Delhi District Court
State vs . Umesh & Ors. on 11 July, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-02,
NORTH EAST DISTRICT, KARKARDOOMA COURTS,
DELHI
PRESIDED BY: SH. VIPUL SANDWAR
JUDGMENT
FIR NO. 434/1998
U/s 147/148/149/186/353/332/427/436 IPC & Section 3 D. P. Act PS : SEELAMPUR A. CIS No. of the Case : 71/2019 B. FIR No. : 434/1998 C. Date of Institution : 28.08.2002 D. Date of Commission of Offence : 24.06.1998 E. Name of the complainant : Ct. Bhagat Raj F. Name of the Accused, his : (1) Umesh S/o Pannath, R/o Parentage & Addresses J-698, 3½ pushta, Kartar Nagar, Delhi (declared PO on 31.08.2013), (2) Mohd.
Gulshan S/o Mohd. Gulzar, R/o G-104, Gali no.4, Shastri Park, Delhi, (3) Chedi Lal S/o Som Bahadur, R/o A-16, Kaithwara, Usmanpur, Delhi, (4) Jitender S/o Chander Bhan, R/o Goshala Mark Katara, Nanak Chand, Kishan ganj, Delhi, (5) Wazir S/o Ali Hassan, R/o E-61, Gali no.9, Shastri Park, Delhi (abated on 08.11.2013), (6) Jitender S/o Sher Bahadur, R/o D-
FIR No.434/98 State vs. Umesh & Ors. PS Seelampur Page No.1 of 26 1/106, Nehru Vihar, Bhajanpura, Delhi (JJB), (7) Pankaj Kumar S/o Kishan Chand, R/o D-1/106, Nehru Vihar, Bhajanpura, Delhi (JJB), (8) Mohd. Nanhe S/o Suleman, R/o E-61, Gali no.9, Shastri Park, Delhi (JJB), (9) Ram Milan S/o Gautam, R/o F-9/11, Krishna Nagar, Delhi (PO declared on 08.01.2002) G. Representation on behalf of : Ms. Shivani Joshi, Ld. APP State for the State H. Offence complained of : U/s147/148/149/186/353/332/ 427/436 IPC & Section 3 D. P. Act I. Plea of the Accused : Pleaded not guilty and claimed trial.
J. Order reserved on : 30.05.2023 K. Date of Order : 11.07.2023 L. Final Order : ACQUITTED
Brief Statement of Reasons for Decision of the Case
1. The present FIR is based on wireless communication received at about 08:40 pm on 24.06.1998 at Seelampur police station regarding a quarrel in front of Shastri Park pushta near Mahila Training Centre. Ct. Bhagat Raj alongwith the then ACP and driver Ct. Ram Charan reached at the spot. Public persons had gathered at the spot and pelting stones. One TSR bearing no.DL1RA-8631 was set on fire by the mob. They tried to calm the mob however, they started pelting stones on the Government gypsy bearing no.DL1CF-1226 due to which the glasses of the said vehicle broke. Ct. Bhagat Raj was also injured. Another PCR van bearing no.DL1A-0748 came at the spot. The mob pelted FIR No.434/98 State vs. Umesh & Ors. PS Seelampur Page No.2 of 26 stones on that van and broke the front and side glasses. Also DTC buses bearing no.DL1P-9536, DBP-6231, DEP-9779, DEP- 9197, DEP-6149, DL1P-9641 were damaged by the mob. The engine of DTC bus DBP-6231 was set on fire. SHO, Seelampur came to the spot and dispersed the mob. The accused persons were arrested, fire brigade was called and the auto and the DTC bus which were in flames was extinguished.
2. FIR was registered and has been investigated by the officials of Police Station Seelampur and IO/SI Tejpal Singh filed the charge sheet against the accused upon which cognizance was taken on 31.01.2000 by the learned Predecessor of this Court.
3. Accused persons appeared before the Court and copy of chargesheet along with other documents under Section 207 Cr.P.C. were supplied to them.
4. Charge was framed vide order dated 11.08.2014 for the offence punishable Under Section 148 r/w 149, 147, 186 r/w 149, 332 r/w 149, 353 r/w 149, 427 r/w 149 and 435 r/w 149 against accused persons by the learned Predecessor of this Court, to which, the accused persons pleaded not guilty and claimed trial.
5. Thereafter, matter was listed for Prosecution Evidence. The Prosecution has examined 09 witnesses in support of its case. In nutshell, the testimony of the prosecution witnesses is as follows :-
(i) PW1 Ct. Ashok Kumar on 24.06.1998 he was posted at DCP office as photographer. On the directions of ASI Harbir he had gone to the spot i.e. 1st pushta, Shastri Park, in front of FIR No.434/98 State vs. Umesh & Ors. PS Seelampur Page No.3 of 26 Mahila Training Centre and found a burnt bus, TSR and some DTC buses. He took photographs of the spot depicting the damaged vehicle from different angels. The witness was not cross examined by accused persons despite being given an opportunity.
(ii) PW2 Ct. Bhagat Raj was on duty with ACP, Seelampur as a wireless operator on 24.06.1998. On that day at about 08:40 pm one information through wireless was received that in front of Shastri Park pushta, near Mahila Training Centre there was a quarrel. He alongwith the ACP and driver Ct. Ram Charan reached at the spot. Public persons gathered at the spot and were pelting stones. One TSR was also set on fire. DTC buses panes were broken. Public persons also pelted stones on them. PCR van was called at the spot and its glasses was also broken from the front side. The engine of one DTC bus was under flames. Some time later SHO, Seelampur came to the spot alongwith police staff and dispersed the mob and apprehended nine persons. He alongwith ACP and driver left the spot. He made the written complaint at the PS Ex. PW1/A. The witness did not disclose the complete set of facts and questions in the nature of cross-
examination were put to him by Ld. APP for State after seeking permission of the Court. He has stated that the Government gypsy whose glasses were broken had registration no.DL1CF- 1226. He also confirmed that the PCR gypsy which came at the spot had registration no.DL1A-0748 had its front and side glass damaged due to pelting of stones. He also confirmed that the DTC buses that were damaged had registration no. DL1P-9536, DBP-6231, DEP-9779, DEP-9197, DEP-6149, DL1P-9641. He further confirmed that engine of DTC bus 6231 was under
FIR No.434/98 State vs. Umesh & Ors. PS Seelampur Page No.4 of 26 flames. He also confirmed that fire brigade came to the spot and extinguished the fire. He identified the three accused present in the Court however, could not mention their names. In his cross- examination he stated that they reached the spot at about 08:50 pm. IO recorded his statement at the spot at about 09:15 pm. When he reached the spot there was a mob of about 2000 to 2500 people. He has stated that he does not remember the registration number of TSR, police gypsy or the buses. He has stated that his vehicle was parked at a distance of about 100 mtrs from the spot. The PCR van came at the opposite side and parked at about 100 mtrs distance at the spot. He has stated that IO requested public persons to join the investigation but they refused without telling their names and addresses. He denied the suggestion that the police apprehended the pedestrians as well as locality people.
(iii) PW3 Jagdish Chand was the driver in DTC. He deposed that at the time of incident he was posted at BBM bus depot. On the day of incident he was coming from Bhajanpura to ISBT and when he reached at 1st and 2nd pushta, he saw one TSR used for commercial goods in accidental position and some 10-15 peoples were gathered damaging the tempo. Two DTC buses were also damaged. Police reached the spot and dispersed the crowd. He was taken to the police station. He refused to identify the accused persons due to lapse of time. The witness did not disclose the complete set of facts and questions in the nature of cross-
examination were put to him by Ld. APP for State after seeking permission of the Court. Despite that he could not tell the date of incident. He confirmed that he was driver of the bus bearing no.DEP-6149. He was not sured whether the mob set fire in the engine of bus bearing no.DBP-6231. He denied the suggestion FIR No.434/98 State vs. Umesh & Ors. PS Seelampur Page No.5 of 26 that buses bearing no. DEP-9779, DEP-9197, DL1P-9641, DL1P-9536 were damaged. Despite being pointed towards the accused the witness failed to identify them. In his cross- examination he has stated that no damage was caused by the accused persons in his presence. He denied the suggestion that no incident had taken place at 1st pushta.
(iv) PW4 Gopal Singh on 25.06.1998 he was coming through DTC bus route no.253 i.e. Mori Gate to Bhajanpura. At about 08:30 pm he found the traffic jam. A group of public persons were pelting stones on the vehicles standing at the spot. The front mirror of some vehicles were damaged due to pelting. Police arrived at the spot and got the traffic clear. He refused to identify the accused persons. The witness did not disclose the complete set of facts and questions in the nature of cross-examination were put to him by Ld. APP for State after seeking permission of the Court. He stated that he cannot tell whether the incident is dated 25.06.1998 or 24.06.1998. He stated that he was driving DTC bus bearing registration no.DEP-9779. He could not tell whether the persons gathered at the spot had got TSR DL1LRA-8631 set on fire. He could tell whether the persons gathered at the spot had got the engine of DTC bus 6231 set on fire. He confirmed that mirrors of some vehicles were broken, however, he could not tell their registration number. He could not remember whether fire brigade was called at the spot. On being pointed towards the accused present in the Court the witness failed to identify. In his cross-examination he has stated that he had reached the spot 08:15-08:30 pm. He was present at a distance of 10 mtrs from the actual place of incident. Later he stated that it might be 70-80 mtrs with 2-3 buses in between. He has stated that there might be FIR No.434/98 State vs. Umesh & Ors. PS Seelampur Page No.6 of 26 15-20 passengers in the bus. Neither he nor his passengers sustained any injuries in the incident. He has stated that he cannot differentiate between passerby and accused persons.
(v) PW5 ASI Ripu Daman on 24.06.1998 he was on duty in the area of Shastri Park. After completion of arrangement duty he was coming to the PS when he received a wireless message at about 08:30 pm and SHO called the staff at pushta road, near Mahila Training Centre. He saw a crowd of about 100 persons gathered there and some of the persons were collectively damaging DTC buses, TSR and PCR vans by pelting stones. He could not tell the registration numbers of the vehicle. He also stated that the operator of the ACP got injured. SI Tejpal recorded the statement of injured and prepared a rukka Ex PW1/A which was handed over to him for getting the case registered at the PS. Some of the persons were apprehended there. After getting the case registered he came back to the spot alongwith original rukka and copy of FIR and handed over the same to SI Tejpal Singh for further action. IO collected the stones and broken glasses in a plastic bag sealed with the seal of TPS vide seizure memo Ex.PW5/A. The said buses were also taken into police custody vide seizure memo Ex. PW4/A. He refused to identify the accused persons in the Court due to lapse of time. The witness did not disclose the complete set of facts and questions in the nature of cross-examination were put to him by Ld. APP for State after seeking permission of the Court. He confirmed that the TSR present at the spot had registration no.DL1RA-8631 and DTC bus which was set on fire by the crowd had registration no.DBP- 6261. The registration number of other vehicles damaged by the crowd were DEP-9779, DEP-9197, DEP-6149, DL1P-9641. He FIR No.434/98 State vs. Umesh & Ors. PS Seelampur Page No.7 of 26 also confirmed that the government vehicle bearing registration no.DL10F-1246 and DL1A-748 were damaged. Despite pointing out the accused he stated that he cannot identify the accused persons due to long lapse of time. Witness correctly identified the photographs of the vehicles damaged. In his cross-examination he has stated that the distance between the Gurudwara and the PS is around 200 mtrs. He has stated that when he reached the spot buses were vacated and no passengers were inside the buses. He confirmed that 500 people gathered at the spot. At about 08:45 pm he received the rukka and took him about 45 minutes to get the case registered. He denied the suggestion that none of the accused persons were arrested in his presence.
(vi) PW6 Retd. ASI Yogesh Tyagi on 24.06.1998 he was working as Duty Officer at PS Seelampur and received a rukka through Ct. Ripu Daman sent by ASI Tejpal for registration of FIR. On the basis of said rukka he registered the present FIR, made endorsement on the rukka and handed over the original rukka and copy of FIR to Ct. Ripu Daman with directions to further hand it over SI Tejpal Singh for further action. In his cross-examination he has stated that on 25.06.1998 at about 12:30 am he handed over the original rukka and copy of FIR to Ct. Ripu Daman. He denied the suggestion that FIR was ante dated and ante time.
(vi-a) PW6-A ASI Har Prashad on 24.06.1998 on instructions of IO/SI Harbir Singh he visited the spot and took injured Ct. Bhagat Raj to GTB hospital where he was medically examined vide MLC No. C-2232/98. He collected the MLC and handed over the same to ASI Harbir Singh. The witness did not disclose the complete set of facts and questions in the nature of cross-
FIR No.434/98 State vs. Umesh & Ors. PS Seelampur Page No.8 of 26 examination were put to him by Ld. APP for State after seeking permission of the Court. He has conceded that when he reached at the spot a huge crowd had gathered and were pelting stones over buses. He also conceded that Ct. Bhagat Raj got injured in the stone pelting. In his cross examination by Ld. counsel for accused persons he has stated that his statement was recorded by ASI Harbir Singh on the next day of incident. On being confronted it was found that his statement was recorded on 10.09.1999. He denied the suggestion that he never went to the spot or took the injured to the hospital.
(vii) PW7 D. R. Birdi Retd. ACP accorded the sanction under section 195 Cr. PC on the request placed by SI Tejpal. After perusing the case file he accorded the sanction under section 195 Cr. PC. The witness was not cross examined by Ld. counsel for accused despite being given an opportunity.
(viii) PW8 ASI Horam Singh on 24.06.1998 he was posted at PCR and was performing his duty on vehicle DL1A-0748. He received an information from R1 that stone pelting stating case near Mahila Training Centre, pushta road Shastri Park. When he alongwith his gunman driver reached the spot the mirror and glass of his PCR van were broken. The witness did not disclose the complete set of facts and questions in the nature of cross- examination were put to him by Ld. APP for State after seeking permission of the Court. He confirmed that the name of the driver is HC Rajeshwar Singh and name of the gunman was HC Raj Singh. In his cross-examination he has stated that he has received the information at about 08:30 pm and reached the spot after five minutes. On reaching the spot they found one DTC bus and TSR present at the spot. He denied the suggestion that 5-6 FIR No.434/98 State vs. Umesh & Ors. PS Seelampur Page No.9 of 26 buses were already present at the place of incident. When they reached the spot the passengers had already deboarded the bus. The public persons were present and stone pelting had taken place.
(ix) PW9 Retd. SI Tejpal Singh on 24.06.1998 at about 09:30 pm he received a wireless intimation after he alongwith SHO Tejpal Singh Nagar and Ct. Ripu Daman reached the spot. On reaching the spot it was found that there was stone pelting by some boys at DTC buses and the glasses of said buses were found broken. One TSR and one bus was set on fire. Statement of Ct. Bhagat Singh was taken down by him and a rukka was prepared. FIR was registered through Ct. Ripu Daman. The photography of the spot was conducted by HC Ashok Kumar. Nine persons were arrested by him. He prepared the site plan Mark X and recorded the statement of witnesses under section 161 Cr. PC. He seized the DTC buses. He also stated that Ct. Bhagat Raj sustained injuries while discharged there duties. In his cross-examination he has stated that he had not seize the vehicles like TSR and bicycle. He stated that site plan was prepared at the instance of PW2 Ct. Bhagat Raj. He also stated that the incident of breaking of glasses of the buses and one bus being set on fire had taken place before his arrival at the spot. He confirmed that heavy crowd was gathered at the spot of incident. He also confirmed that no public persons was made a witness by him from the said crowd. He denied the suggestion that no disturbance was created by the accused persons and that they were merely passing near the spot and have been falsely apprehended.
FIR No.434/98 State vs. Umesh & Ors. PS Seelampur Page No.10 of 26
6. PE was closed on 25.02.2023 and on 29.03.2023, statement of accused under Section 313 Cr. PC read with section 281 Cr. PC was recorded. Accused persons did not wish to lead DE and matter was fixed for final arguments.
7. Final arguments heard. Case record perused meticulously.
8. This Court has thoughtfully considered the material on record and arguments advanced with due circumspection.
9. In Mahadev Sharma v. State of Bihar, (1966) 1 SCR 18 : AIR 1966 SC 302 : 1966 Cri LJ 197 , Hon'ble Supreme Court has observed that:
"Section 141 defines an unlawful assembly as an assembly of five or more persons the common object of which is inter alia to commit an offence. There are five clauses which describe the many kinds of common objects which render an assembly unlawful. ..........
............Continuing again with the scheme of the Chapter, we next see that Section 142 says that a person is considered to be a member of an unlawful assembly, if, being aware of facts which render any assembly an unlawful assembly he intentionally joins that assembly or continues in it. A mere membership of an unlawful assembly is punishable under Section 143. Under the next section heavier punishment is awardable to a person who joins an unlawful assembly armed with a deadly weapon or with anything which used as a weapon of offence is likely to cause death. Section 145 next provides for a similar higher punishment for a person who joins or continues in an unlawful assembly knowing that it has been ordered to disperse. These sections make membership as such of an unlawful assembly punishable, though in varying degrees. Section 146 then defines the offence of rioting. This offence is said to be committed when the unlawful assembly or any member thereof in prosecution of the common object of such FIR No.434/98 State vs. Umesh & Ors. PS Seelampur Page No.11 of 26 assembly uses force or violence. It may be noticed here that every member of the unlawful assembly is guilty of the offence of rioting even though he may not have himself used force or violence. There is thus vicarious responsibility when force or violence is used in prosecution of the common object of the unlawful assembly. The next two sections prescribe punishment for the offence of rioting. Section 147 punishes simple rioting. Section 148 punishes more severely a person who commits the offence of rioting armed with a deadly weapon but the section makes only a person who is so armed liable to higher punishment.
Section 149 occurs in Chapter VIII of the Indian Penal Code which deals with offences against the public tranquility. That Chapter consists of twenty- one sections and most of them are concerned with assemblies which are a danger to public peace. Such assemblies are designated unlawful assemblies and the punishment for membership varies in severity according as the assembly only menaces the public peace or actually disturbs it. The scheme of the Chapter may now be examined."
10. Section 149 then creates vicarious responsibility for other offences besides rioting. The section provides as follows:
"149. 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."
11. For the application of the section there must be an unlawful assembly. Then if an offence is committed in prosecution of the common object of that assembly or is such as the members of the unlawful assembly know to be likely to be committed then whoever is member of that assembly at the time FIR No.434/98 State vs. Umesh & Ors. PS Seelampur Page No.12 of 26 the offence is committed is guilty.
12. It was also observed in Mahadev (supra) that:
"Is it obligatory to charge a person under Section 147 or Section 148 before Section 149 can be utilized? Section 149 does not state this to be a condition precedent for its own application. No other section prescribes this procedure. Sections 146 and 149 represent conditions under which vicarious liability arises for the acts of others. If force or violence is used by a member in the prosecution of the common object of the unlawful assembly every member of the assembly is rendered guilty of the offence of rioting and is punishable for that offence under Section 147. The offence of rioting must, of course, occur when members are charged with murder as the common object of the unlawful assembly. Section 148 creates liability on persons armed with deadly weapons and it is a distinct offence. It need not detain us. If a person is not charged under Section 147 it does not mean that Section 149 cannot be used. When an offence (such as murder) is committed in prosecution of the common object of the unlawful assembly or the offence is one which the members of the assembly knew to be likely to be committed in prosecution of the common object, individual responsibility is replaced by vicarious responsibility and every person who is a member of the unlawful assembly at the time of the committing of the offence becomes guilty. It is not obligatory to charge a person under Section 143, or Section 144 when charging him with Section 147 or Section 148. Similarly, it is not obligatory to charge a person under Section 143 or Section 147 when charging him for an offence with the aid of Section 149. These sections are implied. It may be useful to add a charge under Section 147 and Section 148 with charges under other offences of the Penal Code read with Section 149, but it is not obligatory to do so. A person may join an unlawful assembly and be guilty under Section 143 or 147 or 148 but he may cease to be its member at the time when the offence under Section 302 or some other offence is committed. He would not in that event be liable for the other offence for Section 149 would not apply to him.
The fallacy in the cases which hold that a charge FIR No.434/98 State vs. Umesh & Ors. PS Seelampur Page No.13 of 26 under Section 147 is compulsory arises because they overlook that the ingredients of Section 143 are implied in Section 147 and the ingredients of Section 147 are implied when a charge under Section 149 is included. An examination of Section 141 shows that the common object which renders an assembly unlawful may involve the use of criminal force or show of criminal force, the commission of mischief or criminal trespass or other offence, or resistance to the execution of any law or of any legal process. Offences under Sections 143 and 147 must always be present when the charge is laid for an offence like murder with the aid of Section 149, but the other two charges need not be framed separately unless it is sought to secure a conviction under them. It is thus that Section 143 is not used when the charge is under Section 147 or Section 148, and Section 147 is not used when the charge is under Section 148. Section 147 may be dispensed with when the charge is under Section 149 read with an offence under the Indian Penal Code."
13. In Ramachandran v. State of Kerala, (2011) 9 SCC 257 : (2011) 3 SCC (Cri) 677 : 2011 SCC OnLine SC 1203 at page 266, hon'ble Supreme Court has observed that:
"Section 149 IPC has essentially two ingredients viz. (i) offence committed by any member of an unlawful assembly consisting of five or more members, and (ii) such offence must be committed in prosecution of the common object (under Section 141 IPC) of the assembly or members of that assembly knew to be likely to be committed in prosecution of the common object.
For "common object", it is not necessary that there should be a prior concert in the sense of a meeting of the members of the unlawful assembly, the common object may form on the spur of the moment; it is enough if it is adopted by all the members and is shared by all of them.
In order that the case may fall under the first part, the offence committed must be connected immediately with the common object of the unlawful assembly of which the accused were members. Even if the offence committed is not in direct prosecution of the common object of the FIR No.434/98 State vs. Umesh & Ors. PS Seelampur Page No.14 of 26 assembly, it may yet fall under the second part of Section 149 IPC if it can be held that the offence was such as the members knew was likely to be committed. The expression "know" does not mean a mere possibility, such as might or might not happen. For instance, it is a matter of common knowledge that if a body of persons go armed to take forcible possession of the land, it would be right to say that someone is likely to be killed and all the members of the unlawful assembly must be aware of that likelihood and would be guilty under the second part of Section 149 IPC. There may be cases which would come within the second part, but not within the first. The distinction between the two parts of Section 149 IPC cannot be ignored or obliterated.
However, once it is established that the unlawful assembly had common object, it is not necessary that all persons forming the unlawful assembly must be shown to have committed some overt act. For the purpose of incurring the vicarious liability under the provision, the liability of other members of the unlawful assembly for the offence committed during the continuance of the occurrence, rests upon the fact whether the other members knew before hand that the offence actually committed was likely to be committed in prosecution of the common object."
14. In Masalti v. State of U.P. [AIR 1965 SC 202 : (1965) 1 Cri LJ 226] , the Supreme Court has held that:
"The crucial question for determination in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects specified by Section 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly."
15. In K.M. Ravi v. State of Karnataka [(2009) 16 SCC 337 : (2010) 3 SCC (Cri) 281] Supreme Court has observed FIR No.434/98 State vs. Umesh & Ors. PS Seelampur Page No.15 of 26 that mere presence or association with other members alone does not per se become sufficient to hold every one of them criminally liable for the offences committed by the others unless there is sufficient evidence on record to show that each intended to or knew the likelihood of commission of such an offending act.
16. In State of U.P. v. Kishanpal [(2008) 16 SCC 73 :
(2010) 4 SCC (Cri) 182] Supreme Court has held that once a membership of an unlawful assembly is established it is not incumbent on the prosecution to establish whether any specific overt act has been assigned to any accused. Mere membership of the unlawful assembly is sufficient and every member of an unlawful assembly is vicariously liable for the acts done by others either in prosecution of the common object or such as the members of the assembly knew were likely to be committed.
17. In Amerika Rai v. State of Bihar [(2011) 4 SCC 677 :
(2011) 2 SCC (Cri) 429] Supreme Court has opined that for a member of an unlawful assembly having common object what is liable to be seen is as to whether there was any active participation and the presence of all the accused persons was with an active mind in furtherance of their common object. The law of vicarious liability under Section 149 IPC is crystal clear that even the mere presence in the unlawful assembly, but with an active mind, to achieve the common object makes such a person vicariously liable for the acts of the unlawful assembly.
18. In Charan Singh v. State of U.P. [(2004) 4 SCC 205 :
2004 SCC (Cri) 1041] the Supreme Court at pp. 209-10, para FIR No.434/98 State vs. Umesh & Ors. PS Seelampur Page No.16 of 26 13 has observed that:
"13. ... The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. ... The word 'object' means the purpose or design and, in order to make it 'common', it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression 'in prosecution of common object' as appearing in Section 149 has to be strictly construed as equivalent to 'in order to attain the common object'. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter."
19. In Bhanwar Singh v State of M.P. [(2008) 16 SCC 657 : (2010) 4 SCC (Cri) 378] hon'ble Supreme Court at p. 674, para 44 observed that:
"44. Hence, the common object of the unlawful assembly in question depends firstly on whether such object can be classified as one of those described in Section 141 IPC. Secondly, such common object need not be the product of prior concert but, as per established law, may form on the spur of the moment. Finally, the nature of this common object is a question of fact to be determined by considering nature of arms, nature of the assembly, behaviour of the members, etc."
20. Thus, the Apex Court has warned through a catena of judgments that where general allegations are made against a large number of persons the court would categorically scrutinise the FIR No.434/98 State vs. Umesh & Ors. PS Seelampur Page No.17 of 26 evidence and hesitate to convict the large number of persons if the evidence available on record is vague. It is obligatory on the part of the court to examine that if the offence committed is not in direct prosecution of the common object, it yet may fall under the second part of Section 149 IPC, if the offence was such as the members knew was likely to be committed. Further inference has to be drawn as to what was the number of persons; how many of them were merely passive witnesses; what were their arms and weapons. The number and nature of injuries is also relevant to be considered. "Common object" may also be developed at the time of incident.
21. In the present case, accused Chedi Lal, Jitender and Gulshan have been charged with offence punishable under S. 147 IPC and section 148/149 IPC. Section 148 IPC is an aggravated form of offence of rioting as punishable under section 147 IPC.
22. For examining the offence under S. 147, the first determination is whether the accused persons formed an unlawful assembly as defined in S. 141 IPC. As a matter legislative policy, a minimum of five persons are required for forming an unlawful assembly. PW2 Ct. Bhagat has deposed that public persons had gathered at the spot i.e. in front of Shastri Park pushta, near Mahila Training Center and were pelting stones on the buses. He has also deposed that SHO, Seelampur apprehended nine persons. In his cross-examination, he has stated that there was a mob of about 2000 - 2500 people which he corrected to 2000. PW3 Jagdish Chand has deposed in his examination in chief has stated that some 10-15 persons had gathered and were damaging FIR No.434/98 State vs. Umesh & Ors. PS Seelampur Page No.18 of 26 the tempo and two DTC buses. PW4 has stated that a group of public persons had gathered at the spot and were pelting stones on vehicles. PW5 in his examination in chief has stated that he saw the crowd of 100 persons gathered at the spot who were collectively damaging TSR, DTC buses and PCR vans. In his cross-examination he has conceded that around 500 people were gathered at the spot.
23. The primary requirement for an unlawful assembly as defined in section 141 IPC is that there should be five or more persons. The present chargesheet has been filed against nine persons out of which three were juvenile. During trial accused Umesh was declared PO on 31.08.2013 and Ram Milan was declared PO vide order dated 08.01.2002. Proceedings against accused was abated vide order dated 08.11.2013. Charge was formally framed against accused Gulshan, Jitender and Chedi Lal. The identity of the three accused persons have not been established by any of the prosecution witnesses. PW2 Ct. Bhagat Raj/complainant in his examination in chief has stated that though he can identify the three accused present in the Court he cannot remember their names due to the lapse of 17 years. PW3 has stated in his examination in chief that he cannot identify the accused persons due to lapse of time. Even being pointed towards the accused persons the said witness failed to identify them. PW4 in his examination in chief has stated that he cannot identify the accused persons. He failed to identify even when the accused persons were pointed standing in the witness box. PW5 in his examination of chief he has stated that due to long lapse of time he cannot identify the accused persons. IO/PW9 has identified FIR No.434/98 State vs. Umesh & Ors. PS Seelampur Page No.19 of 26 the three accused persons in the Court. In his cross-examination he has conceded that no public person was made a witness. None of the prosecution witnesses have been able to establish that these were the nine persons who were forming the unlawful assembly. Since the prosecution has failed to prove the formation of an unlawful assembly, examination of an offence punishable under section 147 IPC or 148/149 IPC is not required.
24. The accused persons have also been charged with an offence punished under S. 427/149 IPC and 435/149 IPC. Section 427 IPC reads as follows:
"427.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 of either description for a term which may extend to two years, or with fine, or with both."
25. Section 435 IPC is defines as follows:
"435. Mischief by fire or explosive substance with intent to cause damage to amount of one hundred or (in case of agricultural produce) ten rupees.-- Whoever commits mischief by fire or any explosive substance intending to cause, or knowing it to be likely that he will thereby cause, damage to any property to the amount of one hundred rupees or upwards 1[or (where the property is agricultural produce) ten rupees or upwards], shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
26. As discussed above, the prosecution has failed to prove the existence of an unlawful assembly, no vicarious liability as stated in S. 149 IPC can be imputed on the accused persons. Moreover, none of the prosecution witnesses have deposed anything specific FIR No.434/98 State vs. Umesh & Ors. PS Seelampur Page No.20 of 26 regarding distraction of property. It is the allegation of the prosecution that the accused persons have caused damage to vehicle bearing number DL1RA-8632. PW2, in his examination in chief, has deposed in his examination in chief that public persons were gathered at the spot were pelting stones on one TSR and DTC buses. However, he could not mention the registration number. None of the prosecution witnesses have mentioned the registration number of any of the vehicles that was damaged by the accused persons. As discussed above, neither the identity of the accused nor the property alleged to be destroyed by the accused persons have been proved by the prosecution. Therefore it could not be established that the requisite mischief for offense under section 427/435 IPC, has been committed.
27. The accused persons have also been charged with offence punishable under S. 186/332/353 IPC. It reads as under:
"186. 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."
332. 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.
353. Assault or criminal force to deter public servant from discharge of his duty.--Whoever assaults or uses criminal force to any person being FIR No.434/98 State vs. Umesh & Ors. PS Seelampur Page No.21 of 26 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 such 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 of either description for a term which may extend to two years, or with fine, or with both."
28. In Durgacharan Naik v. State of Orissa , (1966) 3 SCR 636 : AIR 1966 SC 1775 : 1966 Cri LJ 1491, hon´ble Supreme Court has observed that:
"We have expressed the view that Section 195 of the Criminal Procedure Code does not bar the trial of an accused person for a distinct offence disclosed by the same or slightly different set of facts and which is not included within the ambit of the section, but we must point out that the provisions of Section 195 cannot be evaded by resorting to devices or camouflage. For instance, the provisions of the section cannot be evaded by the device of charging a person with an offence to which that section does not apply and then convicting him of an offence to which it does, on the ground that the latter offence is a minor one of the same character, or by describing the offence as one punishable under some other section of the Indian Penal Code, though in truth and substance the offence falls in the category of sections mentioned in Section 195 of the Criminal Procedure Code. Merely by changing the garb or label of an offence which is essentially an offence covered by the provisions of Section 195 prosecution for such an offence cannot be taken cognizance of by mis describing it or by putting a wrong label on it."
29. In the present case the prosecution has alleged that the accused persons caused injuries to Ct. Bhagat Raj by pelting stones. Ct. Bhagat Raj himself has stated while deposing as PW2 that though he can identify the accused persons he do not FIR No.434/98 State vs. Umesh & Ors. PS Seelampur Page No.22 of 26 remember their names. No other prosecution witnesses have identified the accused persons. Accordingly no offense punishable under section 186/332/353 IPC is made out.
30. In a criminal trial, the burden on the prosecution is beyond reasonable doubt. The reasonable doubt is a rule of caution laid down by the Courts of Law in respect of assessing the evidence in criminal cases. In Awadhi Yadav v. State of Bihar , (1971) 3 SCC 116 at page 117, Hon'ble Supreme Court has observed that:
"Before a person can be convicted on the strength of circumstantial evidence, the circumstances in question must be satisfactorily established and the proved circumstances must bring home the offence to the accused beyond reasonable doubt. If those circumstances or some of them can be explained by any other reasonable hypothesis then the accused must have the benefit of that hy- pothesis. But in assessing the evidence imaginary possibilities have no place. What is to be consid- ered are ordinary human probabilities."
31. In State of Haryana v. Bhagirath, (1999) 5 SCC 96 :
1999 SCC (Cri) 658 : 1999 SCC OnLine SC 577 at page 99 Hon'ble Supreme Court has observed that:
"But the principle of benefit of doubt belongs ex- clusively to criminal jurisprudence. The pristine doctrine of benefit of doubt can be invoked when there is reasonable doubt regarding the guilt of the accused. It is the reasonable doubt which a consci- entious judicial mind entertains on a conspectus of the entire evidence that the accused might not have committed the offence, which affords the benefit to the accused at the end of the criminal trial. Ben- efit of doubt is not a legal dosage to be adminis- tered at every segment of the evidence, but an ad- vantage to be afforded to the accused at the final end after consideration of the entire evidence, if the Judge conscientiously and reasonably enter-
FIR No.434/98 State vs. Umesh & Ors. PS Seelampur Page No.23 of 26 tains doubt regarding the guilt of the accused. It is nearly impossible in any criminal trial to prove all the elements with a scientific precision. A criminal court could be convinced of the guilt only beyond the range of a reasonable doubt. Of course, the ex- pression "reasonable doubt" is incapable of defini- tion. Modern thinking is in favour of the view that proof beyond a reasonable doubt is the same as proof which affords moral certainty to the Judge."
32. Francis Wharton, a celebrated writer on criminal law in the United States has quoted from judicial pronouncements in his book Wharton's Criminal Evidence (at p. 31, Vol. 1 of the 12th Edn.) as follows:
"It is difficult to define the phrase 'reasonable doubt'. However, in all criminal cases a careful explanation of the term ought to be given. A definition often quoted or followed is that given by Chief Justice Shaw in the Webster case. He says:
'It is not mere possible doubt, because everything relating to human affairs and depending upon moral evidence is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that consideration that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge."
33. In the treatise The Law of Criminal Evidence authored by H.C. Underhill it is stated (at p. 34, Vol. 1 of the 5th Edn.) thus:
"The doubt to be reasonable must be such a one as an honest, sensible and fair-minded man might, with reason, entertain consistent with a conscientious desire to ascertain the truth. An honestly entertained doubt of guilt is a reasonable doubt. A vague conjecture or an inference of the possibility of the innocence of the accused is not a reasonable doubt. A reasonable doubt is one which arises from a consideration of all the evidence in a fair and reasonable way. There must be a candid consideration of all the evidence and if, after this candid consideration is had by the jurors, there remains in the minds a conviction of FIR No.434/98 State vs. Umesh & Ors. PS Seelampur Page No.24 of 26 the guilt of the accused, then there is no room for a reasonable doubt."
34. In Shivaji Sahabrao Bobade v. State of Maharashtra (1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : (1974) 1 SCR 489 Hon'ble Supreme Court cautioned that:
"the dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence demand special emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt."
35. The evidence brought on record by the prosecution, is not sufficient to link the accused to the commission of the crime. As discussed above, the prosecution has failed to prove the existence of an unlawful assembly as defined in section 141 IPC which is a sine qua non for proving the offense punishable under section 147 IPC or for making the accused persons vicariously liable as per section 149 IPC. No offense under section 186/332/353 IPC has been proved as the prosecution has failed to establish the requisite obstruction of public functions.
36. Thus, in view of the above discussion, the Prosecution has not been able to establish beyond reasonable doubt that accused Accused persons have committed offences under S. 147, 148/186/332/353/427/435/149 IPC. Therefore, accused persons Gulshan, Jitender and Chedi Lal are found not guilty in the present case and resultantly, they stand acquitted in the present case.
FIR No.434/98 State vs. Umesh & Ors. PS Seelampur Page No.25 of 26
37. Accused persons are directed to furnish bonds in the sum of Rs.10,000/- each with a surety of like amount u/s 437A Cr.P.C and are directed to be present before the Ld. Appellate Court as and when directed.
Digitally signed by VIPUL VIPUL SANDWAR
SANDWAR Date:
2023.07.11
16:00:12 +0530
Announced in the open (VIPUL SANDWAR)
Court on 11 th July, 2023 MM-02/NE/KKD COURTS
FIR No.434/98 State vs. Umesh & Ors. PS Seelampur Page No.26 of 26