Delhi District Court
State vs . Malti Devi & Ors. on 21 September, 2013
IN THE COURT OF SH. HEM RAJ, METROPOLITAN MAGISTRATE,
WEST - 09, TIS HAZARI COURTS, DELHI
STATE Vs. MALTI DEVI & ORS.
FIR No : 57/1991
U/S : 147/148/186/332/353 IPC
P.S : VIKASPURI
1. Serial No. of the Case : 326/2
2. Unique ID of the Case : 02401R0007711991
3. Date of Commission of Offence : 03.02.1991
4. Date of institution of the case : 30.09.1991
5. Name of the complainant : ASI Ramphal Singh
6. Name of accused, parentage & : 1) Smt. Malti Devi
address persons W/o Sh. Ram Sareen
R/o Kachci Colony, Bharat Vihar,
Kakrola, Delhi.
2) Smt. Chandrawati Devi
W/o Sh. Brij Bhan
R/o Kachci Colony, Bharat Vihar,
Kakrola, Delhi.
3) Smt. Kamlesh
W/o Sh. Rajender
R/o Kachci Colony, Bharat Vihar,
Kakrola, Delhi (Expired).
4) Chander Pal
S/o Sh. Dori Lal
R/o Kachci Colony, Bharat Vihar,
Kakrola, Delhi.
FIR No. 57/1991 STATE VS MALTI DEVI & ORS. PAGE NO1/ 14
5) Ramji Lal
S/o Sh. Raghubir Singh
R/o Kachci Colony, Bharat Vihar,
Kakrola, Delhi.
6) Smt. Ram Pyari
W/o Sh. Avdesh Kumar
R/o Kachci Colony, Bharat Vihar,
Kakrola, Delhi (PO).
7) Dinesh Kumar
S/o Sh. Ram Lakhan
R/o Kachci Colony, Bharat Vihar,
Kakrola, Delhi (Expired).
8) Avdesh Tiwari
S/o Sh. Somnath
R/o Kachci Colony, Bharat Vihar,
Kakrola, Delhi (Expired).
7.Offence complained : U/s 147/148/149/186/332/353 IPC
8.Offence charged with : U/s 147/148/186/332/353 IPC
9.Plea of Accused : Pleaded Not Guilty.
10.Final Order : Acquitted for offence U/s 148 &
186 IPC & convicted for offence
U/s 147/ 332/353 IPC
11.Date of Final Order : 21.09.2013
J U D G M E N T
1 This is the trial of accused persons namely Malti Devi, Chandrawati Devi, Chander Pal and Ramji Lal. for commission of offences under sections FIR No. 57/1991 STATE VS MALTI DEVI & ORS. PAGE NO2/ 14 147/148/186/332/353 IPC. The facts of the case of prosecution in brief are that on 03.02.1991 at about 12.40 PM at Najafgarh Road, Kakrola Turn, Vikas Puri, Delhi, all the accused persons being the members of an unlawful assembly, in prosecution of the common object of the said assembly i.e. throwing stones on public servants were armed with weapons which were likely to cause death and they voluntarily obstructed police personnel in discharging their duties and voluntarily caused hurt to police personnel and used criminal force and assaulted Ct. Vinod Kumar, Ct. Suraj Bhan, HC Harbai and other police officials in discharging their duties being public servants.
2 After completion of investigation, chargesheet was filed for commission of offences U/s 147/148/149/186/332/353 IPC. Vide order dated 27.08.1994 charge for commission of offences under sections 147/148/186/332/353 IPC was framed by my Ld. Predecessor Sh. Raj Kumar, the then Ld. MM to which they pleaded not guilty and claimed trial. During trial, accused Dinesh and Avdesh have expired and vide order dated 23.11.2007, proceedings against them stood abated. During trial, accused Ram Pyari stopped appearing in the court and vide order dated 27.08.2008, she was declared proclaimed offender. During trial, accused Kamlesh also FIR No. 57/1991 STATE VS MALTI DEVI & ORS. PAGE NO3/ 14 had expired and vide order dated 29.03.2011, proceedings against her stands abated.
3 In order to prove its case against accused, prosecution examined total twelve witnesses in all.
4 PW1 ASI Ramphal is the complainant and he deposed that on 03.02.1991 he alongwith constables/police staff were present at Bharat Vihar, Kakrola with DDA Staff for demolishing illegal constructions in the area. He deposed that after demolition by the DDA Staff in the area, they were coming back and when they reached near Najafgarh Road, Kakrola Mor, at about 12.40 PM, there were about 300400 persons including women sitting on the road and had jammed the traffic. He further deposed that he asked them to give way and tried to pacify the matter but they did not agree and continued raising slogans against DDA. He further deposed that they got infuriated and started pelting stones on police personnel. He further deposed that on receiving this information, SHO PS Vikas Puri, SHO Tilak Nagar and SHO Rajouri Garden reached there alongwith additional force and in the meantime, ACP Tilak Nagar and ACP Punjabi Bagh also reached there. He further deposed that many persons ran away on seeing the police force and FIR No. 57/1991 STATE VS MALTI DEVI & ORS. PAGE NO4/ 14 on the spot Avdesh Kumar alongwith three companions and Malti Devi alongwith three ladies were apprehended because they were still insisting of illegal activities. He further deposed that on receiving this information, Emergency Officer Vijender Singh reached at the spot and recorded his statement Ex. PW1/A. He further deposed that Emergency Officer Vijender Singh interrogated the accused persons and arrested them and they were searched personally vide memos Ex. PW1/B to Ex. PW1/I. He further deposed that personal search of ladies were taken by Ct. Sunita. He further deposed that IO prepared site plan and seized some stones from the spot. He further deposed that because of the pelting of stones, Ct. Vinod Kumar, Ct. Ramji Lal of PS Tilak Nagar and one HC of outer force received injuries and they were removed to DDU Hospital through Ct. Surinder for medical examination. He further deposed that gents were sent to PS Janak Puri and ladies were sent to PS Rajouri Garden.
5. PW2 Ct. Suraj Bhan in the injured and deposed on the lines of PW1 ASI Ramphal.
6 PW3 HC Mahipal Singh is the DO who proved the FIR as Ex. PW3/A. FIR No. 57/1991 STATE VS MALTI DEVI & ORS. PAGE NO5/ 14 7 PW4 SI Vijender deposed about the investigation conducted by him. 8 PW5 ACP S.S. Rathi deposed on the lines of PW1 ASI Ramphal. 9 PW6 Inspector Ranbir Singh deposed on the lines of PW1 ASI Ramphal.
10 PW7 J.C. Vashisht, Record Clerk from DDU Hospital inadvertently numbered as PW5 identified the handwriting and signatures of Dr. Anil on the MLCs No. 5534 and 5535 and proved the same as Ex. PW5/A and Ex. PW5/B. 11 PW8 SHO Inspector Rajinder Singh deposed on the lines of PW1 ASI Ramphal.
12 PW9 Inspector Shoban Singh deposed on the lines of PW1 ASI Ramphal.
13 PW10 HC Vinod Singh is another injured and deposed on the lines of PW1 ASI Ramphal.
FIR No. 57/1991 STATE VS MALTI DEVI & ORS. PAGE NO6/ 14 14 PW11 Lady Ct. Sunita conducted the personal search of accused persons namely Malti, Chandrawti, Kamlesh and Ram Pyari. 15 PW12 ASI Om Prakash also deposed on the lines of PW1 ASI Ramphal.
16 In their separate statements U/s 313 Cr.P.C., accused persons namely Chandrawati Devi, Kamlesh, Malti Devi, Chander Pal and Ramji Lal denied the allegations levelled against them. They claimed themselves to be innocent and falsely implicated. They chose not to lead defence evidence in their support.
17 It has been submitted by Ld. APP that the prosecution has been able to prove the guilt of accused persons beyond reasonable doubt. It has been further stated that the testimonies of prosecution witnesses are reliable and trustworthy which have been able to bring home the guilt of accused persons beyond reasonable doubt.
18 On the other hand, the Ld. Defence Counsel has argued that no FIR No. 57/1991 STATE VS MALTI DEVI & ORS. PAGE NO7/ 14 incriminating material has come on record against accused persons and prosecution has miserably failed to prove the case against accused persons beyond reasonable doubt.
19 I have heard rival submissions as advanced by Ld. APP for the State and Ld. Counsel for the accused persons. I have also gone through the oral and documentary evidence adduced on record to appreciate contentions of the parties.
20. PW1 deposed before this court that a crowd of around 300400 people was sitting on a dharna, the crowd included women also. He further said that on request of dispersal the crowd started pelting stones. In his crossexamination before this court he deposed that the stones pelted by the crowd were collected from the site and two constables plus one person from out of force received injuries. PW2 Ct. Suraj Bhan also made deposition similar to PW1; however in his cross, PW2 deposed that he can not state as to who caused injury during the demonstration. The deposition of PW3 and PW4 is on the same lines as PW1 and PW2. PW5 largely agreeing with the depositions of PW1 to 4 deposed that only 8 people were rounded up including four ladies and other people ran away. He stated that he can not FIR No. 57/1991 STATE VS MALTI DEVI & ORS. PAGE NO8/ 14 say which accused hit which police officer and around 67 police officers got injured.
21. In order to hold a person guilty of unlawful assembly it must be proved that it is assembly of five or more persons and the common object of such assembly was unlawful. In the case in hand, the prosecution witnesses (PW1 to PW11) have clearly deposed that there were around 300400 people present on the scene of crime, thereby clearly satisfying the requirement of 'five or more members'. These people were protesting against the demolition drive, in the pursuance of the same, they obstructed the road and brought the entire movement of traffic and men on a standstill. The accused were arrested from the scene of crime and they were a part of a dharnapradarshan against the demolition drive. Such bunch of activities against the demolition drive carried by DDA officials in the presence of the police personals, falls under the second clause of Section 141 IPC i.e. "to resist the execution of any law or any legal process".
22. When the charge is U/s 149, unlawful assembly, the presence of the accused as part of unlawful assembly is sufficient for conviction even if no overt act is imputed on (AIR 2003 SC 539). 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 FIR No. 57/1991 STATE VS MALTI DEVI & ORS. PAGE NO9/ 14 to any accused, mere membership of unlawful assembly is sufficient to hold every member present vicariously liable for the acts done by others either in prosecution of the common object of unlawful assembly or such which the members thereon knew to be likely to be committed [( 1997 ) 2 Crimes 228 (Bom)]. A gathering of around 300400 people on the road for the purpose of protest against the demolition, blocking of the road and obstructing the traffic makes such an assembly an unlawful assembly within the meaning of Section 141 IPC.
23. The presence of the accused on the scene of crime and their participation in the dharnapradarshan against the demolition drive, obstruction of the road and traffic makes them a part of the unlawful assembly. They have been arrested from the scene of crime during the continuance of participation in such assembly. Furthermore, there is no reason to disbelieve the depositions and the testimonies of so many police officers. It is pertinent to mention that the testimonies of police personal must be treated in the same manner as the testimony of an independent witness, there is no principal in law that the testimonies of police officials can not be relied upon without corroboration, from an independent witness (AIR 2003 SC 1311). On these considerations, this court finds all the accused guilty of unlawful assembly.
FIR No. 57/1991 STATE VS MALTI DEVI & ORS. PAGE NO10/ 14
24. In order to hold a person guilty of rioting it must be proved that not only there was an unlawful assembly but also there was use of force or violence by any member thereof in prosecution of the common object of such assembly. It has already been proved above that the aforesaid assembly was an unlawful assembly. At this juncture, it needs to be ascertain whether any force or violence was used by the members of the unlawful assembly, in which case it would amount to an offence of rioting U/s 147 IPC. PW1 to PW11 have deposed before this court that the members of the unlawful assembly pelted stones on the police personnels. In the course of this stone pelting on number of police members got injured and they had to be rushed to the nearest hospital also. The prosecution has placed on record seizure memo of bricks and stones i.e. Ex. PW1/J.
25. Even though, none of the police personnels have deposed that it was specifically the accused only who pelted stones on the police party. They also have no explanation as to why only 8 accused were arrested and others ran away. However, as noted above, the prosecution need not prove to any specific overt act by any member of the unlawful assembly or for that matter on every accused specifically it is sufficient that the force was used by the unlawful assembly in prosecution of their common object, to hold FIR No. 57/1991 STATE VS MALTI DEVI & ORS. PAGE NO11/ 14 the accused guilty. In the case in hand, the accused clearly knew, being the member of the unlawful assembly that such an assembly was for the purpose of causing resistance in the execution of law and the legal process. They could have also very well known and understand that such huge gathering of around 300400 people against the authority of law could also turn violent and take law in its hands. Despite such knowledge and understanding the accused remained the members of the unlawful assembly which pelted stones. Such presence and membership of the accused in the aforesaid unlawful assembly which pelted stones makes them liable of rioting U/s 147 IPC.
26. In order to prove an accused guilty U/s 148 IPC, it must be proved that not only there was rioting but also there was a use of deadly weapons. In the case in hand no police personnel(PW1 to PW11) has disclosed in his testimony any use of any use of any deadly weapon or any such thing which if used as a weapon of offence is likely to cause death. It has only come on record that the members of the unlawful assembly pelted stones. It is not denied that stones can be used as deadly weapon but that depends upon on the size of the stones. Even though, PW12 has placed on record seizure memo Ex. PW1/J showing the seizure of stones and bricks from the spot of crime but no such stones have been produced for the FIR No. 57/1991 STATE VS MALTI DEVI & ORS. PAGE NO12/ 14 perusal of this court thereby disabling the court in judging the magnitude and the gravity of stone pelting and also whether such stones can be called deadly weapon. On these considerations, this court is of the opinion that charge U/s 148 is not made out.
27. In order to prove the charges U/s 186 IPC the prosecution is required to prove a complaint U/s 195Cr.P.C as there is a legal embargo on the prosecution of the accused persons for the offence U/s 186 IPC unless a complaint U/s 195Cr.P.C is filed by the public servant concerned or by some other public servant to whom the concerned public servant is administratively subordinate. Accused cannot be convicted for the offence U/s 186 IPC unless the prosecution proves on the record a complaint U/s 195Cr.P.C. In this case the prosecution has not proved the complaint U/s 195Cr.P.C on the record. Accordingly the prosecution has fallen short to bring the guilt of the accused bring home for the commission of offence U/s 195Cr.P.C.
28. As far as the charges U/s 332 and 353 IPC are concerned, in my opinion the prosecution has proved the said charges against the accused persons beyond reasonable doubt. It has come in the testimony of the PW1 ASI Ram Phal that all the accused persons were involved in the illegal FIR No. 57/1991 STATE VS MALTI DEVI & ORS. PAGE NO13/ 14 activities when the other demonstrators who had run away from the spot after pelting the stones on the police party. PW2 Ct. Suraj Bhan and PW10 Ct. Vinod deposed that they received injuries on their person. PW7 J.C. Vashisht record clerk from the DDU hospital has have proved the MLC of the injured persons. Hence, it has come on the record that the police officials who were engaged indischarge of their official duties received injuries and assaulted. Hence, I have no hesitation in holding that the prosecution has proved beyond reasonable doubt the charges U/s 332/353 IPC against the accused persons.
29. Therefore, in view of the discussions made herein above and the facts and circumstances of the present case, in my considered opinion, prosecution has miserably failed to prove the guilt of the accused persons beyond reasonable doubt for the commission of offences U/s 186 and 148 IPC. However, the prosecution has successfully proved the offences U/s 147/332 and 353 IPC beyond reasonable doubt against the accused persons. Let the accused persons be heard on the point of sentence.
ANNOUNCED IN THE OPEN COURT (HEM RAJ)
TODAY i.e. ON 21 September, 2013 MM09:WEST:THC:21.09.2013
th
FIR No. 57/1991 STATE VS MALTI DEVI & ORS. PAGE NO14/ 14