Delhi District Court
State vs Narbada Prasad Prajapati on 28 June, 2025
IN THE COURT OF MS. NEHA MITTAL
ADDITIONAL CHIEF JUDICIAL MAGISTRATE-03
ROUSE AVENUE DISTRICT COURT, NEW DELHI
State Vs Narbada Prasad Prajapati & Ors.
DLCT12-000275-2024
CR Cases No.13/2024
FIR No.38/2006
Police Station : Parliament Street
Date of institution of the case : 21.05.2008
Date of reserving for judgment : 30.05.2025
Date of pronouncement of judgment : 28.06.2025
a. Serial No. of the case 13/2024
b. Date of commission of offence 21.02.2006
c. Name of the complainant SI M.P. Saini
d. Name, parentage and address 1. Narbada Prasad Prajapati
of accused persons S/o Sh. Sant Ram
R/o H.No.121, Malviya Nagar,
Bhopal, M.P.
2. Phire Ram Prajapati
S/o Sh. Bhagan Singh
R/o Gali No.3, Kailash Colony,
Modi Nagar, Ghaziabad, U.P
(convicted vide order dt.
27.10.2016)
3. Rajender Tanwar Prajapati
S/o Sh. Kishan Lal
R/o Gali Dhankan, Patram Gate,
Bhiwani, Haryana. (convicted
Digitally
signed by
FIR No. 38/2006 PS Parliament Street NEHA
State v. Narbada Prasad Prajapati & Ors. NEHA MITTAL
Page 1 of 26
MITTAL Date:
2025.06.28
14:08:58
+0530
vide order dt. 08.07.2017)
4. Laxmi Chand Prajapati
S/o Late Sh. Phool Singh
R/o H. No.61, Todarmal Colony,
Najafgarh, New Delhi.
(convicted vide order dt.
08.07.2017)
5. Keshav Prasad Prajapati
S/o Late Sh. Basawan Pandit
R/o Ward No. 3, Nai Bazar,
District Baxar, Bihar.
(proceeding abated vide order dt.
02.07.2015)
e. Offence complained of U/s 147/148/149/186/188/332/353 IPC
f. Plea of accused Pleaded not guilty
g. Final order Acquittal
h. Date of judgment 28.06.2025
JUDGMENT
1. Vide this judgment, this court shall proceed to decide the instant matter emanating from the FIR No. 38/2006 PS- Parliament Street registered under section 147/148/149/186/188/332/353 Indian Penal Code, 1860 (in short 'IPC').
Digitally
signed by
NEHA
NEHA MITTAL
MITTAL Date:
2025.06.28
14:09:05
+0530
FIR No. 38/2006 PS Parliament Street
State v. Narbada Prasad Prajapati & Ors. Page 2 of 26
2. At the outset, it is worth mentioning here that this court is a special/designated court constituted for trying the cases instituted against Members of Parliament/Members of Legislative Assemblies. In the matter at hand, the accused no.1 Narbada Prasad Prajapati is a former MLA.
Brief Statement of facts:
3. The facts of the present case as per the prosecution are that on 21.02.2006, information was received in the control room that a procession under the leadership of co-accused Phire Ram Prajapati (already convicted) shall take place towards Parliament. On receiving the information, necessary arrangements in the form of three layers of barricading was done and staff was deputed. It is stated that at around 01:30 pm, a mob of approximately 3000-3500 people came and they were being incited to enter the Parliament by their leaders i.e. co-accused Phire Ram Prajapati (already convicted), Laxmi Chand Prajapati (already convicted), Rajender Tanwar Prajapati (already convicted), Keshav Prasad Pandit (already convicted) and the present accused namely Narbada Prasad Prajapati. Upon being incited, the mob started breaking the barricades and pelting stones on the police personnel upon which the then Addl. SHO made announcement using loudspeaker that Section 144 Cr.P.C. is in force in the said area due to which the said procession is illegal. Despite the aforesaid warning and request made by the then Addl. SHO, the mob broke the first barricade and attacked the police personnel with stones, sticks and clay pots which they were carrying. It is further stated that thereafter again same warning was given by the then Addl. SHO but the mob was out of control and broke the Digitally signed by NEHA FIR No. 38/2006 PS Parliament Street NEHA MITTAL State v. Narbada Prasad Prajapati & Ors. MITTAL Date:
2025.06.28 Page 3 of 2614:09:15 +0530 second barricades also and when they were about to break the third barricade, water canons were used to disperse the crowd. It is further stated that in retaliation, the protesters again started pelting stones on the police personnel due to which Ct. Ramesh, Ct. Babu Ram, Ct. Surender Singh, Ct. Dinesh, Ct. Shiv Kumar (DHG), Ct. Jagbir Singh (DHG) and CRPF personnel namely Mukesh, Kamaljeet, Manoj Kumar, Ram Prasad Singh and Suresh Kumar sustained and they were taken to RML Hospital for treatment. Tehrir was prepared by SI M.P. Saini, upon which the present FIR was registered.
4. During investigation, Ist IO / SI M.P. Saini prepared site plan and seized the stones / sticks lying near the barricades vide seizure memo, collected the MLCs of the injured from RML hospital, recorded the statement of the injured police officials. Thereafter, complaint under section 195 Cr.P.C. was given by the then CP. After completion of investigation, the present chargesheet was filed.
Filing of charge sheet and framing of charge:
5. After the completion of investigation, the charge sheet in the instant case was filed on 21.05.2008 under section 147/148/149/186/188/332/353 IPC and section 3(1) of Damage to Public Property Act. Cognizance in the present matter was taken vide order dated 21.06.2008. Proceedings against co-accused Keshav Prasad Pandit were abated vide order dated 02.07.2015.
6. Vide order dated 31.07.2014, co-accused Phire Ram Prajapati was declared as absconder and he was later-on taken into custody vide order Digitally signed by FIR No. 38/2006 PS Parliament Street NEHA State v. Narbada Prasad Prajapati & Ors. NEHA MITTAL Page 4 of 26 MITTAL Date:
2025.06.28 14:09:26 +0530 dated 20.10.2016. Co-accused Phire Ram Prajapati pleaded guilty to the offences punishable under Section 146/147/148/ 186/188/332/353/174A IPC and 3(1) of Damage to Public Property Act and vide order dated 27.10.2016, he was convicted and sentenced to period of imprisonment already undergone. Thereafter, co-accused Laxmi Chand Prajapati and Rajender Tanwar Prajapati were convicted vide order dated 08.07.2017 on an application under Section 265-B Cr.P.C. for plea bargaining moved by them. Accordingly, only the present accused Narbada Prasad Prajapati has been left to face the trial.
7. Charge under Section 147/148/149/188/332/353 IPC was framed against accused Narbada vide order dated 01.08.2018 to which he pleaded not guilty and claimed trial.
Evidence Led By The Prosecution:
8. In order to prove the case, the prosecution has examined 14 witnesses in total. Vide order dated 07.11.2024, witnesses namely SI Pratap Singh, Ct. Suresh (mentioned at Srl. No. 7 in list of witnesses) and Ct.
Pramod were dropped from the list of witnesses. PW ASI Joginder was dropped from the list of witnesses vide order dated 07.12.2024 as he had passed away.
9. PW1 HC Ramesh deposed that on 21.02.2006, while he was on duty at Parliament road at barricade, at about 01:30 pm a mob of 3000- 3500 persons led by co-accused Phire Ram (already convicted) was coming towards barricade. He deposed that the mob broke the first barricade, Digitally signed by FIR No. 38/2006 PS Parliament Street NEHA NEHA MITTAL State v. Narbada Prasad Prajapati & Ors. MITTAL Date: Page 5 of 26 2025.06.28 14:09:37 +0530 started pelting stones and moved towards the second barricade and that the additional SHO was continuously announcing that promulgation under Sec. 144 Cr.P.C. was in force but the mob did not pay any attention. He further deposed that he alongwith 8-10 police officials sustained injuries in the said incident due to which they were medically examined in RML hospital. He deposed that his statement was recorded in the hospital. He further deposed that he can identify the accused Narbada Prasad but the identity of accused was not disputed by his counsel. He identified the case property i.e. sticks and one unsealed bag of stones and bricks (Ex.P1 colly). He was duly cross-examined by Ld. Counsel for accused.
10. PW2 ASI Parth Singh deposed that on 21.02.2006, while he was on duty near first barricade in front of PS Parliament Street, at about 01:30 pm, a mob of 30000-35000 persons led by co-accused Phire Ram (already convicted) was coming towards barricade. He deposed that the additional SHO was continuously announcing that promulgation under Sec. 144 Cr.P.C. was in force but the protesters started pelting stones due to which police officials received injuries and water canon was used to disperse the protesters. He further deposed that thereafter, tehrir prepared by IO / SI M. P. Saini was handed over to him for getting the FIR registered. He deposed that IO prepared seizure memo of wooden stick and stones Ex. PW2/A. He further deposed that he can identify the accused Narbada Prasad but the identity of accused was not disputed by his counsel. He identified the case property i.e. sticks, stones and bricks (Ex.P1 colly). He was duly cross- examined by Ld. Counsel for accused.
Digitally
signed by
NEHA
NEHA MITTAL
MITTAL Date:
FIR No. 38/2006 PS Parliament Street 2025.06.28
14:09:46
State v. Narbada Prasad Prajapati & Ors. +0530 Page 6 of 26
11. PW3 Retd. SI Surender Singh deposed that on 21.02.2006 at around 01:30 pm, he was present at barricade no.3 as water canon staff. He further deposed that when around 30000-350000 protesters crossed barricade no. 1 and 2, he started water canon. He stated that he cannot identify the accused Narbada. Thereafter, leading questions were put to the witness by Ld. APP for the state. He was duly cross-examined by Ld. Counsel for the accused.
12. PW4 HC Dinesh Kumar deposed that on 21.02.2006, while he was on duty on 1st barricade at about 01:30 pm, a mob of 3000-4000 persons led by co-accused Phire Ram, Laxmi, Rajender, Keshav (all already convicted) and accused Narbada were coming towards the first barricade having the banner in the name of "Rashtriya Mahasabha Prajapati" in their hands. He deposed that the leaders instigated the protesters by saying 'Sansad ki taraf koonch karna hai, jisse hamare adhikar hamein mile, chalo-chalo' upon which the mob broke the first barricade, started pelting stones and beating the police personnel with stick. He deposed that the additional SHO was trying to control the protesters with loudspeakers but they did not listen to his request and marched towards second barricade. He further deposed that he alongwith 4-5 other police officials sustained injuries in the said incident due to which they were medically examined in RML hospital. He further deposed that he can identify the accused Narbada Prasad but the identity of accused was not disputed by his counsel. He was duly cross-examined by Ld. Counsel for accused.
13. PW5 Ct. Suresh Kumar deposed that on 21.02.2006 at about 01:30 pm, a mob of 3000-3500 persons led by co-accused Phire Ram (already Digitally FIR No. 38/2006 PS Parliament Street signed by NEHA State v. Narbada Prasad Prajapati & Ors. NEHA MITTAL Page 7 of 26 MITTAL Date:
2025.06.28 14:09:55 +0530 convicted) was coming towards barricade. He deposed that the mob broke the first barricade, started pelting stones and moved towards the second barricade and that the additional SHO was continuously announcing that promulgation under Sec. 144 Cr.P.C. was in force but the mob did not pay any attention. He further deposed that he alongwith many other police officials sustained injuries in the said incident due to which they were medically examined in RML hospital. He was duly cross-examined by Ld. Counsel for accused.
14. PW6 HC / GD CRPF Manoj Kumar Ray deposed on the same lines as PW-5. He was duly cross-examined by Ld. Counsel for accused.
15. PW7 ASI / CRPF Mukesh Chandra deposed on the same lines as PW-5 and PW-6. He was duly cross-examined by Ld. Counsel for accused.
16. PW8 Retd. ACP Sushil Chandra deposed on the same lines as PW-5, PW-6 and PW-7. He identified the accused correctly. He was duly cross-examined by Ld. Counsel for accused.
17. PW9 Retd. SI Babu Ram and PW10 ASI Surender Singh also deposed on the same lines as PW-5 to PW-8. They identified the accused correctly. They were duly cross-examined by Ld. Counsel for accused.
18. PW-11 HC Kamaljit Singh also deposed on the same line as PW-5 to PW-10. As he was not sure whether he will be able to identify the accused, leading question regarding the same was put to him by Ld. APP for the State upon which he stated that the accused was most probably Digitally signed by NEHA FIR No. 38/2006 PS Parliament Street NEHA MITTAL State v. Narbada Prasad Prajapati & Ors. MITTAL Date:
2025.06.28 Page 8 of 2614:10:03 +0530 present at the spot. He was duly cross-examined by Ld. Counsel for accused.
19. PW-12 Sh. Jagbir Singh also deposed on the same line as PW-5 to PW-11. He failed to identify the accused. He was duly cross-examined by Ld. Counsel for accused.
20. PW-13 Shiv Kumar also deposed on the same line as PW-5 to PW-12. On seeing the accused, the witness stated that he might be present as a leader on the day of incident. He was duly cross-examined by Ld. Counsel for accused.
21. PW-14 Inspector M.P. Saini deposed that he was posted as SI in P.S. Parliament Street on 21.02.2006 and upon receiving information regarding an upcoming protest by Prajapati Mahasabha, staff was deputed at first, second and third barricade and water canon was also installed. Thereafter, at around 1:30 p.m., accused Phire Ram Prajapati (already convicted) came there along with 3000 to 3500 supporters who were carrying sticks, stones and claypots. He further deposed that they were informed regarding imposition of Section 144 Cr. P.C. and one banner mentioning the same was also installed. However, despite this, accused Phire Ram Prajapati and Laxmi Prajapati (both already convicted) along with three other people incited the protesters upon which they broke all the three barricade and started throwing stones and claypots on the police personnel and attacked them with sticks. He further deposed that thereafter crowd was controlled by using water canons. The police officials who had Digitally signed by FIR No. 38/2006 PS Parliament Street NEHA NEHA Date:
MITTAL State v. Narbada Prasad Prajapati & Ors. MITTAL 2025.06.28 14:10:12 Page 9 of 26 +0530 sustained injuries due to attack by the protesters were sent to RML Hospital. He further deposed that he prepared Tehrir Ex.PW14/A and got FIR Mark-A registered through HC Parth. He also prepared site plan Ex.PW14/B, seized stones and sticks from the spot vide seizure memo Ex.PW2/A, recorded the statement of witnesses and moved application under Section 195 Cr.P.C. Mark-B. He identified the case property Ex. P1 and P2. He further submitted that he can identify the accused however, the identity of the accused was not disputed by his counsel. He was duly cross- examined by Ld. Counsel for accused.
22. Thereafter, PE was closed on 17.02.2025 and the matter got listed for recording of statement of accused u/s 313 of Cr.P.C.
Examination of accused u/s 313 of the Code of Criminal Procedure, 1973:
23. As mandated u/s 313 of CrPC, the accused was given due opportunity to personally explain the circumstances appearing against him in evidence in the matter at hand. All the incriminating facts, circumstances and evidences were put to him as appeared in the testimonies of prosecution witnesses and the corresponding documents.
24. The accused in his statement u/s 313 of Cr.P.C. interalia stated that he was not present at the spot and that he was identified by the witnesses as he was single accused in the present case. He has further stated that he has been named as he is one of the leaders of Madhya Pradesh Prajapati Samaj. He further stated that he was MLA and Minister during 1993 to 1998 and as such, he was a known face of Prajapati Samaj. The accused opted to lead Digitally signed by FIR No. 38/2006 PS Parliament Street NEHA NEHA MITTAL Date:
State v. Narbada Prasad Prajapati & Ors. MITTAL 2025.06.28 Page 10 of 2614:10:20 +0530 defence evidence.
Defence Evidence Led By The Accused:
25. Application under Section 311 Cr. P.C. r/w Section 348 BNSS filed on behalf of the accused for summoning of witnesses was partly allowed vide order dated 01.04.2025 with permission to the accused to summon the record/witness mentioned at serial no. 1 and 2 of the application.
26. However, upon issuing summons, reports were received that all the summoned record has already been destroyed. Accordingly, no witness could be examined by the accused in his defence and D.E. was closed vide order dated 16.05.2025. Thereafter, the matter was listed for final arguments.
Final Arguments:
27. It has been argued by Ld. APP for the State that the prosecution has proved beyond reasonable doubt that the accused was a member of the procession in question which took place without any permission. It has been argued that all the witnesses have consistently deposed that the members of the procession threw stones and clay pots on the police officials who were on duty. It has further been argued that no dispute regarding the identity of the accused has been raised during evidence as it can be seen that the identity of the accused was not disputed in the testimony of many witnesses such as PW-1, PW-2, PW-4 & PW-14. It has further been argued that criminal liability of the acts done by the members of the unlawful assembly can be fastened upon the accused in view of Digitally FIR No. 38/2006 PS Parliament Street signed by NEHA State v. Narbada Prasad Prajapati & Ors. NEHA MITTAL Page 11 of 26 MITTAL Date:
2025.06.28 14:10:29 +0530 section 149 IPC. With these submissions, it is prayed that the accused be convicted for the offences charged.
28. On the other hand, Ld. Counsel for accused has argued that the prosecution has failed to prove the presence of accused at the spot on the date of alleged incident. It is further argued that the identification of the accused by some of the witnesses does not inspire confidence as the accused used to be the single person present in the court or through VC and thus, it was very convenient for the witness to point out towards the accused as no one else used to be present. It has further been argued that none of the prosecution witnesses is able to identify the fellow police officials who were present with them on duty at the spot of incident and therefore, identification of the accused by such witnesses becomes doubtful. It has further been argued that no TIP was conducted and hence, identification of the accused for the first time in the court after a lapse of almost 11 years does not inspire confidence. Reliance has been placed upon judgments 'Kanan & Ors. Vs State of Kerala, (1979)3 SCC 319' and 'Jayan vs. State of Kerala, AIRONLINE 2021 SC 920'.
29. The accused has further taken the defence in his statement under Section 313 Cr. PC that he was not a part of the procession in question and that he was not even present in Delhi on that date.
30. Ld. Counsel for accused has further argued that the procession in question was peaceful and that the same was done with prior permission of the concerned authorities. He has relied upon Point No. 8 & 9 of Order Digitally signed by NEHA NEHA MITTAL FIR No. 38/2006 PS Parliament Street Date:
MITTAL 2025.06.28 State v. Narbada Prasad Prajapati & Ors. 14:10:37 +0530 Page 12 of 26 dated 23.12.2005 under Section 141 of Cr. PC to show that no procession can take place in the area of Parliament Street without prior permission. It is further argued that the inability of the accused to summon the record qua permission for the procession cannot be attributed to him because as per the report, the summoned record had already been destroyed.
31. Ld. Counsel for accused has further argued that the prosecution has failed to prove the recovery of danda, stone etc. from the spot of incident as the case property was produced in the Court during the testimony of PW-1 in unsealed condition. It has further been argued that even otherwise, the prosecution witnesses have admitted that the case property does not have any specific identity marks on the basis of which it could be identified by them.
32. It has further been argued that the prosecution has failed to prove the MLCs of the alleged injured police officials. It has been further argued that this is a politically motivated case as the accused was a prominent leader at that time.
33. It has further been argued that there are glaring contradictions in the testimony of prosecution witnesses. Ld. Counsel for accused has highlighted the following contradictions :-
(a) PW-1, PW-4 to PW-14 have deposed that there were about three to four thousand protestors at the spot whereas PW-2 & PW-3 have stated that there were around thirty to thirty-five thousand protestors.
Digitally signed by NEHA NEHA MITTAL FIR No. 38/2006 PS Parliament Street MITTAL Date:
State v. Narbada Prasad Prajapati & Ors. 2025.06.28 14:10:45 Page 13 of 26 +0530
(b) PW-4 has deposed that the leaders started speech near the first barricade whereas none other witness has deposed qua this fact.
(c) PW-4 has deposed that a videographer was present at the spot who was also making video of the protest whereas PW-8 has stated in his cross-examination that no videography was done at the spot.
(d) PW-11 has deposed in his cross-examination that there were no space between the three lines/layers of the barricades whereas PW-12 has stated that there was around 10 feet or 3 meter gap between the layers of barricades.
(e) PW-14, who is the IO in the present case, has deposed in his examination that he seized the broken barricades whereas in his cross-examination, he has stated that he did not seize any barricades.
34. In view of the above said lacunas and contradiction in the prosecution case, it is submitted that the accused be acquitted of all the offences charged upon him.
35. I have heard the final arguments at length. The entire record has also been perused.
Analysis of evidence:
36. In the present case, it is not disputed by the accused that a procession indeed took place on the date, time and place alleged by the Digitally signed by FIR No. 38/2006 PS Parliament Street NEHA NEHA MITTAL State v. Narbada Prasad Prajapati & Ors. MITTAL Date:
2025.06.28 Page 14 of 2614:10:55 +0530 prosecution i.e. on 21.01.2006 at about 01:30 PM on Parliament Road. The case of the prosecution is that the procession continued despite repeated warnings that the mob be dispersed as Section 144 Cr. PC was in force, stones were pelted by the protestors on the police officials on duty and they were also beaten with the lathis carried by the protestors and barricades were broken by the protestors. The defense of the accused is that it was a peaceful procession with prior permission and that he was not a part of the procession.
37. Almost all the prosecution witnesses have consistently deposed that injuries were caused to the police personnel and security forces on duty by the mob by pelting of stones and beating with danda. No inconsistency regarding this fact has come up in the cross-examination of witnesses. However, it is also correct that the prosecution has failed to prove the MLCs of the allegedly injured officials. Though the MLCs are on record, neither the doctor who prepared them nor any other person familiar with the doctor's handwriting was available and hence, the MLCs have remained unexhibited. Further, the identity of the case property i.e. stones and sticks produced in the court is doubtful as it is recorded in the testimony of PW-1 that case property was produced in the Court in unsealed condition. Further, though the witness has identified the case property during examination-in-chief, but in his cross- examination the witness has admitted that there is no specific identification mark on basis of which the case property can be identified. Thus, it is only ocular evidence which supports the case of the prosecution qua causing of injury to the police personnel. Neither the Digitally signed by FIR No. 38/2006 PS Parliament Street NEHA State v. Narbada Prasad Prajapati & Ors. NEHA MITTAL Page 15 of 26 MITTAL Date:
2025.06.28 14:11:02 +0530 MLCs nor the weapon of offence have been proved. However, in the opinion of the Court, the same cannot be a ground to discredit the testimony of witnesses who are otherwise credible. The contradictions highlighted by Ld. Counsel for accused are immaterial and hence, utterly insufficient to discredit the witnesses. It is now well settled that non recovery of the weapon of crime is not fatal to the prosecution case and is not sine qua non for conviction, if there are direct reliable witnesses as held in Rakesh v. State of U.P., (2021) 7 SCC 188, wherein it was observed as follows:
"12. Now so far as the submission on behalf of the accused that as per the ballistic report the bullet found does not match with the firearm/gun recovered and therefore the use of gun as alleged is doubtful and therefore benefit of doubt must be given to the accused is concerned, the aforesaid cannot be accepted. At the most, it can be said that the gun recovered by the police from the accused may not have been used for killing and therefore the recovery of the actual weapon used for killing can be ignored and it is to be treated as if there is no recovery at all. For convicting an accused, recovery of the weapon used in commission of offence is not a sine qua non. PW 1 and PW 2, as observed hereinabove, are reliable and trustworthy eyewitnesses to the incident and they have specifically stated that A-1 Rakesh fired from the gun and the deceased sustained injury. The injury by the gun has been established and proved from the medical evidence and the deposition of Dr Santosh Kumar, PW 5. Injury 1 is by gunshot. Therefore, it is not possible to reject the credible ocular evidence of PW 1 and PW 2 -- eyewitnesses who witnessed the shooting. It has no bearing on credibility of deposition of PW 1 and PW 2 that A-1 shot deceased with a gun, particularly as it is corroborated by bullet in the body and also stands corroborated by the testimony of PW 2 and PW 5. Therefore, merely because the ballistic report shows that the bullet recovered does not match with the gun recovered, it is not possible to reject the credible and reliable deposition of PW 1 and FIR No. 38/2006 PS Parliament Street Digitally State v. Narbada Prasad Prajapati & Ors. signed by Page 16 of 26 NEHA NEHA MITTAL MITTAL Date:
2025.06.28 14:12:01 +0530 PW 2."
38. The witnesses have also been consistent in their deposition qua the fact that the mob broke the first and the second barricade despite repeated warnings. Minor contradictions in the testimony of prosecution witnesses regarding the distance between the three layers of barricades is immaterial. Similarly, the contradictions regarding the number of people in the mob is also ignore-worthy as it is only 1-2 witnesses who have deposed that there were 30000-35000 people in the mob. Rest of the witnesses have been consistent on the point that there were 3000-3500 people in the mob. The testimony of these witnesses cannot be discarded on the ground that their counterparts failed to correctly state the number of people present in the mob. It has been repeatedly held by Hon'ble Apex Court that it is not every omission or contradiction in the testimony of witnesses which can discredit the witness. Material contradiction ought to be differentiated from the immaterial ones after keeping in mind the factors such as time lapse after which the evidence has been recorded. It has also to be kept in mind that the burden on the prosecution is to prove the guilt of the accused beyond reasonable doubt and not beyond any kind of doubt. Thus, in the opinion of this Court, the prosecution has successfully proved that injuries were caused to the police personnel by the mob by pelting of stones and barricades were also broken by the protesters.
39. The next question that arises is whether the mob of protesters can be labeled as unlawful assembly or not. Before proceeding further, it Digitally FIR No. 38/2006 PS Parliament Street signed by State v. Narbada Prasad Prajapati & Ors. NEHA Page 17 of 26 NEHA MITTAL MITTAL Date:
2025.06.28 14:12:09 +0530 would be apt to note the definition of Unlawful Assembly:-
'Unlawful Assembly - An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is -
(i) to overawe by criminal force, or show of criminal force, the Central or any State Government or Parliament or the Legislature of any State, or any public servant in the exercise of the lawful power of such public servant; or
(ii) to resist the execution of any law, or of any legal process; or
(iii) to commit any mischief or criminal trespass, or other offence; or
(iv) by means of criminal force, or show of criminal force, to any person to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or
(v) by means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.'
40. Only when the assembly fit into any of the above circumstances, it could be construed as unlawful. The crucial question to determine 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 in Section 141 IPC. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141.
Digitally signed by FIR No. 38/2006 PS Parliament Street NEHA NEHA Date:
MITTAL State v. Narbada Prasad Prajapati & Ors. MITTAL 2025.06.28 14:12:18 Page 18 of 26 +0530
41. The word 'object' means the purpose or design and, in order to make it 'common', it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage.
42. The 'common object' of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. Under the Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intent is not material. An Digitally signed by NEHA FIR No. 38/2006 PS Parliament Street NEHA MITTAL State v. Narbada Prasad Prajapati & Ors. MITTAL Date:
2025.06.28 Page 19 of 2614:12:26 +0530 assembly which, at its commencement or even for some time thereafter, is lawful, may subsequently become unlawful. In other words it can develop during the course of incident at the spot co instanti.
43. Thus, it is trite law that not every gathering/ assembly of people can be termed as unlawful assembly unless five or more people have gathered with one of the common objects as enumerated in Section 141 IPC. In the present case, the prosecution has successfully proved that the mob of protesters had pelted stones upon the police personnel and beaten them with danda. Thus, it can be termed as an unlawful assembly.
44. From the testimony of prosecution witnesses, it is clear that no overt act has been attributed to the accused. Hence, the question which is germane in determining the criminality of the accused is whether he can be said to be a part of the unlawful assembly or not as the liability of accused is sought to be established with the aid of Section 147 and 148 of IPC.
45. While dealing with the question of criminal liability of members of unlawful assembly, the Apex Court in the matter of Chandra Bihari Gautam & Ors. v. State of Bihar , 2002 (9) SCC 208 has held as under:-
"6. It has been argued alternatively that even if the occurrence is held to have taken place in the manner alleged by the prosecution and the accused persons were seen on spot, they cannot be convicted and sentenced as the prosecution allegedly failed to establish the existence of a common object amongst the accused persons. Section 149 is an exception to the criminal law whereunder a person can be convicted and sentenced for his vicarious liability only on proof of his being a Digitally signed by FIR No. 38/2006 PS Parliament Street NEHA NEHA MITTAL State v. Narbada Prasad Prajapati & Ors. Date:MITTAL 2025.06.28 Page 20 of 26
14:12:35 +0530 member of the unlawful assembly, sharing the common object, notwithstanding as to whether he had actually participated in the commission of the crime or not. Common object does not require prior concert and a common meeting of minds before the attack. An unlawful object can develop after the accused assembled. The existence of the common object of the unlawful assembly has to be ascertained in the facts and circumstances of each case. It is true that the mere presence of the accused is not sufficient to hold them guilty for the sharing of common object as the prosecution has to further established that they were not mere by-standers but in fact were sharing the common object. When a concerted attack is made by a large number of persons, it is often difficult to determine the actual part played by each of the accused but on that account, for an offence committed by a member of the unlawful assembly in the prosecution of the common object or for an offence which was known to be likely to be committed in prosecution of the common object, persons provide to be members cannot escape the consequences arising from the doing of that act which amounts to an offence. There may not be a common object in a sudden fight but in a planned attack on the victim, the presence of the common object amongst the persons forming the unlawful assembly can be inferred."
(emphasis supplied)
46. The liability of member of unlawful assembly can also be determined in view of the observations made in Dhirubhai Bhailalbhai Chauhan vs The State Of Gujarat on 21 March, 2025 decided by Hon'ble SC wherein it has been held as under:-
'There may, however, be a situation where a crowd of assailants, who are members of an unlawful assembly, proceeds to commit murder in pursuance of the common object of that assembly. In such a case, any person who is a member of that unlawful assembly is equally liable even though no specific overt act of assault is attributed to him. Otherwise also, where the assailants are large in number it may not be possible for witnesses to describe accurately the part played by each one of them. Besides, if a large crowd of persons armed with weapons assault the intended victims, it may not be necessary that all of them must take part in the actual assault. Therefore, in a situation like this, what is important for the Court is to determine whether the accused put on trial was a part of the unlawful assembly or just a Digitally signed by FIR No. 38/2006 PS Parliament Street State v. Narbada Prasad Prajapati & Ors.
NEHA NEHA Date:
MITTAL Page 21 of 26 MITTAL 2025.06.28 14:12:41 +0530 bystander. Such determination is inferential, Masalti v. State of U.P., AIR 1965 SC 202: 1964 SCC OnLine SC 30; followed in State of U.P. v. Dan Singh, (1997) 3 SCC 747 Masalti v. State of U.P. (supra) based on the proven facts of the case. Though it is not feasible to exhaustively lay down the list of circumstances from which an inference regarding the accused being part of the unlawful assembly be drawn, the Courts have generally held the accused vicariously liable, with the aid of Section 149 of the IPC, inter alia,(a) where he had proceeded to the scene of crime along with other members of the assembly carrying arms or instruments which could serve the object of the assembly; and
(b) where he had participated in any manner in the events which serve the common object of the assembly.'
47. The argument raised on behalf of accused that the identification by a witness of the accused in the Court who has for the first time seen the accused in the incident of offence is a weak piece of evidence especially when there is a large time gap between the date of incident and the date of recording of his evidence is legally correct but is not applicable to the facts in hand. It is correct that none of the witnesses have been able to recollect the name of their fellow police officials who were on duty on the day of incident but almost all the witnesses have been able correctly identify the accused even after lapse of more than 10 years in absence of TIP. However, the same is immaterial as in the testimony of PW-1, PW-2, PW-4 and PW-14, the identity of the accused was not disputed by his counsel. The next question, therefore, is regarding the effect of identification of accused by the witnesses.
48. In the present case, though PW-1 has identified the accused, but his testimony is completely silent regarding the role of the accused.
Digitally
signed by
FIR No. 38/2006 PS Parliament Street NEHA
State v. Narbada Prasad Prajapati & Ors. NEHA MITTAL
Page 22 of 26
MITTAL Date:
2025.06.28
14:12:49
+0530
The witness has neither stated that the accused was a part of the mob nor has he deposed regarding him being a leader of the mob. From the entire testimony of PW-1, it cannot be ascertained whether the accused was merely present on the spot as a by-stander or was an active participant of the crowd or was he even present at the spot. There is no whisper in the entire evidence regarding the same. After deposing about the entire sequence of events, the witness has merely stated towards the end of his examination-in-chief that he identifies the accused correctly but for what purpose has the identification been done is not clear.
49. Similarly, PW-2 has also not deposed anything regarding the role allegedly played by the accused. PW-3 and PW-12 have completely failed to identify him.
50. PW-4 has identified the accused as one of the leaders who were leading the protest at barricade no. 1, however, in his cross-examination, he has admitted it to be correct that he cannot co-relate the name of the leader with their physical identity. Hence, identification of the accused by this witness does not inspire confidence. Further, the testimony of PW-4 regarding the role of the accused Narbada Prasad is an improvement as nothing as such has been stated by him in his statement u/s 161 CrPC and hence, the same cannot be relied upon.
51. PW-5 to PW-7 have not deposed anything regarding the identity of the accused.
Digitally
signed by
NEHA NEHA MITTAL
Date:
MITTAL 2025.06.28
FIR No. 38/2006 PS Parliament Street 14:12:57
+0530
State v. Narbada Prasad Prajapati & Ors. Page 23 of 26
52. Though, PW-8 has correctly identified the accused but he has also failed to attribute any act to him. The witness has not even deposed qua the fact whether the accused was present at the spot or not. The testimony of PW-9 and PW-10 can also be faulted on same ground. PW-11 and PW-13 have been doubtful in the identification of the accused and the hence, the same cannot be relied upon.
53. The last witness i.e., PW-14 who is the IO in the present case has also failed to depose regarding the role played by the accused due to which the identification of accused by him becomes meaningless. He has merely stated in his examination-in-chief that accused Phire Ram Prajapati and Laxmi Prajapati (both already convicted) along with three other people incited the protesters. However, he has failed to name the said three leaders. So, it cannot be ascertained in what capacity has the accused been identified by him. Thus, upon perusal of entire evidence, it can be safely deduced that none of the prosecution witnesses have deposed anything regarding the presence and role of the accused i.e. whether he was a mere by-stander or a passive member of the mob or an active leader. In such circumstances, mere identification of the accused by the prosecution witnesses is meaningless.
54. Constitution of unlawful assembly is a question of fact and the prosecution is required to prove constitution of unlawful assembly and its common object. Unlawful assembly may be constituted at any moment and person may join unlawful assembly at any time, even at the time of causing injury, but the prosecution is required to prove the FIR No. 38/2006 PS Parliament Street Digitally State v. Narbada Prasad Prajapati & Ors. signed by Page 24 of 26 NEHA NEHA MITTAL MITTAL Date:
2025.06.28 14:13:04 +0530 aforesaid fact by adducing cogent and reliable evidence that the persons have formed the unlawful assembly or joined in unlawful assembly having its common object and was having its common object for commission of the aforesaid offence. Mere presence as a stranger, by passer or gathered on the spot to see quarrel or the incident would not make the person liable for formation of unlawful assembly or liable for the commission of offence.
55. In the present case, the prosecution has utterly failed to prove that the accused was the member of the unlawful assembly. In view thereof, even if it is assumed to be proved by the prosecution that injuries were caused to the police personnel and security forces on duty by pelting of stones and with danda by the mob, criminal liability for the same cannot be attributed to the accused.
56. Further, it is pertinent to note that although there is statement of Ct. Rooplal recorded u/s 161 CrPC in the chargesheet to the effect that he made video of the incident of procession/protest and shall produce the CD in the court, but neither the said witness has been examined nor any such CD has been placed on record. This raises adverse inference against the case of the prosecution.
57. Keeping in view the fact that neither the presence of the accused at the spot nor the fact that he was member of unlawful assembly has been proved by the prosecution, the accused cannot be held liable for any of the offences charged.
Digitally signed by FIR No. 38/2006 PS Parliament Street NEHA NEHA MITTAL Date:
State v. Narbada Prasad Prajapati & Ors. MITTAL 2025.06.28 Page 25 of 2614:13:12 +0530 Conclusion:
58. Accordingly, this court hereby accords the benefit of doubt to the accused for the offences u/s 147/148/149/188/332/353 IPC and hold the accused not guilty of commission of said offences. Accused namely Narbada Prasad Prajapati is hereby acquitted of the offences u/s Digitally 147/148/149/188/332/353 IPC. signed by NEHA NEHA MITTAL MITTAL Date:
2025.06.28 Announced in the open Court (NEHAMITTAL) 14:13:21 +0530 Date: 28th June, 2025 ACJM-03/RADC NEW DELHI FIR No. 38/2006 PS Parliament Street State v. Narbada Prasad Prajapati & Ors. Page 26 of 26