Delhi District Court
State vs . 1. Sandeep Singh S/O Harnam Singh on 10 March, 2010
IN THE COURT OF SH.SURESH CHAND RAJAN
ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT,
(New Delhi & South East District)
PATIALA HOUSE COURTS, NEW DELHI
SC No.02/09
FIR No.467/99
U/s 147/148/149/353/186/427/332/333 IPC
PS S.N.Puri
State Vs. 1. Sandeep Singh s/o Harnam Singh
2. Paramjeet Singh s/o Parja Singh
3. Ramesh Chauhan s/o Rajbir
4. Dharambir Sharma s/o Shish Ram Sharma
5. Virender Chauhan s/o Late Sh YS Chauhan
6. Sunil Saini s/o Late Sh Pratap Singh
7. Talvinder Singh s/o Late Sh Lal Singh
8. Shemsan Anthony s/o Late Sh Anthony
Fabian (Since Expired)
9. Mohd.Malik (Since P.O.)
Challan filed on : 02.05.00
Received by Fast Track Court on:12.01.09
Reserved for Order on : 04.03.10
Judgement delivered on : 10.03.10
JUDGMENT
Briefly stated the facts of the prosecution case are that this case was registered on the statement Ex.PW13/D of SI Sarvdev Mishra who has stated in his statement that he alongwith his staff, SHO PS SN Puri and SHO PS Lajpat Nagar were present in arrangement duty in DDA Park near PP Sunlight Colony where Sh Talvinder Singh Marwaha was convessing. Around 700/800 person were gathered there State Vs.Sandeep Singh etc FIR no.467/99 Page No. 1 consisting of Dharambir Pandit, Kaluram Saini, Virender Chauhan, Ramesh Chauhan, Samson Anthony, Paramjeet Singh etc who gave speeches by announcing their names through loud speaker. The speakers delivered provocative speeches against Delhi Police and the gathering started raising slogans against Delhi Police. AT about 7 p.m the said gathering, in the leadership of Talwinder Singh Marwaha and other leaders started towards PP Sunlight colony. When they reached infront of PP Sunlight Colony,some people started pelting stones on Police Post because of which some glass windows has been broken and Ct. Jogender Singh and Ct. Ved Prakash who were on duty sustained injuries. The police official, to control the gathering started coming towards gathering due to which stampede took place and accused Paramjeet Singh, Manik, Sandeep Singh who were present in the gathering sustained injuries by falling. Accused Talvinder Singh Marwaha alongwith his associates had delivered provocative speeches, caused damage to PP Sunlight Colony and caused injuries on the person of Ct. Jogender and Ved Prakash. On this statement the present case was registered vide FIR no.467/99. The investigation was done and State Vs.Sandeep Singh etc FIR no.467/99 Page No. 2 accused persons were arrested. After completing the investigation the accused persons were challaned to the court.
2. This case being triable by the court of session, after committal proceedings, it was committed by the Ld.MM and received by the court of sessions on 27.02.04.
3. The charge against the accused persons was framed u/s 147/148/149/353/186/427/332/333 IPC on 16.02.05 by my Lords, Hon'ble Mr.Justice S.N.Dhingra, the then Additional Sessions Judge to which the accused persons pleaded not guilty and claimed trial.
4. The prosecution in all has examined as many as 15 witnesses.
5. The evidence against the accused persons were put to them in their statements recorded u/s 313 Cr.P.C in which they have pleaded their innocence and deposed that they have been falsely implicated in this case. The accused State Vs.Sandeep Singh etc FIR no.467/99 Page No. 3 Talvinder Singh Marwaha had opted to lead defence evidence but he has not examined any witness in this case. Thereafter the case was fixed for final arguments.
6. I have heard the Ld.counsel for the accused as well as Ld.APP for the State and perused the testimonies of all the PWS and exhibited documents carefully.
7. PW1 Ct.Kishan Pal has deposed in his testimony that on 6.9.09 some demonstration was going on and at about 7.30 p.m the crowd shouting slogans against Delhi Police. The crowd was having stones, bricks bats and they started throwing stones on the police and on PP due to which paint of the window of PP was damaged and Ct. Joginder and Ved Prakash received injuries. He proved personal search memo of Mohd. Manik Ex.PW1/A,B and C. He identified the stone pieces Ex.P1. and P2 colly.
8. PW2 Ct. Ved Prakash has deposed about delivering of speech by the leaders and proceedings of gathering towards PP Sunlight Colony and pelting of stones on them State Vs.Sandeep Singh etc FIR no.467/99 Page No. 4 and he received injury on his nose and Ct. Jogender also received injury on his forehead. He became unconscious and regained his consciousness in the hospital.
9. PW3 HC Om Prakash is a formal witness who collected the MLC of injured Ct.Jogender and Ct Ved Prakash from AIIMS Hospital.
10. PW4 HC Jaiveer Singh is the FIR recorder. He proved the copy of FIR Ex.PW4/A.
11. PW5 Dr. Kunal has proved the MLC of Ct. Ved Prakash prepared by Dr. Pankaj Khetrapal as Ex.PW5/B.
12. PW6 Ct. Joginder Singh has deposed that there was gathering of around 700/800 persons and when public persons leaving at that time crowd moved towards the police post and pelted stones towards the police and he received injury. Dharamvir Pandit, Talvinder Singh Marwaha along with 8/10 more persons were raising the slogans. He could not see any person pelting stones. He has not State Vs.Sandeep Singh etc FIR no.467/99 Page No. 5 identified the remaining accused and cannot say whether they were part of the mob which pelted stones on the police. He was declared hostile by the Ld.APP for the State and cross examined wherein he has admitted the case of the prosecution but stated that he does not know that the accused present in the court were also a part of the said mob.
13. PW7 Dr. Jitesh has proved the X-ray report of Ct. Ved Prakash and Ct. Joginder prepared by Dr. Dheeraj Gandhi as Ex.PW7/A and B.
14. PW8 Dr.Mohd Tahir Ansari has appeared to deposed about the nature of injury and he has stated that fracture of nasal bone has been suffered by injured Ct. Ved Prakash and therefore the same has to be looked into by the concerned doctor of ENT Deptt and the opinion on the injuries can be given by the ENT Specialist only.
15. PW9 Insp. Surender Jeet Kaur has deposed that on 6.9.99 about 700/800 persons gathered at the spot where State Vs.Sandeep Singh etc FIR no.467/99 Page No. 6 Dharamvir Pandit, Kalu Ram Saini, Ramesh Chauhan, Virender Chauhan, Samsung Anthony and Paramjeet and Talvinder Marwaha started giving aggressive speeches one by one and started shouting slogans against Delhi Police. At 7 p.m the said gathering started moving towards the police post and some of the assembly persons were having lathies and dandas in their hands and started pelting stones on the Police post due to which police persons suffered injuries. During pelting of stones by the said gathering, three public persons namely Paramjeet, Sandeep and Manik who were indulged in pelting stones were arrested by the police. Two police officials Ct. Ved Prakash and ct. Joginder also suffered injuries in the incident of pelting stones. Ct. Ved Prakash and Ct. Joginder were also with them in the arrangement outside the Police Post near the spot.
16. PW11 ASI Raj Singh (should be PW10) has also deposed about gathering of 700/800 persons and delivering of incited speeches and shouting of slogans against Delhi Police. At about 7 p.m, at the instance of MLA Talvinder Marwaha and other leaders started moving towards by State Vs.Sandeep Singh etc FIR no.467/99 Page No. 7 carrying dandas and stones in their hands and when gathering reached near police post, some persons started pelting stones on the police post due to which Ct. Ved Prakash and Ct. Joginder sustained injuries and window panes and doors were damaged. He has further stated that the police party started moving towards public due to which public started running to which accused persons fell down on the ground and suffered injuries. Paramjeet, Sandeep and Manik also sustained some injuries and they were apprehended at the spot. He proved memo of broken glass pieces and window panes Ex.PW11/A. He identified the glass pieces and stones Ex.P1 and Ex.P2. He has further stated that accused Talvinder Singh had instigated the public gathering and public turned hostile towards Delhi Police and started raising slogans against Delhi Police and mob having danda, swords and stones in their hands started towards PP Sunlight Colony. Ct.Dinesh Kumar took rukka to PS for registration of the case.
17. PW12 Insp.Vikramjeet Singh has deposed that on 6.9.99 at about 5.30 p.m, a gathering was being convened State Vs.Sandeep Singh etc FIR no.467/99 Page No. 8 near PP Sunlight Colony in DDA Park regarding protest against the preventive action of police in connection with the ensuing elections of the Lok Sabha and it was addressed by Talvinder Singh Marwaha, Dharamvir Pandit, Ramesh Chauhan, Kalu Ram, Virender Chauhan, Paramjeet and Samson Anthony and they delivered provocative speeches and at 7 p.m, the public became so aggressive that they started moving towards the police post - Sunlight Colony and started pelting stones on the police party as well as PP Sunlight Colony because of which window panes of the PP were smashed and Ct.Joginder and Ct.Ved Prakash suffered injuries. The Police tried to pacify the public and in the public started running and in the incident accused Sandeep, Manik and Paramjeet were apprehended. All the accused were present at the spot during rioting and pelting of stones however, he is not sure whether they themselves had pelted the stones on the police party or not. He identified the case property.
18. PW13 SI Sarvdev Mishra is the complainant and IO in this case and he has deposed that in the month of Sept, 2- State Vs.Sandeep Singh etc FIR no.467/99 Page No. 9 3 days prior to the date of incident, the party workers of Congress Party were convessing and after consuming liquor indulged in causing nuisance and when they did not remain calm and mend themselves, he booked them u/s 92/93/97 of DP Act. Sh Talvinder Singh Marwaha came to the Police Station and stood surety for them and abused them and thereafter said workers were released on bail. In the said kalandra three accused namely Samsan Anthony and two other accused, names of which are not remembered were imposed a fine of Rs.100/- each and all the three had a grudge against the police and they threatened that they will cause damage to Police Post 'EEIT SE EEIT BAJA DENGE'. For the said cause a protest was organized by the accused persons in the DDA Park near Sunlight Chowki on 6.9.99 and 700/800 persons gathered there. Sh.Talvinder Marwaha was the head of the gathering and they were delivering provocative speeches against the police. Some of the persons in the gathering were having dandas and swords in their hands. The mob started moving towards Sunlight Colony but accused Talvinder Singh Marwaha directed the mob to move towards Sunlight Colony through the road passing from State Vs.Sandeep Singh etc FIR no.467/99 Page No. 10 near the police post Sunlight Colony. The persons in the mob started pelting stones at the police post Sunlight Colony and smashed the window panes and doors. Ct. Ved and Ct. Joginder suffered injuries due to pelting of stones. On the direction of SHO, accused Mohd. Manik, Sandeep and Paramjeet were apprehended from the spot but the remaining members of the mob ran away from the spot. The said accused also sustained injuries during the time they attempted to run away from the spot. He proved applications for medical examination Ex.PW13/A to Ex.PW13/C. He prepared rukka Ex.PW13/D on the basis of which FIR was registered. He seized the case property vide memo Ex.PW11/A. He proved arrest memo of accused Sandeep, Paramjeet, Mohd. Manik Ex.PW13/E to G and conducted their personal search vide memo ex.PW1/A to C. He proved site plan Ex.PW13/K. He also prove bail bond of six accused Ex.PW14/L to Q. He obtained the MLCs of injured. He also obtained sanction u/s 195 Cr.P.C which is Ex.PW13/R. He was declared hostile on the point of identification of accused Dharamvir.
State Vs.Sandeep Singh etc FIR no.467/99 Page No. 11
19. PW14 Insp Raj Kumar Khatana has deposed that accused Talvinder Singh Marwaha called one demonstration against the police officials of PP Sunlight Colony and 700/800 people gathered at the spot. All the accused delivered instigating speeches and all the accused persons were instigating the crowd that the chowki incharge Vikram is not functioning properly and therefore, they will have to teach a lesson to them. The members of crowd were having dandas and stones in their hands and at about 7 p.m they started proceedings towards police post Sunlight Colony by shouting slogans. The crowd reached near Police Post Sunlight Colony and started pelting stones and also gave danda blows on the gate of the police post due to which window panes were broken and two constables sustained injuries. He and Addl.SHO Lajpat Nagar made request to the public to remain calm but they had not obliged and when they attempted to disperse the crowd, stampede occurred to which few persons of crowd fell down on the road and suffered injuries. Injured Sandeep and Parvinder were apprehended at the spot and sent for medical examination. He could not identify accused Ramesh Chauhan and State Vs.Sandeep Singh etc FIR no.467/99 Page No. 12 Virender Chauhan. He identified the case property. He has further stated that one day prior to the incident, accused Samson Anthony was called at the PP by SI Vikram for making enquiries in some other case and in the said case Sh. Talvinder Marwaha had approached him for releasing him and some heated arguments had taken place and because of the said incident demonstration was planned by the accused.
20. PW15 HC Neel Kamal is the MHCM and he proved the copy of register no. 19 Ex.PW15/A regarding depositing of case property in malkhana.
21. In the overall analysis of the testimonies of all the witness it is revealed that PW2 Ct. Ved Prakash and PW6 Ct. Joginder Singh are the injured and PW1 Ct. Kishan Pal, PW9 Insp.Surender Jeet Kaur, PW11 ASI Raj Singh, PW12 Insp. Vikramjeet Singh (Incharge PP Sunlight Colony), PW13 SI Saravdev Mishra (IO/Complainant) and PW14 Insp.Raj Kumar Khatana are the witnesses of investigation, PW3 HC Om Prakash, PW4 HC Jaiveer Singh and PW15 HC Neel Kamal are State Vs.Sandeep Singh etc FIR no.467/99 Page No. 13 formal witnesses and PW5 Dr. Kunal, PW7 Dr. Jitesh and PW8 Dr. Mohd. Tahir are the medical witnesses. PW1 Ct. Kishan Pal has not stated in his testimony that the speeches were provocative or that the crowd started towards PP Sunlight colony and then pelted stones on the window of PP Sunlight Colony. He has also not stated that what action was taken by the police to control the mob. As per his statement only two accused Sandeep and Paramjeet had received injuries while as per rukka accused Mohd. Manik has also sustained injuries. He has also even improved his statement regarding that public from the crowd started pelting stones on the police party as well as on the police post. He has also not stated as to how many person were there in the crowd. In cross examination he has admitted that opposite police post there is a DESU colony and at the T -point there is telephone exchange and there were around 30/40 police officials. They were deputed on duty outside the park at the distance of 20 to 25 paces alongwith Ct.Ved Prakash. As per rukka Ct.Ved Prakash was present inside PP Sunlight Colony where he sustained injuries. Speech of political leader has been over at 7.30 p.m. The time of incident in rukka has been mentioned State Vs.Sandeep Singh etc FIR no.467/99 Page No. 14 as 7 p.m by complainant SI Sarvdev Mishra and if the speeches were over at 7.30 p.m, it is not understandable as to how and why the time of incident has been mentioned before concluding the speeches. They were present outside the police post during the incident was going on and they did not enter the police post. PW2 Ct. Ved Prakash is the witness who sustained injury on his nose in this case. But he has not assigned any role to any of the accused who caused injury on his person. He specifically stated in his examination in chief that he cannot tell the name of any accused. He has only stated that crowd pelted the stones but not specifically stated the name of the accused who caused injuries on his person. In cross examination he has stated that no TIP was arranged nor accused was identified by him in any TIP. It is correct that there was lot of crowd at the place of incident. He does not know who pelted stone on him. In this case all the accused persons were not arrested at the spot and it was necessary to conduct the TIP of the accused persons. But IO has not taken any step to do so. PW2 has further stated in his cross examination that accused Sandeep and Paramjeet are the accused in this case and they did not sustain any injury State Vs.Sandeep Singh etc FIR no.467/99 Page No. 15 on their person. As per the case of the prosecution both the said accused alongwith one accused Manik had also sustained injuries and this witness PW2 alongwith injured accused were removed to the hospital together. He has stated the distance between tikona park and Post Post about 500/600 meters. PW2 has also improved his statement by stating the accused Talvinder Marwaha delivered the lecture near DDA Park in Sunlight Colony and that PW2 has sustained injury on his forehead. PW6 Ct.Joginder is also the injured. He has not stated the names of the political leaders who were delivering the provocative speeches. He sustained injury on his person but he has not assigned any role to any of the accused in his statement and he specifically stated that he could not see any person. He does not know whether the accused in the court were pelting stones at the police. He cannot say whether mob pelted stones. He has only stated that accused Dharamvir Pandit, Talvinder Singh alongwith 8/10 more persons were raising slogans. He has not identified the remaining accused. Even after declaring hostile by the prosecution he has admitted the case of the prosecution but stated that crowed pelted the stones on police post and State Vs.Sandeep Singh etc FIR no.467/99 Page No. 16 caused injuries to him and Ct.Virender. But he has again stated that he does not know that the accused persons were the part of the said mob or not. In cross examination he has stated that he admitted the questions in imperative form put to him by Ld. APP. Whatever Ld. APP for the State could extract from him by declaring him hostile had come under improvement. He has stated that speech concluded at 6.30 p.m while PW1 has stated that it concluded at 7.30 p.m. He has further stated that he is not aware about the fact whether the speakers left the spot after their speeches or remained at the spot as he alongwith other police officials have returned back to the police post after completion of speeches. He admitted that no stones were pelted till the speeches were being delivered, however, slogans were being raised. About 30/40 police officials were present during the assembly. Nothing could come out from the testimony of PW1,2 & 6 against the accused persons.
22. PW9 Insp.Surender Jeet Kaur, the then SHO Lajpat Nagar has stated that gathering started moving towards the police post and assembly were having lathis and dandas in State Vs.Sandeep Singh etc FIR no.467/99 Page No. 17 their hands and they started pelting stones on the Police Post. She has not stated as to who instigated them to pelt stones on the police post. She has further stated that accused Paramjeet, Sandeep and Manik indulged in pelting stones were arrested. As per the testimony of other witnesses these three have sustained injuries at the spot due to stampede and other witnesses PW1,2&6 did not state that they indulged in pelting stones. She has further stated that Ct. Ved Prakash and Ct. Joginder were with them in the arrangement outside the police post near the spot. From this version of PW9 it is crystal clear that both Ct. Ved Prakash and Ct. Joginder who as per the case of the prosecution allegedly sustained injuries in this case were not present in the Police Post where the incident of pelting of stones had taken place. She has identified three accused Talvinder Singh Marwaha, Sandeep, Samson Anthony (since expired) and Paramjeet but she has not assigned any specific role to these accused persons. She has stated that remaining accused are identified by her as the persons who were the members of the unlawful assembly which indulged in pelting stones at the police party and the police post but she is State Vs.Sandeep Singh etc FIR no.467/99 Page No. 18 unable to given their names due to lapse of time. This witness is the senior most police office but she could not identify each accused by their name and face being the members of the unlawful assembly. From her cross examination it is revealed that she has improved her statement by stating that some of accused Dharambir, Kalu Ram, Ramesh Chauhan, Virender, Samson, Paramjeet, Talvinder Marwaha had indulged in slogan shouting and that Virender, Samson, Paramjeet, Talvinder Marwaha were members of the unlawful assembly and indulged in pelting to stones on the police party and Police Post. So, whatever allegation she has made about unlawful assembly of accused persons and pelting of stones has come under improvement as it has not been stated by her in her statement. She has further stated that speeches were delivered from 5.30 to 7 p.m. But PW2 has stated that it concluded at 6.30 p.m. She has admitted that she has not disclosed to IO that accused Paramjeet, Sandeep and Manik were pelting stones. She has stated that accused Talvinder Marwaha was delivering speeches relating to elections. She had not disclosed to the IO that accused Talvinder Singh Marwaha was indulged in slogan State Vs.Sandeep Singh etc FIR no.467/99 Page No. 19 shouting against Delhi Police. She had seen accused Talvinder Singh Marwaha at the spot during the pelting of stones. It has not been stated by her that he was instigating other crowd person to pelt stones or that he was also involved in pelting stones on police party. PW11 ASI Raj Singh has stated that gathering started pelting the stones on the police post due to which window panes and police post were broken by pelting stones. Accused persons fell on the ground and sustained injuries. But he has not stated which all accused sustained injuries. Further he has stated that accused Paramjeet and Sandeep and Manik sustained some injuries and they were apprehended at the spot. He Identified the case property. He assigned the role of accused Talvinder Singh Marwaha that he instigated the public gathering and at the instigation mob started moving towards police post Sun Light Colony and members of mob were having danda, sword and stones in their hands. But other Pws has not assigned any role of accused Talvinder Singh Marwaha nor deposed that he instigated the gathering. He has not stated as to what he was stating/uttering to the crowd. In cross examination he has State Vs.Sandeep Singh etc FIR no.467/99 Page No. 20 stated that there were about 50/55 police officials. The park was measuring about 500 sq yards. The total gathering alleged in this case is about 700/800 persons. To my mind, 700/800 persons cannot be gathered in a park of 500 sq.yard. However, he has further stated that he had not noticed any gathering or public/private function at the said park. This witness is posted in PP Sunlight Colony since Jan/Feb.1999 and present case incident had taken place on 6.9.99. But for 9 months he had not seen any gathering there while it has come in the evidence that Lok Sabha Election were held during that time and if the park was so big, many election demonstration might have been held there. He has not seen water cannon vehicle, ambulance or file brigade and barricade there. No seizure of microphone, chairs, table etc were made. He improved his statement by stating that door of the PP was damaged by pelting stones and 3 accused sustained injuries while running from the spot. He also made improvement that accused persons had prevented the police officials from discharging their duties and few police officials suffered injuries. It has been admitted by him that the case property seized are easily available. State Vs.Sandeep Singh etc FIR no.467/99 Page No. 21
23. The testimony of PW12 Insp. Vikramjeet Singh, PW13 SI Sarvdev Mishra and PW14 Insp.Raj Kumar Khatana each is very much significant in this case. PW12 Insp.Vikramjeet Singh has stated that a gathering was being convened near PP Sunlight Colony in DDA Park regarding protest against the preventive action police in connection with the ensuing elections of the Lok Sabha. This version has not been corroborated by PW1,2,6,9 and 11 . In the incident accused Sandeep, Manik and Paramjeet were apprehended. Other Pws, PW1,2,6 & 9 have stated that Sandeep and Paramjeet also sustained injuries but PW12 has not stated about sustaining of injuries by them. He has further stated that all the accused were present at the spot during rioting and pelting of stones however, he is not sure whether they themselves had pelted the stones on the police party or not. Only PW12 has stated that the protest was against the preventive action police in connection with the ensuing elections of the Lok Sabha. But other PWs have not corroborated the version of PW12 in this respect. In cross examination he has stated that there were about 50/60 State Vs.Sandeep Singh etc FIR no.467/99 Page No. 22 police officials. He has not stated as to what were the leaders saying in the speeches. During the speeches with effect from 5.30 to 7 p.m, the public persons were raising slogans against the police and speakers remained on the stage after delivering the speech. It has not been stated as to what slogans they were shouting. He has admitted that there was some dark at about 7 p.m on the date of incident but it was not a complete darkness and Ct. Joginder and Ct. Ved Prakash were standing near the gate of the police post when the stones were pelted. Perusal of his further cross examination revealed that he had improved his statement regarding that gathering was convened for showing protest against the preventive police act in connection with ensuing Lok Sabha Election and presence of accused Talvinder Singh at the spot at the time of rioting and pelting of stones as well as provocative speeches. He has also admitted that case property seized in this case is easily available. This witness is the Incharge of PP Sunlight colony and the demonstration was being organised in his jurisdiction. But he has stated in cross examination that no permission was sought from him for holding the gathering/public meeting in writing or orally. State Vs.Sandeep Singh etc FIR no.467/99 Page No. 23 Allegedly it was being organised adjacent to PP Sunlight Colony and it must have taken some time to affixed stage and to do other arrangement. Even at that time PW12 has not taken any step to enquire in this respect. He has further stated that he had not sent any requisition for deployment of the police force and he had not given any direction to disperse the gathering during the time from 5.30 p.m to 7 p.m, as the gathering during the said period was peaceful. From this version of PW12 it seems that from 5.30 p.m to 7 p.m the gathering was quite peaceful and no provocative speeches were being delivered as well as no slogans were being shouted. When everything was going on peacefully from 5.30 p.m to 7 p.m, it is not understandable as to how suddenly at 7 p.m, the time shown in rukka, the incident had happened without any provocation/instigation. Being Incharge of PP Sunlight Colony he should have sent request for deployment of police force if some protest was being organised there but he denied about doing so. As per the case of the prosecution SHO of PS Srinivas Puri was present with other inspectors at the spot but there is no evidence available as to how they were present there at the time of State Vs.Sandeep Singh etc FIR no.467/99 Page No. 24 demonstration and who called them after the demonstration. PW12 has also made improvement in his statement regarding presence of accused persons at the spot during riot. So, from the testimony of this witness presence of accused persons at the time of riot could not be established. PW13 SI Sarvdev Mishra is the complainant and IO of this case. From his testimony it is revealed that before 2/3 days prior to election in Sept.99 some convessing were being done by the party workers who caused nuisance and when they did not mend themselves, he booked them u/s 92/93/97 DP Act and accused Talvinder Singh came at the PS and got them released and threatened 'eint se eint baja denge'. He has stated that for this cause protest was organised. PW12 Insp.Vikramjeet Singh has stated that it was regarding the protest against the preventive action police in connection with ensuring election of Lok Sabha and PW14 Insp.Raj Kumar Khatan has stated that it was demonstration against police officials of PP Sunlight Colony and accused persons were instigating the crowd that chowki Incharge Vikram was not functioning properly and therefore they will have to teach a lesson to him. So, all the three witnesses State Vs.Sandeep Singh etc FIR no.467/99 Page No. 25 have given different version regarding organising of demonstration. From analysing of their testimonies and their different versions in this respect it could not be established as to for which purpose the demonstration had been organised. On the other hand the version of PW13 regarding booking of Samson Anthony alongwith other person under DP Act has not been supported by any documentary proof. Also it has not been corroborated by any other witness. Reverting back to the deposition of PW13 he has stated about delivering of provocative speeches against the police through mike from 5.30 p.m to 7 p.m. He has also stated that the speeches concluded at 7 p.m and when he himself has stated that it concluded at 7 p.m, it is not understandable as to how he mentioned the time of incident as 7 p.m. There are contradictions in the testimony of each witness in respect of timing of incident. PW13 & PW14 both have stated that the crowd was having dandas and swords in their hands and mob started moving towards Sunlight Colony. From this version of both PW13 & 14 it seems that crowd was having danda and sword in their hands when they were in the park. When Police had seen such weapons in the hands of State Vs.Sandeep Singh etc FIR no.467/99 Page No. 26 gathering as to why no information has been given to the senior police officials like DCP, ACP of the area to take any precautionary action/step against them and as to why no action has been taken before hand. PW12 Insp.Vikramjeet was present at the spot and if the crowd was carrying such weapons, he should have taken action for calling more force. But he has stated that he has not requisitioned any more force. PW13 has further stated that accused Talvinder Singh Marwaha directed the mob to move towards Sunlight colony through the road passing from near the PP Sunlight colony. He has stated that accused Manik, Sandeep & Paramjeet were apprehended at the spot but remaining ran away from the spot. He proved the arrest memo of accused Sandeep, Paramjeet and Mohd. Manik vide memo Ex.PW13/E to G.I have also perused the said memos. In the arrest memo of accused Sandeep, column no.7 & 9 i.e time of arrest and person of the arrestee to be informed with address have been not mentioned. In the arrest memo Ex.PW13/F of accused Paramjeet column no.9 is left blank and in arrest memo Ex.PW13/G column no.2 i.e. address of the arrestee is left blank. In the column Witness only word 'Ct.' State Vs.Sandeep Singh etc FIR no.467/99 Page No. 27 is mentioned in all the three arrest memos but none other has been made as witness of arrest of accused persons. Only these three arrest memos were proved by PW13 which are also doubtful. There is no explanation regarding arrest of rest of six accused persons as there arrest memos are neither available on record nor proved by PW13 IO SI Sarvdev Mishra. PW1 has proved the personal search memo of only these three accused Ex.PW1/A to C. So, arrest of the accused persons is not proved successfully in this case. PW13 could not identify accused Dharamvir Sharma correctly in the court while he is the IO of the case. Further PW13 has proved the sanction u/s 195 Cr.P.C granted by ACP, Lajpat Nagar Ex.PW13/R. I have also perused the said sanction. It was granted on 2.3.2000 by ACP Lajpat Nagar. PW13 has tendered this sanction u/s 195 Cr.PC in the evidence. He has stated that he cannot identify the signature of ACP Lajpat Nagar at point X. On perusal of the evidence on record it is revealed that said ACP who accorded sanction u/s 195 Cr.PC has not been examined in this case. It is well settled principle of law that by putting mere exhibition of documents, it cannot be taken as State Vs.Sandeep Singh etc FIR no.467/99 Page No. 28 proved. On the other hand the police officer who has taken the sanction has stated that he cannot identify the signature of the concerned ACP who had issued the sanction. So, sanction 195 Cr.P.C has also not been proved in accordance with law in this case. On perusal of his cross examination he has stated that he has not mentioned about kalandra in his complaint and no complaint/DD regarding threatening 'eint se eint baja denge' has been filed and even it has not been mentioned in the chargesheet. He has admitted that they had already information about agitation and video real was prepared. No such video real has been proved in evidence nor any information with regard to agitation is available on file. He has not taken any action even after hearing provocative speeches. The dandas and swords could not be recovered except pelted stones and brick stones because the same were taken by the accused persons. Allegedly three accused persons were arrested at the spot who had also sustained injuries and the weapon they had at that time must have been recovered but nothing has been produced in the court. PW14 Insp.Raj Kumar Khatana has deposed the different version to other Pws regarding incident and further State Vs.Sandeep Singh etc FIR no.467/99 Page No. 29 stated that one day prior to the incident accused Samson Anthony was called at the PS Sunlight Colony by SI Vikram for making enquiries where accused Talvinder Singh Marwaha came and some heated arguments had taken place. As per the deposition of PW13 SI Sarvdev Mishra he had booked three persons including Samson Anthony under DP Act and Sh Talvinder Marwaha came to PS and abused them. Both PW13 and PW14 have deposed differently in this respect because PW14 has stated that SI Vikram called accused Samson Anthony for enquiries and PW13 has stated that he booked them under DP Act. while PW12 SI Vikramjeet has not deposed anything in this respect. So, this version create doubt in the prosecution case. PW14 could not identify accused Ramesh and Virender while he is a senior police officer and entire incident has taken place in his presence. It has come in evidence that demonstration was already in the knowledge of police and when it was so, they should have taken precautionary measure but there is no such evidence on file that such measures had been taken by the police. PW14 has stated that the photographer had taken the photograph of the broken window panes. No such State Vs.Sandeep Singh etc FIR no.467/99 Page No. 30 photographs has been placed on file nor any photograph has been produced in this respect.
24. PW3 HC Om Prakash is the formal witness who collected the MLC of injured. PW4 HC Jaiveer Singh is the FIR recorder and he proved copy of FIR Ex.PW4/A. PW15 HC Neel Kamal is the MHCM and all these witnesses are formal witnesses. I have also perused the medical evidence in this case.
25. PW5 Dr.Kunal has proved the MLC Ex.PW5/B of Ct.Ved Prakash prepared by Dr. Pankaj Khetrapal. So, the doctor who prepared the said MLC has not been examined. PW5 has stated in his cross examination that he had not worked with Dr. Pankaj and therefore cannot identify his handwriting. So, when this witness has not identified the handwriting of doctor who prepared the MLC, this MLC could not be taken as proved in accordance with law. Perusal of MLC revealed that nature of injury 'grievous' and kind of weapon 'blunt' has been mentioned with blue ball pen while the entire MLC has been prepared with black pen. State Vs.Sandeep Singh etc FIR no.467/99 Page No. 31 and even the opinion has not been signed by the doctor concerned. I have also perused the OPD card of Ct. Ved Prakash and at the back of the card 'No evidence of Nasal Bone Fracture' is mentioned. As per Ex.PW7/B X-ray form, at the bottom 'Fracture Nasal Bones Seen' is mentioned. Allegedly Ct. Ved Prakash sustained injury on his nose. But there is no nasal bone fracture as per OPD card and as per X-ray form fracture is seen and as per MLC the injuries has been opined as grievous. PW7 Dr. Jitesh has stated that he had not seen Dr. Dheeraj Gandhi signing and writing. Dr. Dhiraj has written the nature of injury on the X-ray form. But this witness has stated that he has not seen him writing and signing, so, he also cannot identify the signatures of Dr.Gandhi who mentioned the nasal bone fracture on X-ray form. Being contradictory it cannot be taken as proved in the absence of examination of ENT Specialist because PW8 Dr.Mohd. Tahir Ansari has stated that opinion on the injuries can be given by the ENT Specialist only. But on the MLC it is not clear as to which doctor has given the nature of injury. PW7 Dr. Jitesh has also proved the MLC of Ct. Joginder. State Vs.Sandeep Singh etc FIR no.467/99 Page No. 32
26. In this case all the witnesses have stated that the accused persons were delivering provocative speeches and crowd started shouting slogans. But none of the witness has stated as to what those speakers were uttering while delivering speeches against the police and what slogans were being shouted by the crowd. It has further not been stated as to how the accused persons instigated the crowd to attack the police party as well as police post and what wording they have uttered at that time. All the witnesses have stated that crowd started pelting stones on the Police Post but they have not named any person who pelted stone on the police post and whatever they have stated they have improved their statements. No role of accused persons has been assigned even by injured PW2 Ct. Ved Prakash and PW6 Ct. Joginder that they caused injuries on their persons. Even PW6 has been declared hostile in this case. The sanction u/s 195 Cr.PC in this case has not been proved in accordance with law because PW13 SI Sarvdev Mishra who is IO of this case has just tendered the same in his evidence and the ACP who accorded the same has not been examined. Even PW13 has not identified the signatures of State Vs.Sandeep Singh etc FIR no.467/99 Page No. 33 ACP on the sanction u/s 195 Cr.P.C. It has been admitted by almost all the PWS that there was residential colony nearby the place of incident but no public witness has been joined in this case to strengthen the case of the prosecution. The arrest memos of the accused persons have also not been proved as per law. Pws have admitted that the case property seized in this case i.e. broken glass pieces, are easily available. No other weapon of offence as alleged danda, sword etc. has been recovered by the police. IO has not made any complaint regarding heated arguments between him and accused Talvinder Singh Marwaha before hand. Arrest memos of accused persons have not been proved successfully in this case. The testimony of each witness examined in this case is self contradictory and they have not given consistent statements.
27. In this case charge has been framed u/s 186/353/332/333/427/147/148/149 IPC. Section 186 contemplates 'Obstructing public servant in discharge of public function - As per the evidence available on file, none of the PWS have stated as to what obstruction was caused State Vs.Sandeep Singh etc FIR no.467/99 Page No. 34 by the accused persons in discharged of their public function and as to what duties they were performing at that time. Even Sanction 195 Cr.PC is not proved as per law. So, section 186/149 IPC is not made out against accused persons.
28. Section 353 contemplates Assault or criminal force to deter public servant from discharge of his duties. None of the witness has stated that accused persons have assaulted them. PW2 & 6 who sustained injuries in this case have not assigned any role to any of the accused persons. There is no evidence on file that accused persons manhandled with the police party. Even Sanction 195 Cr.PC is not proved as per law. So, section 353/149 IPC is also not made out in this case.
29. Section 332 contemplates voluntarily causing hurt to deter public servant from his duty. In this case PW6 Ct.Jogender had sustained injury as per the MLC available on file. But he has not assigned any role to accused persons that they caused injury on his person. Even he has been declared hostile but nothing incriminating could be extracted from him. There is also no evidence on file that State Vs.Sandeep Singh etc FIR no.467/99 Page No. 35 they were deterred by the accused persons from discharge of their duties. So, section 332/149 IPC is also not made out against accused persons.
30. Section 333 contemplates - Voluntarily causing grievous hurt to deter public servant from his duty - In this case PW2 Ct.Ved Prakash had sustained grievous injury as per the MLC available on file. But he has not assigned any role to accused persons that they caused injury on his person. The MLC is also not proved as per law. There is also no evidence on file that they were deterred by the accused persons from discharge of their duties. So, section 333/149 IPC is also not made out against accused persons.
31. Section 427 contemplates Mischief causing damage to the amount of fifty rupees. As per the evidence available of file photographs were taken of PP Sunlight Colony and video real was prepared. But the same have not been proved on record. Also no public witness has been joined while there is residential colony near to the spot. Non production of photographs, video real and non examination State Vs.Sandeep Singh etc FIR no.467/99 Page No. 36 of public witness create doubt. Hence sec. 427/149 IPC is also not made out against the accused persons.
32. Section 147 contemplates punishment for rioting - whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting. In this case all the PWS have deposed that provocative speeches were being delivered by the accused persons and slogans were being shouted. They have stated all the accused persons were delivering speeches and they were on the stage. None has stated that they were also the part of the assembly. They have stated the crowd moved towards PP Sunlight Colony and pelted stones. But no evidence has come that accused persons were also part of the unlawful assembly and available in riot. As per the prosecution case a huge demonstration was organised and in my opinion such demonstration cannot be held without the prior permission of the DCP of the Area and it seems that the demonstration was already in the knowledge of police because the police has already been State Vs.Sandeep Singh etc FIR no.467/99 Page No. 37 deployed there and even the demonstration was over as per the case of the prosecution and no indecent incident had happened during the period of demonstration. Even it has also come in evidence that during that period Lok Sabha Elections were also scheduled to be held. So, in view of the facts and circumstances, the accused persons have not done any act of rioting by means of unlawful assembly since the police has not tried to arrest any of the person out of those 700/800 persons because the present accused persons were only delivering speeches. So this section is also not made out against accused persons.
33. Section 148 IPC contemplates - rioting, armed with deadly weapons - In this case no recovery of weapon of offence has been made by the Police. It is alleged that crowd was having danda and swords in their hands. But police could not recovery any weapon of offence. So, section 148 IPC is not made out in this case.
34. Section 149 IPC contemplates 'Unlawful Assembly'. To constitute unlawful assembly there must be (a) an State Vs.Sandeep Singh etc FIR no.467/99 Page No. 38 assembly of five or more persons (b) they must have a common object © the common object must be one of the five specified in section 141 IPC. Before there can be unlawful assembly and rioting there must be five persons who have a common object and that object is one of those set out in section 141 IPC. The object should be common to the persons who composed the assembly that is to say they should all be aware of it and concur in it. Ld. counsel has relied upon case law 16 DLT (1979) 70 in which it is held that if one or more members of the unlawful assembly act beyond the ambit of the common object of such assembly; all its members cannot be held liable for the offence or offence committed by such members. In the present case in hand there was no common object of all the accused persons as none of the witness has deposed about the common object of the accused persons. Whatever they have stated about previous arrest of accused Samson Anthony, no document in this respect has been proved on record. PW12,13 & 14 have given different versions in this respect. So, the present accused cannot be held member of the unlawful assembly. Hence, Sec.149 IPC is not made out against accused persons.
State Vs.Sandeep Singh etc FIR no.467/99 Page No. 39
35. As a sequel to my findings above, prosecution has failed to prove the charge against accused persons Sandeep Singh, Paramjeet Singh, Ramesh Chauhan, Dharambir Sharma, Virender Chauhan, Sunil Saini, Talvinder Singh Marwaha, for the commission of offence punishable u/s 186/353/332/333/427/147/148/149 IPC and they are acquitted from these charges levelled against them. All the above accused persons are on bail in this case. So, their bail bonds are hereby cancelled and sureties are discharged. File be consigned to record room.
Announced in the open Court on 10.03.2010.
(SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE (Fast Track Court-New Delhi and South East District) NEW DELHI State Vs.Sandeep Singh etc FIR no.467/99 Page No. 40 State Vs.Sandeep Singh etc FIR no.467/99 Page No. 41