Delhi District Court
State vs . Nitin Dubey And Ors on 23 September, 2019
In the Court of Samar Vishal
Additional Chief Metropolitan Magistrate - I
Rouse Avenue Court, New Delhi
CR Cases 21/2019
STATE Vs. NITIN DUBEY AND ORS
FIR No. 308 /2006
Police Station : Rohini
Date of Institution : 21.07.2008
Date of reserving judgement : 06.09.2019
Date of pronouncement : 23.09.2019
JUDGMENT:
(a) The date of commission of : 04.04.2006 offence
(b) The name, parentage, 1.Nitin Dubey of accused S/o Sh. Narender Dubey
2. Harender Singh s/o Sh. Amrik Singh
3. Sachin Arora s/o Sh Devender Arora
4. Kaushal Arora, s/o sh. Aroj Arora
5. Sunil Bansal, s/o Sh. Om Prakash Bansal
6. Amit Bansal s/o Sh. Om Prakash Bansal FIR No. 308/2006 1/19 State vs Nitin Dubey and others
7. Chander Shekhar s/o Sh. Radhey Shyam
8. Surender Solanki s/o Sh. Jeet Ram
9. Kamal Kant s/o Sh. Chahal Singh
10.Kulwant Rana, s/o Devender Rana
11.Rajesh Maan, s/o Sh. Karan Singh Maan
(c) The offence complained of : U/s 147/148/149/353/332/ 183/ 186 IPC & 3 Prevention of Damage to Public Property Act
(d) The plea of accused : Pleaded not guilty
(e) The final order : Acquitted
(f) The date of such order : 23.09.2019.
APPEARANCES For State : Sh. Lalit Pingolia, Assistant Public Prosecutor. For accused: Sh. Arvind Duggal for accused Nitin Dubey, Sachin, Kaushal Arora, Chander Shekhar, Kamal Kant.
Sh. Rahul Saraswat for accused Kulwant Rana, FIR No. 308/2006 2/19 State vs Nitin Dubey and others Rajesh Maan, Surender Solanki.
Sh. Ashutosh and Ajit Kumar Soni for accused Harender Singh, Amit Bansal and Sunil Bansal.
JUDGMENT
1. The present FIR no.308/2006 was registered in police station Rohini against the accused Nitin Dubey, Harender Singh, Sachin Arora, Kaushal Arora, Sunil Bansal, Amit Bansal, Chander Shekhar, Surender Solanki, Kamal Kant, Kulwant Rana, Rajesh Maan, Sushil Kumar, Devender, Shyama Nand Jha, Pradeep Kumar, Rajiv Chawla, Roop Chand, Purshotam Gupta, Vicky Bhardwaj, Surender Kumar, Jogender Singh Solanki, Charanjeet Arora, Harish Chawla, Om Prakash, Vijender Singh, Abhitesh, Nasir and Dinesh for commission of offence under section 147/148/149/353/332/183/186 of Indian Penal Code and 3 Prevention of Damage to Public Property Act.
2. The case of the prosecution is that on 04.04.2006, a sealing drive was to be done by MCD in Sector 1 and 2, Avantika, Rohini, Delhi. At around 9:15 am, all necessary arrangements were done with the deployment of the police force, to ensure the peaceful sealing drive. Subinspector Sandeep Gupta who made the complaint in this case FIR No. 308/2006 3/19 State vs Nitin Dubey and others Ex.PW1/A on which the FIR was registered was also present at the spot as a member of police force. By 10:15 am, a crowd gathered there and the accused Kulwant Rana, the Member of Legislative Assembly of Delhi(MLA), at that time started addressing the crowd that they will not allow the sealing drive and will oppose the same. After sometime the crowd became violent. It damaged certain DTC buses which were passing from there. The registration numbers of the buses which were damaged in that incident, are mentioned in the complaint. The mob also indulged in throwing stones on police. Some of the accused were apprehended on the spot and according to the police rest managed to flee. The accused who were apprehended and brought to the police station were Nitin Dubey, Om Prakash, Harender Singh, Purshotam, Rajiv Chawla, Sachin, Harish Chawla, Kaushal, Charanjeet Arora, Roop Chand, Sunil Bansal, Amit Bansal, Vicky Bhardwaj, Devender, Shyamanand, Dinesh Kumar, Sushil Kumar, Abhitesh Kumar, Nasir, Pradeep, Joginder Solanki, Chander Shekhar, Vijender, Kulwant Rana.
3. Vide order dated the charge was framed against the accused Kulwant Rana and Rajesh Maan for commission of offence under section 109/117 of the Indian Penal Code and the charge under section 143/149/186/332/353 and 3 Prevention of Damage to Public Property Act was framed FIR No. 308/2006 4/19 State vs Nitin Dubey and others against the accused Nitin Dubey, Om Prakash, Harender Singh, Purshottam Gupta, Rajiv Chawla, Sachin, Harish Chawla, Kaushal, Charanjeet, Roop Chand, Sunil Bansal, Amit Bansal, Vicky Bhardwaj, Devender, Shyamanand Jha, Dinesh, Sushil Kumar, Pradeep Shokeen, Jogender Solanki, Chander Shekhar, Vijender, Kulwant Rana, Kamal Kant, Surender Kumar, Surender Solanki, Rajesh Maan.
4. During trial, the accused Sushil Kumar, Devender, Shyama Nand Jha, Pradeep Kumar, Rajiv Chawla, Roop Chand, Purshotam Gupta, Vicky Bhardwaj, Surender Kumar, Jogender Singh Solanki, Charanjeet Arora, Harish Chawla, Om Prakash, Vijender Singh and Dinesh were convicted, as they pleaded guilty to the charges and the accused Abhitesh and Nasir were declared proclaimed offenders. The prosecution examined 18 witnesses to prove its case.
5. After the prosecution evidence, the accused Nitin Dubey, Harender Singh, Sachin Arora, Kaushal Arora, Sunil Bansal, Amit Bansal, Chander Shekhar, Surender Solanki, Kamal Kant, Kulwant Rana, and Rajesh Maan were examined under section 313 Cr.PC and the incriminating circumstances appearing in evidence against them were put to them. They answered that they have been falsely FIR No. 308/2006 5/19 State vs Nitin Dubey and others implicated in this case. Accused Kulwant Rana answered that he did not instigate the people and he was local MLA at that time. People were agitating against the sealing drive and he was requesting them to remain peaceful in their agitation.
6. The most important witness in this case is PW1, Inspector Sandeep Gupta, who is also the complainant of this case. He deposed about the incident and that the mob was addressed by the accused Kulwant Rana. He did not remember the exact words but Kulwant Rana was saying "sealing wagera nahi hone denge". On this the mob started pelting stones on the police and damaged the DTC buses. He proved his initial complaint Ex.PW1/A, site plan Ex.PW1/B. He identified the accused Kulwant Rana during his evidence. Although his evidence shows that he identified the other accused persons also in court but it seems he just pointed towards them without identifying them specifically, making it a general and omnibus identification. In fact, he has stated in his evidence that he do not remember the names of the accused persons whom he had identified in the court. When this witness was crossexamined on behalf of the accused Kulwant Rana, he has stated that he was unable to hear whether Mr Kulwant Rana had instigated the crowd to attack the police or MCD.
FIR No. 308/2006 6/19State vs Nitin Dubey and others
7. PW2 constable Mool Chand deposed that the accused Kulwant Rana addressed the mob during a sealing drive of the MCD. When the address was finished, the mob became agitated and pelted stones on the road. He has also stated that public persons started scuffle with each other. Thereafter he retracted saying that the public persons scuffle with MCD and police and not with each other. When the attention of the witness was brought towards all the accused present in the court he replied that he cannot identify them except the accused Kulwant Rana. The identity of accused Kulwant Rana during his evidence was not disputed as he was exempted through his counsel and this witness has not identified any other accused in the Court. He did not specifically said that what instigating speech was given by the accused Kulwant Rana.
8. PW3 is Inspector Narender but his cross examination was not complete and therefore his testimony cannot be read in evidence.
9. PW4 ASI Ashok Kumar deposed about the violence committed by the mob during the sealing drive of MCD. He deposed that on seeing the police and MCD officials, a crowd gathered there which was led by the accused Kulwant FIR No. 308/2006 7/19 State vs Nitin Dubey and others Rana. After his address, the mob became violent. He has only identified the accused Kulwant Rana and was unable to identify the other accused persons. He has stated that the accused Kulwant Rana gave a speech but he was silent about the exact contents of the speech.
10. PW5 ASI Rajender Singh is a formal witness who proved the registration of FIR Ex.PW5/A. PW6 SI Harish Chander was the initial investigating officer who proved investigation done by him and the arrest of some of the accused vide arrest memos and personal search memos Ex.PW6/1 to Ex.PW6/48. He deposed that he was not in a position to identify all the accused persons, who were arrested on the date of incident as he was 69 years old as he was deposing in 2019 almost after 15 years of the incident.
11. PW7 Satbir Singh who was also police official on the date of incident deposed about the incident and identified the accused Kulwant Rana and Nitin Dubey only. He was unable to identify the other accused persons during his evidence in the court. According to his evidence, it was public who gave a speech, that they will not allow the sealing drive and sealing was wrong. The accused Kulwant Rana had given a speech against the sealing but the FIR No. 308/2006 8/19 State vs Nitin Dubey and others witness is silent about the contents of his speech.
12. PW8 Naresh Kumar and PW10 Jaipal DTC Bus drivers were almost hostile to the prosecution and were unable to depose anything material for the prosecution.
13. PW9 Dr. N.K. Singh proved the MLCs of the injured policemen Ex.PW9/A to Ex.PW9/E and Ex.PW6/B and Ex.PW7/A.
14. PW11 ASI Shiv Kumar was associated with the investigation of this case but he was unable to identify the 24 accused persons arrested on the date of incident.
15. PW12 Head Constable Shravan Kumar and PW13 Head Constable Santokh Raj briefly deposed about the incident but were unable to identify the accused persons.
16. PW14 HC Akhilesh proved the DD Diary register No. B pertaining to the DD Entry No. 27B Ex.PW14/A, DD Entry No. 40 B Ex.PW14/B, DD Entry No. 44 B Ex.PW14/C, DD entry No. 48B Ex.PW14/D, DD Entry No. 53 Ex.PW14/E.
17. PW16 HC Akhilesh proved the relevant entries regarding deposition of case properties as Ex.PW16/A. FIR No. 308/2006 9/19 State vs Nitin Dubey and others
18. PW15 Sh. K.C. Gupta, PW17 Sh. N. Gnanasambandan and PW18 Sh. Ziley Singh proved the complaints under section 195 Cr.PC Ex.PW15/A, Ex.PW17/A and Ex.PW18/A.
19. This is the overall evidence led by the prosecution. I have heard the final arguments advanced by both the sides.
20. As stated earlier, the accused Kulwant Rana and Rajesh Maan have been charged for commission of offence under section 109 and 117 of the Indian Penal Code. Section 109 and 117 of the Indian Panel Code punishes the offence of abetment. The allegations against both of them are that they abetted the crowd of more than 10 persons to indulge in violence. The rest of the accused are charged with the commission of offence under section 143/147/186/ 332/353 of the Indian Panel Code and section 3 of Prevention of Damage to Public Property Act read with section 149 of The Indian Penal Code. Section 143 IPC punishes the mere membership of an unlawful assembly with an imprisonment which may extend to six months or with fine or both. Section 145 IPC punishes the act of joining or continuing in unlawful assembly, knowing that it has been commanded to disperse. Section 332 IPC punishes the FIR No. 308/2006 10/19 State vs Nitin Dubey and others offence of causing hurt to a public servant to deter him from doing his duty and section 353 IPC punishes the offence of assault. Section 186 IPC punishes the orphans of causing obstruction to a public servant in the discharge of his public functions.
21. An assembly of five or more persons is designated as an unlawful assembly, if the common object of that assembly is as stated in section 141 of the Indian Penal Code. In the present case, the unlawful assembly was allegedly protesting against the sealing drive of the MCD. In cases of offences committed by unlawful assemblies constituting a large number of persons, the identity of the accused persons by the witnesses in the Court is an important factor. From the testimonies of the witnesses, it is only the accused Kulwant Rana, whose identity is established beyond doubt, only as the member of that unlawful assembly. The accused Nitin Dubey was identified by only one witness and not by any of the witness. In cases of rioting, the identities of those who are actually involved in it has to be established beyond reasonable doubt in the court during the trial and as far as possible the roles played by them, although each member of an unlawful assembly is liable for the acts of the other members who are involved in violence, in case the prosecution is able to prove the fact FIR No. 308/2006 11/19 State vs Nitin Dubey and others that the common object of the assembly was to commit rioting and other offences as alleged by the prosecution. Although in this case, it seems that there were a protest and the people involved in the protest had the common object to protest against the sealing drive but whether they had the common object to commit violence is not clearly made out from the records. The concept of constructive liability cannot be so stretched as to lead to false implication of bystanders. Quite often, people gather at the scene of offence out of curiosity and they do not share the common object of the unlawful assembly. If a general allegation is made against a large number of people, the court has to be cautious. It must guard against the possibility of convicting mere passive onlookers who did not share the common object of the unlawful assembly. Unless reasonable direct or indirect circumstances lend assurance to the prosecution case that they shared a common object of the unlawful assembly, they cannot become convicted with the aid of section 149 of the Indian Penal Code. It must be proved in each case that the person concerned was not only a member of the unlawful assembly at some stage, but that at all crucial stages, shared the common object of the assembly. The court must have before it some material to form an opinion that the accused shared common object. What the common object of the unlawful assembly is at a particular stage has to be FIR No. 308/2006 12/19 State vs Nitin Dubey and others determined keeping in view the course of the conduct of the members of the unlawful assembly before and at the time of the attack, their behaviour at or near the scene of offerings, the motive for the crime, the arms carried by them and such other relevant considerations. The criminal court has to conduct a difficult and meticulous exercise of assessing evidence to avoid roping innocent people in the crime. These principles laid down by the Hon'ble Supreme Court do not dilute the concept of constructive liability but they embody a rule of caution in this section. Section 149 of the Indian Penal Code creates a specific offence and makes every member of the unlawful assembly liable for the offence or offences committed in the course of the occurrence provided the same was/were committed in the prosecution of the common object or was/were such as the members of that assembly knew to be likely to be committed. Since this section imposes a constructive penal liability, it must be strictly construed as it seeks to punish members of an unlawful assembly for the offence or offences committed by their associate or associates in carrying out the common object of the assembly. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object.
22. With these legal principles in mind, I proceed further.
FIR No. 308/2006 13/19State vs Nitin Dubey and others It is clear that the accused persons except Mr Kulwant Rana and the Rajesh Maan have been prosecuted in this case with the aid of section 149 of the Indian Penal Code. For convicting these accused with the aid of section 149 of the Indian Penal Code, the prosecution has to prove that they shared a common object to commit all the offences with which they are charged. However there is no such evidence on record that these accused actually shared that common intention. Although there may not be a direct evidence of having such common object, but even the circumstances of this case does not show the presence of such a common object or in the facts and circumstances of this case such a common object cannot even be presumed. The only evidence against almost all the accused, except the accused Kulwant Rana, is that they were apprehended from the spot of incident. But they may be the spectators, bystanders, onlookers, wayfarers or passerby's also. There is no concrete evidence of their active role in that incident.
23. Not only this as stated earlier, the identity of the accused as members of the unlawful assembly has to be proved beyond reasonable doubt which has not been done in this case. Only the accused Rana has been identified by most of the witnesses and the accused Nitin Dubey in a way by one of the witness. The rest of the accused remained FIR No. 308/2006 14/19 State vs Nitin Dubey and others unidentified during the trial except in the testimony of PW1 Inspector Sandeep Gupta that to, in general and omnibus manner. Only in the crossexamination of witnesses by the prosecution they took the names of the accused were apprehended on the spot but these witnesses failed to examine these accused during the court. This gives a benefit of doubt to these accused, as their presence in the assembly is not established beyond reasonable doubt.
24. In Kamaksha Rai & Ors. v. State of Uttar Pradesh, (1999) 8 SCC 701, The Hon'ble Supreme Court observed "Taking into consideration the nature of attack and the possibility or otherwise of the identification of these accused persons by the prosecution witnesses and bearing in mind the principles laid down by this Court in the above cited judgments, we are of the opinion that it is not safe to rely on the evidence of witnesses who speak generally and in an omnibus way without specific reference to the identity of the individuals and their specific overt acts in regard to the incident ..."
25. Therefore due to the kind of omnibus evidence as to the identity of the accused persons in this case, naturally the evidence has to be very closely scrutinised in order to eliminate all chances of false or mistaken implication. It is FIR No. 308/2006 15/19 State vs Nitin Dubey and others well settled that mere presence in an assembly does not make such a person a member of an unlawful assembly unless it is shown that he had done something or omitted to do something which would make him a member of an unlawful assembly, or unless the case falls under section 142, I.P.C. It may be stated here that even Section 142 of the I.P.C. requires a person concerned being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly or continues in it.
26. In Masalti v. State of Uttar Pradesh, AIR 1965 SC 202, 1964 8 SCR 133, the Hon'ble Supreme Court had considered the liability of the persons who were merely passive persons in an assembly of persons some of whom started rioting and observed that "In that case, it was observed by Sinha, J., who spoke for the court that it is well settled that mere presence in an assembly does not make a person, who is present, a member of an unlawful assembly unless it is shown that he had done something or omitted to do something which would make him a member of an unlawful assembly, or unless the case falls under Section 142, I. P. C. The argument is that the evidence adduced by the prosecution in the present case does not assign any specific part to most of the accused persons in relation to any overt act, and so, the High Court was in error in holding FIR No. 308/2006 16/19 State vs Nitin Dubey and others that the appellants were members of an unlawful assembly. The observation on which Mr. Sawhney relies, prima facie, does seem to support his contention but, with respect, we ought to add that the said observation cannot be read as laying down a general proposition of law that unless an overt act is proved against a person who is alleged to be a member of an unlawful assembly, it cannot be said that he is a member of such an unlawful assembly. in appreciating the effect of the relevant observation on which Mr. Sawhney has built his argument, we must bear in mind the facts which were found in that case. It appears that in the case of Baladin, the Members of the family of the appellants and the other residents of the village had assembled together some of them shared the common object of the unlawful assembly, while others were merely passive witnesses. Dealing with such an assembly this Court observed that the presence of a person in an assembly of that kind would not necessarily show that he was a member of an unlawful assembly. 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 along with the other members of the assembly the common object as defined by S. 141, I. P. C. Section 142 provides that however, being aware of facts which rendered any assembly an unlawful assembly, intentionally FIR No. 308/2006 17/19 State vs Nitin Dubey and others joins that assembly, or continues in it, is said to be a member of an unlawful assembly. In other words, an assembly of five or more persons actuated by an entertaining one or more of the common objects specified by the five clauses of Section 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 Section 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 this Court in the case of Baladin, assumes 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 he had committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object of the assembly".
27. The additional charge against the accused Kulwant Rana and Rajesh Maan is that they instigated/abetted the commission of the offences committed during that incident. As far as the accused Rajesh Maan is considered, there is FIR No. 308/2006 18/19 State vs Nitin Dubey and others no evidence that what words he used to abet the mob. Regarding the accused Kulwant Rana, the allegations are that he said that the sealing will not be allowed. Nothing more has been said by the witnesses that what instigation he did or what words he used to abet the mob. In fact even PW1 in crossexamination admitted that he was unable to hear what this accused said. The case of the prosecution was further dented by the witness PW7 Satveer Singh when he in cross examination said that the accused Kulwant Rana was persuading the mob not to indulge in stone pelting.
28. Therefore, on the basis of above said discussion, I firmly believe that the case of the prosecution has dents due to which it cannot be said to have been proved beyond reasonable doubts. Accordingly, all the remaining accused Nitin Dubey, Harender Singh, Sachin Arora, Kaushal Arora, Sunil Bansal, Amit Bansal, Chander Shekhar, Surender Solanki, Kamal Kant, Kulwant Rana, and Rajesh Maan are acquitted. Digitally signed by SAMAR SAMAR VISHAL Announced in the open court VISHAL Date:
2019.09.23 15:54:31 +0530 this 23rd day of September 2019 [Samar Vishal] ACMMI/Rouse Avenue Court New Delhi FIR No. 308/2006 19/19 State vs Nitin Dubey and others