Delhi District Court
State vs . Trikal Singh Etc. on 14 July, 2014
IN THE COURT OF SH. ASHOK KUMAR, METROPOLITAN
MAGISTRATE (SOUTH EAST) 07, SAKET COURTS, DELHI
STATE Vs. TRIKAL SINGH ETC.
FIR No: 80/2011
U/s: 147/148/149/186/332/353/324/427 IPC
PS: K.M. Pur
JUDGMENT
a The Sl. No. of the case : 48/01/2014
b The date of commission : 26.03.2011
c The date of Institution of the case : 25.05.2011
d The name of complainant : Sh. Ramender Singh Sirohi
e The name of accused 1. Ajay Kumar Jha @ Pappu @
Rohit S/o Narayan Jha R/o Near
Platform No. 1, Jhuggi at
Railway Station Sewa Nagar,
K.M. Pur, New Delhi.
(Accused already declared
Juvenile vide order dated
27.05.2011)
2 Trikaal Singh S/o Mani Raam
R/o Near Platform No. 1, Jhuggi
at Railway Station Sewa Nagar,
K.M. Pur, New Delhi.
(Already pleaded guilty and
convicted vide order dated
20.08.2011)
FIR No. 80/11 Page 1 of 26
3 Radha W/o Late Sh. Rohit
R/o Near Platform No. 1, Jhuggi
at Railway Station Sewa Nagar,
K.M. Pur, New Delhi.
4 Hansraj Gupta @ Nikki
S/o Ram Murti Guputa R/o
265/17, Tigri Colonel Farm, New
Delhi.
f The offence complained of : 143/147/148/149/186/324/
332/353/427/34IPC
g The plea of accused : Pleaded not guilty
h Arguments heard on : 14.07.2014
i The final order : Convicted
j The date of judgment : 14.07.2014
BRIEF STATEMENT OF REASONS FOR DECISION:
1 Vide this judgment I will decide the case filed by the prosecution against
the accused namely Radha and Hans Raj herein under sections
143/147/148/149/186/324/332/353/427/34 of Indian Penal Code (hereinafter
IPC). The facts of the case are that both the abovesaid accused persons on
26.03.2011 ( herein after referred as date of incident) at about 03.30PM ( hereinafter referred as time of incident) at Slum Cluster Near Sewa Nagar Railway Platform ( hereinafter referred as spot of incident), along with Ajay Jha (since declared juvenile vide order dated 27.05.2011) Trikal (already pleaded guilty and convicted at Special sitting Tihar Jail on 20.08.2011) & FIR No. 80/11 Page 2 of 26 4050 other unidentified persons, in furtherance of their common objective, assembled, tried to repel by show off criminal force the complainant, his colleagues and the officials of Delhi Police from demolishing the slum cluster at the aforesaid place and further, used force and violence with deadly weapon, in the prosecution of their common object and also causing obstruction to the complainant Sh. Raminder Singh, SI Jagbir, Ct. Jalvir and other staff members of Delhi Police & Railway Department as public servants in discharge of their public functions and also assaulted/used criminal force to the complainant Sh. Raminder Singh, SI Jagbir, Ct. Jagvir and other staff members of Delhi Police & Railway Department, in execution of their duties as such with intent to prevent or deter such public servants from exercising their duties as such public servants and caused simple blunt injury to their person and also caused damaged to one JCB machine No. HR55H9121 exceeding would be Rs. 50 in value and thus thereby committed an offence punishable u/s 143/147/148/149/186/332/353/427/34IPC.
2 Charge was framed against both the afore said under above said provisions on 28.09.2011. The accused persons have pleaded not guilty for the same and claimed trial.
3 Prosecution has examined as many as fourteen witnesses.
PW1 is Raminder Singh, JE, Railway Nizamuddin, New Delhi, who has deposed that on 26.03.2011 he was posted as JE at Railway, Nizammuddin, New Delhi. There was an order for demolishing jhuggies at Dewa Nagar near Railway Station in police protection. He along with Section Engineer Sh. Rajesh FIR No. 80/11 Page 3 of 26 Vaidya went to P.S. Kotla Mubarakpur and thereafter he alongwith aforesaid officials and other railway staff of Office of Railway Protection Force alongwith officials of P.S. Kotla Mubarakpur went to the spot i.e. jhuggies near Sewa Nagar, Railway Station at about 3 pm and one JCB machine was also brought for the demolition work. He has further deposed that when they started demolishing the jhuggies the residents of the jhuggies got agitated and started pelting stones on the JCB machine and on them and by that act one police officer sustained injuries and glass of JCB machine was also got broken. They had informed about the same to SHO P.S. Kotla Mubarakpur and in pursuance of same SHO alongwith other police officials came at the spot around 3.30pm and they again started demolition work. Persons of unlawful assembly/ slum dwellers gathered there and again started pelting stones on the police officers and thereafter they covered all the portion of the spot and removed the jhuggies. He has correctly identified the accused persons to be persons present at the spot alongwith the crowed and has proved his statement given to the police to this effect vide Ex. PW1/A He has also identified the photographs of the JCB machine during recording of his statement as Ld. Counsel for the accused has not disputed the identity of the JCB Machine Further PW1 has also stated that accused persons stated scuffling with railway staff and police officers of P.S. Kotla Mubarakpur and there were 4050 persons at the spot and they have also obstructed the abovesaid public servants in performing their duties.
It is pertinent to mention that the depositions of PW2 Ct. Jagdish, PW3 Ct. Kamlesh, PW5 Ct. Jalvir, PW10 ASI Veer Singh, PW11 SI Mahender FIR No. 80/11 Page 4 of 26 Singh , PW13 Inspector Ajay Vedwal and PW14 Rajesh Vaidya, Sr. Section Engineer are not being discussed here as the testimony of aforesaid witnesses is repetition of the testimony of PW1 and they all have fully corroborated the version as stated by PW1 Raminder Singh in his testimony.
PW12 is SI Vishal Chaudhary who is IO of the case and has deposed that on receiving of DD No. 56 B Ex. PW12/A on 26.03.2011 he alognwith ct. Arvind went to the AIIMS Trauma Centre and collected the MLC of the injured SI Jagbir Singh and thereafter went to the spot where he found complainant Ramender Singh who got recorded his statement, prepared rukka Ex. PW12/B, got the FIR registered through Ct. Arvind, prepared the site plan at the instance of complainant vide Ex. PW12/C, apprehended the accused Trikal alongwith knife and Ajay alongwith steel rod on being handed over to him my Ct. Jagdish and Kamlesh, prepared the sketch of knife vide Ex. PW2/B, seized the knife Ex. PW2/A, recorded statement of both the said constables, thereafter went to the AIIMS hospital again and did not find injured. Then again he came back to the spot alongwith Ct. Jasbir Kaur, met accused Radha there, interrogated her and arrested and conducted personal search of accused Radha vide Ex. PW6/A and PW12/D. PW12 has further deposed that he has also arrested and conducted the personal search of accused Trikal vide Ex. PW2/D and E, seized JCB machine vide Ex. PW12/E, seized the uniform and belt of SI Jagbir vide Ex. PW12/F, recorded statement of owner of JCB machine, recorded statement of witnesses and offers of RPF, collected the MLC from the hospital, got the complaint u/s 195 Cr.P.C from the Officer of Railway, FIR No. 80/11 Page 5 of 26 deposited the case property in the Malkhana of P.S. K.M. Pur, arrested the accused Hansraj and conducted his personal search on 9.6.2011 vide Ex. PW12/G and PW12/H and filed the challan against the accused persons and supplementary chargesheet against the accused Hans Raj. PW12 has also identified the case property knife vide Ex. P1 and police uniform i.e. one banyan, belt belonging to SI Jagbir vide Ex. P2 (collectively). It is also pertinent to mentioned here that the testimony of PW4 Ct. Arvind Kumar is also on the same lines as stated by PW12 hence the same is also not being reproduced here for the sake of repetition.
PW6 is Ct. Jasbir Kaur, who has proved the arrest memo vide Ex. PW6/A whereby accused Radha was arrested.
PW7 is T.U. Siddiqui who has proved the mechanical inspection report of JCB machine vide Ex. PW7/A. PW8 is Umesh Mishra who is driver of the JCB machine and has deposed about pelting of stone on the date of incident at the spot and also deposed about breaking of glass of said machine in said incident.
PW9 is H.L. Mukerja who is owner of the JCB machine and has deposed about taking the same on supardari and has identified the photographs of the said vehicle vide Ex. P1 to P3.
It is also pertinent to mention here that the accused Hansraj and Radha have admitted lodging of the FIR vide Ex. PA/1, MLC of injured Jalvir Singh vide Ex. PA/2, MLC of injured Jagbir Singh vide Ex. PA/3, original complaint u/s 195 Cr.P.C vide Ex. PA/4 in their statement recorded u/s 294 FIR No. 80/11 Page 6 of 26 Cr.PC read with section 313/281 Cr.P.C.
4 Statement of both accused persons was recorded U/s 281/313 Cr.P.C., wherein accused persons have denied all the allegations made against them and took the plea that it is a false case and the witnesses who have deposed in this case are interested witnesses. Both the accused preferred to lead evidence in this defence and examined one Devi Ram who deposed that two accused namely Trikal and Ajay were fighting with each other and the accused persons namely Hans Raj and Radha were his neighbours and were carrying their luggage and household articles and they had not quarreled with police officer in his presence.
5 I have heard Ld. APP for the State, Ld. Defence Counsel, and gone through case file very carefully.
6 The arguments of Ld. APP for the State are that the case against the accused persons is proved beyond reasonable doubt on the testimonies of the prosecution witnesses. Contradictions, if any are very minor in nature. Hence the case against the accused persons is proved beyond reasonable doubts and the they should be convicted.
7 Now I will deal with the arguments of Ld. Defence Counsel. Same is as follows:
(i) The accused have been falsely implicated because they were arrested after a gap of 1 ½ month from the incident even when there were other 40 to 50 people who were alleged to have scuffled with the officials both from the railway department and the Delhi Police. Even otherwise they have FIR No. 80/11 Page 7 of 26 not been identified in the court. Also no case property was recovered from the accused. Further there was no independent witness cited by the police to corroborate the version of the Pws all whom are government servants and interested in the conviction of the accused.
I do not at all agree with the submission with the defence counsel that the accused have been falsely implicated. His submissions that the accused were arrested after such a long gap is partly wrong and against the record. The reason is that that the accused Radha was arrested on the same date of incident and accused Hasraj was arrested on 09.06.2011 because he was absconding when other accused were arrested on 26.03.2014 ( date of incident) and as soon as accused Hansraj was traced out, he was arrested and thereafter on a subsequent date, supplementary challan was filed against him. Hence, it cannot be stated that there is any delay in arresting the accused and that they were wrongly arrested. As far as other people who collected at the spot and not proceeded against this question has nowhere been asked from the IO/PW12 SI Vishal Chaudhary nor the SHO PW13 Insp. Ajay Vedwal. Infact only these accused were identified by the officials who were carrying out the demolition goes on to reflect that there is genuineness in the investigation removing the possibility of false implication. These people have been duly identified by the witnesses in the court who were also present at the spot. As far as the case property is concerned the same have been duly seized by the IO vide seizure memo Ex. PW2/A which is the knife Ex. P1 from accused Hansraj. As far as non joining of independent witness is concerned, the same is only an FIR No. 80/11 Page 8 of 26 irregularity and not a mandatory requirement if otherwise the proceedings of recovery look credible and no case property has been planted on the accused. In view of the law quoted and cited below in the case Madhu and Karamjeet, it is clear that testimony of police officials is not to be looked upon with suspicion just because they are interested witnesses and they are entitled to due credit like any other witness except when anything is shown making their deposition doubtful.
RELEVANT LAW Law relating to evidentiary value of police testimony 8 The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds; Karamjit Singh v. State (Delhi Administration), AIR 2003 SC 1311.
Evidentiary value of the testimony of police officials to recovery. 9 It was held in case of Madhu Vs. State of Karnataka, AIR 2014 SC 394 (Para11) that evidence of police officials as recovery witness is reliable even though large number of people were available if there is nothing on the record to suggest that the testimony of police witnesses is tainted in any manner. 10 Necessary ingredients to be satisfied by the prosecution to establish the FIR No. 80/11 Page 9 of 26 commission of the offence for which the accused have been charged u/s 143,147/148 read with 149 IPC, 186, 353, 332 & 427 IPC are laid down here in under. However before proceeding to specify the same, it is pertinent to mention that prosecution has alleged that the offences u/s 186, 353, 332 & 427 IPC have been committed by all the accused herein with common intention which is provided u/s 34 IPC.
SECTION 143
(i) The accused is a member of as assembly consisting of 5 or more people.
(ii) Such assembly is unlawful for the reason that its common object is that specified in section 141 IPC from clause First to Fifth. SECTION 147 It provides punishment for the offecne of rioting defined u/s 146 IPC. Now the ingredients of section 146 IPC are;
(i) The accused is a member of as assembly consisting of 5 or more people.
(ii) Such assembly is unlawful for the reason that its common object is that specified in section 141 IPC from clause First to Fifth.
(iii) Force or violence is used by the unlawful assembly or by any member thereof in prosecution of the common object. SECTION 148 It provides punishment for the offence of rioting as defined in section 146 IPC if the accused at that time is armed with a deadly weapon or with anything FIR No. 80/11 Page 10 of 26 which used as a weapon of offence is likely to cause death.
The definition of the unlawful assembly which is a common ingredient in section 143 , 147 & 148 IPC has been provided in section 141. Also if any offence is committed by any member of the unlawful assembly for prosecution of the common object of the unlawful assembly then every person who is a member of the unlawful assembly at that time is guilty of the said offence.
Hence being member of the unlawful assembly is the precondition for commision of offence in section 143,147 & 148 IPC. SECTION 186 It provides punishment for obstructing public servant in discharge of public functions. Its ingredients are;
(i) Any public servant is in discharge of public functions.
(ii) During such time the accused has voluntarily obstructed such public servant.
SECTION 353 It provides punishment for assault or criminal force to deter public servant from discharge of his duty. Its ingredients are as follows:
(i) A public servant is in execution of duty as such public servant.
(ii) Any assault is made or criminal force is used to such public servant with intent to prevent or deter that person from discharging duty or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant.
SECTION 332 FIR No. 80/11 Page 11 of 26 It provides punishment for voluntarily causing hurt to deter public servant from his duty. Its ingredients are;
(i) A public servant is in discharge of his duty as such public servant.
(ii)Any hurt is caused to that public servant with intent to prevent or deter that person from discharging duty or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant.
III.Such hurt is caused voluntarily.
SECTION 427 It provides punishment for causing damage by committing mischief to the amount of fifty rupees.
The definition of mischief is provided in section 425 IPC. The ingredients of mischief are as follows;
(i) Any property is destroyed or an act is committed leading to diminishing of its value or utility or affecting it injuriously.
(ii) Wrongful loss or damage is caused to the public or to any person by such destruction or act.
(iii) Such destruction or act is done intentionally or knowingly.
Thus it is clear from the perusal of these provisions that it is a common ingredient of the offence u/s 186, 353 & 332 IPC that any public servant who is in the discharge of his duty as public servant is obstructed or prevented from the discharge of such duty. Hence as a condition precedent this ingredient has to be satisfied by the prosecution for all the said offences besides FIR No. 80/11 Page 12 of 26 other ingredients as above mentioned.
SECTION 34 It is only a principle of constructive liability for offence when an offence is committed in furtherance of common intention. For affixing liability under this section following ingredients need to be fulfilled.
(i) There is some form of participation in criminal act by each of such persons.
(ii) Such act has been done in furtherance of common intention harbored by each of such persons.
If both these ingredients are satisfied then each of such persons will have to bear responsibility of the criminal act or offence as if it was done by that person alone when the act was committed with common intention by the group.
Law relating to burden of proof.
11 It is settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused. Further, it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts to the accused. Also it is a settled proposition of criminal law that the accused is FIR No. 80/11 Page 13 of 26 entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles the accused to acquittal.
12 Now I will discuss whether the ingredients of the charge levelled by the prosecution have been established by the prosecution beyond reasonable doubts or not.
SECTION 143
(i) The accused is a member of as assembly consisting of 5 or more people.
PW1, PW2, PW3, PW5, PW8, PW10, PW11, PW13 & PW14 have clearly deposed that at the time of incident 40 to 50 peoples were present at the spot. This assembly also consisted of the accused herein and are duly identified in the court.
(ii) Such assembly is unlawful for the reason that its common object is that specified in section 141 IPC from clause First to Fifth.
These witnesses have also deposed that this crowd consisting of accused herein and was in an agitated state to resist the demolition work to be carried out by the officials of the railway in cooperation with Delhi Police, was pelting stones at the officials. Hence, it is clear that the said crowd of 40 to 50 peoples collected at the spot with the common object to resist the execution of legal process of demolition. It is clear from the testimony of PW1/complainant posted as JE, Railway Nizammuddin, New Delhi that due notice was served to the jhuggi dwellers one week prior to the date of incident and duly affixed at convenient locations. Photographs of the said notice was also taken. It is also FIR No. 80/11 Page 14 of 26 clear that all these witnesses were public servants who assembled at the spot merely to execute their official duties but they were resisted by the unlawful assembly with the common object to overawe by criminal force the public servants in exercise of their lawful power. Hence, both the ingredients stands fulfilled. Hence the accused are convicted for the offence u/s 143 IPC read with 149 IPC.
SECTION 147 It provides punishment for the offecne of rioting defined u/s 146 IPC. Now the ingredients of section 146 IPC are;
(i). The accused is a member of as assembly consisting of 5 or more people.
This ingredient has already been discussed above and stands proved.
(ii) Such assembly is unlawful for the reason that its common object is that specified in section 141 IPC from clause First to Fifth.
This ingredient has already been discussed above and stands proved.
(iii) Force or violence is used by the unlawful assembly or by any member thereof in prosecution of the common object.
It is clear from the testimony of the above said witnesses that the crowd was pelting stones to resist the demolition work and accused Hansraj was carrying surgical blade, accused Trikal was carrying a knife and accused Ajay FIR No. 80/11 Page 15 of 26 was carrying iron rod who threatened SI Jagbir and he was also stabbed by accused Hansraj. Surgical blade was seized vide seizure memo Ex. PW2/A. Hence, it is clear that force or violence was used in prosecuting the unlawful common object. Hence, all the ingredients for proving the offence u/s 147 IPC read with section 149 IPC stands established and the accused herein are convicted under the said provision.
SECTION 148 It provides punishment for the offence of rioting as defined in section 146 IPC if the accused at that time is armed with a deadly weapon or with anything which used as a weapon of offence is likely to cause death.
It is clear that in prosecution of the common object by the unlawful assembly, SI Jagbir was attacked with the knife which was seized vide seizure memo Ex. PW2/A as also PW5 Ct. Jalbir who sustained injury on his face and shoulder due to pelting of the stones. The MLC of the injured Ct. Jalbir and SI Jagbir are Ex. PA/2 and PA/3 respectively. Hence, it is clear that the accused herein were also armed with deadly weapon to further the common object of the assembly and hence, the accused persons are also liable for punishment u/s 148 as this offence has also been established and the accused persons stand convicted u/s 148 IPC read with 149 IPC.
SECTION 186 It provides punishment for obstructing public servant in discharge of public functions. Its ingredients are;
FIR No. 80/11 Page 16 of 26
(i) Any public servant is in discharge of public functions.
It is clear from the evidence of all the prosecution witnesses who deposed to the incident that they were public servants. Even otherwise this point has not been controverted by accused neither in the cross examination of said PWs nor this point has been taken up in the final arguments.
(ii) During such time the accused has voluntarily obstructed such public servant.
All the prosecution witnesses namely PW1,2,3,5,8,10,11,13 and 14 who were present and were witness to the incident have stated that the accused persons among the assembled crowed were pelting stones and scuffled with the officials thus obstructing such public persons in performance of their duties. No contradictions by the counsel for accused could be brought to contradict this fact alleged by the PWs. It is clear that due notice was given before the demolition as above mentioned and the public servants have complied with due procedure of the law before carrying out the demolition. Hence both the ingredients have been proved beyond reasonable doubt. Therefore, the accused are convicted for offence u/s 186 IPC read with 149 of IPC as it is clear that all the accused participated in the said act with common object. Here it is pertinent to note that vicarious liability was invoked in order of framing of charge on 28.09.2011 u/s 34 for offence u/s 186 IPC but as per facts coming on record, it is made clear that these offences were committed with FIR No. 80/11 Page 17 of 26 common object. As per CrPC and settled law accused can be convicted with help of section 149 IPC instead of section 34 IPC, if there is no prejudice to them. As accused were made aware of substantial charge right from beginning, it can be stated that they did not suffer any prejudice.
SECTION 353 It provides punishment for assault or criminal force to deter public servant from discharge of his duty. Its ingredients are as follows:
(i) A public servant is in execution of duty as such public servant.
This ingredients has already been discussed above and stands proved.
(ii) Any assault is made or criminal force is used to such public servant with intent to prevent or deter that person from discharging duty or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant.
As far as this ingredients is concerned, as above mentioned the accused persons among the assembled crowed were pelting stones and scuffled with the officials thus obstructing such public persons in performance of their duties. No contradictions by the counsel for accused could be brought to contradict this fact alleged by the PWs. It is clear that due notice was given before the demolition as above mentioned and the public servants have complied with due procedure of the law before carrying out the demolition. Hence both the ingredients have been proved beyond reasonable doubts. FIR No. 80/11 Page 18 of 26 Therefore, the accused are convicted for offence u/s 353 IPC read with 149 of IPC as it is clear that all the accused participated in the said act with common object. Here it is pertinent to note that vicariously liability was invoked in order of framing of charge on 28.09.2011 u/s 34 for offence u/s 353 IPC but as per facts coming on record, it is made clear that these offences were committed with common object. As per CrPC and settled law accused can be convicted with help of section 149 IPC instead of section 34 IPC, if there is no prejudice to them. As accused were made aware of substantial charge right from beginning, it can be stated that they did not suffer any prejudice. .
SECTION 332 It provides punishment for voluntarily causing hurt to deter public servant from his duty. Its ingredients are;
(i). A public servant is in discharge of his duty as such public servant.
This ingredients has already been discussed above and stands proved.
(ii)Any hurt is caused to that public servant with intent to prevent or deter that person from discharging duty or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant.
It is clear from the evidence of prosecution witnesses namely PW1,2,3,5,8,10,11,13 and 14 who were present and were witness to the FIR No. 80/11 Page 19 of 26 incident have stated that the accused persons among the assembled crowed were pelting stones and scuffled with the officials thus obstructing such public persons in performance of their duties. Also SI Jagbir who was part of police party to ensure law and order was attacked by accused Hansraj from backside with knife and PW5 Ct. Jagbir sustained injuries on his face and shoulder due to the pelting of stones and their MLCs are Ex. PA/2 ( of Ct. Jalbir) and Ex. PA/3( of SI Jagbir). Hence this ingredient also stands proved.
(iii) Such hurt is caused voluntarily.
It is clear from the evidence that such attack from the knife and from the pelting of stones was deliberate and hence caused voluntarily. Hence all the ingredients have been proved beyond reasonable doubt. Therefore, the accused are convicted for offence u/s 332 IPC read with 149 of IPC as it is clear that all the accused participated in the said act with common object. Here it is pertinent to note that vicarious liability was invoked in order of framing of charge on 28.09.2011 u/s 34 for offence u/s 332 IPC but as per facts coming on record, it is made clear that these offences were committed with common object. As per CrPC and settled law accused can be convicted with help of section 149 IPC instead of section 34 IPC, if there is no prejudice to them. As accused were made aware of substantial charge right from beginning, it can be stated that they did not suffer any prejudice.
SECTION 427 FIR No. 80/11 Page 20 of 26 It provides punishment for causing damage by committing mischief to the amount of fifty rupees.
The definition of mischief is provided in section 425 IPC. The ingredients of mischief are as follows;
(i) Any property is destroyed or an act is committed leading to diminishing of its value or utility or affecting it injuriously.
It is clear from the statement of PW8 Umesh Mehra driver of JCB Machine that the unlawful assembly was pelting stones due to which the glass of the said machine was broken and he also sustained injuries. The photographs of the said machine are Ex. P1 to P3 and the mechanical inspection report verifying the damage is Ex. PW7/A duly proved by the Mechanical Inspector/PW7. This clearly would mean that the glass of JCB machine was injuriously destroyed. This clearly was an act of mischief. It is also proved that the accused herein duly identified by all the witnesses were part of the unlawful assembly.
(ii) Wrongful loss or damage is caused to the public or to any person by such destruction or act.
It is also clear from the evidence that the prosecution witnesses who were all officials of government department had duly collected at the spot with the JCB Machine for carrying out the lawful orders of demolition and to resists the said lawful demolition stones were pelted due to which the glass of the JCB machine was destroyed. Hence, there was wrongful loss by FIR No. 80/11 Page 21 of 26 unlawful means to the owner of JCB machine caused by the unlawful assembly which consisted of the accused herein.
(iii) Such destruction or act is done intentionally or knowingly.
It is also clear from the evidence that such destructive act was done intentionally by pelting of the stones. Therefore, the accused are convicted for offence u/s 427 IPC read with 149 of IPC as it is clear that all the accused participated in the said act with the common object to resist the lawful execution of duty by public servant by show of criminal force. 13 Hence, all in all all the charges levelled by the prosecution against the accused stand proved and the accused are accordingly convicted for offence u/s 143,147,148,427,186,332 & 353 read with 149 IPC. Let the accused be heard on the quantum of sentence.
Announced in the open (ASHOK KUMAR)
Court on 14.07.2014 MM07, SOUTH EAST,
SAKET, NEW DELHI,
FIR No. 80/11 Page 22 of 26
IN THE COURT OF SH. ASHOK KUMAR, METROPOLITAN
MAGISTRATE (SOUTH EAST) 07, SAKET COURTS, DELHI STATE Vs. Trikal Singh ETC.
FIR No: 80/2011
U/s: 147/148/149/186/332/353/324/427 IPC
PS: K.M. Pur
ORDER ON POINT OF SENTENCE
Presence : Ld. APP for the State,
Both convicts namely Radha and Hans Raj in person with
counsel Sh. Ajay Sharma.
Vide separate judgment both the accused persons have been
convicted for offence u/s u/s 143,147,148, 427, 186, 332 & 353 read with 149 IPC. Accused Ajay was declared juvenile dated 27.05.2011 and accused Trikal pleaded guilty at proceeding at Tihar Jail and convicted thereupon by Ld. M.M. Viplav Dabas.
Heard on point of sentence.
Ld. APP for the State says that no leniency should be shown in sentencing the convict and maximum sentence should be imposed upon them as provided under law.
Ld. Counsel for convict says that accused Radha has suffered JC for 13 days and accused Hans Raj has suffered 27 days JC in the present case and accused Hans Raj has a family to support consisting of both parents and 5 brothers and the accused Radha is a widow having one daughter. The convict FIR No. 80/11 Page 23 of 26 Hans Raj is scrap dealer by profession and convict Radha takes care of her family. The convict are not a previous convict. Hence both the accused be given benefit of probation as per the Probation of Offenders Act.
I have heard both accused as well as Ld. APP for the State. The purpose of sentencing after conviction is a balancing act. On one hand, punishment should be sufficient to deter the accused not to repeat the offence in future and become a good member in the society. On the other hand, the punishment should not be too harsh which results in accused becoming a hardcore criminal.
In my view convict does not deserve too much leniency and sentencing the convict merely upto the period undergone by them and giving them benefit of probation would be overlooking the gravity of the offence. I am not in favour of releasing the accused on probation as the accused persons have been found guilty to resist the execution of lawful duty by public servant by show of criminal force and by taking the law into their own hands. Hence a message must be conveyed to such anti social elements that such unlawful resistance in a violent manner will not be tolerated against the public servant who come to execute their lawful duty. Such public servant must feel that they have protection of law and the State will come to their aid in discharge of their sovereign functions. On the other hand such anti social elements must know that there is no scope for such unlawful resistance in a healthy democracy and law of land will prevail. They should not have taken the law into their own hand especially when an advance notice was served upon them regarding the FIR No. 80/11 Page 24 of 26 demolition and they could have gone to the court of law to lawfully resists such execution of the duty by the public servant. If even in such situation the public servants are not protected and the anti social elements are allowed to take the law into their own hands then it would sound death knell to the democratic values and law of the land and fear will prevail in the streets. Therefore, deterrent affect must be shown to the prospective evil elements. The conduct of the accused in such circumstances and their response in taking the law into their own hand will be dealt with iron hands to convey a message to the society that law of land has to be given due respect and to reassure the dutiful citizens of our country. Hence, in the facts and circumstances of the case and in order to discourage such conduct it is necessary that sentencing should be in proportion to the illegal and wrongful conduct and accordingly, I sentence both the convicts present herein to a period of maximum six months RI for offence u/s 143 IPC, six months RI for offence u/s 147 IPC, six months RI for offence u/s 148 IPC, ( all such punishment will run concurrently). Further both the convicts are sentenced to a period of maximum three months RI for offence u/s 186 IPC, six months RI for offence u/s 332 IPC, six months for offence u/s 353 IPC and three month RI for offence u/s 427 IPC ( Punishment for offence u/s 186,332,353 & 427 IPC shall run concurrently and separately from the concurrent punishment u/s 143, 147 and 148 IPC as offences u/s 186,332,353 & 427 IPC are distinct offences). Hence, the total punishment is to be suffered for one year in total with benefit of the period already undergone by both convicts in judicial custody. A separate copy of judgment and order on FIR No. 80/11 Page 25 of 26 sentence by provided to Counsel of convicts free of cost. File be consigned to record room subject to furnishing of bail bonds u/s 437 A Cr.P.C.
Announced in the open (ASHOK KUMAR)
Court on 14.07.2014 MM07, SOUTH EAST,
SAKET, NEW DELHI,
FIR No. 80/11 Page 26 of 26