Delhi District Court
State vs . on 3 December, 2011
1
IN THE COURT OF SH. VIVEK KUMAR GULIA
METROPOLITAN MAGISTRATE - 1 (EAST)
KARKARDOOMA COURTS, DELHI
In the matter of:
State
Vs.
Ramesh Chand Jain & others
FIR NO. 89/98
P.S. Gandhi Nagar
JUDGMENT
1. Sr. No. of the case : 340/99
2. Date of institution : 17.09.1999
3. Name of the complainant : Sh. Devendra Kr. Arya
4. Date of commission of offence : 12.07.1998
5. Name of accused : 1. Ramesh Chand Jain
S/o Sh. Mangi Lal
R/o H.No.C5, IInd Floor,
East Krishna Nagar, Delhi.
2. Amarjeet Singh
S/o Sh. Balwant Singh,
R/o H.No. X/810, Chand
Mohalla, Gandhi Nagar,
Delhi.
3. D.K. Jain
S/o late Sh. Urfat Rai Jain
R/o H.No. X/1392/1A, Rajgarh
Colony, Gandhi Nagar, Delhi.
Page no. 1 of 16 St.vs. Ramesh Chand & others; FIR No. 89/98
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4. Santosh Devi
W/o Sh. Mahender Kumar,
R/o H.No. 2210, Mahila
Colony, Geeta Colony, Delhi.
5. Vimla W/o Sh. Arjun
R/o H.No. X/3038, Gali No.5,
RPII, Gandhi Nagar, Delhi.
6. Ms. Varyam Kaur
D/o Sh. Balwant Singh
R/o X/810, Chand Mohalla,
Gandhi Nagar, Delhi.
7. Pritam Singh
S/o Late Sh. Kartar Singh
R/o H.No. X/2841, Gali No.5,
RPII, Gandhi Nagar, Delhi.
8. Jugal Kishore
S/o Sh. Janak Dass
R/o H. No. X/2844, Gali No.5,
RPII, Gandhi Nagar, Delhi.
9. Sanjay Kumar Gupta
S/o Sh. N.K. Gupta
R/o H. No. X/2854, Gali No.5,
RPII, Gandhi Nagar, Delhi.
10. Jasbeer Singh
S/o Sh. Harbhajan Singh
R/o H. No. X/2988, Gali No.5,
RPII, Gandhi Nagar, Delhi.
11. Pawan Kumar
S/o Sh. Tilak Raj
R/o H. No. 3012, Gali No.5,
RPII, Gandhi Nagar, Delhi.
12. Ashok Kumar
S/o Late Sh. Kashmiri Lal
Page no. 2 of 16 St.vs. Ramesh Chand & others; FIR No. 89/98
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R/o H. No. X/2837, Gali No.5,
RPII, Gandhi Nagar, Delhi.
13. Moti Ram
S/o Sh. Jayanti Prasad
R/o H.No. 1220, Gali No.3,
Rajgarh Colony, Gandhi
Nagar, Delhi.
6. Offence complained of : Sec. 427/341/186/147/149 IPC
7. Plea of guilt : Accused persons pleaded not
guilty
8. Date of reserving the Judgment : 23.11.2011
9. Final order : Convicted
10. Date of such Judgment : 03.12.2011
FACTUAL BACKGROUND :
1. The FIR No. 89/98 u/s. 341/186/147/427/149 IPC (in short "the Act") was registered on the complaint of Sh. Devendra Kumar Arya, Inspector, DVB, who alleged that on 12.07.1998 he alongwith senior lineman Nahar Singh, driver Raj Kumar and cleaner Vinod Kumar were going in Van bearing Registration No. DL1L4774 at Subhash Mohalla, Ashok Gali, Gandhi Nagar for cable testing but in between at about 10.15 AM at Main Road, Gali No.5, RaghubarpuraII, a gathering of several people stopped their van forcibly. On inquiry, they came to know that there is electricity problem in the area and even after informing them that they are going on their official duty, they were forced to come down from the vehicle. Police was also called but they were not allowed to Page no. 3 of 16 St.vs. Ramesh Chand & others; FIR No. 89/98 4 leave the spot till 2.15PM. It is also mentioned that municipal councillor Varyam Kaur and Sardar Jasbir Singh were leading the mob which was adamant to commit mischief and were shouting slogans. Further, it is stated that tyres of said van were deflated and all the accused persons caused willful obstruction in their duty. Some days thereafter all the accused persons were arrested in this case. After culmination of investigation, 14 accused persons were chargesheeted and summoned to face trial. During trial, proceedings against accused Vinod Kr. Khanna were abated vide order dated 11.06.2009 on account of his death. TRIAL PROCEEDINGS :
2. In light of the above stated facts and proceedings, after making compliance of provisions of section 207 Cr.P.C., vide order dt.
06.07.2002, finding a primafacie case, Sh. Ramesh Kumar, the then MM, Shahdara, framed charge for the offence punishable u/s 147, 427, 186, 341 read with section 149 IPC, to which the accused persons pleaded not guilty and claimed trial.
3. For proving its case, the prosecution has produced seventeen witnesses.
3A. PW1, ASI Anjana Kumari, proved the FIR Ex.PW1/A. 3B. PW2, Sh. Devender Kumar Arya (Complainant), deposed that Page no. 4 of 16 St.vs. Ramesh Chand & others; FIR No. 89/98 5 on 12.07.1998, he was posted as Inspector in DVB and was going alongwith senior lineman Nahar Singh, cleaner Vinod Kumar and driver Raj Kumar by a Van No. DL1L4774 to Subhash Mohalla, Ashok Gali for testing the underground cable on the instruction of AE. It is further mentioned that at 10.15 AM, when they reached near Gali No.5, Raghubarpura, the accused persons were found sitting on a Dharna and they stopped their vehicle. Further when they were requested to allow them to do their lawful duties, they restrained them and deflated the tyres of the vehicle. It is further stated by the witness that they were restrained at the spot till 2.30PM and the mob wanted to demolish the public property. In the meantime Xen Ved Mitra and AE Budh Singh also reached there and they also requested them to release the public officials. Thereafter police reached at the spot and recorded his statement Ex.PW2/A and photographs were also taken at the spot. 3C. PW3, Sh. Nahar Singh (Retd.), deposed that on the date of incident when they reached at Gandhi Nagar, huge crowd was found sitting on a Dharna and after seeing the crowd he left the spot. He further mentioned that after about two hours he came on the spot and found that the tyres of their van were deflated. However, he failed to identify the accused persons in the court.
3D. PW4, Sh. Budh Singh, stated that on 12.07.1998, one FLC Van bearing registration No. DL1L4774 was going for electricity cable testing in the area of Subhash Mohalla but they were stopped at Gali Page no. 5 of 16 St.vs. Ramesh Chand & others; FIR No. 89/98 6 No.5 by the accused persons because there was no electricity supply in their area. Further he mentioned that he was also confined by the accused persons and they caused hindrance in discharge of their official duties and further deflated the tyres of the vehicle. It is also submitted that accused persons were making noise and misbehaved with them and all of them were acting at the instance of accused Varyam Kaur and Jasvir Singh.
3E. PW5, HC Naresh, deposed that on the date of incident, he and HC Mohd. Inam received a wireless message regarding the traffic jam and when they reached at the spot they found that mob led by accused Varyam Kaur had blocked the traffic because of electricity failure in their area. Thereafter he noticed that one DVB vehicle was also parked there and its tyres were deflated and the DVB staff was made to sit there by the crowd.
3F. PW6, Sh. Ved Mitra, deposed on the lines PW4.
3G. PW7, Sh. Raj Kumar, deposed on the lines of complainant (PW2).
3H. PW8, Ct. Sumer Singh, mentioned that on the date of incident, after receiving DD No. 11A, he alongwith HC Jai Prakash reached at the spot where crowd was found raising slogans against DVB and they had blocked the traffic. Further, they found DESU Van with deflated tyres. Further it is mentioned that they tried to pacify the crowd without any success and thereafter they sent information to Duty Officer PS Gandhi Page no. 6 of 16 St.vs. Ramesh Chand & others; FIR No. 89/98 7 Nagar and after some time SHO of the PS came at the spot. Further, it is mentioned that accused Varyam Kaur was leading the crowd. Further it is mentioned that HC Jai Prakash prepared rukka on the instruction of SHO for registration of FIR.
3I. PW9, Sh. Ravinder Singh, deposed that at the relevant time he was posted in MCD as driver of vehicle bearing Registration No. DL1G6691 and on one day when he was going towards Gazipur and reached near Raghubarpura, he saw some persons were gathered there and they stopped his vehicle. Further, he saw that some men and women were fighting and they blocked the road. Further, he saw that some public persons were deflating the tyres of the DVB vehicle. However, he failed to identify the accused persons. 3J. PW10, Ct. Sushil Kumar, deposed that on the day of incident, he took photographs Ex.PW10/A to Ex.PW10/D of the spot and also produced negative Ex.PW10/E thereof.
3K. PW11, HC Sanjay Mishra, deposed that on 23.03.1999, he alongwith IO SI Chander Pal personally searched the accused namely, Vinod Kr. vide memo Ex.PW11/A, Moti Ram vide memo Ex.PW11/B, Pawan Kumar vide memo Ex.PW11/C, Ashok Kumar vide memo Ex.PW11/D, Jasbir Singh vide memo Ex.PW11/E and Ramesh Chand vide memo Ex.PW11/F. 3L. PW12, Sh. S.P. Singh, testified that on the date of incident JE D.K. Arya informed him about the incident and on 16.07.1998 some Page no. 7 of 16 St.vs. Ramesh Chand & others; FIR No. 89/98 8 police officials came to him and asked about the duty roaster of staff on 12.07.1998. Thereafter he supplied the duty roaster MarkX to them. 3M. PW13, Retd. SI Chander Pal Singh, mentioned that on 23.03.1999 the investigation of this case was handed over to him and thereafter he arrested the accused persons namely, Ramesh Chand, Jasbir Singh, Ashok Kumar, Pawan Kumar, Moti Ram and Vinod Kumar Khanna vide arrest memo Ex.PW13/A to Ex.PW13/F respectively. Further he mentioned that accused Varyam Kaur, Santosh Devi and Vimla were not arrested by him.
3N. PW14, Sh. Mohd. Inam, deposed on the lines of PW5. 3O. PW15, Ct. Mukesh Kumar, mentioned that on the date of incident, he alongwith Additional SHO, Gandhi Nagar went to the spot where Additional SHO, HC Jai Prakash and some officers from Electricity Board tried to make the public persons gathered there understand but in vain. He further mentioned that accused Varyam Kaur was leading the crowd by standing in front of the vehicle and some public persons deflated the tyres of the vehicle. Further, it is mentioned that accused Varyam Kaur alongwith mob obstructed the officials of Electricity Board and thereafter FIR was got registered and photographs of the spot were taken.
3P. PW16, Inspector V.S. Malik, deposed on the lines of PW15. 3Q. PW17, SI Jai Prakash, deposed on the lines of PW8. Further he mentioned that he prepared the site plan Ex.PW17/A and obtained Page no. 8 of 16 St.vs. Ramesh Chand & others; FIR No. 89/98 9 duty slip of the staff Ex.PW17/B and further he correctly identified all the accused persons present in the court.
4. Statement of accused persons were recorded u/s 313 Criminal Procedure Code, 1973. When accused were briefed on all the incriminating evidence and documents, they denied the allegations. The accused Ramesh Chand Jain, D.K. Jain, Vimla, Pritam Singh and Moti Ram stated that they were not present at the spot on the date of incident, whereas, accused Amarjeet Singh, Jugal Kishore, Sanjay Kumar Gupta, Ashok Kumar and Pawan Kumar stated that they went to the spot only to see why large number of people had gathered there. Accused Santosh Devi stated that she was passing through the spot in a rickshaw to take some medicine. Accused Varyam Kaur stated that she went at the spot only to pacify the local residents sitting on Dharna. Accused Jasbir Singh mentioned that he was passing through the spot to his house from hospital.
APPRECIATION OF EVIDENCE :
5. I have heard the State through Sh. M.A. Khan, Ld. Assistant Public Prosecutor and Sh. Rajender Singh, Ld. Defence Counsel. Record is also gone through.
Page no. 9 of 16 St.vs. Ramesh Chand & others; FIR No. 89/98 10
6. Ld. APP for the State summed up that all the eye witnesses in this case have proved the incident and most of them have also identified the accused persons as members of unlawful assembly and therefore, all the accused persons are liable to be convicted. On the other hand, Ld. Defence Counsel argued that identification of accused persons have not been established beyond reasonable doubts and therefore, the benefit of doubt should be given to the accused persons.
7. It is observed that PW1 complainant D.K. Arya, PW3 Nahar Singh, PW4 Budh Singh, PW5 HC Naresh, PW6 Ved Mitra, PW7 Raj Kumar, PW8 Ct. Sumer Singh, PW9 Ravinder Singh, PW14 Mohd. Inam, PW15 Ct. Mukesh Kumar, PW16 Inspector V.s. Malik and PW17 SI Jai Prakash are eye witnesses of the incident in which people sitting on dharna deflated the tyres of DVB vehicle, obstructed in discharge of official duties of DVB employees and wrongfully confined them. As far as the happening of incident is concerned, all the said witnesses have stated in one voice that large number of people gathered at the spot committed the above mentioned activities or in other words, the alleged offences. Moreover, some of the accused persons have also conceded in their statement u/s. 313 Cr.P.C. that the alleged incident happened and importantly, the defence side has not challenged the prosecution case in regard to happening of the alleged incident. Thus, there remains no doubt that there was an assembly of more then five persons and there common Page no. 10 of 16 St.vs. Ramesh Chand & others; FIR No. 89/98 11 object was to resist the execution of legal process; to commit mischief; wrongfully confine the DVB Officials and to overawe by criminal force the DVB Officials in exercise of lawful power.
8. Now, the real question remains to be answered is about the membership of accused persons of the said unlawful assembly. In other words, it has to be analyzed as to whether the prosecution side has been able to satisfy this court that all the accused persons were part of the unlawful assembly which committed the alleged offences in prosecution of the common object of that assembly or that the members of that assembly knew about the offences which are likely to be committed in prosecution of that object. Ld. Defence Counsel emphasized that since all the accused persons were not arrested at the spot and neither any TIP was conducted during investigation nor none of the accused was known to prosecution witnesses prior to incident, therefore, the prosecution has failed to prove the most important aspect of the case that the accused persons were members of the unlawful assembly.
9. It is observed that complainant (PW2) has mentioned in his examinationinchief that all the accused persons were present in the dharna and during cross examination also he disclosed that accused persons were mixed up with the persons sitting in the Dharna though he does not know any of the accused by name or face. PW4 has testified Page no. 11 of 16 St.vs. Ramesh Chand & others; FIR No. 89/98 12 that all the accused persons were members of the unlawful assembly which was acting at the instance of accused Varyam Kaur and Jasbir Singh. PW5 specified in his cross examination that accused Varyam Kaur was sitting in the front of line of ladies at the spot and accused Tilak Raj, Jugal Kishore, R. C. Jain and other ladies were pulling the DVB staff. PW6 has also mentioned that accused Varyam Kuar was leading the mob and he was able to recognize her as she was the councillor of the area and used to meet her in the meetings. PW7 has stated that accused Varyam Kaur, Jugal Kishore and Amarjeet Singh were the members of the mob. PW8 has deposed that accused Varyam Kaur was leading the crowd. PW14 has testified that accused Varyam Kaur was found leading the crowd and further he correctly identified all the accused persons present in the Court. PW15 also mentioned that accused Varyam Kaur alongwith other members of the mob obstructed the electricity officials in discharge of their duties. PW16 has also identified accused Varyam Kaur by name and remaining accused persons by face. PW17 has also identified the accused Varyam Kaur, Santosh Devi, Vimla, Jugal Kishore, R.C. Jain, D.K. Jain, Ashok Kumar, Veer Singh, Sardar Pritam Singh and Sardar Amarjeet Singh by name and other accused persons by face in the Court.
10. In view of testimony of aforesaid prosecution witnesses, it would not be wrong to say that there is sufficient evidence on record to Page no. 12 of 16 St.vs. Ramesh Chand & others; FIR No. 89/98 13 show that all the accused persons were present at the spot and they were the part of unlawful assembly. Most of the witnesses have also explained that accused Varyam Kaur was leading the mob and some of the accused persons can also be seen in photograph Ex. PW10/A to PW10/D. Thus, the plea of defence regarding the identity of accused persons cannot be accepted.
11. All the above mentioned witnesses, specially PW2, PW4, PW6 & PW7 have clearly mentioned that unlawful assembly created obstructions in discharge of their official duty despite intimating that they are on official duty. Further deflating of tyres of DVB van, forcing the DVB officials to leave the vehicle and not allowing them to move away from the spot clearly indicate that the unlawful assembly used force and violence and further they caused mischief by damaging the DVB vehicle. The defence side has not been able to bring any material on record to show as to why the DVB officials (PW2, PW3, PW4, PW6 & PW7) would falsely implicate them in this case. As far as the issue of TIP is concerned, it can be seen that complainant has specially mentioned the name of accused persons in his complaint Ex. PW2/A, on the basis of which the present FIR was registered and since some of the accused persons were known to other prosecution witnesses, the omission in conducting TIP can not be considered as fatal to the prosecution case. It is also worth mentioning here that PW5 has also mentioned that main persons, 1015 in number, Page no. 13 of 16 St.vs. Ramesh Chand & others; FIR No. 89/98 14 were apprehended at the spot and they were taken to PS on the same day but they were not arrested in his presence. Thus there remains no issue of false arrest of accused persons in this case.
12. Though I am in agreement with the submissions of Ld. Defence Counsel that none of the prosecution witnesses has specifically mentioned as to which of the accused deflated the tyres of the van but considering that all the accused persons have been identified as members of unlawful assembly which took the law into its own hands and was adamant to do violence and mischief, none of the accused can be absolved of his liability. In such like cases, it is not essential to prove commission of some illegal overt act or omission on the part of each accused person but once it is demonstrated that an accused shared the common object of the unlawful assembly in furtherance of which some offence was committed or he knew that it was likely to be committed by any other person he would be guilty of that offence. The legal position in regard to liability of a member of unlawful assembly has been clearly summed up by the Apex Court in the case of Masalti & others Vs. State of UP, reported as AIR 1965 SC 202 (1) :
" What has to be proved against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly and he entertained alongwith the other members of the assembly the common object as defined by S. 141, I.P.C. Sec. 142 provides that however, being aware of facts which render any assembly an unlawful assembly, Page no. 14 of 16 St.vs. Ramesh Chand & others; FIR No. 89/98 15 intentionally joins that assembly, or continue in it, is said to be a member of an unlawful assembly. In other words, an assembly of five or more persons actuated by, and entertaining one or more of the commons objects specified by the five clauses of S.141, is an unlawful assembly. The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by S.141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly. It is in that context that the observations made by the Court in the case of Baladin, ARI 1956 SC 181 assume significance; otherwise, in law, it would not be correct to say that before a person is held to be a member of an unlawful assembly, it must be shown that had committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object of the assembly. In fact, S. 149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person, who at the time of committing of that offence, is a member of the same assembly is guilty of that offence; and that emphatically brings out the principle that the punishment prescribed by S. 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly. "
Therefore, none of the accused can take the defence that he had no intention to commit the alleged offences.
13. It is admitted position that there was some electricity problem in the area where the incident has happened and the people were sitting on dharna to demonstrate their anger against the inaction of concerned Page no. 15 of 16 St.vs. Ramesh Chand & others; FIR No. 89/98 16 authorities. Since the complainant and his team members were in the electricity department, the unlawful assembly must have had very clear motive to stop their van and do the other illegal activities for which accused persons are changed with. At the same time, it is not the case of accused persons that they were not affected by the electricity problem persisting in the area at the relevant time and therefore they had no motive to actively involve in the activities of unlawful assembly. CONCLUSION :
14. In light of discussion made above, it is held that the prosecution has proved its case beyond reasonable doubts. Accordingly, all the accused persons are pronounced guilty of all offences they are charged with.
Announced in the open court ( Vivek Kumar Gulia )
rd
On 3 day of December, 2011 MMI (East)
(total sixteen pages) Karkardooma Courts, Delhi.
Page no. 16 of 16 St.vs. Ramesh Chand & others; FIR No. 89/98
17
IN THE COURT OF SH. VIVEK KUMAR GULIA
METROPOLITAN MAGISTRATE - 1 (EAST)
KARKARDOOMA COURTS, DELHI
State
Vs.
Ramesh Kumar and others
FIR NO. 89/98
P.S. Gandhi Nagar
ORDER ON THE POINT OF SENTENCE
19.12.2011
Present: Ld. APP for the State.
All convicts on bail with counsel.
Heard on the point of sentence. It is urged by Ld. APP for State that since convicts have been found guilty, maximum sentence be awarded to them.
On the other hand, it is stated by Ld. counsel for convicts that they are the first offender and are facing trial for the last thirteen years. Further it is pleaded that the convicts are having responsibility to maintain their respective families and they are ready to mend their ways. In view of above, it is prayed that a lenient view may be taken while awarding sentence to convicts.
While awarding sentence on convicts, the nature of offence and the circumstances in which it has been committed have to be considered primarily. It is observed that the cases of rioting are on increase in our country and people seem to be least bothered about the consequences of their illegal activities. Therefore, the convicts in such cases are to be dealt with iron hands. In view of above, this court is not inclined to show leniency towards the convicts.
However, considering that most of the convicts have crossed Page no. 17 of 16 St.vs. Ramesh Chand & others; FIR No. 89/98 18 the age of 50 and some of them are senior citizens also and all are first offenders, I am of the view that interest of justice would be served if convicts are not given the sentence of imprisonment and are burdened with fine only. Accordingly, each convict is sentenced to fine of Rs. 500/ for the offence u/s. 186 IPC; fine of Rs. 500/ for the offence u/s. 341 IPC; fine of Rs. 5,000/ for the offence u/s. 147 IPC and fine of Rs. 4,000/ for the offence u/s. 427 IPC. In default of payment of fine amount, the convict shall undergo simple imprisonment for six months.
Announced in the open Court ( Vivek Kumar Gulia ) th on 19 Day of December, 2011 MMI(East)/KKD/Delhi Page no. 18 of 16 St.vs. Ramesh Chand & others; FIR No. 89/98 19 FIR NO. 89/98 P.S. Gandhi Nagar 19.12.2011 Present: Ld. APP for the State.
All convicts on bail with counsel.
Separate order on sentenced passed today. Each of the convicts paid fine of Rs. 10,000/.
Copy of judgment and order on sentence supplied to convicts free of cost.
File be consigned to Record Room.
(Vivek Kumar Gulia) MMI(East)/KKD Courts/Delhi 19.12.2011 Page no. 19 of 16 St.vs. Ramesh Chand & others; FIR No. 89/98