Delhi District Court
State vs . Ram Niwas Goyal & Others. on 11 October, 2019
In the Court of Samar Vishal
Additional Chief Metropolitan Magistrate - I
Rouse Avenue Court Complex
New Delhi
Cr Case : 38/2019
State Vs. Ram Niwas Goyal & Others.
FIR No. 112/2015
Police Station: Vivek Vihar
Date of Institution: 07.09.2016
Date of reserving judgement: 07.09.2019
Date of pronouncement: 11.10.2019
JUDGMENT:
(a) The date of commission of : 06.02.2015 offence
(b) The name, parentage, 1.Ram Niwas Goyal of accused S/o. Sh. Chaturbhuj Goel
2. Sumit Goyal s/o Sh. Ram Niwas Goyal
3. Hitesh Khanna s/o Late Sh. Avnish Khanna
4. Dr. Atul Gupta s/o Late Sh. Bhram Swaroop Gupta, 1/54 FIR No. 112/2015 State vs Ram Niwas Goyal and others
5. Balbir Singh S/o Sh. Pooran Singh
(c) The offence complained of : U/s 147/149/ 457/427/323 IPC
(d) The plea of accused : Pleaded not guilty
(e) The final order : Convicted.
(f) The date of such order : 11.10.2019 Counsels for the Parties For State : Sh. Lalit Pingolia, Assistant Public Prosecutor.
For accused : Sh. B.S. Joon, Sh. Rajendra Pal and Mohd Irsad, Advocates.
JUDGMENT
1. The accused Ram Niwas Goyal, Sumit Goyal, Hitesh Khanna, Dr. Atul Gupta and Balbir Singh have been prosecuted for commission of offence under section 456/323/427/34 of the Indian Penal Code in this case.
2/54 FIR No. 112/2015State vs Ram Niwas Goyal and others
2. The First Information Report (FIR) was registered at 04.10 AM on 07/02/2015, under section 147/457/427/323 of the Indian Penal Code on the complaint Ex.PW2/A of the complainant.
3. After the registration of the case, the investigation was conducted, first by Sub Inspector Santosh Pabri and then by SubInspector Avesh Kumar and on completion of the investigation the chargesheet was filed against the accused Ram Niwas Goyal, his son Sumit Goyal, Hitesh Khanna, Dr. Atul Gupta and Balbir Singh in the present FIR No.112/2015 police station Vivek Vihar for commission of offence under section 147/457/323/427/149 of the Indian Penal Code.
4. The case of the prosecution is that all the five accused, along with numerous other persons trespassed in the house of the complainant and not only created ruckus there but also damaged some property inside it. In the initial complaint Ex PW2/A, the complainant Manish 3/54 FIR No. 112/2015 State vs Ram Niwas Goyal and others Ghai alleged that he is the owner of house number C 273, Vivek Vihar. He was not residing at this house for last three years. It is his family property and he was residing at Farsh Bazaar with his family. He is a builder by profession. House No. C273 was used for the residence of his labour, who work at his various construction sites. In the night of 6 th February 2015, his labour was sleeping in this house C- 273. His driver Mr. Khair Mohammad was also present in the house. At around 9:30 PM, he got an information from his driver that six persons had forcibly and illegally, entered into his house after scaling the front and the back walls. He immediately rushed to his house where he found that the accused Ram Niwas Goyal, Sumit Goyal, Hitesh Khanna, Dr. Atul Gupta, Balbir Singh and one more person Ritesh Chaturvedi (not made an accused in this case by the investigating agency) were present in his house. They were creating nuisance in the house and were damaging his property. They had broken the almirah drawers, kitchen articles and 4/54 FIR No. 112/2015 State vs Ram Niwas Goyal and others window glasses of his house. They had broken mirrors at several places in his house. His driver told him that these persons had forcefully trespassed, despite the request of the driver not to enter in the family house, in the absence of the owner. His driver told him that they did not listen to his request and assaulted him. The driver informed that he tried to stop the accused Balbir Singh from making the videos of the living room and the bedroom and other private places of the house from his mobile phone, but he refused and instead beaten the driver. After this, the driver told him that, Dr Atul Gupta and Ram Niwas Goyal forcibly broken the locks of his almirah and ransacked his house. They instigated their associates who were standing outside the house to raise slogans, who followed them. They shouted slogans which defamed the complainant and his family as if the complainant and his family members were criminals. These supporters also illegally trespassed the house of the complainant despite his request not to enter the house. The accused Balbir 5/54 FIR No. 112/2015 State vs Ram Niwas Goyal and others Singh and his associates circulated the video clips carrying abusive and offensive messages in form of video MMS. They circulated video clips to different social media websites like WhatsApp, Facebook Twitter etc. The complainant concludes that these persons committed this crime with the common intention and in a pre- planned manner.
5. This is the original complaint in English which is reproduced in more or less similar words here. This complaint was the basis of the registration of the FIR of this case.
6. After investigation, the charge sheet was filed. Cognizance of the offences mentioned in the charge sheet were taken and the accused persons were summoned. On 19th April 2018 charges were framed against all the accused persons under section 456/323/427/34 of the Indian Penal Code. The accused pleaded not guilty and claimed trial.
6/54 FIR No. 112/2015State vs Ram Niwas Goyal and others
7. During trial, the prosecution has examined twentytwo witnesses, out of which PW 2 Manish Ghai is the complainant and the victim of the offence.
8. The first witness of the prosecution is Ashok Kumar Rai, who was the Executive Magistrate during the elections. According to his testimony, he received an information that the members of Aam Aadmi Party were engaged in the destruction of some property in a house in Vivek Vihar. When he along with his team went to that place, he found that the whole road leading to that house was blocked by a number of persons. He informed the seniors about the situation. He was able to reach the house on foot. His seniors informed him that they were sending the SHO and the SDM of the area and asked him to remain there. After the SDM, SHO and ACP came there, they went inside the house which was filled by public persons. Two or three rooms were locked and the people present inside the house were pressurising them that there were BJP 7/54 FIR No. 112/2015 State vs Ram Niwas Goyal and others workers in those rooms. ACP informed them that the locks can be broken only after the arrival of the owner. When the owner came, the rooms were opened but nobody was found inside the rooms. Some election material of BJP was lying there. Police prepared a list of those articles and seized it vide seizure memo PW1/A in presence of the owner of the house and the accused Ram Niwas Goyal. He has identified the accused Ram Niwas Goyal in the court. However, he was unable to identify the other accused persons during his evidence. In crossexamination he stated that the accused Ram Niwas Goyal met him inside the house and left the spot after the search of the house.
9. The second witness of the prosecution is the complainant, and an important witness. It is his house in which trespass and other offences were committed. According to his testimony, on 6th February 2015, he received a call from his driver Khair Mohammad, that around 300/400 persons had gathered outside his 8/54 FIR No. 112/2015 State vs Ram Niwas Goyal and others house C-273 Vivek Vihar. The driver told him that those persons were raising slogans outside the house and were knocking the door. He asked his driver not to open the door but that mob entered in his house from the backside door of his house which was already open. These persons entered into his house and created ruckus there. Some of them beaten his driver also. The mob inside the house broke the locks of the rooms and also broken the glasses and mirrors of the almirahs. They were making videos in the house. He reached his house. ACP of Vivek Vihar and election officials also reached. During that incident the lock of the almirah in the basement which was carrying his business documents were also broken. He proved this complaint ExPW2/A on which the FIR was registered, the contents of which are reproduced earlier. He identified the accused Ram Niwas Goyal, and the accused Atul Gupta. He said that he was hurt from this incident and suffered loss of property. During his evidence he has taken the name of one more person 9/54 FIR No. 112/2015 State vs Ram Niwas Goyal and others that is Ritesh Chaturvedi which was also taken by him in his complaint but the person Ritesh Chaturvedi was not sent for trial. He also proved the arrest of the accused Hitesh Khanna vide arrest and search memos ExPW2/B and ExPW2/C. In crossexamination he was put the question regarding the ownership of the house and answered that he was the owner of the house C -
273. In crossexamination he also said that the almirah in the basement was got broken by ACP as he was not having the keys with him and the accused was insisting for opening the same. He also admitted that the accused Ram Niwas Goyal and Atul Gupta did not break anything of their own but he said that they insisted for breaking the locks of the almirah.
10. Then comes the third witness of the prosecution who is the driver of the complainant. His name is Khair Mohd. He was present throughout the incident and was also belaboured by some persons in the mob. He did not remember the date of the incident when he came for the 10/54 FIR No. 112/2015 State vs Ram Niwas Goyal and others evidence in the court. He deposed that he was watching TV in his room. He heard some noise at the backside door of the house at around 9:30/10 PM. Six/seven persons scaled the rear wall of the house and entered his room. They forced him to sit there. They manhandled him due to which he received injury on his lips and back. They were inquiring from him that where the liquor was placed in the house. In the meantime, fifteen/ twenty persons jumped from the front gate of the house and entered there. They started searching the cupboard in the house. He tried to stop them. Some of them were making videos of the house. He asked them not to make videos from their mobile phones. Thereafter two/three persons roughed him. They kept him confined to the lawn of the house and started damaging articles in the house. When he consoled himself, he informed his employer. His employer informed the police on which the local police reached there. There were four/five police officials but they were unable to control the crowd. Four/ five labourers were also present in the 11/54 FIR No. 112/2015 State vs Ram Niwas Goyal and others house who fled after the mob misbehaved with them. After the incident he was medically examined by the police vide MLC ExPW3/A. This witness has identified the accused Ram Niwas Goyal, Atul Gupta, Hitesh Khanna, and Sumit Goyal. He has further stated that the accused Sumit Goyal inflicted more injuries to him and the accused Balbir Singh was making videos.
11. PW4 is the brother of the complainant. His name is Rammy Ghai. According to his testimony, he received a call from his driver at around 9.30 PM, that some persons were shouting slogans outside their house and some had entered into the house by scaling the wall. When he reached, he saw that the SDM and ACP of the area along with the Election Commission officials were present in their house. The accused Ram Niwas Goyal, his son, were also present in the house. They were objecting and saying that some liquor and other material was lying in the house. They also went to the basement and insisted for opening the almirah. Since the keys of 12/54 FIR No. 112/2015 State vs Ram Niwas Goyal and others the almirah were not there, the almirah was broken. The mob present on the ground floor, first floor of the house had damaged the window glasses and the doors. These persons belonged to Aam Aadmi Party trespassed in his house. They were also making videos of the house with their mobile phones. After the incident this witness went to the police station. This witness deposed that he can identify the accused Ram Niwas Goyal, his son, Dr Atul Gupta and Ritesh Chaturvedi (not sent for trial). The identity of the accused Ram Niwas Goyal, his son (Sumit Goyal), Atul Gupta and Hitesh Khanna was not disputed during his evidence. He was unable to identify the accused Balbir Singh.
12. PW - 5 Angad Upadhaya, is a witness who came along with PW4 Rammy Ghai at the spot as he was working as a contractor with Mr Rammy Ghai. He deposed that Mr Rammy Ghai received a call at around 9 PM from some labour who were residing in his house. The labour informed them that a mob has entered in his house.
13/54 FIR No. 112/2015State vs Ram Niwas Goyal and others When he reached there, he found a large number of persons present outside and inside the house. He saw the accused Ram Niwas Goyal, Dr Atul Gupta inside the house and were shouting that the house was being misused for election purpose and the liquor was being served. Someone from the mob had also slapped the driver of Mr Rammy Ghai. When the mob started increasing, he went away to his house. He deposed that he can identify the accused persons, however during his evidence the identity of all the accused except the accused Balbir Singh was not disputed as they had sought exemption from appearance through their counsel. This witness however was unable to identify the accused Balbir Singh in the court.
13. PW 6 P.K. Gottam is the scientific officer from Central Forensic Science Laboratory (CFSL) who had analysed the videos of the incident sent to CFSL. He was sent a hand camera of SHO of police station Vivek Vihar, one DVD and 19 photographs. He proved his report PW6/A. 14/54 FIR No. 112/2015 State vs Ram Niwas Goyal and others In crossexamination, he said that he has not used the scientific method to compare the data.
14. PW 7 Head Constable Yashpal Singh, was on PCR duty on that day. According to his testimony, on the date of incident he was on patrolling duty. At around 9.45 PM he received a call from control room regarding distribution of liquor by BJP workers at house No. C273 Vivek Vihar. He reached there but did not find anyone and there was no distribution of liquor from that house. He returned back to resume his patrolling duty. After around 10/15 minutes he again received a call from control room about distribution of liquor at house No. C 273 Vivek Vihar. He reached C block Balaji Mandir, where Aam Aadmi Party supporters had apprehended two persons. They said that those persons had liquor in their bags. When this witness tried to search the bag, those supporters did not allow him to check the bag and demanded that media be called. Those persons informed this witness that they had purchased the liquor 15/54 FIR No. 112/2015 State vs Ram Niwas Goyal and others from liquor shop. Among those supporters accused Sumit Goyal was also present and he was identified by this witness in the court during evidence. When the situation become uncontrolled, he informed SHO, police station Vivek Vihar and requested him to send some investigating officer and more police officials. After some time, the accused Ram Niwas Goyal also reached the spot. This witness correctly identified the accused Ram Niwas Goyal. The accused Ram Niwas Goyal insisted to get search of house No. C273 saying that the liquor was being distributed from this house. On hearing this, the Aam Aadmi Party supporters trespassed into this house. Some persons were making videos from their mobile phones. Some persons opened the front main gate of the premises from inside. In the meantime, SHO Vivek Vihar reached the spot. He tried to pacify the supporters but he failed. He called ACP, SDM, election officers and the owner of the house. After ACP, SDM, election officers and owner of the house reached there, the search of the premises was 16/54 FIR No. 112/2015 State vs Ram Niwas Goyal and others conducted and some liquor and election material of BJP was found. The amount of liquor as per this witness was four and half full bottles and four half bottles.
15. PW8 Woman SubInspector Sunita also deposed about the incident and the trespass committed by the Aam Aadmi Party workers in that house.
16. PW9 SubInspector Devender, is a formal witness who, being the nodal officer of CPCR Police Headquarter, at the request of the investigating officer handed over the certificate ExPW9/A under section 65B of the Indian Evidence Act in support of the PCR forms exhibit PW9/B to PW9/F.
17. PW10 Gorky Kaushik, was residing in the neighbourhood of house No. C273 Vivek Vihar. At around 10 PM he heard commotion and went outside. He saw that around fifty/sixty persons had gathered outside house No. C273 Vivek Vihar and raising 17/54 FIR No. 112/2015 State vs Ram Niwas Goyal and others slogans. He called police at 100 number from his mobile phone because those persons were trying to enter in house No. C273. Police came on the spot and tried to pacify the mob. Thereafter he went inside the house and do not know what happened further. He is an independent witness in this case and his testimony proves the presence of numerous persons outside house No. C273 and their attempt to trespass into the property in question.
18. PW11 Jyotimon, during that period was working as Assistant Expenditure Observer in Delhi Assembly elections. His duty on the date of incident was in Delhi assembly No. 62 Shahadra. He received a call from his election team that in premises No. C273 Vivek Vihar there was a complaint of storage of illicit election material and liquor. The Video Monitoring Team and Executive Magistrate were there on the spot when he reached. Some police and civilians together were searching the basement of the house and were trying to 18/54 FIR No. 112/2015 State vs Ram Niwas Goyal and others open and almirah. One of those persons was accused Ram Niwas Goyal. The owner of the house and SDM were also there. During the search of the house some electionrelated material was seized by the police vide seizure memo Ex. PW1/A. He deposed that he can identify only the accused Ram Niwas Goyal and no other accused.
19. PW12 Constable Manjeet and PW13 Assistant Sub Inspector Ajeet Singh, gave similar evidence of the incident as they went together at the place of incident. According to the testimony of SubInspector Ajeet Singh, they were posted in police station Vivek Vihar on the date of incident. They reached the spot ie. C 273 Vivek Vihar. On the spot they found that Shri Ram Niwas Goyal, Atul Sharma and Dr.Mittal alongwith 70 80 persons had assembled.(It is pertinent to mention here that this witness in his testimony has either taken the names of the accused wrongly or he was not aware of the names as Atul Sharma and Dr.Mittal are not 19/54 FIR No. 112/2015 State vs Ram Niwas Goyal and others accused. In fact, the name of one of the accused is Dr Atul Gupta.) They disclosed that they were associated with Aam Aadmi Party. They were instigating the aforesaid mob/people to commit violence. They were saying that liquor of Jitender Singh Santy was kept inside the above said premises. The two persons whose name he did not remember, said that they had purchased the liquor for their personal use. They were apprehended by Manish Goel, son of Ram Niwas Goyal.(It appears that here again the witness takes the wrong name of the accused Sumit Goyal). They also asked the mob to enter inside premises C 273 and search for the illicit liquor kept in the house. He apprised the situation of the spot to the SHO police station Vivek Vihar as well as ACP. Thereafter, SDM Vivek Vihar, ACP, officials from the Election Commission along with staff reached at the spot. Police searched premises C 273 in the presence of complainant. The said proceedings were also video graphed. The mob at the instigation of accused Ram Niwas Goyal scaled the wall 20/54 FIR No. 112/2015 State vs Ram Niwas Goyal and others and some members of the mob made entry through the entrance gate. Khair Mohd had called SHO, ACP and officials of Election Commission. Khair Mohd was beaten by Manish Goel, Ritesh Chaturvedi and his supporters. Accused persons had ransacked the articles inside C 273. He had seized certain articles vide memo Ex.PW1/A, including 6 ½ bottles of liquor. As far as the identification of accused is concerned, there is some discrepancy in the evidence of this witness and in the testimony of PW12. Except the accused Ram Niwas Goyal, he has taken wrong names of the accused however this is not a material discrepancy in the case of the prosecution and can be ignored for the simple reason that the accused have admitted their presence in the house and this is not a disputed fact.
20. PW14 ASI Vijay Vir Singh also went with Head Constable Ajeet Singh on the spot. The information on which they went to the spot was received vide DD No. 48B Ex.PW13/A that two persons were apprehended 21/54 FIR No. 112/2015 State vs Ram Niwas Goyal and others with illicit liquor at house No. C273 Vivek Vihar. On reaching the spot, he saw a huge crowd. They were raising slogans and video graphing the spot. SHO Vivek Vihar and other police staff had also reached there. SHO along with police staff as well as owner of the house C273 searched the said premises. SI Santosh prepared the rukka/tehrir(complaint) of the present case and handed over to him for registration of FIR. Thereafter he went to the police station Vivek Vihar and got registered the present FIR No. 112/2015. After registration of FIR, he came back at the spot and handed over the copy of FIR to the investigating officer.
21. PW15 Dr. Shani Kumar, CMO, DHAS hospital who medically examined injured Khair Mohd, the driver of the complainant, proved the MLC ExPW3/A.
22. PW16 Inspector Ram Sunder is an important witness for the prosecution. He was the SHO of police station Vivek Vihar. According to his testimony on that day, he 22/54 FIR No. 112/2015 State vs Ram Niwas Goyal and others was on beat patrolling. HC Ajeet had informed that Ram Niwas Goyal, Dr. Atul Gupta along with other supporters were present at C273 Vivek Vihar. They are raising slogans and were saying that illicit liquor is kept inside this house. He then called the police station and directed the Duty Officer to send police officials and staff at the spot. At about 1010:15 pm (written as1 10:10 p.m. which seems typographical error) he reached at the spot. He saw, the accused Ram Niwas Goyal, Dr. Atul Gupta, Hitesh Chaturvedi (stated Hitesh Khanna as Hitesh Chaturvedi), Sumit Goyal, the son of Ram Niwas Goyal and other supporters of Aam Aadmi Party, were searching the house of complainant on their own. Ram Niwas Goyal and Dr. Atul Gupta were contesting the elections from Aam Aadmi Party. He requested them to wait till the owner of the house and officials of Election Commission come there, and thereafter the search of the house can be made. But they did not pay any heed to his advice and kept searching the house. When they did not stop searching 23/54 FIR No. 112/2015 State vs Ram Niwas Goyal and others the house, he got the incident video graphed from his video camera. Thereafter officials of Election Commission and SDM reached at the spot after around 45 minutes. He also called the owner of the house i.e. the complainant through the driver Khair Mohmmad. When the owner of the house and election officers reached, the almirah were directed to be opened. The owner of the house did not have the keys, so the almirah was broken. There were many supporters inside the house and when the police tried to evict them, they started raising slogans against them. Some liquor and election related material was found in that house which was seized by the police vide seizure memo already Ex.PW1/A, which was prepared in his presence. He handed over his video camera to IO through seizure memo Ex.PW16/A. The driver Khair Mohmmad was beaten by the mob in the house led by Ram Niwas Goyal and Atul Gupta so he directed the investigating officer to get him medically examined. The election officials were also having their video camera and some 24/54 FIR No. 112/2015 State vs Ram Niwas Goyal and others persons from the mob were also making videos from their mobile. This witness had identified the accused Hitesh and Atul Gupta in the court during his evidence. He further deposed that he can identify all accused. The identity of accused Ram Niwas Goyal and Sumit Goyal was not disputed during his evidence as they were exempted from appearance on the day of his evidence. This witness was unable to identify the accused Balbir due to lapse of time.
23. PW17 Assistant Sub Inspector Manoj Kumar posted at Mobile Crime team deposed that on 06.02.2015, he received an information from PCR to reach at C273, Vivek Vihar, Delhi. He went there and met Sub Inspector Santosh. He took 19 photographs Ex. P1 to Ex. P19 of the incident / spot. He also proved the negatives of those photographs Ex. X1 to Ex. X20.
24. PW19 Dr. Vikram Singhal, Deputy Director Transport, Daman & Diu deposed that in the intervening night of 25/54 FIR No. 112/2015 State vs Ram Niwas Goyal and others 6th & 7th February 2015, he was posted as Returning Officer / SubDivisional Magistrate, Vivek Vihar. He received a call from police that a crowd had gathered in Vivek Vihar. He did not remember the exact spot. He was asked to reach the spot. He informed the concerned ACP to reach at the spot. Thereafter, he along with staff also reached at the spot. At the spot, there was a crowd of 200 persons who were raising slogans and were saying that there was liquor in the house. He could not recognize any person among the crowd except the candidate of the election from that constituency Mr. Atul Gupta. He was told by Atul Gupta that he suspected that there was a stock of liquor in the concerned house which was being supplied in the constituency. He enquired thereafter, who was the owner of the house as the house was locked. The police informed that the house was closed and no one was residing there. Thereafter with the police, they entered the house. They found a small amount of liquor. He did not remember the exact amount of liquor. They also 26/54 FIR No. 112/2015 State vs Ram Niwas Goyal and others found lot of empty bottles of liquor inside the house and some election campaign material in the house, like flags and some pamphlets. Some people from the crowd had entered into the house after the police. Among them, he recognised only accused Atul Gupta. There was a room which was locked from inside and some persons were alleged to be present inside the room. After sometime, a person presented himself there as the owner of the house. And then he asked the police to open that door which was found to be empty. Before exiting from the house, they found a file with some photocopies of election identity cards. The election material was of Bhartiya Janta Party.
25. PW18 Sub Inspector Avesh Kumar and PW20 Sub Inspector Santosh Pabri were the investigating officers of this case. They have deposed in detail about the investigation done by them with respect to this case. For the sake of brevity, their testimonies are not reproduced in this judgement.
27/54 FIR No. 112/2015State vs Ram Niwas Goyal and others
26. The last two witnesses of the prosecution are PW21 Narayan and PW22 Mukul Deep. Their testimonies are similar in nature. They deposed that they were returning from Jhilmil side. Some liquor was being distributed on some Mahila Collage Road. They did not know who was distributing the liquor. Some bottles were given to both of them and after taking the liquor they were going to their homes but were held by some persons who disclosed their identities as "Jharu Wale". They abused these witnesses and asked them to take the name of "phoolwaley" as the distributors of liquor. These witnesses have not named the accused nor identified them and therefore their testimonies are of no help to the prosecution. In cross examination by the accused persons they however said that the liquor was not being distributed from any house but from some place near the bus stop.
27. After the prosecution evidence, the accused Ram Niwas Goyal, Sumit Goyal, Hitesh Khanna, Dr. Atul Gupta and 28/54 FIR No. 112/2015 State vs Ram Niwas Goyal and others Balbir Singh were examined under section 313 Cr.PC and the incriminating circumstances appearing in evidence against them were put to them. While admitting that he was present in house No. C- 273 Vivek Vihar, the accused Ram Niwas Goyal explained that he is falsely implicated in this case. He reached the spot after getting the information that some people have already collected at the spot. In his presence no one broke the locks of the room or damaged the glasses and mirrors of the almirah. He entered into that house after the police entered there. When he reached the house, public persons and police were already there. No one assaulted the driver of the complainant in his presence. The driver was drunk. The videos were made by the public in the presence of the police. Police entered in the house first. Incriminating material was recovered from that house, belonging to the BJP leader. He did not instigate any person to enter in the house. He entered the said house along with the police. The people were raising peaceful protest regarding the 29/54 FIR No. 112/2015 State vs Ram Niwas Goyal and others storage of incriminating material and liquor in the said house. He along with the accused Atul Gupta entered in the said house after the arrival of the police and the election officials. The owner of the house was called prior to that. The public persons called the police and after their arrival, some public persons along with him and election officials entered in the said house after the owner of the house was called to verify if any incriminating material was stored in the said house or not. The police itself broken the almirahs to search the same in presence of the owner of the house. He entered in the said house with some public persons along with election officials. This complaint was a belated complaint and filed due to political compulsions.
28. While admitting their presence in the house, the other accused persons also gave the similar explanations and justifications for their presence in that house.
29. In defence all accused except the accused Hitesh 30/54 FIR No. 112/2015 State vs Ram Niwas Goyal and others Khanna have examined three witnesses. The first defence witness, DW1 Vishal Singh admitted in cross examination that he is a supporter of Aam Aadmi Party. According to his testimony, on the date of the incident he was returning from a temple where he saw that Aam Aadmi Party workers had detained two persons near a building. He also stopped there to watch. From the persons collected there, he came to know that those two persons were possessing liquor in their bag. Several persons had gathered there and one of them informed the police. Within 15 minutes police reached there. On enquiry those two persons told them that they had procured the liquor from a nearby building, the details of which this witness did not remember. Election officials reached the spot. After sometime the accused Ram Niwas Goyal and the candidate of that area the accused Atul Gupta there. The local ACP also reached there. Police officials got the gate of the said building opened after making some telephone calls. After opening the gate, the police officials, election officials 31/54 FIR No. 112/2015 State vs Ram Niwas Goyal and others and the public persons along with the accused Ram Niwas Goyal and Atul Gupta entered the building. After entering in the said house this witness noticed several liquor bottles and election material of BJP including photocopies of election identity cards.
30. DW 2 is Majhar Khan. He was the driver of the accused Atul Gupta. He deposed that on 06.02.2015, he was present in the office along with Dr. Atul Gupta. At about 10/10:15 pm, an information was received on telephone by Dr. Atul Gupta that liquor was seized in the area of Vivek Vihar. Dr. Atul Gupta was a candidate of Aam Aadmi Party from Vishvash Nagar Constituency. Vivek Vihar falls in the area of Shadhra Constituency. He along with Dr. Atul Gupta reached at the place where two persons were apprehended by the supporters of Aam Aadmi Patry. At that time, he was having a Spy Camera which was given to him by Dr. Atul Gupta during election campaign. Those two persons were having liquor in their possession. One of them escaped 32/54 FIR No. 112/2015 State vs Ram Niwas Goyal and others from there and one was apprehended by those supporters of Aam Aadmi Patry. On enquiry the apprehended person informed that he had obtained the liquor bottles from the nearby kothi. Police as well as the Election Commission was informed, who came at the spot. The main entrance of the kothi pointed out by the apprehended person was bolted from inside. Police officials and election officials got the entrance opened. They entered in the house alongwith the police officials and election officials where they found several liquor bottles, filled as well as empty and huge election material of BJP. He video graphed the scene of the house where the aforesaid articles were lying. Thereafter they came out of the said house. He along with other public persons entered in the house with the police and election officials and nobody in his presence damaged the articles in the house. He proved the videos made by him as Ex.DW2/A in a pen drive. In this pen drive there are three videos. One video is of inside the house shot in a dark place where some policemen 33/54 FIR No. 112/2015 State vs Ram Niwas Goyal and others and other persons and some loud altercation is visible. The second video is of outside the house where a large crowd is engaged in sloganeering. In the third video, a crowd has apprehended two persons on road probably PW21 and PW22 who have some liquor bottles in their bags and the crowd is insisting them to take the name of a political party as the distributor of the liquor. During crossexamination he admitted that he was the driver of Dr. Atul Gupta. He or Dr. Atul Gupta had not informed the police after receiving the call. At the time of election, there were several complaints of the liquor distribution due to which he was using the Spy camera given by Dr. Atul Gupta to him. He was not aware about the stuff placed in the said house in advance. Police might have been informed by some volunteers of the party who got opened the gate of the house. Police reached at the spot after information given by the volunteers from there. At that time, 57 persons were present in the said house. He entered the house along with the accused persons. He entered in the house to make the video 34/54 FIR No. 112/2015 State vs Ram Niwas Goyal and others inside the house. The accused persons were inside the house when he was making the video. Police did not give any permission to him to enter the house. Police has not asked him to join the investigation. Nor the police stopped him from entering the house.
31. The last defence witnesses was Preetam who deposed in the court that he did not remember the exact date but it was one day prior to the voting. On that day at about 11/12 pm, he was passing through the area of Anand Vihar towards Surya Nagar. He saw that several police personals had collected near Tpoint, Vivek Vihar, Balaji Mandir in front of a house. Police entered in the said house followed by other persons. Out of curiosity, he also entered into that house. He noticed that in the said house, several pamphlets and other election materials including liquor bottles were lying. Thereafter he was turned out from the said house by the police. He do not know Ram Niwas Goyal or Dr. Atul Gupta, but he had seen their posters during the time of the elections. The 35/54 FIR No. 112/2015 State vs Ram Niwas Goyal and others public persons had entered in the said house after the police. In his presence no public person damaged the house articles in the said house. He remained at the spot for about 57 minutes. During crossexamination he deposed that he was running an eRikshaw charging station at Surya Nagar on the relevant date. He was not aligned to any political party. He entered in the said house after his friend entered in the house who was accompanying him at that time. Around 4050 persons were standing at the said house at that time. Sh. Ram Niwas Goyal or Dr. Atul Gupta were also present there and entered in the said house with the police. The crowd entered the house on their own with the police. He entered in the house of his own. Around 2022 persons entered into the said house of their own. Police did not ask anybody to enter in the said house nor police asked anybody to join the investigation. Some police officers were already present in the house and thereafter some PCR vans also reached at the spot with whom he entered in the house. He did not enter in the 36/54 FIR No. 112/2015 State vs Ram Niwas Goyal and others said house but remained up to the lobby.
32. This is the overall evidence led by both the sides. So far, the allegations of the prosecution and the evidence led by both the sides has been discussed in detail.
33. Terming it as an open and shut case, the learned prosecutor has argued that the prosecution is able to prove its case beyond reasonable doubt as not only the witnesses have proved that the accused trespassed into the house in question but the accused persons have admitted this fact in their examination under section 313 of the Indian Penal Code and also examined defence witnesses to this effect. It is further argued that it has been proved that the driver Khair Mohd was belaboured by some persons in that crowd and particularly by the accused Sumit Goyal. It is further proved that the crowd also indulged in ransacking and damaging certain articles and properties of that house.
37/54 FIR No. 112/2015State vs Ram Niwas Goyal and others
34. On the other hand, the accused persons have taken twopronged defence. One is that they relied upon the contradictions and discrepancies in the testimonies of the witnesses and secondly that the accused entered after the police in the house. The accused have also relied upon the judgments Prem Bahadur Rai vs State of Sikkim 1978 CrLJ 945 and Nasiruddin and Others vs State of Assam 1971 CrLJ 1073 which have been considered.
35. Some of the contradictions highlighted by the defence in the testimonies of the witnesses are: Complainant in his complaint mentioned that his driver told that six persons have forcibly entered in the house whereas deposing in court he said that 300/400 persons gathered outside his house. He omitted to depose in the court about the presence of those six persons in the house. PW1 deposed that he reached the spot at around 6 PM whereas the incident is of later time. PW1 further admitted like some other witnesses that the 38/54 FIR No. 112/2015 State vs Ram Niwas Goyal and others accused Ram Niwas Goyal did not damage any property in the house in his presence. PW2 deposed that he left the spot at around 12:30 AM with the police whereas the SHO PW16 deposed he left the spot at around 5 AM in the night. The complainant also admitted that the accused had not broken anything by their own. PW3 Khair Mohd deposed he informed his owner at around 10:30 PM whereas the complainant deposed that he received the call from PW3 at around 9:30 PM. According to PW2, the height of the rear wall of the house was 6-7 feet whereas according to PW3 the height of the rear wall of the house was around 10- 11 feet. PW4 says that he received the call from the driver Khair Mohd whereas PW2 says that he received the call from Khair Mohd. PW5 says that some labour called PW4. PW5 deposed that when he reached the spot police was not there whereas PW4 deposed that the accused persons were already present in the house along with the police and other executive authorities. PW7 deposed that he did not see any of the accused 39/54 FIR No. 112/2015 State vs Ram Niwas Goyal and others entering in the house forcibly nor did see any of the accused damage in any property house. PW19 said that some people from the crowd had entered into the house after the police whereas some witnesses like SHO PW16 said that the accused were already there in the house when police entered in to the house.
36. As far as the contradictions are concerned in the testimony of the witnesses, these contradictions are bound to occur as the prosecution has examined around 14 witnesses of fact who had seen and witnessed the incident. The nature of the incident was such that it was not possible for all the witnesses to narrate the entire sequence of events in similar manner. Who entered the house when and what did each person in the crowd did, when the police came, whether the crowd went inside with the police or before or after the police? What was the strength of the crowd or whether the crowd and how many of them scaled the wall or entered from the side of the house? The exact time of 40/54 FIR No. 112/2015 State vs Ram Niwas Goyal and others the incident and its duration. All these things have come in a tentative manner in the evidence and the exact occurrences of these events was difficult for the witnesses to narrate in an infallible manner and without any discrepancy. As far as the contradictions and discrepancies in the evidence of witnesses are concerned the law is settled that the minor contradictions and discrepancies which does not go to the root of the matter has to be ignored. The evidence of the witnesses should be relied upon unless there are grounds for the rejection of their evidence on the basis of major contradictions and discrepancies therein. The settled legal position is that the Court must attempt to, while appreciating the evidence of an eyewitness, separate the truth from falsehood and not reject an eye witness‟ testimony entirely only because there are some embellishments. In Ugar Ahir v. State of Bihar AIR 1965 SC 277, the Hon'ble Supreme Court explained the legal position as under: "The maxim falsus in uno, falsus in omnibus 41/54 FIR No. 112/2015 State vs Ram Niwas Goyal and others (false in one thing, false in everything) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the court to scrutinise the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest."
37. Further, as explained in State v. Saravanan AIR 2009 SC 152, the Court can overlook "minor discrepancies on trivial matters" which do not affect "the core of the prosecution case". In State of U.P. v. Krishna Master AIR 2010 SC 3071, the Hon'ble Supreme Court emphasised that "it is the duty of the Court to separate 42/54 FIR No. 112/2015 State vs Ram Niwas Goyal and others falsehood from the truth, in sifting the evidence". At the same time, the eyewitness testimony must be credible and reliable. It should not be contradicted by other eye witnesses or by the medical and forensic evidence, if any.
38. In Rammi alias Rameshwar v. State of Madhya Pradesh AIR 1999 SC 256, it was observed:
"When eyewitness 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 the evidence of a 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 an 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".
39. Therefore, none of the contradictions or discrepancies are sufficient to doubt or to throw out the case of the 43/54 FIR No. 112/2015 State vs Ram Niwas Goyal and others prosecution. The primary charge against all the accused is of trespass in the house in question. All the accused have admitted that they entered into this house. The defence witnesses also prove this fact. The only defence which the accused have taken to justify their entry in the house in question is that they entered after the police. There are a number of persecution witnesses who have deposed that the accused persons entered before the arrival of the police in the house. PW1 an independent witness deposed that after the SDM, SHO and ACP came there, they went inside the house which was filled by public persons and that the accused Ram Niwas Goyal met him inside the house. PW16 deposed that he saw, the accused Ram Niwas Goyal, Dr. Atul Gupta, Hitesh Chaturvedi (stated Hitesh Khanna as Hitesh Chaturvedi), Sumit Goyal, the son of Ram Niwas Goyal and other supporters of Aam Aadmi Party, were searching the house of complainant on their own and that there were many supporters inside the house and when the police tried to evict them, they started raising 44/54 FIR No. 112/2015 State vs Ram Niwas Goyal and others slogans against them.
40. But even if the admitted position of the accused persons is taken into account then even by no stretch of imagination it can be said that their action was justified. It is clear that the accused were the part of a mob which had a suspicion that the house in question was being used for the distribution of liquor during the time of elections. It is clear that the police were informed and Election Authorities also came on spot, therefore the crowd including the accused persons did not had any right to enter into the house which was the private property of some person. The only course available them was to wait for the police/executive action of the authorities and not to take the law in their own hands. The seizure memo ExPW1/A and the evidence of the witnesses shows that the articles recovered were not incriminating in any manner as opposed to the claim of the defence. The amount of liquor was well within the prescribed limit under the Delhi Excise Act and 45/54 FIR No. 112/2015 State vs Ram Niwas Goyal and others Inspector Ram Sunder PW16 has deposed that no action was taken with respect to the recovery of those articles because no cognizable offence was found to have been committed in that house. The entire set of facts also indicates the veracity of his statement. The election material was lying in the house and was not being used for any purpose contrary to law and since it was election time it was nothing unnatural to have such material stored in a house. It can be unused election material as the elections were to be held on the next day(07/02/2015) of the incident. Well there is no evidence that the liquor was distributed from that house or that the election material was being misused in any manner. The whole incident took place on mere suspicion. PW19 Dr Vikram Singhal who was the SDM on that day deposed that the accused Dr Atul Gupta told him that he suspected that there was a stock of liquor in that house which was being supplied in the constituency. It was only a suspicion because no such stock of liquor which can be termed as huge was 46/54 FIR No. 112/2015 State vs Ram Niwas Goyal and others recovered from that house. None of the defence witnesses have deposed that they saw the house being used for any distribution of liquor. Some of the members of the crowd were making videos of the house and DW2 who was the driver of one of the accused has admitted that he was making videos from a spy camera provided by one of the accused Dr Atul Gupta. According to the defence witness DW 3 around 4050 persons were present in the house at that time. Even if for the sake of argument is it is accepted that the accused had any right to enter into the house in order to verify their suspicion then also one of the representatives from that crowd could have entered the house. The manner in which such a large number of persons brazenly entered into a private house of a person without his permission clearly reflects a criminal mindset, intention and mob mentality. This is a case of violence and trespass committed by a mob. The mob entered into the house in question in the night on a mere suspicion and created ruckus there. It was the rule of mob which trumped the 47/54 FIR No. 112/2015 State vs Ram Niwas Goyal and others rule of law. If justice to anything or to an issue is left at the mercy of a mob then the administration of law will become a mockery. No agency or instrumentality of state can step aside in the face of vigilante justice giving their tacit or outright stamp of approval to the rule of mob. It seems that the police has not done enough to shove out the mob from the house. This is a case where the accused persons with many others as a mob entered into a house in the night with impunity, without any respect for the law or for the privacy of the person whom that house belongs. One of the defence witness has admitted that police did not ask anybody to enter in the said house nor police asked anybody to join the investigation. Therefore, it cannot be a legal defence for the accused persons to say that they entered the house with or after the police. The entry of the accused persons in that house was completely unwarranted and unauthorised.
41. The offence of criminal trespass is defined under 48/54 FIR No. 112/2015 State vs Ram Niwas Goyal and others section 441 of the Indian Penal Code. It states that whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property commits the offence of criminal trespass. Therefore, in case of criminal trespass intention is the most important factor and is "sine qua non", in order to establish that the entry of the accused on complainant's property was with intent to annoy, intimidate or insult within the meaning of section 441 of the Indian Penal Code. It is necessary for the Court to be satisfied that causing such annoyance, intimidation or insult was the aim of the entry. It is not sufficient to show merely that the natural consequence of the entry was likely to be annoyance etc. It is impossible in most cases to prove intention by direct evidence and it has to be inferred from the circumstances proved. Section 442 of the Indian Penal Code defines house trespass. It states that whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a 49/54 FIR No. 112/2015 State vs Ram Niwas Goyal and others human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit house trespass. The accused persons are charged for commission of offence under section 456 of the Indian Penal Code. It punishes the act of lurking house trespass or housebreaking by night in order to commit offence. It states that whoever commits lurking house trespass by night, or housebreaking by night, shall be punished with imprisonment which may extend to three years and shall also be liable to fine. In every offence under section 446, there must remain imbedded in the core trespass as defined in section 441 of the Indian Penal Code. Lurking housetrespass as defined in section 443 of the Indian Penal Code is said to be committed when some person commits house trespass having taken precautions to conceal such housetrespass from some person who has a right to exclude or eject the trespasser from the building, tent or vessel which is the subject of the trespass and if such trespass is committed after sunset and before sunrise it 50/54 FIR No. 112/2015 State vs Ram Niwas Goyal and others is called as lurking house trespass by night. Whereas house breaking by night is defined in section 445 of the Indian Penal Code. Now in the present case, it is clear that the accused persons had not concealed themselves nor taken any active steps to conceal themselves but openly and brazenly entered into the house. Nor it is proved on record beyond reasonable doubt that they committed any of the act which may amount to housebreaking by night as defined under section 445 of the Indian Penal Code. From the evidence it is not proved on record that the accused persons effected their entry in the house in any of the manner provided under section 445 of the Indian Penal Code. It is not clear whether the door was opened when they entered into the house or they broke open the door. For this reason, they cannot be said to have committed the offence of housebreaking by night. But what is not disputed is that they entered into the house to intimidate insult and annoy the owner of the house.
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42. The complainant has deposed that by this incident he was hurt and suffered loss of his property. Moreover, the manner in which the mob of which the accused were also part, entered in the house and what it did in the house is sufficient to infer a malafide intention as required under section 441 of the Indian Penal Code. In these circumstances the accused persons can be and has to be convicted for the offence of committing house trespass simpliciter which is punishable under section 448 of the Indian Penal Code.
43. Therefore, it cannot be said that the prosecution is able to prove its charge under section 456 Indian Penal Code but the charge under section 448 Indian Penal Code has been clearly made out and all the accused can be punished for that despite the fact that the charge was framed under section 456 Indian Penal Code. This is legally permissible under section 222(2) Cr.PC wherein when a person is charged with an offence and the facts are proved which reduce it to minor offence, he 52/54 FIR No. 112/2015 State vs Ram Niwas Goyal and others may be convicted of the minor offence although he is not charged with it. (Ram Das vs State of West Bengal 1954 CRI.L.J.SC 1793). To conclude, the prosecution has been able to prove its case beyond reasonable doubts. Further the accused Sumit Goyal shall be liable for conviction under section 323 of the Indian Penal Code in view of the testimony of Khair Mohd that he inflicted more injuries to Khair Mohd coupled with the testimonies of other witnesses that Khair Mohd was belaboured by some persons in the crowd and his MLC. For the lack of direct evidence of damage of the property by the accused persons they are not convicted for mischief punishable under section 427 of Indian Penal Code. Accordingly accused Ram Niwas Goyal, Sumit Goyal, Hitesh Khanna, Atul Gupta and Balbir Singh are convicted for offence under section 448 of the Indian Penal Code and accused Sumit Goyal is additionally convicted under section 323 of the Indian Penal Code.
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44. List the matter for arguments on sentence.
Announced in the open court
this 11th day of October 2019
[Samar Vishal]
Digitally ACMMI/Rouse Avenue Court
signed by New Delhi
SAMAR
SAMAR VISHAL
VISHAL Date:
2019.10.11
16:12:19
+0530
54/54
FIR No. 112/2015
State vs Ram Niwas Goyal and others