Delhi District Court
Criminal Case/688/1996 on 30 June, 2012
FIR No. 688/96 S/V Darshan Kumar @ Raju etc PS Subzi Mandi
IN THE COURT OF SH. NEERAJ GAUR, METROPOLITAN
MAGISTRATEIII/NORTH, DELHI
FIR No. 688/96
S/v Darhan Kumar etc.
U/s 147,148,186 IPC r/w/s 149 IPC, 332 & 353 IPC r/w/s 149 IPC.
PS: Subzi Mandi
C/No. 4079/T
U. ID No. 02401R0014261997
Date of Institution : 13.03.1997
Date of commission of offence : 27.12.1996
Name of the complainant : SI Ishwar Singh
Name and address of accused : (1) Darshan Kumar @ Raju
s/o Sh. Tulsi Dass, r/o 2360,
Punjabi Basti, Subzi Mandi,
Delhi.
(2) Lok Nath @ Pappu @ Nanhe
s/o Sh. Tulsi Dass,
r/o as of accused No. 1. (expired
and proceedings abated vide
order dated 22072005)
(3) Ram Niwas @ Fauji s/o Sh.
Manohar Lal, r/o 972, Punjabi
Basti, Subzi Mandi, Delhi.
(4) Shanker @ Kalle s/o Sh. Om
Prakash , r/o 2303, Main Bazar,
Subzi Mandi, Delhi.
U. ID NO. 02401R0014261997 Page No. 1 of 24
FIR No. 688/96 S/V Darshan Kumar @ Raju etc PS Subzi Mandi
(5) Manoj Kumar @ Nimbu
s/o Sh. Hira Lal, r/o 2131, Mukim
Pura, Subzi Mandi, Delhi.
Offence complaint off : 147, 148, 186 IPC r/w/s 149 IPC,
332 IPC & 353 IPC r/w/s 149
IPC.
Plea of guilt : Pleaded not guilty
Final Order : Convicted u/s 147 IPC, U/s 186
IPC r/w/s 149 IPC, U/s 332 IPC &
353 IPC r/w/s 149 IPC and
acquitted u/s 148 IPC.
Date of reserve for order : 27.06.2012
Date for announcing the order : 30.06.2012.
J u d g m e n t:
Brief facts and pre trial proceedings
1.The case of the prosecution, as disclosed in the chargesheet is that on 27.12.96, SI Ishwar Singh along with some other police persons were on patrolling duty and were removing the encroachment made on the public land. When they reached in front of Rawalpindi Jewellers, U. ID NO. 02401R0014261997 Page No. 2 of 24 FIR No. 688/96 S/V Darshan Kumar @ Raju etc PS Subzi Mandi Subzi Mandi Ghantaghar, one stall in the name of Punjabi Dhaba was found running on the main road. When police asked to remove the tables and chairs from the public road, accused Darshan Kumar @ Raju came and stated that he was the Pradhan of the area and he obstructed the duties of the police by refusing to remove the encroachment. When the police tried to remove the encroachment then Darshan Kumar collected many other persons and created an unlawful assembly along with remaining accused persons. The unlawful assembly jammed the road. The police officials made a call to DO PS Subzi Mandi and police staff including PW4 Ct. Sushil Kumar and PW8 Ispector Jagram Singh reached at the spot. Inspector Jagram tried his level best to pacify them but all the accused persons paid no heed to his request. Instead of removing the traffic jam, the unlawful assembly of accused persons started throwing bottles and started pelting stones on the police party due to which HC Jagdish and Ct. Sushil sustained injuries. The U. ID NO. 02401R0014261997 Page No. 3 of 24 FIR No. 688/96 S/V Darshan Kumar @ Raju etc PS Subzi Mandi case property i.e. the stones and glasses were seized, rukka was prepared on the basis of which the instant FIR was registered. After the arrest of the accused persons and completion of investigation, all the accused persons were sent up for trial.
2. Copies of the challan and documents were supplied to the accused persons and after going through the challan and documents annexed therewith, charges u/s 147, 148, 186 IPC r/w/s 149 IPC, 332 IPC & 353 IPC r/w/s 149 IPC were framed against the accused persons to which they pleaded not guilty and claimed trial. During trial, accused Lok Nath expired and proceedings against him stood abated vide order dated 22.07.2005.
Trial
3. To prove the charge, prosecution examined ten witnesses in total whose the depositions are being discussed in brief as follows :
(i) PW1 Ct. Shailender Singh deposed that on 12.06.96 he U. ID NO. 02401R0014261997 Page No. 4 of 24 FIR No. 688/96 S/V Darshan Kumar @ Raju etc PS Subzi Mandi along with SI Ishwar Singh, HC Jagdish was on patrolling duty and while patrolling when they were at Rawalpindi Jewellers the benches and tables were found scattered at Punjabi Dhaba.
Darshan Kumar, who had stated himself Pradhan of the area started damaging chairs etc. and called his other known persons from the nearby and also started pelting stones on the police. He further deposed that they tried to pacify the crowd. SI Ishwar Singh made a telephone call at the PS. Addl. SHO also arrived at the spot along with other staff members. The police force used the Tear Gas Cell and Lathi charge. The crowd was also pelting stones on the police due to which HC Jagdish and Ct. Sushil received injuries. He further deposed that around 10/12 miscreants were apprehended from the spot. He identified the accused persons in the Court.
(ii) PW2 Ct. Har Prasad and PW3 HC Jagdish Chander U. ID NO. 02401R0014261997 Page No. 5 of 24 FIR No. 688/96 S/V Darshan Kumar @ Raju etc PS Subzi Mandi deposed that they along with other police officers, during patrolling reached at Rawalpindi Jewellers at around 07.00 pm. In front of Punjabi Dhaba, the benches, chairs and tables were found scattered. They further deposed that when police party asked to remove the same from the road, Darshan @ Raju came forward and said that he was running the Dhaba and was the Pradhan of the area. He called other persons from the nearby area. They jammed the traffic on the road, started raising slogans and started pelting stones. Thereafter, SI Ishwar Singh made a call at the PS. Addl. SHO arrived at the spot with other staff members and tried to pacify the crowd. Tear Gas was used and seeing no control, lathi charge was made. ACP and SHO Subzi Mandi also reached at the spot and culprits were apprehended. PW3 also received injuries due to stone pelting by accused Manoj. The case property i.e. stones and glasses U. ID NO. 02401R0014261997 Page No. 6 of 24 FIR No. 688/96 S/V Darshan Kumar @ Raju etc PS Subzi Mandi were also seized vide seizure memo Ex.PW3/A. They correctly identified all the accused persons and case property in the Court.
(iii) PW4 Ct. Sushil Kumar deposed that on 27.12.1996, on receiving the information at the PS regarding the incident, Addl. SHO was briefed by the DO and he (PW4) along with Addl. SHO Inspector Jagram Singh, the then Addl. SHO and other staff reached at Ghanta Ghar. They saw that there was a crowd. Addl. SHO tried to pacify the crowd but the crowd was making slogans against Delhi Police and traffic was jammed there. The accused Darshan @ Raju was also present there along with the other accused persons. Accused Darshan incited the crowd and other accused persons to pelt the stones on the police officials. To overpower the accused persons, Addl. SHO ordered for using Aansu Gas which was used and lathi charge was also ordered. The accused persons were apprehended. One tear cell was also U. ID NO. 02401R0014261997 Page No. 7 of 24 FIR No. 688/96 S/V Darshan Kumar @ Raju etc PS Subzi Mandi used there. He further deposed that he also received injuries on his stomach and on his hand. He was medically examined at HRH vide MLC No. 17487. He correctly identified all the accused in the Court.
(iv) PW5 ASI Narayan Singh is the DO in the present case who deposed that on receipt of rukka sent by ASI Ishwar Singh he registered the instant FIR Ex.PW5/A and made his endorsement Ex.PW5/B on the Rukka .
(v) PW6 Ct. Yoginder deposed that on the instructions of SI Ishwar Singh, he took the photographs of one tandoor, one counter, one stool and some piece of stones. The photographs were marked as Mark A to Mark D.
(vi) PW7 HC Shyam Lal deposed that he deposited some pieces glass and some stones vide DD entry No. 2319/19. Copy of which is Ex.PW7/A. U. ID NO. 02401R0014261997 Page No. 8 of 24 FIR No. 688/96 S/V Darshan Kumar @ Raju etc PS Subzi Mandi
(vii) PW8 Inspector Jagram Singh deposed that on 27.12.1996 at about 07.00 pm, Duty Officer informed him that some people have jammed the road in the main Bazar, Subzi Mandi. On this information, he along with staff reached the spot and found many people gathered on the spot and the main road was jammed by placing tables. Some staff of PS Subzi Mandi was already there. People were raising slogans. He further deposed that he tried his best to make the mob understand not to do so and to release the road but they did not pay any heed to his request. The gathering instead of releasing the road, started throwing the bottles on the police party. To scatter the mob, a tear gas bomb was disbursed and light force was also used. In the meantime, ACP and SHO PS Subzi Mandi also reached the spot and due to throwing of stones and bottles, some of police officials received injuries. HC Jagdish and Ct. Sushil were sent to HRH for medical treatment. U. ID NO. 02401R0014261997 Page No. 9 of 24 FIR No. 688/96 S/V Darshan Kumar @ Raju etc PS Subzi Mandi He further deposed that 45 persons were arrested from the mob and remaining persons ran away from the spot. During cross examination, he stated that "I cannot tell specifically who threw the stone and who threw the bottle. I cannot tell the injury which were received by the police persons was caused by which accused person.".
(viii) PW9 Bhim Singh, Retired ACP deposed that on 26.12.1996 SI Ishwar Singh along with staff was removing unauthorised encroachment of patri at Ghanta Ghar, Delhi. On this people gathered and started hooting against Delhi Police. They blocked the road by putting rehri in patri. He further deposed that SI Ishwar Singh tried to pacify the things but they kept on doing so. They also started throwing stones on the police party resulting injuries to twothree police personnels. After that police party used mild lathi charge and fired a Tear Gas Cell. U. ID NO. 02401R0014261997 Page No. 10 of 24 FIR No. 688/96 S/V Darshan Kumar @ Raju etc PS Subzi Mandi Darshan Singh was overpowered and other accused persons ran away from the spot. SI Ishwar Singh gave message to SHO and ACP to reach the spot. Later on the case u/s 147/148/332/186/353 IPC was registered. Other accused persons were arrested and challaned. A complaint u/s 195 CrPC was filed by him which is ExPW9/A.
(ix) PW10 Inspector Ishwar Singh deposed that on 27.12.1996, he along with HC Jagdish, Ct. Lalit Kumar, Ct. Ramesh, Ct. Shailender, Ct. Har Prahad at about 07.00 pm reached in front of Rawalpindi Jewellers during patrolling. He further deposed that in front of Rawalpindi Jewellers over the patri, there was one Dhaba. He asked the workers present there for removal of benches and tables, over which accused Darshan Kumar came forward and stated that Dhaba is owned by him and further told that he was the Pradhan of the area. Accused Darshan Kumar U. ID NO. 02401R0014261997 Page No. 11 of 24 FIR No. 688/96 S/V Darshan Kumar @ Raju etc PS Subzi Mandi also called his associates namely Ram Niwas Fauji, Lok Nath, Sant Lal, Kale, Pappu and others. He further deposed that accused Darshan Kumar turned the table, bench and rehri/ thela over the road and all the accused persons started raising slogans against the police. He further deposed that he made call to DO, PS Subzi Mandi. Addl. SHO along with staff reached at the spot who also tried to pacify the accused persons but in vain. On the encouragement of Darshan Kumar, all the accused persons started pelting stone and bottles over police personnel. In order to disperse the accused persons, one tear gas shell was fired and also light lathi charge was made. Due to pelting of stones, HC Jagdish Prashad and Ct. Sushil Kumar sustained injuries. Accused Darshan Kumar was apprehended at the spot and other accused persons managed to escape. Both the injured police officials were sent to hospital. In the meantime, ACP Subzi U. ID NO. 02401R0014261997 Page No. 12 of 24 FIR No. 688/96 S/V Darshan Kumar @ Raju etc PS Subzi Mandi Mandi and SHO PS Subzi Mandi reached at the spot. He further deposed that thereafter, he prepared rukka Ex.PW10/A and handed over to Ct. Har Prashad. Thereafter, he prepared site plan Ex.PW10/B. Photographer was called who took the photographs of the spot which are Mark A to Mark D. Seizure memo of the pelted stones and broken bottles is Ex.PW3/A. After registration of FIR, Ct. Har Parshad returned back at the spot. Accused Darshan Kumar was arrested and was released on bail. He further deposed that on 30.12.1996, he arrested the accused Lok Nath, Ram Niwas @ Fauji and Shanker @ Kale and on 15.01.1997, he arrested the accused Manoj @ Nimbu. Sanction under Section 195 CrPC was also obtained. PW10 correctly identified accused persons in the Court. He also correctly identified the case property Ex.P1.
U. ID NO. 02401R0014261997 Page No. 13 of 24 FIR No. 688/96 S/V Darshan Kumar @ Raju etc PS Subzi Mandi Statement of accused and defence
4. After concluding prosecution evidence, all the accused were examined u/s 313 CrPC during which they claimed their innocence. They further stated that they were falsely implicated in the instant case. They further stated that police called them at PS and got some paper signed and then released them within two hours. They did not prefer to lead any evidence in their defence.
Legal provisions and facts in issue:
5. As per Section 141 IPC, an assembly of five or more persons is designated as an unlawful assembly if the common object of the persons composing that assembly is who overawe, by criminal force or show of criminal force any public servant in exercise of the lawful power of such public servant (firstly) or to commit any mischief or criminal tresspass or other offence (thirdly).
5.1 As per Section 146 IPC when force or violence is used by an U. ID NO. 02401R0014261997 Page No. 14 of 24 FIR No. 688/96 S/V Darshan Kumar @ Raju etc PS Subzi Mandi unlawful assembly or by any member thereof in prosecution of the common object of the such assembly, every member of such assembly is guilty of the offence of rioting. Section 147 IPC provides the punishment of rioting as extendable upto 2 years or fime or both. 5.2 Section 148 IPC provides that whoever is guilty of rioting being armed with a deadly weapon or with anything which used as a weapon of offence is likely to cause death shall be punished with imprisonment extendable upto 3 years or fine or both.
5.3 Section 149 IPC creates a vicarious liability of the member of an unlawful assembly for any offence committed by any member of the unlawful assembly in prosecution of the object of that assembly. 5.4 Section 186 IPC provides that whoever voluntarily obstruct any public servant in discharge of his public function, shall be punished with imprisonment upto 3 months or fine upto 500/ Rupees or both. 5.5 Section 332 IPC provides punishment for voluntarily causing hurt U. ID NO. 02401R0014261997 Page No. 15 of 24 FIR No. 688/96 S/V Darshan Kumar @ Raju etc PS Subzi Mandi to any public servant in discharge of his duties or with intent to prevent or deter that person / public servant from discharging their duties as such public servant. The punishment is upto 3 years or fine or both. 5.6 As per Section 353 IPC whoever assaults or uses criminal force to any public servant in execution of his duty as such public servant, shall be punished with imprisonment upto 2 years or fine or both. 6 After going through the legal provisions, the following facts become in issue:
(a) Whether the accused persons were member/s of an unlawful assembly as defined under Section 141 IPC?
(b) Whether the accused persons / any of them used force or violence?
(c ) Whether the accused persons or any of them were armed with deadly weapon or anything which was likely to cause death?
(d) Whether the accused persons voluntarily obstructed the public U. ID NO. 02401R0014261997 Page No. 16 of 24 FIR No. 688/96 S/V Darshan Kumar @ Raju etc PS Subzi Mandi servant / police officials in discharge of their public functions?
(e) Whether the accused persons voluntarily caused hurt or assaulted or used criminal force against public servant / police officials in execution of their duty as such police official with intent to prevent or deter them from discharging their duties?
Arguments and appreciation of evidence in the light of legal propositions
7. Ld. Defence counsel firstly argued that PW1 and PW2 did not specifically identify all the accused persons except naming accused Darshan Kumar. In these circumstances, it was argued, that the identity of the accused persons cannot be proved as a member of any unlawful assembly.
7.1 Both these witnesses stated during their evidence that accused were present in the Court on that day. PW3 specifically identified accused Manoj as the person who pelted the stones and caused injury on PW3. He also stated that all the accused persons were present in the U. ID NO. 02401R0014261997 Page No. 17 of 24 FIR No. 688/96 S/V Darshan Kumar @ Raju etc PS Subzi Mandi Court. PW4 also stated that accused persons were present in the Court. PW8 also identified the accused persons. In my considered opinion, the identification of the accused in the Court by their faces is sufficient irrespective of the fact that they were not identified with their specific names.
8. The identity of the accused persons is further challenged by Ld. Defence counsel on the ground that there are certain contradictions in the statement of witnesses. He pointed out that as per PW8, 4/5 persons were apprehended. As per PW1, 10/12 miscreants were apprehended. Whereas IO / PW10 stated that only accused Darshan was apprehended at the spot.
While appreciating any contradiction, the Court cannot lose sight of the fact that the evidence in this case started after about 8 years of the incident. PW10, the last witness examined by the prosecution, was examined after about 15 years of the incident. Minor contradictions U. ID NO. 02401R0014261997 Page No. 18 of 24 FIR No. 688/96 S/V Darshan Kumar @ Raju etc PS Subzi Mandi here and there do not have tendency to demolish the entire prosecution case. I have already given a finding that identity of the accused persons has been established in the Court. In my opinion, the above cited contradictions are minor and insignificant.
9. Ld. Defence Counsel further pointed out that PW2, in his cross examination deposed that it was a very hot day. He further submitted that incident took place in the month of December which cannot be a hot day.
9.1 Hot is a relative term and PW2 stated in a general way that the day was very hot and there was day light. After reading the entire examination of PW2, I am unable to draw an inference that he was not present on the spot or that he is a planted witness.
10. Ld. Defence counsel further argued that PW3 could not tell the time when accused called his associates. He could not tell the exact time when ACP reached at the spot. PW8 could not tell in his cross U. ID NO. 02401R0014261997 Page No. 19 of 24 FIR No. 688/96 S/V Darshan Kumar @ Raju etc PS Subzi Mandi examination as to who threw the stones and who threw the bottles. He also could not tell as to injury was received by which police official and by which accused injury was caused. PW8 also could not tell as to which police official apprehended which accused persons. He also highlighted that PW10 / IO also could not say for sure who threw the stones on injured persons.
10.1 I have already taken note of the fact that evidence has been recorded after a lapse of more than 8 years. It cannot be expected from an ordinary man to have a photographic memory. In this particular case, it was not necessary to remember and state as to which specific accused person caused which specific injury. The points highlighted by Ld. Defence counsel seems not much significant in veiw of the overall evidence brought on record.
11. Ld. Defence counsel thereafter, argued that as per the prosecution story, ACP and the then SHO also reached at the spot but they have not U. ID NO. 02401R0014261997 Page No. 20 of 24 FIR No. 688/96 S/V Darshan Kumar @ Raju etc PS Subzi Mandi been cited as a witness. It is also argued that no public witness has been made a witness. In my considered opinion, it is the quality of the evidence and not the quantity of the evidence which matters. The prosecution has examined all the relevant witnesses to the incident including the injured police officials. The public persons in general had created an assembly against the police. In these circumstances, there is no surprise that no public person would come forward to aid the investigation.
12. Ld. Counsel for the accused persons lastly argued that the MLC of the two injured police officials have not been proved and the IO / PW10 was not competent to prove the MLC.
12.1 The instant case is of causing simple hurt to the police officials by stone pelting. The two injured persons namely HC Jagdish and Ct. Sushil Kumar deposed in the Court that they received injuries. In my opinion, oral evidence of the injured police officials is sufficient to U. ID NO. 02401R0014261997 Page No. 21 of 24 FIR No. 688/96 S/V Darshan Kumar @ Raju etc PS Subzi Mandi prove the factum of hurt being caused to them, even without formally proving the MLC.
13. After going through the entire evidence discussed hereinabove, the prosecution has been able to establish that the accused persons were a part of an unlawful assembly which was constituted with the common object to overawe, by criminal force or show by criminal force, the police officials and further the common object was to commit mischief and other offences. It is also duly proved that force and violence was used by aforementioned unlawful assembly by throwing stones and glass bottles on the police. The charge u/s 147 IPC has been duly proved against the accused persons.
14. The prosecution could not establish that the accused persons or any of them were armed with any deadly weapon or with anything, which used as a weapon of offence was likely to cause death. In these circumstances, charge u/s 148 IPC could not be proved. U. ID NO. 02401R0014261997 Page No. 22 of 24 FIR No. 688/96 S/V Darshan Kumar @ Raju etc PS Subzi Mandi
15. It is also duly proved that the accused persons, being a member of the unlawful assembly obstructed the police officials from removing the encroachment on the road. Charge u/s 186 IPC r/w/s 149 IPC is also duly proved.
16. It is also established that accused person being member of the unlawful assembly voluntarily caused hurt on the person of two police officials / public servant who were discharging their duties as such public servant, with intent to prevent and deter the police officials from discharging their duties. It is also proved that criminal force was used against the police officials in execution of their duties as such police officials with intent to prevent and deter them from discharging their duties as such police officials. By virtue of Section 149 IPC, the charge u/s 332 and 353 IPC are also proved against all the accused persons.
Conclusion
17. In view of the discussion made above, I hold the accused persons U. ID NO. 02401R0014261997 Page No. 23 of 24 FIR No. 688/96 S/V Darshan Kumar @ Raju etc PS Subzi Mandi namely (1) Darshan Kumar, (2) Ram Niwas @ Fauji, (3) Shanker @ Kalle and (4) Manoj Kumar @ Nimbu guilty for the offences u/s 147 IPC, u/s 186 IPC r/w/s 149 IPC, u/s 332 IPC and 353 IPC r/w/s 149 IPC. All the accused persons are acquitted for the offence u/s 148 IPC.
Arguments on sentence shall be heard separately.
Announced in open court (Neeraj Gaur)
today i.e. 30.06.2012 MMIII/N, Tis Hazari Courts, Delhi
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