Delhi District Court
State vs Suresh Chand Etc on 5 November, 2009
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FIR No. 115/05
State Vs Suresh Chand etc
05.11.09
Pre: Ld. APP for the state.
Accused/ Convict with counsel Sh. R C Verma and Sh. Ashok
Singal.
Arguments on sentence heard at length vide separate order on
sentence placed along side in the file, convict persons namely 1.Sonu,
2.Rajender Kumar, 3.Mam Chand, 4.Daya Nidhi, 5.Dinesh Giri, 6.Sachin
Gupta, 7.Mohit Kumar, 8.Sanjeev Kumar and 9.Parmod Kumar, 10.Sanjay
Vashisht, 11.Mahesh Chand and 12.Suresh Chand be released on
probation of good conduct for the period of one year on furnishing
personal bond in the sum of Rs.5000/- each with one surety in the like
amount each subject to the payment of Rs.1000/- each as
compensation to the State. Fine paid.
File be consigned to record room.
Raj Kapoor/ ASJ-1/NE
KKD/Delhi
05.11.09
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IN THE COURT OF SH. RAJ KAPOOR, LD. ADDITIONAL
SESSIONS JUDGE-1 (North-East): KARKARDOOMA COURTS:
DELHI
FIR No. 115/05
State Vs Suresh Chand etc
Police Station Khajuri Khas
Under Section 143, 145, 147, 148, 149, 427, 186, 353
& 435 IPC within the meaning of
section 141 IPC
ORDER ON THE POINT OF SENTENCE
05.11.09
Pre: Ld. APP for the state.
Accused/ Convict with counsel Sh. R C Verma and Sh. Ashok
Singal.
During the course of argument ld. counsel for convict persons
submit that convict are poor persons. Ld. counsel again submit that
there is no previous criminal antecedents against any of the accused
persons. Ld. counsel further submits that accused is facing trial since
2005 and they have old age parents to look after. Again it is
submitted one of the accused namely Rajinder is the government
servant. It s also submitted by the counsel that accused / convict
persons are the first offenders. On these grounds ld. counsel for
convict persons request for releasing convict persons on probation of
good conduct.
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Contrary to the submissions of ld. counsel for the convict, Ld.
APP submits that he has no objection if convict are released on
probation of good conduct since they are the first offenders.
Keeping in view of the age, antecedents, individual and family
circumstances of convict persons, their inclinations for improving
behavior in the society and that convict are facing trial by regularly
appearing in the court for trial since 2005; also observing a change of
philosophy of punishment in modern era, changing its orientation from
retribution to restitution, treating the accused as patient who needs
treatment rather than punishment and changing its aptitude from
offence oriented justice to accused, oriented justice from socialistic
approach to individualistic and with the observations that the
compassion to record that no money can compensate the life in any
manner but only solace can be given by way of token of compensatory
justice to the family, in modern era where a philosophy of restitution
has taken a place of the retribution for punishment in criminal justice
system, only for the reasons that the penal punishment by way of
imprisonment may ruin the family of the accused persons, also
expressing a feeling that an order for probation is not appropriate for
such cases in which crime has resulted in loss of life in view of the
observations made in the authority of the Apex Court yet treating the
case of the present accused / convict as a special case that needs a
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sense of passion for the family members of the accused who should
not inclined towards criminality in the absence of accused for his
survival, therefore, the court is of the considered view that it is a fit case
to release the convict persons on probation of good conduct for the
period of one year on furnishing personal bond in the sum of Rs.5000/-
each with one surety in the like amount each subject to the payment of
Rs.1000/- each as compensation to the State.
Accordingly, convict persons namely
1.Sonu, 2.Rajender Kumar, 3.Mam
Chand, 4.Daya Nidhi, 5.Dinesh Giri,
6.Sachin Gupta, 7.Mohit Kumar,
8.Sanjeev Kumar and 9.Parmod Kumar,
10.Sanjay Vashisht, 11.Mahesh Chand
and 12.Suresh Chand be released on
probation of good conduct for the
period of one year on furnishing
personal bond in the sum of Rs.5000/-
each with one surety in the like amount
each subject to the payment of
Rs.1000/- each as compensation to the
State.
ANNOUNCED IN THE OPEN
COURT ON THIS 05.11.09
(RAJ KAPOOR)
ADDL. SESSIONS JUDGE-I/NORTH EAST
KARKARDOOMA COURTS: DELHI
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IN THE COURT OF SH. RAJ KAPOOR, LD. ADDITIONAL
SESSIONS JUDGE - I : North- East / KARKARDOOMA COURTS:
DELHI.
Case ID Number. 02402R0698212005
Sessions Case No. 154/07
Assigned to Sessions. 30.03.06
Arguments heard on 27.10.09
Date of order. 04/11/09
FIR No. 115/05
State Vs 1. Suresh Chand s/o Om Prakash
2. MaheshChand s/o Om Prakash
3. Sanja Vashist s/o Om Prakash
All are r/o H. No. C-6/ 39,
Dayalpur, Delhi.
4. Sonu s/o Ved Prakash R/o Gali
no.3, Ankur Enclave,
KaraalNagar, Delhi.
5. Rajender Kumar s/o Om
Prakash R/o Village Parasara
PS Chandpa Distt. Hathras, UP.
6. Mam Chand s/o Ved Ram, R/o
Village Parasara PS Chandpa
Distt. Hathras, UP.
7. Daya Nidhi s/o Shiv Chand Jha
R/o Village Harlochanpur, PS
Sarai Ramjai Distt. Samastipur,
Bihar.
8. Ganesh Giri s/o Bhagwati
Prasad, R/o H. No. C-33, Ankur
Enclave Karawal Nagar.
9. Sachin Gupta s/o Ramesh
Chand r/o H. No. C-33, Ankur
Enclave, Karawal Nagar.
10.Sanjeev Kumar s/o Fatey
Chand, R/o F-153, Nanak Dairy
Road, Ankur Enclave.
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11.Mohit Kumar @ Neeraj Kumar
s/o Ram Chand R/o Gali No. 3,
Ankur Enclave, Karawal Nagar,
Delhi.
12.Promod Kumar s/o Suresh
Chand, R/o Mohalla Ahir Para
Hathi Wali Gali, Khurja Distt.
Buland Sahar, UP.
Police Station Khajuri Khas
Under Section 143/144/145/147/148/186/353/332
/ 333/427/436 IPC read with 149
IPC
JUDGMENT
1. Briefly facts of the prosecution case are that on the morning of 16.03.2005 some public persons (including children and women) of Ankur Enclave, Karawal Nagar, Delhi assembled at Khajuri Pusta to show their resentment over the death of one Parmeshwar Dyal in Shanti Nagar Police Chowki. They demonstrated and raised anti- slogans against the police . They blocked the traffic. Public persons left the agitation place on knowing that an inquiry order has already been passed into the matter of death of Parmeshwar Dayal.
2. Thereafter, at around 2.15 p.m. when police officials namely ASI Kafil Ahmad, Ct. Suresh and Ct. Vijay were patrolling in the area to watch the situation and for maintaining law and order, accused Sanjay Vashishth, Mahesh and Suresh gathered at Shanti Niketan Public School and formed an unlawful assembly consisting of co- 7 accused persons and some public persons. They started giving hot speech to them by saying that police had killed their man so they should kill the police. At that time accused Sanjay Vashishth was armed with hockey stick, Mahesh and Suresh were armed with clubs while other accused persons were armed with stone pieces, which were deadly weapons and they started quarreling with police officials. In the meantime other police officials under the command of Inspector Veer Singh Tyagi reached at the spot on receiving DD no.20A to control the law and order situation. He found pieces of bricks and stone in the gali as well as on the road. He also found one two wheeler scooter No.DL7S-8645 and one motorcycle NO.DL5SQ-5143 in burnt condition at the spot. On enquiry he came to know that injured officials namely Ct. Vijay Singh, Ct. Ram Kumar, Ct. Bharatvir, Inspector Kishan Lal, HC Vijay Pal, Ct. Rakesh and Ct. Suresh, ASI Kafil Ahmad, ASI Hem Chander had received injuries in the stone pelting and bricks by public persons as well as accused persons were shifted to GTB Hospital by PCR and CAT Ambulance.
3. IO SI Rakesh Kumar recorded statement of ASI Kafil Ahmad regarding the attack upon the police officials. Police official received injuries and vehicles mentioned above were burnt by accused persons. The statement of ASI Kafil Ahmad recorded by the IO is 8 Ex.PW1/A and upon the same he made endorsement vide Ex.PW1/C and got the FIR registered vide Ex.PW1/B. PCR Gypsy No.DL-IV-3437 with the broken wind screen was seized vide seizure memo Ex.PW3/E. Motorcycle No.DL-5S-Q-5143 and two wheeler scooter no. DL-7SH-4645 Bajaj Chetak were also seized from the spot in burnt condition vide Ex.PW3/B and pieces of stones and bricks were also seized vide seizure memo Ex.PW3/C and lathies were seized vide Ex.PW3/D and Ex.PW3/F.
4. Accordingly, accused persons were arrested and booked for the offence us/ 147/148/149/186/353/332/307/427/436 IPC & 3/4 P D P Act by police precisely for the reasons since accused persons namely Suresh Chand and Sanjay Vashist caused injury with the danda and hockey and they also instigated the public persons for throwing stones and bricks upon the police officials resulting into injuries of police officials as well as destruction of afore mentioned motorcycle, two wheeler scooter and police gypsy. Accused Suresh Chand, Mahesh Kumar and Sanjay Vashist along with other public persons were party to an unlawful assembly and voluntarily obstructed police officials as mentioned above in the discharge of their public duties and all of them used criminal force on the public persons (police officials) while they were discharging their duties and caused injuries to them. Accused persons including public persons 9 had formed an unlawful assembly. The purpose of the same was to commit rioting and cause obstruction in the discharge of public duty by the police officials and at the time of aforesaid offence they were armed with deadly weapons and even after the warning they did not leave the spot.
5. After complying with section 207, Ld. MM of the court concerned committed the case to Sessions and the same was received by the court of Sessions vide court order dated 30.03.06. Having heard arguments on charge, the then Ld. ASJ directed to frame a charge u/s 143/144/145/147/148/186/353/332/333/427/436 IPC read with 149 IPC against accused persons to which they did not plead guilty and claimed trial.
6. Thereafter, prosecution has examined 16 witnesses namely PW1 ASI Ram Manohar - formal witness being duty officer, PW2 Ct. Ranjan Singh- material witness being victim, PW3 ASI Kafil Ahmad- complainant as well as victim, PW4 ASI Hem Chand, PW5 Ct. Narender, Pw6 KrishanLal - another victim, PW7 Suresh Kumar - Victim, PW8 Bharat Veer, PW9 Ct. Vijay, PW10 Ct. R K Sharma, PW11 SI Om Prakash, PW12 Ct. Arvind Kumar, PW13 HC Vijay Pal, PW14 Ct. Jagbir Singhj-formal witness, PW15DHG Rakesh Para- hostile witness and PW16 ASI Ashok Kumar (cross- 10 examination was deferred of this witness) hence, testimony of this witness cannot be read in evidence.
7. On careful perusal of the case file and testimonies of all the above witnesses I found two sets of evidence. In one set accused persons have been correctly identified by the witnesses and in other set of evidence, witnesses are unable to identify the accused persons correctly. Other remaining witnesses are formal in nature such as PW1 ASI Ram Manohar who proved the FIR of this case as Ex.PW1/B which he recorded on receiving rukka from SI Rakesh Kumar brought by Ct. Ranjan.
WITNESSES WHO HAVE NOT CORRECTLY IDENTIFIED THE ACCUSED PERSONS.
PW2 Ct. Ranjan has deposed the prosecution story well in mannered but he did not identify the accused persons except accused Sanjay, Mahesh and Suresh. He has correctly identified three accused persons namely Sanjay, Mahesh and Suresh who were arrested after 2 or 3 days of the incident. This witness has been cross-examined at length. I have perused the same. No material contradiction with regard to the incident has come on record.
8. PW4 ASI Hem Chand, is the driver of a PCR Van. He has deposed the facts of the case correctly with regard to the gathering of public 11 persons at Ankur Enclave near Karawal Nagar, Delhi and pelting stones upon the police party on the date of incident but this witness has not identified any of the accused persons since he had not seen the face of the offenders.
9. PW6 Krishan Lal injured person in the incident in question. He appeared in the witness box and stated that on 16.03.05 on receiving information regarding riot at Ankur Enclave he reached there. He stated that public persons were pelting stones on police party and some were having lathi in their hands. He received injuries in his leg due to pelting stone by the mob. Further, perusal of his testimony it is revealed that this witness has not identified any of the accused persons. This witness has been cross-examined at length. I have perused the same.
10.PW10 Ct. R. K. Sharma another injured in the incident in question. On careful perusal of his testimony it is revealed that this witness has been got declared hostile by ld. APP. This witness has not identified any of the accused persons.
11. PW 13 HC Vijay Pal - the most material witness in this case has been got declared hostile by the ld. APP. He did not identify any of the accused persons.
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12.PW15 DHG Rakesh Para appeared in the witness box and stated about the incident in question that public persons were gathered at Ankur Enclave and were pelting stones upon the police party. This witness has been got declared hostile by ld. APP since he did not identify the accused persons except accused Sanjay. This witness has been cross-examined by the defence counsel. He admitted that accused Sanjay Vashist was not arrested in his presence. He further admitted that his name was told to him by the police.
13. PW16 ASI Ashok Kumar gave statement before the court but he did not turn back for cross-examination hence, his cross-examination remained deferred. Therefore, his testimony cannot be read in evidence.
WITNESSES WHO HAVE CORRECTLY IDENTIFIED THE ACCUSED PERSONS.
14.PW3 ASI Kafil Ahmad is the most material witness in this case. He was posted in Khajuri Khas police station. He appeared in the witness box and stated that on 16.03.05 at around 10 a.m. he was present at Pusta Khajuri where public persons were agitating since one Parmeshwar Dayal was died in Police Post Shanti Nagar. They were raising slogans against police. Traffic was blocked by them. Police officials made them to understand and they left the spot. Thereafter, he along with Ct. Suresh and Ct. Vijay was watching the situation to maintain the law and order. They noticed that 13 accused Sanjay Vashisth, his brother Mahesh and Suresh were persuading the public persons against the police. Accused Sanjay Vashisht was having hockey in his hand and his brothers were having dandas in their hands. They were saying that all the police officials are of the same nature and they should be taught a lesson. These accused persons were known to this witness earlier as they were detained by the police. Accused persons were saying that police officials of Shanti Nagar Police Post were responsible for the death of Parmeshwar Dayal and police officials should be finished. The police officials present at the spot tried to pacify the matter but they did not pay heed to them. Sensing the situation, police officials left the spot and reported the matter to Control Room. Consequently, other police staff reached at the spot. Again, this witness along with HC Ashok Kumar and Ct. Rakesh Prashar reached at the spot to pacify the matter but public gathered there attacked the police party. They pelted stones and brick pieces on police. They also attacked with hockey and danda. During this incident this witness received injury on his hand. This witness further deposed that higher police officials also reached at the spot to pacify the matter but mob resisted ultimately tear gas cell were blown and then the mob dispersed. On careful perusal of his testimony it is revealed that he correctly identified all the accused persons who were present in the dock but this witness was unable to identify the accused persons by 14 their specific name due to lapse of time. This witness has proved his statement as Ex.PW3/A which was given to the police. He further testified that he was medically examined. He proved the seizure memo of burnt motor cycle and scooter as Ex.PW3/B, seizure memo of brick pieces and stones as Ex.PW3/C, seizure memo of the lathi as Ex.PW3/D, seizure memo of police gypsy as Ex.PW3/E (damaged by mob), seizure memo of another lathi as Ex.PW3/F. This witness further proved the arrest memo of accused Parmod Kumar as Ex.PW3/G1, of accused Mohit as Ex.PW3/G2, of accused Sanjeev Kumar as Ex.PW3/G3, of accused Sahin Gupta as Ex.PW3/G4, of accused Sonu as Ex.PW3/G5, of accused Mam Chand as Ex.PW3/G6, of accused Ganesh Giri as Ex.PW3/G7, of accused Daya Nidhi as Ex.PW3/G8 and arrest memo of accused Rajender Kumar as Ex.PW3/G9. He again categorically stated that he suffered loss due to burning of his motor cycle in the tune of Rs.30,000/-. He also identified the lathies as Ex.P1 and P2, Hockey as Ex.P and danda as Ex.P4, brick bats and stones as Ex.P5 (Collectively), motor cycle bearing no.DL5 SQ 5143 as Ex.P6 and scooter no. DL 7 SH - 8645 as Ex.P7. This witness has been cross-examined at length. I have perused the same. I found some minor type of contradictions which are attributable due to the long duration of time and memory of a human being. No material contradiction has come on record which can suggest that this 15 witness is false one.
15.PW5 Ct. Narender appeared in the court and stated similar facts as stated by PW3 in his statement with regard to the incident in question that there was gathering of public persons and they were pelting stones upon the police party. He correctly identified nine accused persons who were apprehended at the spot. He also identified the lathies as Ex.P1 and P2, Hockey as Ex.P and danda as Ex.P4, brick bats and stones as Ex.P5 (Collectively), motor cycle bearing no.DL5 SQ 5143 as Ex.P6 and scooter no. DL 7 SH - 8645 as Ex.P7. This witness has been cross-examined at length. I have perused the same. I found some minor type of contradictions which are attributable due to the long duration of time and memory of a human being. No material contradiction has come on record which can suggest that this witness is false one.
16. PW7 Ct. Suresh is the material witness in this case. He appeared in the witness box and affirmed the prosecution story. On careful perusal of his testimony it is revealed that in this incident he suffered injuries on his leg, back and right hand. His index finger of right hand got fractured. This witness was with PW3 ASI Kafil to watch the situation. This witness has correctly identified all the accused persons as culprits who were among the mob. Ld. defence counsel 16 has cross-examined him at length. I have perused the same. No material contradiction has come on record.
17. PW8 Ct. Bharatveer is the material witness who accompanied the SHO Usmanpur to Ankur Enclave, Shanti Niketan, Delhi on the day of incident at around 2.30 p.m. i.e. on 16.03.05. He appeared in the witness box and testified that PCR Van was found damaged. Motor cycle was burning. Accused Mohit, Sachin, Ramesh, Sandeep, Rajinder and some other persons were arrested at the spot. He correctly identified them but he was unable to identify them by name. This witness has been cross-examined at length. I have gone through the cross-examination very carefully. No material contradiction has borne out on record which can go to the root of the case.
18. PW9 Ct. Vijay is the witness who accompanied the complainant PW3 Kafil Ahmad on the day of incident. He affirmed all the facts as deposed by PW3 in his testimony. On careful perusal of his testimony it is revealed that he has correctly identified all the accused persons. He has affirmed that 9 accused persons were apprehended at the spot. This witness has been cross-examined by the defence counsel. In the cross-examination it has come on record that 150-200 public persons were gathered there. Accused 17 Sanjay was known to him as he was wanted in several cases. Further, this witness has denied all the suggestions put by the defence counsel.
19.PW11 SI Om Prakash is a formal as well as material witness. He formally arrested the accused Sanjay on 18.05.05 on surrendering before the court. He recorded his disclosure statement Ex.PW11/A and recovered vide seizure memo Ex.PW11/B, one hockey stick from Sahadatpur at the instance of accused Sanjay. He further stated that on 11.06.05 accused Mahesh was arrested, disclosure statement Ex.PW11/C was recorded and a club was recovered at his instance vide Ex.PW11/D. He further deposed that on 16.06.05 accused Suresh Chand was also formally arrested. He proved the hockey as Ex.P3 and club as Ex.P4. This witness has been cross-examined by the defence counsel. It has come on record that this witness has not collected any evidence to this effect that Ex.P3 and P4 were used in the present case.
20.PW12 Ct. Arvind Kumar has deposed more or less similar facts as deposed by PW11 since he accompanied the PW11 in the investigation.
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21.PW14 Ct. Jagbir Singh is a formal witness in this case. He proved the arrest memo of accused Mahesh as Ex.PW14/A who was arrested on 11.06.05. This witness has been cross-examined by the defence counsel. It has come on record in the cross-examination that nothing was recovered from the accused and that no incident had taken place in his presence.
22.After completion of the prosecution evidence, statements of accused persons u/s 313 Cr. PC were recorded. They have denied all the allegations of prosecution by saying that they are innocent and they have been lifted from their houses. They further deposed that they were not present at the spot on that day. However, accused persons did not lead any defefence evidence except accused Sanjay Vashist, Suresh and Mahesh. They produced one defence witness namely DW1 Prakash Chand who appeared in the court and deposed that on 16.03.05 accused Suresh, Mahesh and Sanjay along with their family were at his house situated in Buland Sahar, UP on 16.03.05 on the occasion of 'Sagai' of his son. He further deposed that they reached at his house on 15.03.05 at around 8 p.m. and remained till 17.03.05 in the noon hours. This witness has been cross-examined by ld. APP. Having gone through the testimony of DW1, I am of the view that his testimony does not come to rescue the accused persons since he has not proved on record any concrete proof 19 regarding his version or the presence of accused persons at his house. If there was any 'Sagai' programme at his house and as per his statement accused persons were with him, so he should have brought a photo or any concrete evidence on record. His testimony is doubtful which is not reliable. Moreover, 5 eye witnesses i.e. PW3, PW5, PW7, PW8, PW9 and PW15 have categorically proved on record that accused persons were present at the spot on the day of incident.
23.Before reaching at any conclusion let the relevant sections 143/144/145/147/148/186/353/332/333/427/436 IPC read with 149 IPC are being re-produced verbatim which are as under :-
Section 143.
Punishment - Whoever, is a member of an unlawful assembly, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.
Section 144 IPC:-
Joining unlawful assembly armed with deadly weapon - Whoever, being armed with any deadly weapon, or with anything which, used as a weapon of offence, is likely to cause death, is a member of an unlawful assembly, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Section 145 IPC:-
Joining or continuing in unlawful assembly, knowing it has been commanded to disperse.- Whoever joins or continues in an unlawful assembly, knowing that such unlawful assembly has been commanded in the manner prescribed by law to disperse, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Section 147 IPC:-
" Punishment for rioting - Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."20
Section 148 IPC:-
" Rioting, armed with deadly weapon- Whoever is guilty or rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine , or with both."
Section 149 IPC:-
" Every member of unlawful assembly guilty of offence committed in prosecution of common object - If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence."
Section 427 IPC:-
" Mischief causing damage to the amount of fifty rupees - Whoever commits mischief and thereby causes loss or damage to the amount of fifty rupees or upwards, shall be punished with imprisonment either description for a term wich may extend to two years, or with fine, or with both."
Section 186 IPC:-
" Obstructing public servant in discharge of public functions - Whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.."
Section 353 IPC:-
" Assault or criminal force to deter public servant from discharge of his duty - Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as a public servant, 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 shall be punished with imprisonment or either description for a term which may extend to two years, or with fine, or with both."
Section 332 IPC:-
" Voluntarily causing hurt to deter public servant from his duty - Whoever voluntarily causes hurt to any person being a public servant in the discharge of his duty as such public servant, or with intent to prevent or deter that person or any other public servant from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by that person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both " .21
Section 333 IPC:-
" Voluntarily causing grievous hurt to deter public servant from his duty - Whoever voluntarily causes grievous hurt to any person being a public servant in the discharge of his duty as such public servant, or with intent to prevent or deter that person or any other public servant from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by that person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine."
Section 436 IPC:-
Mischief by fire or explosive substance with intent to destroy house, etc - Whoever commits mischief by fire or any explosive substance, intending to cause, or knowing it to be likely that he will thereby cause, the destruction of any building which is ordinarily used as a place of worship or as a human dwelling or as a place for the custody of property, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
24.Arguments were heard at length. Ld. counsel for the accused persons Suresh, Mahesh and Sanjay argued and submitted that they were not in Delhi on the day of incident. They have been falsely implicated in this case. Ld. counsel again argued and submitted in respect of rest of the accused persons that they were lifted from their houses and they have been falsely implicated in this case. Ld. counsel again argued that identification by all the witnesses is not reliable as they have not specifically identified any of the accused persons. He argued that they have identified the accused persons in mechanical manner since accused persons were standing in the dock. Ld. counsel for accused persons further argued that accused persons are innocent and they have been falsely implicated in this case. He again argued that there is no public witness in this case to 22 the effect of arrest of accused persons and subsequent recovery of articles. All the case property have been planted upon the accused persons by the police. He further argued that most of the material witnesses have not identified any of the accused persons and they have been got declared hostile by ld. APP. Rest of the witnesses are interested witnesses. On these grounds ld. counsel for accused persons submitted that accused persons are entitled for acquittal.
25.Ld. APP, per contra, argued and submitted that prosecution has successfully proved its case beyond reasonable doubt against all the accused persons since PW3 ASI Kafil Ahmad, PW5 Ct. Narender, PW7 Ct. Suresh, PW8 Ct. Bharatveer, PW9 Ct. Vijay, PW11 SI Om Prakash and PW12 Ct. Arvind have correctly identified all the accused persons. They have proved the involvement of all accused persons in this case. Ld. APP further argued and submitted that accused persons assaulted upon the police party with stones and other material, while police officials were discharging their official duties. All the ingredients of alleged sections have been proved on record. Accused persons have also damaged the government property i.e. Gypsy no. DL IV - 3437 by breaking the wind screen. They have also burnt one motor cycle and one scooter. Ld. APP further argued that the accused persons have disturbed the peace of the area and caused panic.
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26.In this case the most material is PW3 Kafil Ahamd who in his deposition has clearly deposed that accused Suresh and Mahesh had set fire to the alleged burnt motor cycle and two wheeler scooter. He has also identified accused Suresh Chand and Mahesh Kumar in this regard. It has also been deposed by him that accused Suresh and Sanjay Vashist caused injuries with danda and hockey and they also instigated the public persons for throwing stones and bricks upon the police officials resulting into injury of police officials as well as destruction of motor cycle n/ DL5 S-Q - 5143 and two wheeler no. 4645 and also seized from the spot in burnt condition vide Ex.PW3/B and pieces of stones and bricks were also seized vide Ex.PW3/C and lathi was seized vide Ex.PW3/D and F respectively. In view of this deposition the contention of ld. counsel that deposition of PW3 cannot be read on account of deferring his statement, is not sustainable therefore, the citation relied upon by him i.e. 'Deptt. of Customs' is not applicable in this case as it is on record that complete examination in chief and cross-examination of this witness took place.
27.Having gone through the testimonies of all the witnesses and material available on record the following findings have come on record :-
i)Nine accused persons were apprehended at the spot and they were 1.Sonu, 2.Rajender Kumar, 3.Mam Chand, 24
4.Daya Nidhi, 5.Dinesh Giri, 6.Sachin Gupta, 7.Mohit Kumar, 8.Sanjeev Kumar and 9.Parmod Kumar.
ii)Three accused persons namely 1.Sanjay Vashisht,
2.Mahesh Chand and 3.Suresh Chand were arrested formally after their surrender before the court on 18.05.05, 11.06.05 and 16.06.05 respectively.
iii)PW2 Ct. Ranjan (he is not injured) has correctly identified the accused Sanjay, Mahesh and Suresh but he did not identify any other accused persons.
iv)PW2 ASI Hem Chander (he is injured) but he has not identified any of the accused persons.
v)PW6 Krishan Lal ( he is also injured) he has also not identified any of the accused persons.
vi)PW10 Ct. R. K Sharma ( he is also injured), he has also not identified any of the accused persons.
vii)PW13 HC Vijay Pal (another injured person) he has also not identified any of the accused persons.
viii)PW15 DHG Rakesh Para has also not identified any of the accused persons except accused Sanjay but he admitted in the cross-examination that accused Sanjay was not arrested in his presence.
ix)Evidence of PW16 cannot be read in evidence because his cross-examination was deferred and he did not turn up.
x)PW3 Kafil Ahmad is the injured in this case who received simple injury, he has correctly identified the accused persons.
xi)PW5 Ct. Narender has correctly identified nine accused persons who were pelting stones on police party who were arrested at the spot.
xii)PW7 Ct. Suresh (another injured person), he has correctly identified all the accused persons who were pelting stones on police party and during this he received injuries on his leg, back and right hand. His index finger got fractured.
xiii)PW8 Ct. Bharatveer (another injured person) he has also correctly identified all the accused persons.
xiv)PW9 Ct. Vijay Singh has also correctly identified all the 9 accused persons who were apprehended at the spot.
25
28.In this case some of the material witnesses i.e. PW10 Ct. R K Sharma (injured), PW6 Ct. Krishan Lal (injured), PW2 ASI Hem Chand (injured), PW13 HC Vijay Pal (injured) and PW15 DHG Rakesh Para have been got declared hostile and they have not identified the accused persons.
29.However, PW2 Ct. Ranjan has correctly identified the accused persons Sanjay Vashisht, Mahesh Chand and Suresh Chand. PW3 ASI Kafil Ahmad (injured) has correctly identified all the accused persons. He has also specifically stated that accused persons were pelting stones on police party and he received injuries. PW5 Ct. Narender and PW9 Ct. Vijay Singh have specifically and categorically stated that accused persons namely 1.Sonu,
2.Rajender Kumar, 3.Mam Chand, 4.Daya Nidhi, 5.Dinesh Giri,
6.Sachin Gupta, 7.Mohit Kumar, 8.Sanjeev Kumar and 9.Parmod Kumar were apprehended at the spot when they were pelting stones on the police party. PW7 Ct. Suresh (another injured) has also correctly identified all the accused persons as culprits who assaulted upon the police party and he received injuries. PW8 Ct. Bharatveer (another injured) has also corroborated the testimonies of other material witnesses and he has also correctly identified the accused persons who had assaulted upon the police party. PW3 has also specifically and categorically narrated the role of 26 accused Suresh and Mahesh who set on fired the motor cycle no.DL5 SQ - 5143 and alleged two wheeler scooter. After perusal of their testimonies I found some minor type of contradictions which do not go to the root of the case and these discrepancies could not shake the credibility of these witnesses.
30.On perusal of all depositions of these above prosecution witnesses and their cross-examinations, I have found so many minor type of contradictions and discrepancies in their statements which are attributable due to the long duration of time and memory of human being. However, in case of Jaskaran Singh Vs State 1997 SCC (Crl) 651 it was observed by Hon'ble Supreme Court in the following words:-
" When the evidence of first informant is found to be full of contradictions, exaggerations and improvements, he cannot be held to be a truthful witness" .
Highlighting the scope of minor contradictions Hon'ble Supreme Court in case State of UP Vs Bhagwan AIR 1997 SC 3292: (1997) 1 SCC 19 made the following observations which are very relevant crucial and dominant in deciding the fate of the present case:-
" minor discrepancies in the evidence of the eye- witnesses are immaterial unless they demolished the basic case of the prosecution" .
The observations made in the aforesaid two cases by the Hon'ble Supreme Court are exfacie indicative of the fact that a clear distinction be made between the major contradictions and minor 27 contradictions when the contradictions are minor the truthfulness of the witness cannot be discredited in all and contrary to it when the contradictions are major these affect the root of the case and leave an impression of untruthfulness of the witnesses.
31.It has also been observed in this case that material witnesses have correctly identified the accused persons but they could identify them by name but in view of the following judgment if names of accused persons are mentioned in the FIR then evidence can not be discarded. In this regard it is held in case titled as 'Sasidhar Singh Vs State 1998 Cr. LJ 2676 (MP)' that :
" Failure to mention the names of the accused in quest report or in requisition memo is not sufficient to discard the evidence of independent witness and dying declaration when the name of the accused is mentioned in FIR."
32.Again it has been observed in case titled as 'Meharban Singh Vs State (1996) 10 SCC 615' on the point of minor discrepancies that :
" Even some improvements or exaggerations or some minor discrepancies do not hurt the prosecution case."
33.'Unlawful assembly' has been defined under section 141 IPC which spells out as under:-
Section 141 IPC :-
141. Unlawful assembly - An assembly of five or more persons is designated an " Unlawful assembly" , if the common object of the persons composing that assembly is -
First - To overawe by criminal force, or show of criminal force, (the Central or any State Government or Parliament or the Legislature of any State), or any 28 public servant in the exercise of the lawful power of such public servant; or Second .- To resist the execution of any law, or of any legal process; or Third .- To commit any mischief or criminal trespass, or other offence; or Fourth.- By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right: or Fifth.- By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.
Explanation.- An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.
34.In this regard the Hon'ble Supreme Court in case titled as 'Maiku v State of U.P. AIR 1989 SC 67: 1989 Cr. LJ 860' has observed that :
" Unlawful assembly. - The expression " unlawful assembly" is defined in section 141 and any member of such unlawful assembly is punishable under section 143, I.P. Code. If the object of the assembly is not unlawful the act cannot attract section 141, I.P. Code so any person forming such assembly cannot be convicted under section 143 nor can be convicted either under section 147 or section 149, I.P. Code."
35.In light of the above judgment, I am of the considered view that prosecution has proved its case of 'unlawful assembly' since the object of unlawful assembly was unlawful as they caused damaged to the public property i.e. alleged motor cycle, two wheeler scooter and they had also broken the wind screen of the gypsy. Further, accused persons being the part of 'unlawful assembly' caused injuries to the public servants i.e. police officials by pelting stones. These facts have been proved by PW3 ASI Mohd. Kafil and other 29 corroborated witnesses who affirmed the fact that accused persons namely Sanjay Vashist, Mahesh and Suresh formed an unlawful assembly consisting of other co-accused persons by giving hot speech against police officials at Shanti Niketan Public School.
36.In another case titled as 'Chinu Patel v State of Orissa 1990 Cr LJ 248 (Ori)' it has been observed that:
" In sudden attack pursuant to a quarrel, there is no scope of pre-planned attack and entertaining any common object. So each person shall be responsible for the individual acts done by each of them."
37.From the facts of the case in hand and testimonies of all the material witnesses it is crystal clear that the attack made by accused persons who were part of an unlawful assembly was not a sudden attack pursuant to a quarrel. The evidence available in this case only suggests one conclusion that it was the pre-planned attack with common object.
Therefore, in light of the judgments 'Maiku v State of U.P. AIR 1989 SC 67: 1989 Cr. LJ 860' & 'Chinu Patel v State of Orissa 1990 Cr LJ 248 (Ori)' (supra) prosecution has successfully proved that each and every accused person was the member of an 'unlawful assembly', so I convict them for the offence u/s 143 IPC;
30Prosecution has failed to prove its case for the offence u/s 144 IPC since no evidence of the nature has come on record which can suggest that accused persons were armed with deadly weapon. Hence, I acquit all 12 accused persons for the offence u/s 144 IPC. further, the act of accused persons shows that they joined in an unlawful assembly, knowing that such unlawful assembly has been commanded in the manner prescribed by law to disperse. Therefore, I convict them for the offence u/s 145 IPC.
Further, keeping in view of the above discussion and facts and circumstances of the case, I am of the view that prosecution again proved its case for the offence u/s 147 IPC since accused persons caused rioting, so again I convict them for the offence u/s 147 IPC;
31again it has been proved on record that accused persons were rioting by pelting stones, so I again convict them for the offence u/s 148;
it has also been proved by the prosecution on record that accused persons being the member of unlawful assembly had a common object to cause destruction to public property i.e. two wheeler scooter No.DL7S-8645 and one motorcycle NO.DL5SQ-5143 and for rioting. Accused persons have also caused injuries to the police officials by pelting stones as deposed by PW3 ASI Kafil, PW 7 Ct.
Suresh and PW9 Ct. Vijay, PW8 Ct. Bharatveer and PW5 Ct. Narender.
Accordingly, I convict all 12 accused persons for the offence u/s 149 IPC;
it has also been proved on record that accused persons done mischievous act by causing damages to the two wheeler scooter No.DL7S-8645 and one motorcycle 32 NO.DL5SQ-5143 and by breaking the wind screen of the police gypsy, so I again convict all of them for the offence u/s 427 IPC;
Since, facts and testimonies of all the material witnesses indicate to the fact that all 12 accused persons voluntarily obstructed public servant i.e. police officials namely PW3 ASI Kafil, PW 7 Ct. Suresh and PW9 Ct. Vijay, PW8 Ct. Bharatveer and PW5 Ct. Narender and other police officials while they were discharging their public functions. Hence, I convict all 12 accused persons for the offence u/s 186 IPC.
Ingredients of section 353 IPC has also been proved on record. Since, the fact of assaulting by all these 12 accused persons to deter public servants from discharging of their duties, has also been proved on record from the testimonies of all the material witnesses. Accordingly, I convict them for the offence u/s 353 IPC also.
33So long as the offences u/s 332 and 333 IPC i.e. the act of voluntarily causing hurt / grievous hurt to deter public servant from his duty are concerned, in his case no doctor has been examined to prove the MLC of injured persons. Therefore, prosecution has miserably failed to prove its case for the offence u/s 332/ 333 IPC. Accordingly, I acquit accused persons for the offences u/s 332 and 333 IPC by giving them benefit of doubt.
During the course of trial of the case ld.
counsel for accused Suresh Chand, Mahesh Chand and Sanjay Vashist moved application for amendment of charge u/s 435 IPC.
Arguments were heard but ld. APP agreed to this effect that accused can always be convicted for the lower offence and ld.
counsel for the accused also agreed if the liability of accused persons be considered u/s 435 IPC he has no objection. In view of this 34 application was directed to be filed and kept on record. I do not find any evidence against accused persons for the offence u/s 436 IPC as mischief by way of fire was not caused to any house within the definition of section 436 IPC. So the application stands dismissed therefore, I acquit accused persons for the offence u/s 436 IPC.
So long as offence 435 IPC is concerned, the act of all 12 accused persons u/s 435 IPC appears to have been proved beyond reasonable doubt since they being the member of unlawful assembly with their common object caused fire to the two wheeler scooter No.DL7S-8645 and one motorcycle NO.DL5SQ-5143 knowingly it to be likely that they will thereby cause damage to property to the amount more than Rs.100/- and this fact of setting a fire to the said vehicles has been revealed from the statement of PW3 Kafil who has categorically stated that accused Suresh and Mahesh burnt two wheeler scooter No.DL7S-8645 and one motorcycle NO.DL5SQ- 5143 on the day of incident. Further more, PW 7 Ct. Suresh and PW9 Ct. Vijay, PW8 Ct. Bharatveer, PW5 Ct. Narender have also corroborated the testimony of PW3 on the material points. They have correctly identified the accused persons. 35
So, again I convict all 12 accused persons for the offence under section 435 IPC.
Accordingly, all 12 accused persons namely
1.Sonu, 2.Rajender Kumar, 3.Mam Chand,
4.Daya Nidhi, 5.Dinesh Giri, 6.Sachin Gupta,
7.Mohit Kumar, 8.Sanjeev Kumar and 9.Parmod Kumar, 10.Sanjay Vashisht, 11.Mahesh Chand and 12.Suresh Chand are convicted precisely for the reasons discussed supra for the offences u/s 143, 145, 147, 148, 149, 427, 186, 353 & 435 IPC within the meaning of section 141 IPC.
Prosecution has failed to prove its case beyond reasonable doubt for the offences u/s 144, 332, 333 and 436 IPC, therefore, they stands acquitted qua offences under section 144, 332, 333 and 436 IPC.
ANNOUNCED IN THE OPEN COURT ON THIS 04.11.09 (RAJ KAPOOR) ADDL. SESSIONS JUDGE-1/ NORTH - EAST/ KKD/DELHI 36 Section 143.
which may extend to 6 months, or with fine, or with both.
Section 145 IPC:-
which may extend to 2 years, or with fine, or with both.
Section 147 IPC:-
which may extend to 2 years, or with fine, or with both."
Section 148 IPC:-
which may extend to 3 years, or with fine , or with both."
Section 149 IPC be read with section 143 IPC .
Section 427 IPC:-
which may extend to 2 years, or with fine, or with both."
Section 186 IPC:-
which may extend to 3 months, or with fine which may extend to five hundred rupees, or with both.
Section 353 IPC:-
which may extend to 2 years, or with fine, or with both.
Section 435 IPC:-
which may extend to 7 years, and shall also be liable to fine.37 FIR No. 115/05
State Vs Suresh Chand etc
Police Station Khajuri Khas
Under Section 143, 145, 147, 148, 149, 427, 186, 353 & 435 IPC within the meaning of section 141 IPC 05.11.2009 Present : Ld. APP for the state.
Accused Sanjay Vashisht has been directed to be released on probation for one year on his furnishing personal bond in sum of Rs.5,000/- with one surety of like amount subject to the payment of Rs.1000/- as a compensation to the state vide my separate order.
At this stage, ld. counsel Sh. Ashok Singhal has moved an application submitting therein that accused Sanjay Vashisht be released forthwith from this court as he has suffered from mental injuries as a result of which he is not feeling well. Ld. APP has no objection if accused Sanjay Vashisht is released forthwith from this court under intimation to the Jail Superintendent, Jail No.8/9. Personal bond furnished and accepted.
In view of this, accused Sanjay Vashisht be released forthwith from the lockup, Karkardooma Courts, Delhi with due entry. Orders accordingly.
Copy of the order be sent along with released warrant to the Jail Superintendent concerned.
Raj Kapoor/ ASJ-1/NE/ 05.11.2009