation under the Probation of Offenders Act, 1958.
I am of the considered view that interest of justice will be served if for offence punishable under Section 451 IPC r/w Section 149 IPC, convict are sentenced to simple imprisonment for a period of one year each and fine of Rs. 1000/- each and in default of payment of fine, the said convict shall further undergo simple imprisonment for a period of three months.
For offence punishable under Section 189 IPC r/w Section 149 IPC, convict are sentenced to simple imprisonment for a period of one year each.
For offence punishable under Section 186 IPC r/w Section 149 IPC, convict are sentenced to simple imprisonment for a period of two months each.
For offence punishable under Section 353 IPC, convict are sentenced to simple imprisonment for a period of one year each.
For offence punishable under Section 342 IPC, convict are Contd.....
Page no. 3 sentenced to simple imprisonment for a period of six months each.
For offence punishable under Section 147 IPC r/w Section 149 IPC, convict are sentenced to simple imprisonment for a period of one year each.
All the sentences shall run concurrently. Convict be given benefit of Section 428 Cr.P.C. Ordered accordingly.
State Vs Mohan Chand Tiwari. 25Copy of judgment has been supplied to the convict free of cost yesterday itself i.e. 28.01.2011 on the date of judgment.
Copy of order on sentence be supplied to the convict today itself free of cost.
ANNOUNCED IN THE OPEN COURT TODAY i.e. ON 29.01.2011 (EKTA GAUBA) MM-06, Central/Delhi 29.01.2011 State Vs Mohan Chand Tiwari. 26