Delhi District Court
State vs . Raj Kumar Bhati & Ors. on 27 February, 2013
IN THE COURT OF SH. M. P. SINGH: MM08/NE : DELHI State Vs. Raj Kumar Bhati & Ors. FIR 290/2000 Sections 147/148/149/186/353/332 IPC & 3/4 of PDPP Act, 1984 PS New Usmanpur UID no. 02402R002582001 JUDGMENT
Serial No. of the case '147/03/12
Date of commission of offence '27.10.2000
Date of institution of the case '13.02.2001
Name of the complainant SI Ajay Gautam
Name of accused, parentage & address 1.Raj Kumar Bhati s/o Khilar Singh r/o A501, 4th Pusta,
Kartar Nagar, Delhi.
2.Chander Shekhar s/o Khichhu Lal r/o J36, Gali1,
Kartar Nagar, 4th Pusta,
3.Dharmender Kumar s/o Shanker Singh r/o J159, Gali
8, 4th Pusta, Kartar Nagar, Delhi
4.Om Prakash Tiwari s/o Pratap Tiwari r/o J28/84A, Gali
- 8, 3 ½ Pusta, Kartar Nagar, Delhi.
5.Satish Tiwari s/o Shiv Prakash Tiwari r/o A344, Gali -
3, near Adhura Mandir, South Gamri, Delhi 53 (already
convicted on his plea of guilt)
Offence complained of or proved Sections 147/148/149/186/353/332 IPC & 3/4 of
Prevention of Damage to Public Property Act, 1984
Plea of the accused Pleaded not guilty
Final order Accused Dharmender and Om Prakash Tiwari are
acquitted of all the charges.
Accused Raj Kumar Bhati and Chander Shekhar are
acquitted of offences u/s 4 PDPP Act, 1984 and sec. 148
IPC; however they are convicted of offences u/s
147/186/353/332 IPC & section 3 (1) of PDPP Act, 1984
r/w sec 149 IPC.
Date of Judgment '27.02.2013
FIR 290/2000 PS New Usmanpur Page 1 of 13
BRIEF REASONS FOR THE DECISION (u/s 355 CrPC)
1. SI Ajay Gautam is the complainant in this case. On 27.10.2010 on receipt of DD no. 8A, at about 12:35 pm he along with Ct. Bijender reached at 4th Pusta, Main Pusta Road. Over there a crowd of about 150200 persons had blocked the road. SI Ajay Gautam made enquiries about it. Raj Kumar Bhati, who was in the crowd and whom SI Ajay Gautam knew from before him, informed him that post mortem of one Manish had not yet been done, and that his dead body had not been handed over as yet. He also stated that the culprits responsible for demise of Manish had not been arrested as yet and therefore an agitation had been called for, the shops had been closed and the traffic had been blocked. He was made to understand that the post mortem of the deceased could not be got done on account of holiday due to diwali festival. He was also made to understand that post mortem would be got done on that day itself and thereafter the dead body would be handed over to the relatives. He was also told that Delhi Police was making all efforts to nab the culprits and that they would be apprehended shortly. He was impressed upon not to create road blockage as the public persons were suffering. But Raj Kumar Bhati did not pay any heed to such a request. He, in order to instigate the crowd, started raising slogans against Delhi Police and said that they would stay put over there and that nobody could remove them from there. He was then told that the crowd would be declared an unlawful assembly. However, accused Raj Kumar Bhati and his associates Chander Shekhar and Satish Tiwari did not budge from their stand. They continued to instigate the crowd and declared that they would stay put over there. Thereafter SI Ajay Gautam sent a request for some more force. Senior officers were FIR 290/2000 PS New Usmanpur Page 2 of 13 informed. Soon thereafter, M. S. Sapra ACP Seelampur, Insp. S. N. Pandey SHO Seelampur, Insp. Dinesh Tyagi SHO Bhajanpura, Insp. Kali Ram Malik, SHO Khajoori Khas and Insp. Rajendra Guatam, Addl. SHO Seelampur arrived at the spot with additional force. ACP M. S. Sapra tried to make the crowd understand by telling them it was not appropriate for them to block the traffic and that they should remove themselves from there. The crowd was also told that the police was making sincere efforts to nab the culprits and that SHO PS New Usmanpur had himself gone to the GTB Hospital for the purpose of getting the post mortem conducted. This had the desired effect upon the crowd and they started dispersing from there gradually. However, this proved to short lived. Very soon accused Raj Kumar Bhati with his associates Chander Shekhar and Satish Tiwari and few other persons, again started instigating the crowd and stated that it was not the time for them to take a back seat or be scared. They then urged the persons forming the assembly to once again gather in the gali in the Pusta. Accused Raj Kumar Bhati, Chander Shekhar and Satish Tiwari are alleged to have picked up stones and exhorted the crowd to pelt stones at the police party. They then allegedly pelted atones at the police party. ACP Seelampur addressed the crowd and declared it to be an unlawful assembly and exhorted it to disperse. However, the crowd continued to pelt stones at them. Thereafter tear gas shells were fired. Crowd dispersed. Insp. Dinesh Tiwari, HC Krishan Pal, Ct. Brij Bhan, Ct. Vinod Kr., Ct. Rewati and Ct. Bijender are alleged to have sustained injuries in the melee. Motorcycle DL1SK 2228 of Delhi Police was damaged in the incident. Photographer was called and he took photographs of the spot. FIR was registered.
2. As per the MLC Ex. PW14/B, Ct. Rewati did not sustain any injury. Insp. Dinesh Tiwari (MLC Ex. PW14/A) had sustained tenderness and abrasion over left leg. Ct. Vijender FIR 290/2000 PS New Usmanpur Page 3 of 13 (MLC Ex. PW14/C) had tenderness over his left calf. Ct. Vinod (MLC Ex. PW14/D) also had tenderness. HC Krishan Pal (MLC Ex. PW14/E) had tenderness over right calf. Ct. Brij Bhan (MLC Ex. 14/E) had mild tenderness. Sanction under section 195 CrPC (Ex. PW1/A) was obtained. On conclusion of investigation, chargesheet was filed.
3. To a charge for offences under sections 147/148/149/186/353/332 IPC & 3/4 of Prevention of Damage to Public Property Act, 1984 accused persons pleaded not guilty. Prosecution examined 14 witnesses. These witnesses are as follows: 1) PW1 M. S. Sapra, ACP Seelampur; 2) PW2 Insp. S. N. Pandey; 3) PW3 Ct. Brij Bhan; 4) PW4 Insp. Dinesh Tiwari; 5) PW5 Insp. Kali Ram Malik; 6) PW6 SI Ajay Gautam; 7) PW7 Ct. Vinod; 8) PW8 Ct. Rewati Prasad; 9) PW9 ASI Inderjeet, duty officer; 10) PW10 HC Padam Singh, photographer; 11) PW11 HC Vijender; 12) PW12 Ballu; 13) PW13 SI Sahab Singh; and, 14) PW14 Dr. R. K. Nagar.
4. Examined under section 313 CrPC accused persons alleged false implication and claimed innocence. It was their stand that they were not part of the unlawful assembly. Accused Raj Kumar Bhati had stated that he was lifted from his house in the evening as he was connected with a political party 'Janta Dal' and that the people of the locality and the police officials knew him very well due to which he was falsely arrested. Accused Chander Shekhar stated that he was running a shop of artificial jewellery in Sadar Bazar and that the police arrested him after he had closed his shop and was on his way therefrom to his house. Accused Dharmender and Om Prakash Tiwari stated that they had been lifted from their respective shops after 18 days of the incident. They further stated that the police wanted to complete the figure of accused persons and they were therefore arrested. No defence evidence was led.
5. I shall first take up the prosecution case as against the accused Dharmender and Om FIR 290/2000 PS New Usmanpur Page 4 of 13 Prakash Tiwari. The prosecution case against them appears to be on a slippery ground. It is important to note that they were not arrested at the spot of the incident. Rather, they came to be arrested more than 10 days later. The incident took place on 27.10.2000 and their apprehension was effected on 08.11.2000. It is very important to note that in the testimonies of the following five ocular witnesses of the prosecution, there is not even a reference, much less any mention anywhere, about these two accused: 1) PW1 M. S. Sapra, ACP Seelampur, 2) PW2 Insp. S. N. Pandey, SHO PS Seelampur; 3) PW5 Insp. Kali Ram Malik, SHO PS Khajuri Khas; 4) PW7 Ct. Vinod; and, 5) PW8 Ct. Rewati.
6. The other ocular witness PW3 Ct. Brij Bhan during the course of his testimony failed to identify the accused Dharmender and Om Prakash Tiwari. He neither ascribed any role to them. It has been recorded in his testimony, "Other two accused namely Om Prakash and Dharmender shown to the witness. On seeing them he stated that I cannot say whether they were present in the mob or not. It is correct that I cannot identify them due to long time lapse." Therefore, the testimony of this witness does no good to the prosecution case. This leaves us with three other ocular witnesses, who have deposed against these two accused. PW4 Insp. Dinesh Tiwari did not say a word about these two accused in his examination in chief. However, it was only in his crossexamination that he made a mention of these two accused by deposing as follows, "IO did not get identified by me other two accused persons present in the court namely Om Prakash Tiwari and Devender. Vol stated that they were present at the spot. IO did not enquired me about the incident after recording my statement. It is wrong to suggest that accused Om Prakash and Devender were not present at the spot, they were falsely implicated in this case." It is to be noted that in his statement under section 161 CrPC he had not made even a mention about these two accused persons. In his examination in chief too FIR 290/2000 PS New Usmanpur Page 5 of 13 he remained totally silent visavis these two accused. Only in his crossexamination he turned wiser and stated that even they were present at the spot. This is despite the fact that he was deposing a good 7 years and few months after the incident. These two accused, as per the chargesheet and the case put up the police, were not the ring leaders of the mob. Rather they were alleged to be only the tiny foot soldiers in the mob. It is difficult to believe that it may be possible for a person to identify one or two persons, who were not the ring leaders but only the foot soldiers, out of a mammoth crowd of 100200 people and that too after more than 7 years. This is more so when this very witness had some difficulty in identifying the accused Chander Shekhar, who as per the allegations of the prosecution was one of the leaders of the mob. Under these peculiar facts and circumstances, the dock identification of these two accused by the witness PW4 Insp. Dinesh Tiwari inspires no confidence and is not worthy of any credence.
7. PW6 SI Ajay Gautam deposed that accused Om Prakash and Dharmender were arrested on 08.11.2000 on his and Ct. Vijender's pointing out. Similar is the statement of PW11 HC Vijender. He (PW11 HC Vijender) has stated that on 08.11.2000 he along with SI Ajay Gautam joined the investigation and the accused Om Prakash and Dharmender were arrested at their pointing out. He further stated that accused Om Prakash and Dharmender were involved in the incident dt. 27.10.2000 and that they had run away from the spot. What this witness stated inter alia in his crossexamination is veryvery material. In his crossexamination by counsel for accused Dharmender and Om Prakash, he stated, "IO had asked some public persons on 08.11.2000 regarding remaining accused persons, but their statement were not recorded by the IO in my presence." He had also stated, "IO had enquired from the public persons regarding other accused persons, who were indulged in the incident of the present case. The statement of public FIR 290/2000 PS New Usmanpur Page 6 of 13 persons who revealed the names of other accused persons were not recorded by the IO in my presence." It is therefore clear is that as per his testimony, accused Om Prakash and Dharmender were arrested by the police not on the identification of PW6 SI Ajay Gautam and PW11 HC Vijender but on the basis of what was told to them by the public persons. That is to say, they were arrested not on the basis of the fact that they had been identified by PW6 SI Ajay Gautam and PW11 Vijender to be the very same persons who were part of the mob, but on the basis of hearsay information derived from the public persons. The factum of arrest of these two accused on the basis of hearsay information derived from the public persons thus weakens the prosecution case visavis them. It creates a big doubt in the prosecution case as regards these two accused. It works to the advantage of these two accused. They thus deserve the benefit of reasonable doubt. Accused Dharmender and Om Prakash are thus liable to be acquitted of all the offences with which they have been charged . It is ordered accordingly.
8. This leaves us with accused Raj Kumar Bhati and Chander Shekhar. At the very outset, it needs to be stated that in a criminal prosecution when a witness is crossexamined by the opposite party with the leave of the court, it is certainly not that his testimony is washed off altogether. It is for the court to consider and decide in each case whether as a result of such crossexamination and contradiction, the witness stood throughly discredited or could still be believed. It is only when as a result of such cross examination by the prosecution, the prosecution witness stood throughly discredited that his evidence is to be rejected en bloc. In this regard reference can be made to judgment reported as Sat Pal vs. Delhi Administration AIR 1976 SC 294. This judicial dictum was necessary to be stated at the very outset in view of the fact that few of the prosecution witnesses were crossexamined by the prosecution, and this had prompted FIR 290/2000 PS New Usmanpur Page 7 of 13 the defence to strongly urge that inasmuch as the prosecution had crossexamined its own witnesses, the evidence of those prosecution witnesses, who were crossexamined by Ld. APP for State, was required to be rejected outrightly. Secondly, it also needs to be mentioned that the fact that the court did not believe the testimonies of PW6 SI Ajay Gautam and PW11 HC Vijender qua the accused Dharmender and Om Prakash Tiwari being there in the mob, would not mean that their entire testimony would be rendered nugatory. It is to be noted that the principle falsus in uno falsus in omnibus does not apply in India. The fact that the court has disbelieved a portion of testimony of a witness does not ipso facto mean that his entire testimony is effaced.
9. In a criminal trial, two things are required to be determined: (A) Whether any penal offence has been committed? (B) Who was the author(s) of the offence? I propose to first make an endeavor to find an answer to question A and analyze serially the commission or otherwise of the offences alleged by the prosecution.
Section 147 IPC
10. Use of force or violence by a member of an 'unlawful assembly' in prosecution of a common object is recognized as the offence of rioting. An 'unlawful assembly' is statutorily defined u/s 141 IPC. The offence of rioting punishable u/s 147 IPC is defined in section 146 IPC. In the case at hand, six ocular witnesses of the prosecution (PW1 M. S. Sapra, PW2 Insp. S. N. Pandey, PW3 Ct. Brij Bhan, PW6 SI Ajay Gautam PW7 Ct. Vinod, and PW11 HC Vijender) have categorically stated that the mob consisted of about 150200 people. (PW7 Ct. Vinod stated that the crowd was of 100150 people; however this contradiction is too trivial) Three ocular witnesses (PW4 Insp. Dinesh Tiwari, PW5 Insp. Kali Ram Malik and PW8 Ct. Rewati) merely stated that crowd had gathered without specifically stating the number of the people or without stating that FIR 290/2000 PS New Usmanpur Page 8 of 13 their number was more than five. From their testimonies, I have no hesitation in holding that the prosecution has successfully proved on record that on the fateful day a mob, exceeding five persons in count, had gathered at the spot.
11. All the ocular witnesses of the prosecution have categorically stated in their depositions that the mob had blocked the traffic and had pelted stones at the police party. Pelting of stones at the police was done with avowed object to overawe them, who were public servants, in the exercise of lawful power as such public servants. The mob had also committed mischief (damage to the motorcycle) and other offences. They had also by blocking the traffic deprived the public of enjoyment of right of way. Thus one can safely infer that the miscreants constituted an 'unlawful assembly' as defined in section 141 IPC.
12. It has come in the evidence that motorcycle DL1SK 2228 of Delhi Police (govt. property) was damaged in the melee. It has also come in the evidence that force/violence was used by the unlawful assembly in prosecution of the common object. Pelting of stones means that violence was used. Therefore, one cannot escape from the inescapable conclusion that the prosecution has successfully proved that an offence of rioting punishable u/s 147 IPC has been committed in the instant matter.
Section 148 IPC
13. For the offence under section 148 IPC it is imperative that rioters must have been rioting armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause to death. Prosecution has failed to lead any evidence to the effect that the rioters were armed with any weapon leave aside deadly weapons. The prosecution witnesses have simply testified that the rioters pelted stones. However, by no stretch of imagination, a stone can be qualified as a deadly weapon. Thus, the prosecution has FIR 290/2000 PS New Usmanpur Page 9 of 13 failed to prove on record commission of offence u/s 148 IPC.
Sections 186/332/353 IPC
14. For the offence under section 186 IPC a complaint in writing of concerned public servant under section 195 CrPC is necessary. In the case at hand, the complaint under section 195 CrPC (Ex. PW1/A) has been proved by PW1 M. S. Sapra, ACP Seelampur. The ocular prosecution witnesses have in unison testified that the unlawful assembly had pelted stones at the police officials who were there at the spot for the maintenance of law and order and to remove the road blockage as soon as possible. By doing so, the unlawful assembly had also obstructed the police officials from discharging their public functions. The offence under section 186 IPC is clearly made out. Section 353 IPC pertains to assault or use of criminal force to deter public servant from discharging his duty. Pelting of stones is definitely use of 'force' as defined in section 349 IPC. 'Criminal force' (defined in section 350 IPC) means use of force for the purpose of committing an offence, or knowing or intending thereby that injury, fear or annoyance would be caused by use of such force. From the definitions of 'force' and 'criminal force' it is clear that pelting of stones amounted to use of criminal force. Pelting of stones was done with a view to deter the police officials, who were public servants, from discharging their public functions. From the evidence on record, I am of the view that offence under section section 353 IPC is also made out. Section 332 IPC pertains to voluntarily causing hurt to public servant to deter him from discharging his duty. From the evidence on record it emerges that few police officials had sustained injuries. The MLCs (as narrated hereinabove in para 2) reveal that there were injuries, albeit minor injuries, on the persons of some police officials. By pelting of stones such minor injuries can very well be caused. Section 332 IPC is clearly made out. Therefore it can safely be FIR 290/2000 PS New Usmanpur Page 10 of 13 concluded that offences under sections 186/353/332 IPC is made out in the instant matter.
Sections 3/4 of Prevention of Damage to Public Property Act, 1984
15. For the offence under section 4 of the Act it is essential that mischief must have been caused to the public property by fire or explosive substance. In the case at hand, there is no evidence whatsoever to even remotely indicate that unlawful assembly had used fire or combustible substance. None of the witnesses of the prosecution state that the unlawful assembly had used fire or combustible substance. Therefore, section 4 of Prevention of Damage to Public Property Act, 1984 is not attracted.
16. Definition clause (a) of section 2 of PDPP Act, 1984 says that 'mischief' shall have the same meaning as in section 425 IPC. Section 425 IPC contemplates intention as well as knowledge. In the case at hand, ocular witnesses (PW3, PW4, PW5 PW6 and PW11) stated that the govt. motorcycle which was standing over there was damaged due to continuous pelting of stones. PW6 and PW11 stated that the motorcycle which was damaged was DL1SK 2228. PW12 Ballu stated that a police official had come to him and he repaired one motorcycle. He also proved the receipt Ex. PW2/A issued by him for the repair of the motorcycle. He however did not the number of the motorcycle or the date of the repair due to lapse of time; which is insignificant considering the fact that he was coming to depose before the court after a very long time. Therefore, it stands proved that the government motorcycle no. DL1SK 2228 was damaged by the unlawful assembly by pelting of stones. The damage amounting to mischief of the police motorcycle is damage to public property as made punishable under section 3 (1) of PDPP Act. Offence u/s 3 (1) of PDPP Act is clearly made out in the instant case.
Author(s) of the crime FIR 290/2000 PS New Usmanpur Page 11 of 13
17. The identity of the accused constitutes the most important issue in a criminal trial. In cases of mammoth rioting the task becomes all the more onerous as implication of inquisitive spectators and nonchalant bystanders needs to be ruled out. Insofar as the accused Raj Kumar Bhati and Chander Shekhar are concerned, it has consistently come in the evidence of all the ocular witnesses of the prosecution that they, along with Sartish Tiwari, were the ones who were leading the unlawful assembly. It has also come in evidence that these two accused were instigating the crowd and were exhorting it to pelt stones at the police. It has also come in the prosecution evidence that when the crowd was explained by ACP that the post mortem would be done the same day, the crowd started dispersing gradually; but the crowd was again reagitated on the instigation of accused Raj Kr. Bhati, Chander Shekhar and Satish Tiwari to remain put over there. It has also come in the prosecution evidence that the unlawful assembly, of which accused Raj Kr. Bhati and Chander Shekhar were the main players, started pelting stones at their instigation. The contention of Ld. Defence Counsel that the testimonies of police officials cannot be relied upon lacks any statutory force and deserves to be discarded. It has been observed in the matter of Izazul vs. State 2007(4) RCR (Crl.) 315, " Police officials cannot be presumed less or more credible than any other normal public witness..................mere fact that they are police officials does not by itself give rise of any doubt about their creditworthiness ." Therefore the prosecution has proved beyond reasonable doubt that the accused Raj Kumar Bhati and Chander Shekhar were the authors of crime. Thus the prosecution has proved beyond reasonable doubt the offences under sections 147/186/353/332 IPC & section 3 (1) of PDPP Act, 1984 read with section 149 IPC as against the accused Raj Kumar Bhati and Chander Shekhar.
18. Conclusion Accused Dharmender and Om Prakash Tiwari are acquitted of all the FIR 290/2000 PS New Usmanpur Page 12 of 13 charges pressed against them. Accused Raj Kumar Bhati and Chander Shekhar are acquitted of the offences under section 4 PDPP Act, 1984 and section 148 IPC. Accused Raj Kumar Bhati and Chander Shekhar are convicted of the offencess under sections 147/186/353/332 IPC & section 3 (1) of PDPP Act, 1984 read with section 149 IPC.
ANNOUNCED IN THE OPEN COURT M. P. SINGH
ON 27 FEBRUARY, 2013
th
MM/KKD/DELHI
FIR 290/2000 PS New Usmanpur Page 13 of 13