Delhi District Court
State vs 1. Dinesh Pratap Singh on 3 April, 2019
In the Court of
Dr. Satinder Kumar Gautam: ASJ-03 (East):
Karkardooma Courts: Delhi.
S.C. No: 850/2018
State Versus 1. Dinesh Pratap Singh
S/o Sh. Bhagwan Singh
R/o H. No. D-377,
Ganesh Nagar,
Pandav Nagar,
Delhi.
(Present Address:
B- 50, Ganesh Nagar
Complex, Pandv Nagar, Delhi
2. Dhirender Kumar
S/o Sh. Jaradan
R/o A-18, Parvesh Nagar,
Mubarakpur Dabas,
Delhi.
(Present Address:
A-509, Pravesh Nagar,
Mubarkapur, Delhi -81).
3. Ajay Kumar
S/o Sh. Sarju Prasad
R/o H. No. D-342,
Ganesh Nagar,
Pandav Nagar,
Delhi.
(Present Address:
Villlge Bhavandi
Post Office Imamgunj,
Gaya, Bihar.)
SC No. 850/2018 State Vs. Dinesh Pratap Singh etc. Page 1 of 20
4. Satish Kumar
S/o Surender Prasad Singh
R/o RJ-26-A, Ashok Park,
West Shakarpur, Delhi.
(Present Address:
Village Machhagra,
Distt. Chhapra, Bihar
5. Ram Vilas
S/o Sh. Inderjeet
R/o H. No. E-13,
Ganesh Nagar,
Pandav Nagar,
Delhi.
(Present Address:
E- 137, Ganesh Nagar,
Pandav Nagar, Delhi
6. Satya Prakash
S/o Sh. Shyam Nandan
R/o H. No. A-10,
Goyal Hostel, Shakarpur,
Delhi.
(Present Address:
Subahsh Nagar, Mathiya,
PS Chhtauni, Town Motihari,
Distt. East Champaran, Bihar
FIR No. : 459/2000
PS. : Pandav Nagar
U/s. : 147/149/186/353/332/333/34 IPC
Chargesheet Filed On : 05.12.2002
Chargesheet Allocated On : 15.05.2018
Judgment Reserved On : 27.03.2019
Judgment Announced On : 03.04.2019
SC No. 850/2018 State Vs. Dinesh Pratap Singh etc. Page 2 of 20
JUDGMENT
1. Succinctly, prosecution case is that on 29.12.2000 while police party including SI Y.S. Tyagi was present near Convent School, Ganesh Nagar, where workers of Bihar Jagran Manch headed by Dinesh Pratap Singh were present and they intended to protest and lead rally from Ganesh Nagar till Rajghat. SI Yashvir Singh requested them not to protest and to lead rally as no such permission is with them, but they did not pay any heed and were raising slogans - jo hamse takrayega choor choor gho jayega etc. etc. Crowd could not be controlled and they started pelting stones and continued to their illegal acts on account of which six police officials sustained injuries. On the basis of these facts and ruqqa, present FIR bearing no. 459.2000 PS Pandav Nagar was registered against the offenders.
2. During the investigation of this case, many persons were arrested and formal proceedings were conducted in the matter.
3. After completion of investigation, chargesheet was filed against forty (40) accused persons before the court of ld. Metropolitan Magistrate.
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4. It is not out of place to mention here that during proceedings pending before the court of ld. MM as many as accused ten accused persons were declared Proclaimed Offenders and while many other numbering eighteen pleaded their guilt during Plea Bargaining and proceedings against some of them numbering six were abated on account of their death.
5. Later on, after compliance of provisions of Sec. 207 CrPC by the court of learned MM, case was committed to the court of Sessions as the offence punishable under Sec. 333 IPC is exclusively triable by it.
6. Vide order dated 06.10.2018 charge under Sec. 147/149 and 186/353/332/333 read with Sec. 149 IPC was framed against the present accused persons to which all these accused persons pleaded not guilty and claimed trial.
7. With the help of producing ten prosecution witnesses, prosecution tried to prove its case against these accused persons and out of these examined witnesses PW-1 ASI Murari Lal; PW-2 HC Kailash; PW-3 Inspt Yashvir Singh; PW-4 ASI Subhash; PW-6 ASI Shri Ram; PW-7Const. Anil Kumar; PW-8 HC Hem Chander; PW-9 Inspt. Rajesh and PW-10 ASI Subhash are material witnesses SC No. 850/2018 State Vs. Dinesh Pratap Singh etc. Page 4 of 20 of the incident while PW-5 Raj Kumar took the seized articles on superdarinama.
All these accused persons during their statement recorded under Sec. 294 CrPC admitted MLCs of injured police officials as Ex. C1 to C15; FIR as Ex. C17 and complaint under Sec. 195 CrPC as Ex.C18.
The detailed testimonies of the witnesses concerned shall be discussed at the relevant stage of the judgment.
8. All the incriminating evidence put forth on record put to the accused persons in their statement recorded under Sec. 313 CrPC. All these accused persons denied the allegations levelled against them and further pleaded their innocence. All of these accused persons except accused Dinesh Pratap Singh pleaded that on coming to know about detaining of Dinesh Partap Singh, they visited PS Pandav Nagar and they were made to sit and implicated falsely in this case. Accused Dinesh Pratap Singh pleaded that he was taken to Police Station on the pretext of some inquiry and later on implicated in this case falsely and whoever came to know about that, he was also implicated in this case falsely.
9. None of them claimed over case property nor opted to lead any defence evidence.
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10. Learned Addl. PP for the State argued that prosecution has been able to prove the charges against the accused persons through ocular testimonies of the prosecution witnesses coupled with medical record which has been admitted by the accused persons under Sec. 294 CrPC. He also submitted that there is no reason to disbelieve the testimonies of the prosecution witnesses further submitting that testimonies of the police officials cannot be discarded merely on the basis that they are the police officials. Ld. Addl. PP prayed for conviction to the accused persons, as per the charges framed against them.
11. Per contra, learned defence counsel submitted that prosecution has failed to prove its case against any of these accused persons beyond all reasonable doubts as some of the witnesses identified the accused persons only during their cross-examination conducted by ld.Addl.PP after being declared hostile. Ld. defence counsel submits that prosecution has to prove its case beyond all reasonable doubt and in the present matter, prosecution has failed to discharge its duty by proving its case beyond all reasonable doubts and thus prayed for acquittal of the accused persons for which they have been charged.
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12. Rival submissions considered and material on record have been perused, in view of the present law and just on the issue in question.
13. Undoubtedly, PW-2 HC Kailash was declared hostile by ld. Addl. PP and during his cross-examination conducted by State, he identified the accused persons while PW-5 Raj Kumar, a public witness did not support the prosecution case on the issue for what purposes sound system was taken. PW-6 ASI Shri Ram is silent about presence and role of any other accused Dinesh Kumar. PW-8 HC Hem Chander also declared hostile by ld. Addl. PP and only during said cross-examination conducted by State, said witness identified the accused persons.
14. It is settled law that testimony of a hostile witness cannot not completely wiped out from the record. That part which is found reliable can be acted upon (Ref. Rohtash Kumar Vs. State of Haryana (2013) 14 SCC 434). Besides the above, in Ramesh Harijan Vs. State of UP [(21.05.2012 - SC) Crl. Appeal No. 1340 of 2007], it is held -
18. It is a settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution SC No. 850/2018 State Vs. Dinesh Pratap Singh etc. Page 7 of 20 chose to treat him as hostile and cross examine him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof.
15. It is well settled law that police official are competent witnesses and conviction against the accused can be based on their sole testimony but an onerous duty has been cast upon the court to scutrtinise their statements very closely in order to form an opinion whether they are reliable and trustworthy.
16. Accused persons have been charged with for the offences punishable under Section 147/149 IPC and 186/353/332/333 read with Sec. 149 IPC
17. Rioting has been defined under Sec. 146 IPC and same is reproduced as under:
Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting.
Unlawful assembly is defined under Sec. 141 IPC, which is reproduced as under:
An assembly of five or more persons is designated as an "unlawful assembly" , if the common object of the persons composing that assembly is -
First- To overawe by criminal force, or show of SC No. 850/2018 State Vs. Dinesh Pratap Singh etc. Page 8 of 20 criminal force, the Central or any State Government or Parliament or the Legislature of any State, or any 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; 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 xxxxxxxx Fifth By means of criminal force, or show or criminal force, to compel xxxx
18. Now court has to analysis whether case falls within ambit of Sec. 147/149 IPC or not or falls within provisions of Sec. 34 IPC.
19. No doubt, there is much difference between the scope and applicability of Sec. 34 and Sec. 149. Though both the sections deal with constructive criminal liability, both have the same meaning. Sec. 34 does not by itself create any offence, whereas Section 149 does. Section 149 creates a specific offence and postulates an assembly of give or more persons having a common object. Sec. 34 enacts a rule of co-extensive culpability when offence is committed with common intention by more than one accused.
20. In Ramjanam Pandey, 1993 Supp. (3) SCC 669, 672, Hon'ble Apex Court clearly observed that - "it is well settled that object has to be inferred from various factors like the weapons with SC No. 850/2018 State Vs. Dinesh Pratap Singh etc. Page 9 of 20 which the members were armed their movements, the acts of violence committed by them and from the results thereof."
21. Section 149 is wider than Sec. 34. In it the joint liability is found on the "common object" in Section 34 on "common intention". Bother sections deal with liability for constructive criminality i.e. liability for an offence not committed by the person charge. Section 149 creates a specific offence and deals with the punishment of that offence alone. It postulates an assembly of five or more persons having a common object - namely one of those named in Sec. 141.
22. Section 149 IPC makes every member of an unlawful assembly at the time of committing of the offence, guilty of that offence. The section creates a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object any other member of that assembly. However, the vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common object of the unlawful assembly knew to be likely to the committed in prosecution of that object.
23. Both Sections deal with become responsible for the commission of offence. They have certain object or some exceptions. Sec. 149 is differ with Sec. 34 IPC. Section 34 lays SC No. 850/2018 State Vs. Dinesh Pratap Singh etc. Page 10 of 20 down the principle of constructive liability. The essence of Sec. 34 IPC is a simultaneous consensus of the minds of the persons participating in criminal action to bring about a particular result.
24. Section 149 provides for constructive liability on every person of an unlawful assembly if an offence is committed by any member thereof in prosecution of the common object of that assembly or such of the members of that assembly knew to be likely to be committed in prosecution of that object. Whether an assembly is unlawful one or not, thus, would depend on various factors, the principal amongst them being a common object. Formed by the members thereof to commit an offence specified in one of the other clauses contained in Sec. 141 of the IPC. Constructive liability on a person on the ground of being a member of unlawful assembly can be fastened for an act of offence created by one or more members of that assembly if they had formed a common object.
25. The object of the provisions of Sec. 147 and 149 IPC is to be gathered from the evidence as brought on record as well as documents pertaining to the investigation conducted by the police agency as to whether the assailant has common object of unlawful assembly.
SC No. 850/2018 State Vs. Dinesh Pratap Singh etc. Page 11 of 20
26. The word "unlawful assembly" has been defined under Sec. 141 IPC. "Unlawful Assembly" to be an assembly of five or more persons. They must have a common object inter alia to commit mischief or criminal trespass or other offence. The pivotal question of applicability of Sec. 149 IPC has its foundation on constructive liability which is sine qua non for its application. It contains essentially only two ingredients, namely, (i) the offence committed by any member of any unlawful assembly consisting five or more members; and (ii) such offence must be committed in prosecution of the common object (Sec. 141 IPC) of the assembly or members of that assembly knew to be likely to be committed in prosecution of the common object.
27. Determination of the common object of an "unlawful assembly" or the determination of the question whether a member of the unlawful assembly knew that the offence was committed or likely to be committed is essentially a question of fact that has to be made, keeping in view the nature of the assembly, the arms carried by the members and the behaviour of the members at or near the scene and a host of similar or connected facts and circumstances that cannot be entrapped by any attempt at an exhaustive SC No. 850/2018 State Vs. Dinesh Pratap Singh etc. Page 12 of 20 enumeration and observation, as observed in case reported as Bharat Soni Vs. State of Chattisgarh, 2013 CrLJ 486 (SC).
28. The "words in furtherance of common intention of all"
are a most essential part of section 34 of the Indian Penal Code. It is common intention to commit the crime actually committed. This common intention is anterior in time to the commission of crime. Common intention means pre-arranged plan. On the other hand, Sec. 149 of the Indian Penal Code speaks of an offence being committed by any member of an "unlawful assembly in prosecution of the common object" of that assembly. The distinction between "common intention" under Sec. 34 and "common object" under Sec. 149 is of vital importance as observed in Devi Lal Vs. State,AIR 1971 SC 1444, 1446.
29. It is well settled that Sec. 34 as well as Sec. 149 deal with liability for constructive criminality i.e. vicarious liability of a person for acts of others. Both the sections deal with combination of persons who become punishable as shares in an offence. Thus they have a certain resemblance and may to some extent overlap. But a clear distinction is made out between "common intention" and "common object" in that common object denotes action in concert and necessarily postulates the existence of pre-arranged plan SC No. 850/2018 State Vs. Dinesh Pratap Singh etc. Page 13 of 20 implying a prior meeting of the minds while common intention does not necessarily require proof of prior meeting of minds or pre- concert, Thus, if five or more persons do an act and intention to do it. The non-applicability of Sec. 149 is no bar in convicting the accused under Sec. 302 read with Sec. 34 if the evidence discloses commission of an offence in furtherance of the common intention of them.
30. In case reported as Brathi, AIR 1991 SC 318., it was observed that there is much difference between the scope and applicability of sec. 34 and sec. 149. Though both the sections deal with constructive criminal liability, both have the same meaning. Sec. 34 does not by itself create any offence, whereas hereas section 149 does. Section 149 creates a specific offence and postulates an assembly of five or more persons having a common object. Sec. 34 enacts a rule of co-extensive culpability when offence is committed with common intention by more than one accused.
31. In Munna Chanda Vs. State of Assam, 2006 CrLJ 1632 , it was observed that - there was an unlawful assembly but the appellant was unarmed and except one all were not party to all stages of dispute. The deceased was assaulted by one of the accused persons but it could not be said that they had a common SC No. 850/2018 State Vs. Dinesh Pratap Singh etc. Page 14 of 20 object of killing the deceased because the person who assaulted the deceased could not be ascertained. Two of the appellants were neither named in FIR nor were identified in dock and no overt act was alleged against them. Thus, there membership of assembly was not proved, and their conviction for commission of offence under Sec. 302/149 was set aside as they were entitled to benefit of doubt.
32. In case if a particular person is having common object, then the innocence lie on the defence. The prosecution has to prove for the purpose that there was unlawful assembly to commit various offences for which each accused was a member of the unlawful assembly. Mere presence or association with other members alone does not per se be sufficient to hold everyone of them criminally liable for offences committed by others unless there was sufficient evidence on record to show that one such person also intended to or knew likelihood of commission of such offending act. In the present case, there is no legally acceptable material to prove that the accused persons acted as member of unlawful assembly to connect them with the offences as alleged against them. At any rate in the absence of reliable evidence to prove that the accused persons have prior meeting of mind with ulterior object to commit the offences against the police officials as charged against them, the act would SC No. 850/2018 State Vs. Dinesh Pratap Singh etc. Page 15 of 20 not show common object of unlawful assembly. It is not possible to support conviction and the benefit of doubt must be given to them.
33. Thus, court is of the view that prosecution has failed to prove its case for the offences punishable under Sec. 147/149 IPC.
34. Now, court will analysis the evidence of prosecution witnesses on other aspects for which they have been charged i.e. 186/353/332/333 IPC.
35. It is very strange that in the chargsheet filed under Sew. 173 CrPC, it is mentioned that six police officials sustained injuries while MLCs which have been placed on record are of fifteen police officials. None of the prosecution witnesses has able to depose in their testimonies that which of the assailants has caused injuries to which of the police official. Even though the alleged articles i.e. stones have not been seized nor produced in the court. The banner, amplifier etc. produced in the court have not been seized in accordance with law. Even other wise none of the prosecution witnesses testified that which part of the body has been inflicted blow caused by the assailants capable of causing hurt. The burden is on the prosecution whether the accused persons intended to cause any such bodily injury actually caused may be of assistance in coming to the finding that as to the intention of the accused persons. The SC No. 850/2018 State Vs. Dinesh Pratap Singh etc. Page 16 of 20 prosecution has miserably failed on this count. As such, it may be admitted under Sec. 294 CrPC the said MLCs but there is no mentions in the MLCs as it has been caused by the assailants nor none of the injured made any statement to the doctor concerned how he sustained injuries.
36. To attract the provisions of Sec. 353 IPC there must be in additional to the fact that there was any assault or use of criminal force to the public servant while he was discharging his official duty but noting has been testified by any of the prosecution witnesses suggestive so that accused persons have actually used criminal force or assault any of the public servant in preventing or obstructing the police officials while they were discharging their duties as public servants.
37. With these observations, court is of the view that prosecution has failed to prove this case against any of these accused persons for the offences punishable under Sec. 353/332/333 IPC as well.
38. Now only offence under Sec. 186 IPC remains, for which also these accused persons have been charged. Qua said offence, prosecution took help of PW-1 ASI Murari Lal; PW-2 HC Kailash; PW-3 Inspt Yashvir Singh; PW-4 ASI Subhash; PW-6 ASI Shri Ram; SC No. 850/2018 State Vs. Dinesh Pratap Singh etc. Page 17 of 20 PW-7Const. Anil Kumar; PW-8 HC Hem Chander; PW-9 Inspt. Rajesh and PW-10 ASI Subhash who are material witnesses. All of these witnesses in unequivocal terms stated that all these accused persons along with other persons voluntarily obstructed police officials, who are public servants in the discharge of their public functions, being public servants in the execution of their duty as such public servants.
39. Accused persons took plea of alibi but failed to give the documentary proof of their presence at other place and not at the spot. Simple denial to the facts is of no denial in the eyes of law. Even no such suggestion was put to any of the prosecution witness during their cross-examination and this defence came first time only during their statement recorded under Sec. 313 CrPC. As such, defence regarding plea of alibi taken by accused is of no help to the accused persons and seems only an afterthought based on surmises and conjectures.
40. The prosecution witnesses stated about the presence of accused persons at the spot and crimes committed by them. There is no reason for false implication of any of these accused persons at the hands of the police officials, with whom no ill-will, grudge or enmity has either been alleged or proved. There is no denial that SC No. 850/2018 State Vs. Dinesh Pratap Singh etc. Page 18 of 20 witnesses examined by prosecution to prove the offence are not of police officials, within the meaning of public servants.
41. To constitute the offence under Sec. 186 IPC physical obstruction is not necessary even words can cause obstruction. In case reported as Janki Prasad Vs State of Bihar, 1975 CrLJ 575:
1974 BBCJ 215, it was held that expression "obstruct" using 186 IPC envisages actually resistance and obstacle in the discharge of duty of public servant and it implies use of criminal force. Accompaniment gesture or other sign causing reasonable apprehension in the mind of the public servant is necessary which have been deduced from the evidence as placed on record by the prosecution as well as other circumstances of the evidence. The complaint under Secton 195 CrPC has been duly admitted as Ex. C18 by accused persons during their statement recorded under Sec. 195 CrPC.
42. With the above observations and discussion, court is of the view that prosecution has proved its case against accused persons Dinesh Pratap Singh S/o Sh. Bhagwan Singh; Dhirender Kumar S/o Jardan; Ajay Kumar S/o Sarju Prasad; Satish Kumar S/o Sh. Surender Prasad Singh; Ram Vilas S/o Sh. Inderjeet and Satya Prakash S/o Sh. Shyam Nandan for the offence punishable under SC No. 850/2018 State Vs. Dinesh Pratap Singh etc. Page 19 of 20 Section 186/34 IPC.
43. Sum up of the above discussion is that accused persons namely Dinesh Pratap Singh S/o Sh. Bhagwan Singh; Dhirender Kumar S/o Jardan; Ajay Kumar S/o Sarju Prasad; Satish Kumar S/o Sh. Surender Prasad Singh; Ram Vilas S/o Sh. Inderjeet and Satya Prakash S/o Sh. Shyam Nandan are acquitted of the offences punishable under Sec. 147/149 and 353/332/333 read with Sec. 149 IPC. However, these above named accused persons are held guilty for the offences punishable under Sections 186/34 IPC and are convicted accordingly.
Digitally signed by Announced in open court SATINDER SATINDER KUMAR KUMAR GAUTAM on 03rd day of April, 2019 GAUTAM Date: 2019.04.03 16:25:25 +0530 (Dr. Satinder Kumar Gautam) Addl. Sessions Judge-03 (East): KKD Courts: Delhi. SC No. 850/2018 State Vs. Dinesh Pratap Singh etc. Page 20 of 20