Delhi District Court
State vs . Bhola Nath Yadav on 5 May, 2022
IN THE COURT OF MS. ANU AGGARWAL, ASJ-07
PATIALA HOUSE COURTS, NEW DELHI DISTRICT, NEW DELHI
State Vs. Bhola Nath Yadav
Session Case No. : 171/2020
FIR No. : 54/2014
U/s : 186/353/332/333/325/147/149/34 IPC
PS : Chankaya Puri
JUDGMENT
a) Unique Case ID No. : DLND01-003672-2020
b) The Date of commission of the : 17.03.2014
offence
c) Name of the Complainant : Ct. Nazer Singh
PIS No. 28662278
PS Chanakya Puri
New Delhi
d) Name, parentage & Address of : Bhola Nath Yadav
the accused S/o Sh. Amar Bahadur Yadav
R/o Jhuggi No. D-125,
Sanjay Camp, Chankaya Puri
New Delhi
e) Offences complained of : 186/353/332/333/325/147/
149/34 IPC
f) The plea of the accused : Pleaded not guilty
g) Date of institution of case : 14.01.2016
FIR No.54/14 State Vs. Bhola Nath Yadav Page 1/19
h) Date of reserving Judgment : 23.04.2022
I) Pronouncement of Judgment : : 05.05.2022
BRIEF FACTS AND REASONS FOR THE DECISION:
Brief Facts of the Case
1. Present case has been registered as against accused Bhola Nath Yadav u/s 186/353/342/333/325/147/149/34 IPC.
2. It is the case of prosecution that DD No. 17A was received on 17.03.2014 regarding quarrel near Railway Line, Sanjay Camp, Chanakyapuri, New Delhi. SI Daya Ram reached at the spot but no quarrel was found at the spot. On inquiry, he came to know that police staff had been taken to RML Hospital for treatment.
3. SI Daya Ram reached at RML Hospital and obtained MLC of Ct. Nazer Singh and Ct. Umesh. SI Daya Ram recorded statement of Ct. Nazer Singh, who informed that on 17.03.2014, he alongwith Ct. Umesh was on patrolling duty at Sanjay Camp, Beat No.15. At about 3.00 pm, he alongwith Ct. Umesh and Ct. Yogesh reached at Sanjay Camp near Railway Line while doing their patrolling duty. Many people were gathered at the spot and they were celebrating festival of Holi. They were abusing each other. Ct. Nazer requested the people to maintain law and order and on his request, all other people left the spot except Sunil, Yadav, Sonu, Sanjay and Sandeep. These persons FIR No.54/14 State Vs. Bhola Nath Yadav Page 2/19 started abusing the police staff and started quarreling with them. Sonu tried to snatch danda of Ct. Yogesh and thereafter, they started throwing stones on police staff. Ct. Umesh received injuries on his forehead and the front tooth of Ct. Nazer got dislocated in the incident. The accused persons ran away from the spot. PCR came at the spot and took the injureds to the hospital. On the statement of Ct. Nazer, present case got registered. Accused Bhola Nath Yadav was arrested during investigation. IO/SI Daya Ram recorded statement of eye witnesses and seized the blood stained shirt and dislocated tooth of Ct. Nazer Singh. Subsequent opinion on the MLC of the injureds were obtained. Thereafter, complaint u/s 195 Cr.P.C was obtained from the senior officials.
3. It is stated that efforts were made to arrest the other accused persons but they remained untraceable. After completion of investigation, charge-sheet was filed on 14.01.2016. After complying with the provisions of Section 207 Cr.PC, the case was committed to the Sessions Court vide order dated 28.07.2017.
4. After hearing arguments, Charge u/s 143 IPC/147 IPC/186 r/w 149 IPC/ 353 r/w 149 IPC/ 333 r/w 149 IPC and 332 r/w 149 IPC were framed against the accused vide order dated 18.11.2017. The accused pleaded not guilty to the charges and claimed trial.
5. During trial, the prosecution has examined 14 witnesses to prove the case:-
PW 1 ASI Nazer Singh He is complainant, who was posted as constable at PS Chankaya Puri on the date of incident. He has exhibited his statement as Ex.PW1/A, his blood stained shirt as Ex.P-1. The broken tooth of the complainant FIR No.54/14 State Vs. Bhola Nath Yadav Page 3/19 produced in container is Ex.P-2.
PW 2 SI Sanjiv Kumar He is the last Investigating Officer of the case. He recorded statement of Ct. Vijay and ASI Sukhbir and file charge-sheet.
PW 3 Ct. Umesh He is an eye witness to the incident. He got injured and received simple injuries. He has given the version of the incident but has failed to identify the accused.
PW 4 ASI Satish Kumar He was posted at PS Chankaya Puri. He got the FIR recorded Ex.PW4/A. The certificate u/s 65B of Indian Evidence Act Ex.PW4/C. The DD No. 17A is Ex.PW4/D. PW 5 Dr. Kumar Jitender He had medically examined Ct. Umesh and Ct. Nazer Singh vide MLC Ex.PW5/A and Ex.PW5/B. PW 6 SI Meenu Bhan She proved DD No. 24B as Ex.PW6/A, by way of which Ct. Nazer and Ct. Yogesh left PS Chankaya Puri for their patrolling duty. PW 7 Dr. Manish Nigam He has proved the endorsement of Dr. Kiran Kumar Negi on MLC of Ct. Nazer as 'grievous' and on the MLC of Ct. Umesh Kumar as 'simple' vide endorsement Ex.PW7/A and Ex.PW7/B respectively.
PW 8 Ct. Yogesh Kumar He was posted as constable at PS Chanakaya Puri on the date of incident. He is an eye witness. It is on his instance that accused was arrested vide arrest memo Ex.PW8/A and disclosure statement of accused was recorded vide memo Ex.PW8/B. PW 9 ASI Sukhbir Singh He is a formal witness who was in-charge of PCR Vehicle V-84.He had taken Ct. Umesh to RML Hospital and got him admitted there. PW 10 Ct. Vijay Kumar He was posted as DAP, 4th Batallion on the date of the incident. He along with Ct. Umesh FIR No.54/14 State Vs. Bhola Nath Yadav Page 4/19 went to the spot. He has deposed about the incident. He made call at 100 number. PW 11 SI Daya Ram He was the first Investigating Officer of the present case. He seized the blood stained uniform shirt and dislocated tooth of Ct. Nazer Singh vide Ex.PW11/A. He recorded statement of Ct. Nazer Ex.PW11/A, prepared rukka and got the FIR registered. Thereafter, further investigation was assigned to the second IO, SI Om Prakash.
PW 12 HC Nau Nihal He was Duty Officer at PS Chankya Puri and has proved DD No. 17A as Ex.PW4/D. PW 13 SI Om Prakash He is second Investigating Officer of the present case. He arrested the accused and recorded his disclosure statement. He collected the MLCs of the injured persons after opinion of the Doctors. Thereafter, he was transferred from PS Chanakaya Puri and handed over the case file to MHCR.
PW 14 ACP Dayanand He was posted at PS Chanakaya Puri in the Singhal month of December 2015. He made complaint u/s 195 Cr.PC, which is Ex.PW14/A.
6. After completion of prosecution evidence, PE was closed. Statement of accused u/s 313 Cr.PC was recorded. Accused denied all the allegations. He has stated that general public of Sanjay Camp used to make complaints against police officials, beat constables, etc. for the trade of illicit liquor and gambling. He has stated that he was not present at the spot. There are many persons having the identity of caste Yadav and he has been falsely implicated.
The accused did not lead any defence evidence.
FIR No.54/14 State Vs. Bhola Nath Yadav Page 5/197. I have heard the arguments of Ld. Defence Counsel Sh. Ashok Kumar Gahlot and Ld. Addl. PP for the State Sh. Girish Kumar Manhas.
8. It is argued by the Ld. Addl. PP for the State that the witnesses have supported the case of prosecution. Except one witness i.e. PW-3, all other eye witnesses have identified the accused. The Ld. Addl. PP has further submitted that victim PW-1 has sustained grievous injuries and PW-3 has sustained simple injuries and statement of witnesses has proved that there were more than five persons present at the spot and involved in the incident. Ld. Addl. PP for the State has submitted that accused should be convicted for the offences charged with.
9. Per contra, Ld. Defence Counsel has submitted that the accused is innocent and has been falsely implicated. The name of the accused is not mentioned in the complaint and only caste 'Yadav' is mentioned. Ld. Counsel has submitted that there are many 'Yadav' residing in Sanjay Camp. Ld. Counsel has further submitted that there are material contradiction in the testimony of the witnesses. Ld. Counsel has further submitted that though the name of other co- accused persons have been disclosed in the complaint but they have not been arrested. Ld. Counsel has further submitted that no case is made out against the accused and he should be acquitted.
10. The accused has been charged with the commission of the offence u/s 143 IPC/147 IPC/ 186 r/w 149 IPC/353 r/w 149 IPC/ 333 r/w 149 IPC and 332 r/w 149 IPC.
10.1. The 'unlawful assembly' has been defined u/s 141 IPC. As per Section 141(First), an assembly of five or more persons is designated as FIR No.54/14 State Vs. Bhola Nath Yadav Page 6/19 "unlawful assembly", if the common object of the persons composing that assembly is to overawe by criminal force or show of the criminal force, the public servant in the exercise of the lawful power of such public servant. The explanation to Section 141 IPC makes it clear that an assembly which was not unlawful when it is assembled, may subsequently become an unlawful assembly.
10.2. Section 143 IPC provides punishment for being member of unlawful assembly. As per Section 142 IPC, a person is said to be the member of unlawful assembly, who, being aware of the facts which render any assembly as unlawful assembly, intentionally joins that assembly or continues in it.
10.3. Rioting is defined u/s 146 IPC. When force or violence is used by 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. The punishment of rioting is provided u/s 147 IPC.
10.4. Section 186 IPC provides for punishment for obstructing public servant in discharge of public function. Section 353 IPC provides for punishment for assault or criminal force to deter public servant for discharge of his duty. Section 333 IPC provides punishment for voluntary causing grievous hurt to any persons being a public servant in the discharge of his duty as 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 lawful discharge of his duty as such public servant. Similarly, Section 332 IPC provides for punishment for causing voluntary hurt to deter public servant from his duty.
FIR No.54/14 State Vs. Bhola Nath Yadav Page 7/1911. In the present case there are two injureds- PW-1 Nazer Singh and PW-3 Ct. Umesh and two eye witnesses, PW-8 Ct. Yogesh and PW-10 Ct. Vijay Kumar. Let's examine the testimony of the above witnesses:-
11.1. PW-1 Nazer Singh has deposed that on 17.03.2014, it was the day of 'Holi' festival. On that day, he was posted as Constable at PS Chankyapuri.
Upon receipt of information regarding quarrel, he along with Ct. Yogesh and Ct. Umesh reached near Railway Line, Sanjay Camp Jhuggies, where number of persons had gathered. They were abusing each other. He tried to pacify them. Thereafter, 5-7 persons started pelting stones upon them. One of the stone hit on his forehead whereas the other hit his front tooth, due to which his tooth got dislocated. The accused persons gave beating to Ct. Umesh and Ct. Yogesh. Ct. Umesh sustained injuries on his forehead. Thereafter, the PCR van came and took them to the RML Hospital. He identified accused in the court and disclosed the name of other absconders as Sunil, Sanjay, etc. He also identified his blood stained shirt and his dislocated tooth.
11.2. PW3 Ct. Umesh has deposed that on 17.03.2014, he was posted as constable in 4th Battalion DAP, Kingsway Camp. On the said day, in connection with the arrangement of Holi, he along with beat Ct. Nazer Singh and Ct. Yogesh, was on the area patrolling. At about 3 pm, while patrolling they reached at Sanjay Camp near Railway Colony, where number of persons had gathered and were making noise and abusing each other while playing Holi. They tried to make them understood to play safe Holi. Thereafter, except 6-7 persons, all other left the spot. Those persons started scuffling with them. They started pelting stones upon them. One of the stones hit on the face of Ct. Nazer whereas one stone hit his head due to which he and Ct. Nazer sustained FIR No.54/14 State Vs. Bhola Nath Yadav Page 8/19 injuries. The tooth of Ct. Nazer got dislocated as one of the stones hit his face. He has not identified the accused during his examination. He has given the account as to what happened on the day of incident but failed to identify the accused.
11.3. PW-8 Ct. Yogesh Kumar is an eye witness to the incident. He has deposed that on 17.03.2014, he was posted at PS Chankya Puri as constable. On that day, he alongwith Ct. Umesh left the PS for patrolling vide DD No. 24B and reached Sanjay Camp beat number 15. While patrolling, they reached near railway line. At about 3:00 pm, they saw many public persons gathered as it was Holi. Those public persons were celebrating Holi by shouting and abusing. They requested public persons to maintain law and order. Some public persons left the spot on their request but Sanjay, Sonu, Sandeep, Sunil and Yadav did not left the spot. Those persons were of the age between 20 to 30 years and they were resident of Jhuggies. PW-8 has further deposed that he already knew them, being beat constable of that area. Meanwhile, Ct. Nazer also reached at the spot. They requested those persons to maintain law and order but they started abusing them. Sandeep and Sanjay started scuffling with Ct. Umesh. Sunil and Yadav started scuffling with Ct. Nazer. Sonu started snatching his danda. Those persons started pelting stones on them. Ct. Umesh received injury on his head and Ct. Nazer sustained injuries on his head and face. He did not receive any injury. PCR van reached at the spot and all the assailants fled from the spot. He has further deposed that on 18.03.2014, he again joined the investigation and accused was arrested on his identification from opposite Rail Museum, Chankaya Puri.
12. PW-10 Ct. Vijay Kumar is an eye witness to the incident. He has deposed that on 17.03.2014, he was posted at DAP, 4 th Battalion. He along with Ct.
FIR No.54/14 State Vs. Bhola Nath Yadav Page 9/19Umesh from DAP, 4th Battalion went to PS Chankaya Puri to perform arrangement duties as it was the occasion of Holi. He along with Ct. Umesh and HC Yogesh from PS Chankaya Puri and one other Constable reached at Sanjay Camp, railway Line, Chankaya Puri Jhuggi. At about 12:15-12:30 PM, they saw some persons quarreling with each other. They requested those persons to maintain law and order but those persons started quarreling with beat officer of PS Chankaya Puri. They also tried to snatch danda of HC Yogesh and started pelting stone upon them. In the said incident, the Sardar Ji sustained injuries on his head and HC Yogesh also sustained injuries. He made call at 100 number. He did not sustain any injury in the incident. He has identified the accused in the court.
13. As per prosecution, the incident happened when the police officials were on patrolling duty on the date of incident and they reached near Railway Line, Sanjay Camp Jhuggi i.e. spot. The prosecution has produced DD No. 24 B Ex.PW6/A to prove that police officials were on patrolling duty. PW-6 SI Meenu Bhan has deposed that on 17.03.2014, Ct. Nazer and Ct. Yogesh left PS Chankaya Puri at about 8:20 AM vide DD No. 24B. Perusal of DD no. 24B reflects that, Ct. Nazer and Ct. Yogesh had left for patrolling duty from PS Chankaya Puri.
14. PW-1 ASI Nazer Singh has nowhere deposed that he was on patrolling duty or had left for patrolling duty vide DD no. 24 B. Ct. Yogesh Kumar (PW8) has deposed that he had left for patrolling duty with Ct. Umesh vide DD No. 24B. Therefore, according to him it was Ct. Umesh who went for patrolling duty with him and not ASI Nazer. His statement is contradictory to DD No. 24 B. As per PW-3 Ct. Umesh, he along with Ct. Nazer and Ct. Yogesh went for area FIR No.54/14 State Vs. Bhola Nath Yadav Page 10/19 patrolling on the date of the incident. His name is not mentioned in DD No. 24B. PW-10 Ct. Vijay Kumar has deposed that he went to perform arrangement duties in connection with Holi along with Ct. Umesh from PS Chankaya Puri. Neither his name is mentioned in DD No. 24B nor Ct. Umesh has stated in his testimony that Ct. Vijay kumar had also left police station with him for patrolling duty.
15. On the date of incident, PW-1 Nazer Singh and PW-8 Yogesh Kumar were posted at PS Chankaya Puri and PW-3 Ct. Umesh & PW-10 Ct. Vijay Kumar were posted at DAP, 4th Battalion. As per PW-3 & PW-10, they had gone on patrolling duty in the area of PS Chankaya Puri on arrangement duties as it was occasion of Holi. However, no document has been produced by the prosecution to prove that PW-3 and PW-10 were posted for arrangement duties at PS Chankaya Puri from DAP, 4th Batallion on the occasion of Holi.
16. As per PW-1, he reached at the spot with Ct. Yogesh and Ct. Umesh on receiving the information regarding quarrel. He has nowhere deposed that Ct. Vijay Kumar was also present at the spot at the time of incident or at any time thereafter. His testimony is completely silent with respect to Ct. Vijay Kumar i.e. PW-10. Even the testimony of the PW-3 Ct. Umesh and PW-8 Yogesh Kumar does not mention the presence of PW-10 Ct. Vijay Kumar at the spot. Therefore, none of the witnesses has deposed regarding presence of PW-10 Ct. Vijay Kumar at the spot. The prosecution has not produced any DD entry to show that PW-10 Ct. Vijay Kumar had gone to PS Chanakaya Puri to perform the duties and therefore, his presence at the time of incident is not proved and his testimony cannot be relied upon.
FIR No.54/14 State Vs. Bhola Nath Yadav Page 11/1917. As per PW-8 Ct. Yogesh, he reached at the spot with Ct. Umesh and thereafter, Ct. Nazer reached at the spot. Therefore, as per PW-8, Ct. Nazer had not gone to the spot with them but came later on. Further, as per PW-8 and PW-3, they reached at the spot while on patrolling duty and they found number of persons being gathered there. As per PW-8 and PW-3, there was no receipt of information of the quarrel and they found quarrel only after reaching at the spot. However, as per PW-1, he received information regarding quarrel and after receiving the information, he alongwith Ct. Yogesh and Ct. Umesh reached at the spot. Therefore, there are contradictions in the testimony of the witnesses as to whether they first reached at the spot and then found quarrel or whether they reached at the spot only after receiving the information of the quarrel. There is also contradiction as to who reached with whom. The question arises as to whether the above contradictions are so material so as to disregard the entire case of the prosecution.
18. It is not disputed that PW-1 Ct. Nazer and PW-3 Ct. Umesh had sustained injuries in the incident. PW-1 Ct. Nazer has deposed that he received injuries on his forehead and his front tooth also got dislocated due to pelting of stones. Ct. Umesh sustained injuries on his head. The blood stained shirt of the witness was also seized by the police, which he identified during his examination as Ex.P-1. The police also seized his broken teeth, which the witness identified during his examination as Ex.P-2. The perusal of cross- examination of PW-1 reflects that there is no suggestion given to PW-1 that no such incident happened. Rather, the suggestion was given that the injuries were received by the police officials as they fell on the railway track and were not caused by the stones thrown by the accused. The witness negated the suggestion.
FIR No.54/14 State Vs. Bhola Nath Yadav Page 12/19As regard Ct. Umesh, though no record has been produced to show that he was also assigned duty of Holi arrangement at PS Chankaya Puri but he has sustained injury at the time of incident. His MLC is Ex.PW7/B, wherein the history is recorded as 'assault' and injuries are shown as 'simple' in nature. Therefore, his presence at the spot cannot be ruled out. He was not the beat constable or one posted at PS Chankaya Puri but he was posted at 4 th Battalion, DAP, Kingsway Camp and had gone to the area of PS Chankaya Puri for the first time. He is an independent witness, who had also sustained injury in the incident. PW-3 Ct. Umesh has given the version of the incident and has stated that 6-7 persons started pelting stones upon them. One of the stones hit the face of Ct. Nazer and one of the stones hit his head due to which he along with Ct. Nazer sustained injuries. He has further deposed that due to the hit by the stone, one tooth of Ct. Nazer was broken. Though, Ct. Umesh failed to identify the accused but he has given the detailed version of how the injuries were received.
19. PW-8 Ct. Yogesh Kumar has also gone for patrolling duty vide DD No. 24B. He has deposed that he along with Ct. Umesh left the PS for patrolling vide DD No. 24B and reached Sanjay Camp, Beat 15. The public persons were celebrating Holi. They requested them to maintain law and order. Some public persons left the spot but Sanjay, Sonu, Sandeep, Sunil and Yadav did not left the spot and remained present there. He already knew them being beat officer. In the meantime, Ct. Nazer also reached at the spot. Sandeep and Sanjay started scuffling with Ct. Umesh and Sunil and Yadav started scuffling with Ct. Nazer. Sonu started snatching his danda. The aforesaid five persons started pelting stones upon them. Ct. Umesh received injuries on his head and Ct. Nazer sustained injuries on his head and face. He did not receive any injuries.
FIR No.54/14 State Vs. Bhola Nath Yadav Page 13/19Therefore, PW-8 Ct. Yogesh was on patrolling duty as proved by DD No. 24B. He has given detailed version of the incident and also that the injuries were sustained by Ct. Nazer and Ct. Umesh.
20. PW-5 Dr. Kumar Jitender has proved the injuries sustained by Ct. Umesh and Ct. Nazer vide MLC Ex.PW5/A and Ex.PW5/B. PW-7 Dr. Manish Nigam has also proved the injuries sustained by both the injureds. He has further deposed that the injuries sustained by Ct. Nazer was 'grievous' and by Ct. Umesh was 'simple'. Therefore, the testimony of above witnesses along with MLCs proves that PW-1 Ct Nazer and PW-3 Ct. Umesh had sustained injuries in the incident.
21. The accused has taken the defence that it is the case of mis-identification. Ld. Defence Counsel has argued that there are many 'Yadav' residing in Sanjay camp and complete name of accused is not disclosed by the complainant in the complaint. Only caste 'Yadav' has been disclosed. It is argued that the accused was not present at the place of incident and has been falsely implicated only because he is 'Yadav'. Ld. Defence Counsel has further argued that though the name of other accused persons have been disclosed by the complainant but they have not been arrested. Ld. Counsel has further argued that the complainant had stated that he knew them and even then, IO did not arrest the other co-accused persons.
22. Accused was arrested on the identification of PW-8 Ct. Yogesh Kumar. He has deposed that on 18.03.2014, he again joined investigation with IO/SI Om Prakash. They reached opposite Rail Museum, Chankaya Puri. He saw accused standing there. The accused started running away on seeing them. He FIR No.54/14 State Vs. Bhola Nath Yadav Page 14/19 apprehended the accused and on interrogation, he came to know the name of 'Yadav' as 'Bhola Nath Yadav'. Accused was arrested vide arrest memo Ex.PW8/A. IO PW-13 SI Om Prakash has also deposed that eye witness Ct. Yogesh met him in Sanjay Camp and on the identification of Ct. Yogesh, accused was arrested. The perusal of cross-examination of PW-8 Ct. Yogesh reflects that no suggestion has been given to the witness that he was not an eye witness to the incident or that accused was not arrested at his instance or that he wrongly identified the accused. The only suggestion given was that accused was falsely implicated due to mis-identity, which the witness has denied. The suggestion was given to PW-8 that accused was arrested from Moti Bagh, Taxi Stand, which witness has negated. The arrest memo of the accused Ex.PW8/A proves that accused was arrested near Rail Museum, Chankaya Puri on 18.03.2014 at 9 PM by SI Om Prakash in the presence of Ct. Yogesh. The defence has not led any evidence to show that accused was not arrested from near Rail Muesum, Chankaya Puri or that he was arrested from Moti Bagh, Taxi Stand or that arrest memo is a false document.
23. PW-1 Ct. Nazer has also identified the accused in his examination in chief as one of the persons who were pelting stones. He negated the suggestion that as the persons gathered were applying colour on the occasion of Holi, he could not identify them. In his voluntary statement, he has stated that he was beat constable for last about two years and he could identify some of them. He has admitted that the name Bhola Nath Yadav is not mentioned in the complaint but has stated in his voluntary statement that the name 'Yadav' is mentioned in the complaint.
The accused, in his statement, u/s 313 Cr.PC has negated his involvement in the incident. He has stated that the general public of Sanjay FIR No.54/14 State Vs. Bhola Nath Yadav Page 15/19 Camp used to make the complaint against police officials, beat constables, etc. for the trade of illicit liquor and gambling. He has stated that he was not present at the spot. There are many persons having the identity of caste 'Yadav'. So he has been falsely implicated in the present case.
Nothing has come on record to show that the injureds and the eye witnesses had any previous enmity with the accused so as to falsely implicate him in the case. PW-8 had identified the accused on seeing him and therefore, the identification was on the basis of appearance of the accused and not on the basis of his caste. The complaint discloses the name of one of the assailants as 'Yadav', accused was arrested and his name was disclosed as 'Bhola Nath Yadav' and PW-1 Ct. Nazer and PW-8 Ct. Yogesh duly identified the accused as one of the persons who pelting stones due to which injuries were sustained by Ct. Nazer and Ct. Umesh. The testimony of police officials cannot be thrown away merely because they are police officials especially when they have also sustained injuries in the incident. Therefore, the prosecution has proved that accused was present at the spot and that he was pelting stones along with other co-accused persons upon the police officials. The contradictions in the testimony of the witnesses as observed above are not the material contradiction so to throw away the entire case of the prosecution especially when the testimony of PW-1 Ct. Nazer, PW-3 Ct. Umesh and PW-8 Ct. Yogesh are consistent as to what happened on the date of incident and how the injuries were sustained by PW-1 and PW-3. PW-1 and PW-8 have identified the accused as one of the persons pelting the stones.
24. Ld. Defence Counsel has argued that the name of other persons have been disclosed in the complaint by PW-1 but they have not been arrested and it shows that those were fictitious person. I do not agree with the submissions FIR No.54/14 State Vs. Bhola Nath Yadav Page 16/19 of the Ld. Defence Counsel. The complaint Ex.PW1/A of Ct. Nazer was recorded on the date of incident i.e. 17.03.2014. It bears the signature of Ct. Nazer with date at point 'A' and has been attested by the IO with date at Point 'B'. In his complaint, PW-1 had stated that other public persons left the spot but Sunil, Yadav, Sonu, Sanjay and Sandeep remained at the spot and they were abusing the police officials. He has also stated that he knew the above persons as he was beat constable and above persons having their jhuggies near railway line. The incident took place on 17.03.2014 at about 3 PM. The MLC of PW-1 Ex.PW7/A reflects that he was admitted in the hospital on the date of incident at about 3:30 PM. The endorsement on the complaint has been made by PW-11 SI Daya Ram at about 6 PM and thereafter, the present FIR got registered. Therefore, on the date of the incident itself, soon after the incident the complainant disclosed the name of other assailants in his complaint. The same cannot be considered as after thought or the name of fictitious persons as the complaint was recorded at the very first instance after the incident. In fact, PW-8 Ct. Yogesh has also disclosed the name of persons who remained at the spot and who were pelting stones as Sanjay, Sonu, Sandeep, Sunil and Yadav. These are the names disclosed by him in his statement u/s 161 Cr.PC recorded on the date of the incident. Though, in the cross-examination, the witness was confronted with his statement u/s 161 Cr.PC but no suggestion was given to him that he had given a false statement or had disclosed the name of wrong/fictitious persons in his statement.
25. It is clear from the record that no attempt was made by the investigating officer to arrest the other accused persons namely, Sunil, Sonu, Sanjay and Sandeep. PW-1 has disclosed their name in his complaint Ex.PW1/A and also that he knew them being beat constable. Similar was the statement given by FIR No.54/14 State Vs. Bhola Nath Yadav Page 17/19 PW-8 Ct. Yogesh to the IO. Even in his examination in the court, PW-1 has stated that jhuggi of accused Sanjay is located towards the railway line and he had shown the jhuggies of Sanjay, Sonu, Sandeep, etc. to the IO. PW-8 Ct. Yogesh Kumar has also deposed that Sanjay, Sonu, Sandeep, Sunil and Yadav were residents of jhuggi and were already known to him. Second IO, PW-13 SI Om Prakash has deposed in the cross-examination that he along with accused made an endeavour to locate the co-accused persons. He sought help from informers to apprehend the absconding accused persons. He was only aware about the name of co-accused persons but they could not be apprehended for want of sufficient particulars.
When the complainant and eye witness had disclosed to the IO that the other co-accused persons were known to them and were residents of the jhuggi near railway line, then it is unexplained as to why IO did not seek the help of the complainant and the eye witness to apprehend co-accused persons. PW-1 Ct. Nazer and PW-8 Ct. Yogesh were the beat constables and they were posted in the same police station where the case was registered. IO SI Om Prakash was also posted in the same police station. It is not the case where the complainant or the eye witness were not traceable or were not within the reach of the IO for some reason. Rather, IO was posted at the same place and was already aware of the fact that he could apprehend the other co- accused persons with the help of PW-1 Ct. Nazer and PW-8 Ct. Yogesh. However, it is clear from his testimony that he never made any endeavour to arrest the other co-accused persons with the help of PW-1 Ct. Nazer and PW-8 Ct. Yogesh. There is clear laxity on the part of the IO. However, no benefit of such laxity can be given to the accused to the detrimental to the victims of offence. The testimony of PW-1, PW-3 and PW-8 has proved that five persons including the accused remained at the spot even when the police officials FIR No.54/14 State Vs. Bhola Nath Yadav Page 18/19 requested them to maintain law and order. They abused the police officials, who were performing their duties as police officials. They pelted stones upon police officials due to which PW-1 Ct. Nazer sustained grievous injuries and PW-3 Ct. Umesh sustained simple injuries.
26. In view of the above observations, prosecution has proved the case against Bhola Nath Yadav beyond all reasonable doubts. Accused Bhola Nath Yadav stands convicted for the offence u/s 143 IPC, 147 IPC, 186 IPC r/w 149 IPC, 353 IPC r/w 149 IPC, 333 IPC r/w 149 IPC and 332 IPC r/w 149 IPC.
Announced in the open court On 05.05.2022 (Anu Aggarwal) ASJ-07/PHC/New Delhi 05.05.2022 FIR No.54/14 State Vs. Bhola Nath Yadav Page 19/19