Delhi District Court
State vs . : Ahasan & Ors. on 17 May, 2023
IN THE COURT OF MS. MANISHA KHURANA KAKKAR,
ADDITIONAL SESSIONS JUDGE (FTC - 01) (SOUTH), SAKET,
NEW DELHI
SC No. : 7399/2016
FIR No. : 691/2014
PS : Ambedkar Nagar
State Vs. : Ahasan & Ors.
JUDGMENT
(a) Name of complainant : Sh.Fakrey Alam
(b) Name, parentage & : (1) Ahasan address of accused(s) S/o Sh.Mahboob R/o E-462, Dakshin Puri, New Delhi (2) Imran S/o Sh.Shakil Ahmad R/o E-385, Dakshin Puri, New Delhi (3) Salman S/o Sh.Shakeel Ahmad R/o E-385, Dakshin Puri, New Delhi (4) Irfan S/o Sh.Shakeel Ahmad R/o E-385, Dakshin Puri, New Delhi (5) Nusrat S/o Sh.Zameer Ahmad R/o E-462, Dakshin Puri, New Delhi (6) Shahid S/o Sh.Zameer Ahmad FIR No.691/2014 PS Ambedkar Nagar State Vs. Ahasan & Ors. Page No.1 of 20 R/o 462, Dakshin Puri, New Delhi
(c) Offence complained off : 147/148/149/308/34 IPC
(d) Plea of accused : Pleaded not guilty
(e) Final order : Convicted
(f) Date of such order : 17.05.2023 Date of Institution : 05.12.2014 Final arguments heard : 29.03.2023 Date of Judgment : 17.05.2023 BRIEF FACTS :
1. It is the case of the prosecution that on 05.10.2014 at about 6.45 p.m. near Badi Masjid, Madangir, Phase-II Road, all the accused persons formed an unlawful assembly and assaulted and caused hurt to Complainant Fakrey Alam, Aaj Mohd., Rizwan, Gohar Alam and Javed Alam and in pursuance of the object of the said unlawful assembly, accused Imran also caused injuries on the head of the injured/complainant Fakrey Alam with an iron rod. Consequently, Charge-
sheet for the offence U/s 147/148/149/308/34 IPC was filed against accused persons.
After the compliance of section 207 Cr.P.C, matter was committed to the Court of Sessions by Ld. MM vide order dated 20.12.2014.
Charge:-
2. On the basis of material placed on record by the prosecution, charge was framed against all the accused persons i.e. Ahasan, Imran, Salman, Irfan, FIR No.691/2014 PS Ambedkar Nagar State Vs. Ahasan & Ors. Page No.2 of 20 Nusrat and Shahid for the offences punishable under Section U/s 143/147/323/149/308/34 IPC and also charge for offences punishable under Section 148/149 IPC was framed against accused Imran vide order dated 27.07.2015 passed by Ld.Predecessor, to which they pleaded not guilty and claimed trial.
Prosecution Evidence :-
3. In order to bring home the guilt of accused, prosecution had examined 10 witnesses in the prosecution evidence i.e. PW1 Sh.Fakre Alam (Complainant), PW2 Mr.Rizwan (Injured), PW3 Mr.Aaz Mohd. (Injured), PW4 Sh.Gohar Alam (Injured), PW5 Sh.Javed Alam (Injured), PW9 Sh.Rajender Singh (to prove MLCs), PW10 Dr. E.R.Srikanth and police witnesses i.e. PW6 ASI Ram Kumar, PW7 HC Satish, PW8 SI Satyavir Singh.
Summary of prosecution evidence :-
4. In the prosecution evidence, Complainant Fakre Alam was examined as PW1.
PW1 Sh.Fakre Alam deposed that on 05.10.2014 at about 6.45 PM, his younger brother Javed was parking the car on the road near Masjid near his house. He further deposed that accused Imran, who used to run a Dhaba by encroaching on public land raised an objection. He further stated that his brother PW-5 Javed requested accused Imran that he would remove the car shortly, however, accused Imran started beating his brother/PW-5 Javed. He further deposed that his brother immediately informed him through mobile phone and on receiving the said information, he immediately reached at the spot alongwith his cousin brother i.e. PW2 Rizwan and his friend i.e. PW3 Aaz FIR No.691/2014 PS Ambedkar Nagar State Vs. Ahasan & Ors. Page No.3 of 20 Mohd. He further deposed that when they reached there, he saw that accused Imran was beating his brother/PW-5 Javed Alam with a piece of brick. As per his testimony, he intervened to rescue his brother/PW-5 Javed and also requested accused Imran not to behave like that and also told him that they would remove the car, however, accused Imran called accused persons Shahid, Salman, Nasrut, irfan and Ahasan, who were present at Dhaba near the place where his brother/PW-5 Javed had parked the car. He further deposed that accused Shahid was carrying an iron rod (used in cooking 'Seek Kabab') and all of them started beating them. He further deposed that accused Imran had taken aforesaid iron rod from the hands of accused Shahid and had hit the same on his head. He further testified that accused Shahid and Salman started beating his younger brother PW4 Gohar Alam, who had also accompanied them at the spot and that remaining accused persons had also started beating his aforesaid brothers with stones lying on the side of the road. He further testified that someone from the public had informed the police and they rescued themselves and reached home. He further deposed that he borrowed a car of his neighbour and went to Trauma Centre and police came to the hospital. His statement was recorded at the police station vide Ex.PW1/A. The said witness correctly identified all the accused persons present in the court.
5. In his cross-examination, PW1 Fakre Alam deposed that his statement was recorded on 05.10.2014 in the night by the IO of the case at PS. He affirmed the suggestion that IO did not record the statement of his brothers/injured in his presence. He further deposed that he went to the PS at about 10.30 p.m. from Trauma Centre. He also affirmed that he was a property dealer and his doing the business of sale purchase of property. He further denied the suggestion that he had no license or revolver in his name. He further affirmed the suggestion that he had put his signature after going through the asal tehrir which was FIR No.691/2014 PS Ambedkar Nagar State Vs. Ahasan & Ors. Page No.4 of 20 recorded by the IO of the case. He further affirmed the suggestion that PW-5 Javed Alam is his real brother. He further deposed that he did not tell the police about the colour and make of the vehicle. He further deposed that he did not call his brothers, but his cousin brother namely PW-2 Rizwan and his friend PW-3 Aas Mohd., who were present in his house, when he had received the said call and that after receiving the call of his brother, he reached the 'Dhaba' on the main road, where accused Imran was beating his younger brother PW-5 Javed Alam. He further affirmed the suggestion that he had tried to pacify the matter between his brother and accused Imran, however, the accused did not listen to him. He further affirmed the suggestion that PW-2 Rizwan and PW-3 Aas Mohd. also tried to pacify accused Imran. He further affirmed the suggestion that while they were trying to separate his brother and accused Imran, local people had also gathered there. He further denied the suggestion that no such incident had occurred at the place mentioned by him. He further denied the suggestion that he did not reach the spot nor he tried to intervene in order to pacify the matter. He further affirmed that PW-5 Javed Alam and PW-4 Gohar Alam are his real brothers. He denied the suggestion that he and his two brothers PW-5 Javed Alam and PW-4 Gohar Alam had a fight with PW-2 Rizwan and PW-3 Aas Mohd. on account of some property dispute on 05.10.2014 in front of 'Masjid' of Madangir and in the said fight, both the members of both the parties had sustained injuries. He further denied the suggestion that police had got the accused persons falsely implicated in this case at the instance of late Sh.Sabir Shah, who was a BJP leader. He further denied the suggestion that since the father of accused persons Salman, Irfan and Imran was a Congress leader, therefore, on account of old political enmity, the accused persons had been falsely implicated. He further affirmed the suggestion that he did not disclose the names of accused persons, weapon of FIR No.691/2014 PS Ambedkar Nagar State Vs. Ahasan & Ors. Page No.5 of 20 offence, place of occurrence to the doctor, who had medically examined him. He also affirmed the suggestion that he did not tell the measurement of the rod in his statement to the police. He further affirmed the suggestion that no recovery of weapon of offence was effected in his presence. He further affirmed the suggestion that names of accused were already known to him prior to the incident. He further denied the suggestion that he had identified the accused in the Court only because he already knew their names and faces. He voluntarily deposed that he had identified them because they were present at the spot and had caused injuries to him, his brother, cousin brother.
6. In his examination-in-chief, PW2 Rizwan, also deposed on the same lines as the aforesaid witness. In his cross-examination, he further affirmed the suggestion that his statement was recorded in the presence of PW1 Fakre Alam. He also affirmed the suggestion that PW1 Fakre Alam was doing the job of property dealing. He further denied the suggestion that PW1 Fakre Alam and his two brothers namely PW5 Javed Alam and PW4 Gohar Alam had a fight with him and PW3 Aas Mohd. on account of some property disppute on 05.10.2014 in front of the Masjid of Madangir and that in said fight, members of both the parties had sustained injuries. He further denied the suggestion that accused Irfan and accused Nusrat did not inflict any injuries on him and therefore, accused Irfan and accused Nusrat also did not sustain any injuries on them. He further denied the suggestion that they had sustained injuries on account of fight between two groups one of Fakre Alam and his brothers and the other of him and Aas Mohd.
7. PW3 Mr. Aaz Mohd deposed that on 05.10.2014, he alongwith PW1 Fakre Alam, PW2 Rizwan and PW4 Gohar Alam were present at the house of PW1 Fakre Alam and at about 6.45-7.00 PM, PW-1 Fakre Alam received a phone call of his younger brother Javed who had informed him that Imran had FIR No.691/2014 PS Ambedkar Nagar State Vs. Ahasan & Ors. Page No.6 of 20 quarelled with him on account of parking the car on the road near his Dhaba and on receipt of the information, he alongwith PW1 Fakre Alam, PW2 Rizwan and PW4 Gohar reached at the spot where they saw that accused Imran were given beatings to PW5 Javed with fist blows. He further deposed that they intervened and tried to pacify accused Imran, however, accused Imran called his brother and friends and on receiving a call from accused Imran, Nusrat, Ahsan, Shahid, Salman and Irfan reached at the spot and that accused Shahid was carrying an iron rod (used for cooking 'Seek Kabab') and they all started beating them with piece of stones. He further deposed that accused Imran had taken the said iron rod from the hands of accused Shahid and had hit the same on the head of PW1 Fakre Alam. He further deposed that he had also sustained injuries due to pelting of stone by the accused persons but he couldn't tell particularly which of the accused had hit him with the stone. He further deposed that in order to rescue themselves they ran towards their house and when they reached home, they were taken to Trauma Centre, AIIMS by a neighbour namely Saleem in his car. He further deposed that Police had met him in hospital but police did not make inquiries from him and he was asked to come to the police station. He further deposed that he went to the police station after getting treatment at Trauma Centre, and his statement was recorded in the police station.
8. The said witness was, however, re-examined by Ld. Additional PP as his examination was not in consonance with his examination dated 05.12.2015. In his re-examination he deposed that the statement made by him on 03.01.2023 was correct. The said witness has recalled in his cross-examination u/s 311 Cr.PC vide order dated 07.04.2016. In his cross-examination conducted on 07.04.2016, PW3 Aaz Mohd. deposed that he was told by PW1 Fakre Alam, PW2 Rizwan and PW4 Gohar that he had been made a witness in the present FIR No.691/2014 PS Ambedkar Nagar State Vs. Ahasan & Ors. Page No.7 of 20 matter. He further affirmed the suggestion that he had deposed in the court on their asking. He further stated that he had no quarrel with the accused persons and that he was not present at the spot at the time of quarrel. He testified that he had reached at the spot after the incident. He further affirmed that whatever he had deposed on 05.12.2015, was on the asking of complaint. In his cross- examination conducted by Ld. Additional PP for State he denied the suggestion that he had been won over by the accused persons.
9. PW4 Gohar Alam and PW5 Javed also deposed on the same lines as the aforesaid witnesses.
10. In his cross-examination PW5 Javed Alam deposed that he did not remember whether PW1 Fakre Alam, PW4 Gohar Alam, PW2 Rizwan and PW3 Ash Mohammad had reached together after he had called his brother Fakre Alam. He further deposed that they had reached at the spot at about 6.45 PM. He further deposed he did not remember whether his brothers PW3 Ash Mohammad and PW2 Rizwan had reached at the spot, he however deposed that they had come within 1-2 minutes either before reaching of his brothers or after their reaching at the spot . He further deposed that the distance of the dhaba of the accused persons is just 10 mtr. distance from the place of incident and at the time of incident except accused Imran all other accused persons were present at the Dhaba. He further deposed that he did not remember the time when the accused reached at the spot after accused Imran called them, however, he deposed that they had reached there within one minute. He further deposed that he did not remember that for how many minutes they remained at the spot after 6.45 pm when the incident occurred. He, however, stated that the accused were not beaten up by him or his brothers. He further deposed that he did not know whether the accused persons had sustained any injury or not or that whether their medical examination was conducted or not. He affirmed the FIR No.691/2014 PS Ambedkar Nagar State Vs. Ahasan & Ors. Page No.8 of 20 suggestion that his father was a worker of BJP. He further deposed that he did not know whether the father of accused persons was a worker of Congress. He further denied the suggestion that they had falsely implicated the accused persons on account of political tussle between his father and father of accused persons. He further denied the suggestion that there was no 'Masjid' located near the place of incident. He voluntarily deposed that the 'Masjid' was situated at a distance of 30-40 mtr from the place of incident. He denied the suggestion that accused Imran did not run any Dhaba at the time of incident. He further deposed that he did not know the exact relation between accused Imran and accused Shahid. He, had however, stated that they are relatives.
11. PW8 SI Satyavir Singh deposed that on 05.10.2014 on receipt of DD No. 44A, he along with Const. Satish, went to the spot at Badi Masjid, Madangir, New Delhi where beat officials were present and stones and brick pieces were also lying on the road. He further deposed that the injured persons had already been shifted to the hospital and that he along with Const. Satish went to AIIMS, Trauma Centre, New Delhi where he met PW1 Fakre Alam, PW4 Gohar Alam, PW2 Rizwaan and PW3 Aas Mohd, who were admitted in the hospital. He further deposed that he recorded the statement of injured PW1 Fakre Alam vide Ex.PW1/A and prepared rukka vide Ex.PW6/B and got the FIR registered through Ct. Satish.
12. He collected MLCs of all the injured persons. He prepared site plan at the instance of complainant vide Ex PW8/A. He further deposed that he had seized one iron rod used in cooking 'Kebab' vide seizure memo already exhibited as PW7/A and also seized the stones and brick pieces from the spot vide Ex PW7/B. He had also seized bloodstained clothes of the injured person vide seizure memo Ex.PW7/C. FIR No.691/2014 PS Ambedkar Nagar State Vs. Ahasan & Ors. Page No.9 of 20
13. He further deposed that accused Imran and Ahsaan were arrested from their houses vide Ex.PW7/D and Ex.PW7/E and their personal search was conducted vide Ex.PW7/F and Ex.PW7/G. He further deposed that on 10.11.2014 accused persons Nusrat, Salman and Irfan were arrested vide memos Ex.PW8/B to Ex.PW8/D and accused Shahid was arrested vide arrest memo Ex.PW8/E. He further deposed that he obtained the opinion on the injuries on the MLCS of the injured persons and filed the chargesheet against the accused persons in the court.
14. In his cross-examination, PW8 SI Satyavir Singh deposed that he was present in the Police station when DD no. 44A was received in the Police Station and the same was handed over to him by the duty officer but he did not remember his name. He further deposed that Const Satish was on emergency duty with him and they left the police station soon after receiving the DD at 6:45PM on his personal motorcycle. He further deposed that he had not made a DD entry in this regard. He further deposed that the spot is in front of 'Badi Masjid', situated in A Block, Madangir and that they reached at the spot within five minutes of receiving the DD and remained there for about 15 minutes before leaving for the hospital. He further deposed that except beat officials, no public person was present at the spot. He further deposed that he did not count the stones which were lying on the road. He affirmed the suggestion that bricks and stones were not given any numbering. He further deposed that the spot is a thickly populated area. He further affirmed the suggestion that he did not join any public person in the proceeding of seizing the case property. He further affirmed the suggestion that the colour of the seized stones and brick pieces were not mentioned on the seizure memo Ex.PW7/B. He further deposed that when he reached at the spot, the said iron rod was lying in front of the tandoor of the Hotel of accused Imran and that accused Imran was not present at that FIR No.691/2014 PS Ambedkar Nagar State Vs. Ahasan & Ors. Page No.10 of 20 time. He further deposed that he seized the said iron rod at the instance of complainant. He affirmed the suggestion that he did not take the signature of the complainant or the beat staff on the seizure memo nor he joined any public person at the time of seizure of said iron rod. He denied the suggestion that no quarrel had taken place between the complainant and the accused persons and therefore, accused persons did not receive any injuries in the incident. He also denied the suggestion that quarrel had occurred on account of a property dispute between complainant PW1 Fakre Alam and his brother PW4 Gauhar Alam on one side and PW5 Javed and PW3 Aas Mohd. on the other side.
15. PW4 Gohar Alam also deposed on the same lines as the aforesaid witness. In his cross-examination, he affirmed the suggestion that his father was member of BJP party. He further affirmed the suggestion that his father was known to the members of BJP Party. He further deposed that he do not remember the mobile number of his younger brother Javed as he used to change his mobile number.
16. MLC dated 05.10.2014 of PW3 Aaj Mohd, PW2 Rizwan, PW-4 Gohar Alam, PW-5 Javed Alam were placed on record vide Ex. PW-9/A to Ex. PW-9/D. The MLC of PW-1 Fakre Alam was proved by PW-9 Rajender Singh, Record Clerk as Dr. Apura Pandey, who had prepared his MLC had left the services of AIIMS Trauma Center and his signatures were identified by the said record clerk on the said MLC. PW-10 Dr. E.R. Srikanth, had been examined qua the injury mentioned in the said MLC of PW-1 Fakre Alam, which was placed on record as Mark X.
17. Thereafter, prosecution evidence was closed and statement of accused persons were recorded U/s 313 Cr.P.C vide order dated 10.02.2023.
FIR No.691/2014PS Ambedkar Nagar State Vs. Ahasan & Ors. Page No.11 of 20 Defence Evidence :
18. All the accused persons chose not to lead defence evidence. Defence evidence was, therefore, closed.
Appreciation of Evidence and Findings :
19. It is the case of the prosecution that on 05.10.2014 at about 6.45 p.m., near 'Badi Masjid', Madangir, Phase-II Road, accused persons namely Ahasan, Imran, Salman, Irfan, Nusrat and Shahid formed an unlawful assembly and caused simple injuries to injured Aaj Mohd., Rizwan, Javed Alam, while one of the accused persons i.e. accused Imran hit injured Fakrey Alam with an iron rod on his head.
20. Be that as it may, in order to prove it's case, prosecution had examined injured Fakrey Alam as PW1. He had deposed that on the day of the incident at about 6.45 p.m., when his younger brother PW5 Javed was parking a car on the road near 'Masjid', accused Imran (who used to run a 'Dhaba' on the road) raised an objection and when his brother PW5 Javed requested him that he would remove the car shortly, accused Imran started beating him. On being informed through mobile phone by his brother, PW5 Javed, PW1 Fakrey Alam, immediately reached at the spot alongwith his cousin brother i.e. PW2 Rizwan and his friend i.e. PW3 Aas Mohd. He testified that they saw that injured/PW5 Javed was being beaten by accused Imran with brick and when he tried to intervene, accused Imran also called accused Shahid, Salman, Nasrat, Irfan and Ahasan, who were present near the 'Dhaba' where the car was parked by PW5 Javed (younger brother of PW1 Fakrey Alam). He had categorically deposed that accused Shahid was carrying an iron rod (used for cooking 'Seek Kabab') and accused Imran took the iron rod from the hands of accused Shahid and hit FIR No.691/2014 PS Ambedkar Nagar State Vs. Ahasan & Ors. Page No.12 of 20 the same on the head of PW1 Fakrey Alam while accused Shahid and Salman started beating PW4 Gohar Alam (his younger brother). As per his testimony remaining accused persons also started beating his brothers with stones. The said witness had correctly identified all the accused persons in the court as the perpetrators of the alleged offences. The said testimony is also corroborated by the testimony of PW2 Rizwan, PW4 Gauhar and PW5 Javed. In fact, the said testimonies of injured persons is also supported by the complaint given by PW1 Fakrey Alam to the police on 05.10.2014 at about 8.30 p.m. placed on record vide Ex.PW1/A.
21. Ld.Counsel for accused persons had tried to assail the testimonies of the aforesaid witnesses on the ground that no public witness had been joined as a witness at the time of alleged recovery of the iron rod or at the time of arrest of accused persons even though, the incident is stated to have taken place in a thickly populated area. Be that as it may, it is well settled that non-joining of public witness does not impeach the case of the prosecution if it is duly supported by ocular evidence such as that of injured persons in the present case, as aforementioned.
22. Ld.Counsel for accused had further argued that there was considerable delay in registration of FIR in the present case and that the alleged incident took place at about 6.40 p.m. while the ruqua was sent at about 8.30 p.m. However, perusal of the MLC of the said injured persons namely PW3 Aaj Mohd, PW2 Rizwan, PW4 Gohar Alam, PW5 Javed Alam and PW1 Fakre Alam dated 05.10.2014 placed on record vide Ex.PW9/A, Ex.PW9/B, Ex.PW9/C, Ex.PW9/D and Mark X shows that they were medically examined from 7.26 p.m. to 7.32 p.m. on 05.10.2014 while injured Javed Alam was also examined on 06.10.2014 at about 2.40 p.m. Thus, it is evident that between preparation of ruqua and registration of FIR, the victims were being medically examined FIR No.691/2014 PS Ambedkar Nagar State Vs. Ahasan & Ors. Page No.13 of 20 and therefore, it cannot be said that there was considerable delay in registration of FIR.
23. Furthermore, Ld.Counsel for accused persons had argued that as per the testimony of PW1 Fakrey Alam, the place of occurrence was near the 'Dhaba' while as per the testimony PW8 SI Satyavir, the place of incident was in front of Badi Masjid. It was thus, argued that there is a material contradiction in the testimonies of aforesaid witnesses. Be that as it may, perusal of testimony of PW5 Javed Alam shows that he had categorically stated that he was parking his vehicle near 'Badi Masjid' and accused Imran used to run a 'Dhaba' at a distance of 10 meters from the place where he had parked his vehicle. Thus, it is apparent that the place of incident was near 'Badi Masjid' as well as 'Dhaba' and therefore, considering the place of occurrence either near the 'Dhaba' or 'Badi Masjid' would be an anomaly. Therefore, there is no material contradiction regarding the same and the arguments raised by Ld counsel for accused persons is without any merits.
24. Ld.Counsel for accused had further argued that as per the testimony of PW1 Fakrey Alam, he had gone to PS on the day of the incident, at about 10.30 p.m., however, FIR was registered at about 9.00 p.m. and that the said discrepancy casts a doubt on the case of the prosecution. Be that as it may, perusal of the record shows that the information was received at the PS regarding the alleged incident at about 6.45 p.m. on 05.10.2014 and ruqua was sent at about 8.30 p.m. as is evident from the ruqua placed on record vide Ex.PW6/B, and the same time has also been recorded in the FIR vide Ex.PW6/A. The fact that the testimony of PW1 was recorded on 15.07.2017 nearly three years after the incident can not be lost sight of and minor contradictions are bound to occur. In fact, he had also stated that he did not remember the time when he left the PS and he did not remember when he had first met the IO. Thus, it is apparent FIR No.691/2014 PS Ambedkar Nagar State Vs. Ahasan & Ors. Page No.14 of 20 that the memory of the said witness had faded away with time and he was unable to tell the exact time when he had gone to the PS or had left the PS. Therefore, the same cannot be considered as material contradiction in light of the other documentary evidence such as FIR and MLC placed on record and in view of the said MLC placed on record, the same does not impeach the testimonies of the injured persons as aforementioned.
25. Furthermore, the prosecution had relied upon the MLCs of victim and as per the said MLCs, the victims had suffered 'simple injuries' on the date of incident. Specifically PW-1/injured Fakre Alam had suffered 'laceration over forehead, right parietal region'; injured/PW-3 Aaj Mohd had suffered 'abrasion over left leg below knee', injured/PW-2 Rizwan had suffered 'laceration 3x1 cm on left frontal region'; injured/PW-4 Gohar Alam had suffered 'laceration on occiput of size 3 cm x ¼ cm'; injured/PW-5 Javed Alam suffered 'laceration on left leg below knee 2 x 2 cm'.
26. Ld counsel for the accused persons had further argued that PW-3 Aaj Mohd had not supported the case of the prosecution and as per his cross-examination recorded on 03.01.2023, he had deposed in favour of the prosecution, in his examination in chief recorded on 05.12.2015, at the instance of the complainant. Be that as it may, perusal of the record shows that in his examination in chief recorded on 05.12.2015, the said witness had specifically supported the case of the prosecution and had deposed that PW-5 Javed was beaten up by accused Imran and when he and PW-1 Fakre tried to intervene, brothers of accused Imran and his friends reached there and started beating them with stones and accused Imran hit PW-1 Fakre Alam with an iron rod, which he had taken from the hands of accused Shahid. Perusal of the record shows that the cross-examination of the said witness remained NIL, despite opportunity being given on 05.12.2015 and only after an application U/s 311 FIR No.691/2014 PS Ambedkar Nagar State Vs. Ahasan & Ors. Page No.15 of 20 CrPC was moved on behalf of accused persons and was allowed vide order dated 07.04.2016 passed by Ld predecessor, the said witness was re-called and was cross-examined on 03.01.2023 i.e. about 8-9 years after the incident. Thus, it appears that the said witness was won over by the accused persons during the lapse of 8-9 years. However, the same does not impeach the case of the prosecution as other material witnesses as aforementioned had supported the case of the prosecution.
27. Thus, from the aforesaid facts and testimonies of material witnesses/injured persons and the said MLCs placed on record, it stands established that the accused persons had reached at the spot at the alleged time of incident and had inflicted injuries on the injured persons as aforestated.
28. Ld counsel for the accused persons had, however, further argued that the requisite ingredients to form an unlawful assembly do not stand satisfied and the accused persons cannot be held liable for the same. It had been further argued that as per the testimony of PW-5 Javed Alam, he had called his brother i.e. PW-1 Fakre Alam and he came to the spot, however, no exact time of the said call was mentioned by him in his testimony.
29. Be that as it may, the said argument raised by Ld counsel for accused persons is, in fact, without any merits. Perusal of the record shows that altercation on parking between PW-5 Javed Alam and accused Imran is stated to have taken place at about 04:45 PM and in fact, the FIR i.e. PW6/A mentions the time of incident as 06:45 PM. Thus, it is apparent that the said incident whereby injuries were inflicted upon the injured persons by the accused persons took place between 04:45 PM and 06:45 PM. The exact time at which PW-5 Javed had called for help from his brothers is thus immaterial.
30. In fact, the formation of unlawful assembly as defined under section 141 IPC is not dependent on concurrence of time of reaching of accused persons at the FIR No.691/2014 PS Ambedkar Nagar State Vs. Ahasan & Ors. Page No.16 of 20 spot and is, in fact, dependent upon the object for which it is formed, as is explicit from section 141 IPC which is reproduced as under :
" An assembly of five or more persons is designated an 'unlawful assembly', if the common object of the persons composing that assembly is - xxxxx xxxxx Third- To commit any mischief or criminal trespass, or other offence'. Fourth - Xxxxx Fifth - xxxxx
31. In fact, as per section 142 IPC, where a person is a member of such unlawful assembly, he is liable to be punished U/s 143 IPC.
32. Reliance can be placed on Gangadhar Behera and Others Vs. State of Orissa Appeal (CrL.) 1282 of 2001 decided on 10.10.2002, where by Hon'ble Supreme Court had held that ' The common object is as set out in Section
141. It is not necessary to prove overt act against a person who is alleged to be a member of an unlawful assembly. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should be all 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 member may just join and adopt it.'
33. Moreover, where violence and forced is used by such unlawful assembly, in prosecution of their common object, each member of such assembly can be held liable for committing rioting within the meaning of section 146 IPC and where a person is armed with deadly weapon during commission of rioting, he can be held liable under section 148 IPC (rioting, armed with deadly weapon).
FIR No.691/2014PS Ambedkar Nagar State Vs. Ahasan & Ors. Page No.17 of 20
34. In the instant case, from the testimonies of aforesaid witnesses placed on record, it is culled out that the accused persons had gathered together, at a mere exhortation of accused Imran and all the accused persons, who were available near the spot of occurrence reached there within minutes and joined accused Imran in his object, which was to cause fatal injuries not only to PW-5 Javed but also his brothers/neighbour, who tried to intervene. It is apparent from the aforementioned MLCs placed on record of the injured persons that the accused persons inflicted injuries on each of the injured persons mostly on vital parts of the body, in furtherance of their object, which became common to all the accused persons within minutes. Perusal of the aforesaid MLCs of PW-1 Fakre Alam ( Mark X), PW-2 Rizwan ( Ex. PW9/B), PW-4 Gohar Alam (Ex. PW9/C) shows that they all had suffered injuries on or near the head region. In fact, perusal of the statement/complainant given by PW-1 Fakre Alam dated 05.10.2014 shows that he had categorically stated that without even having a conversation with them, accused persons had started beating them with stones and bricks. Moreover, as per his statement, accused Shahid had brought the iron rod, which accused Imran used to inflict injuries on him . The fact that PW-1 Fakre Alam was not even involved in an altercation regarding parking and even then accused Shahid came prepared with an iron rod, which was used by accused Imran shows that they had a common object to inflict fatal injuries on PW-1 Fakre Alam and his brothers.
35. Thus, it is apparent that the accused persons had attacked the injured persons, probably due to some prior enmity between the parties and they all had participated in beating each of the injured persons. Specifically, accused Imran took an iron rod from accused Shahid and inflicted an injury on the head of PW1 Fakre Alam. Thus, they all had knowledge that the said inquiry caused by him on the head of PW1 Fakre Alam by accused Imran could have proved FIR No.691/2014 PS Ambedkar Nagar State Vs. Ahasan & Ors. Page No.18 of 20 to be fatal. The intention of accused persons to attempt clupable homicide of PW1 Fakre Alam is evident from the use of an 'iron' rod that too on vital part i.e. head of the body of PW1 Fakre Alam. Moreover, the manner in which the accused persons had gathered and overpowered the injured persons shows that they had intention to give shape to their nefarious design with the motive of vindictiveness.
36. In fact, it had been contended on behalf of the accused persons that due to some political rivalry between the accused persons and injured persons, accused persons had been falsely implicated in the present matter. However, it is a matter of record that no evidence had been led by the accused persons to that effect. Furthermore, the fact that accused Shahid was already carrying an iron rod and accused Imran took it from him to inflict injuries on PW-1 Fakre Alam is a relevant fact and shows common object of accused persons in inflicting injuries on vital part of PW-1 Fakre Alam i.e. head and their knowledge that the said injury could have proved to be fatal as aforementioned. Thus, from the aforesaid facts, it is apparent that not only all the accused persons were a member of the said unlawful assembly, but they also concurred in their design to inflict fatal injuries on PW-5 Javed and his brothers, which was done with a dangerous weapon i.e. iron rod as well bricks and stones which were seized by the police vide Ex. PW7/A and PW7/B respectively.
37. Therefore, in view of the aforesaid facts, prosecution has proved it's case against the accused persons beyond reasonable doubt that the accused persons were a member of unlawful assembly and they used force/violence being the member of the same, thereby committing rioting within the meaning of section 146 IPC and in pursuance of their common object, they caused hurt to PW-3 Aaj Mohd, PW-2 Rizwan, PW-5 Javed Alam and they also attempted to FIR No.691/2014 PS Ambedkar Nagar State Vs. Ahasan & Ors. Page No.19 of 20 commit culpable homicide of PW-1 Fakre Alam. In respect of accused Imran, the prosecution has also proved that at the time of commission of rioting, being the member of the said unlawful assembly, he was armed with a deadly weapon i.e. an iron rod and he used the same to attempt culpable homicide of PW-1 Fakre Alam.
38. In view of the aforesaid facts, the accused persons Ahsaan, Imran, Salman, Irfan, Nusrat, Shahid are hereby convicted for the offence U/s 143 IPC ( being member of unlawful assembly), U/s 147 IPC (rioting), U/s 323 IPC r/w section 149 IPC (voluntarily causing hurt being member of unlawful assembly), U/s 308 IPC r/w section 149 IPC (attempt to culpable homicide being member of unlawful assembly). Further, accused Imran is also convicted for the offence U/s 148 IPC (rioting, armed with deadly weapon).
39. Copy of judgment be given to the convict free of cost.
ANNOUNCED IN OPEN COURT MANISHA Digitally signed by
MANISHA KHURANA
on 17.05.2023 KHURANA KAKKAR
Date: 2023.05.19
KAKKAR 17:43:17 +0530
(MANISHA KHURANA KAKKAR)
ASJ (FTC) - 01, SOUTH DISTRICT
SAKET: NEW DELHI
FIR No.691/2014
PS Ambedkar Nagar
State Vs. Ahasan & Ors. Page No.20 of 20