Delhi District Court
State vs Om Prakash & Ors. on 21 August, 2018
State v. Om Prakash & Ors.
IN THE COURT OF SH. VAIBHAV MEHTA,
METROPOLITAN MAGISTRATE (SOUTH) 05,
SAKET COURTS, NEW DELHI
State versus Om Prakash & Ors.
FIR No. 221/1998
PS Mehrauli
U/s 147/148/149/
447/323/506 IPC
JUDGMENT
1 Serial No. of the case : 2031978/2016
2 Date of commission : 28.04.1998
3 Date of institution of the case : 24.08.1999
4 Name of complainant : Sh. Shankar Lal
5 Name of accused : (I) Om Prakash S/o Govind
Ram,
(II) Narender Kumar S/o
Sh. Govind Ram.
(III) Bhagwan Dass S/o Sh.
Narsumal
(IV) Parmanand S/o Sh.
Digitally
signed by Narsumal.
VAIBHAV (V) Shrichand S/o Sh.
VAIBHAV MEHTA Viyapari Mal.
MEHTA Date: (VI) Shri Chand S/o Sh.
2018.08.21 Jaggu Mal.
16:46:21 (VII) Manoj Kumar S/o Sh.
+0530 Heera Lal.
FIR No. 221/1998, PS: Mehrauli 1 of 25
State v. Om Prakash & Ors.
All R/o Village Gadaipur,
ND.
6 Offence complained of : U/s 147 / 148 / 149/ 447 /
323 / 506 IPC
7 Plea of accused : Plead not guilty
8 Arguments heard on : 04.08.2018
9 Final order : Convicted Om Prakash,
Narender, Bhagwan Dass,
Parmanand, Sri Chand S/o
Sh. Viyapari Mal and
Manoj Kumar for offence
u/s 323/447 IPC and
acquitted for offence u/s
506/148/149 IPC and
accused Sri Chand S/o Sh.
Jaggu Mal acquitted for all
offences.
10 Date of judgment : 21.08.2018
BRIEF FACTS AND REASONS FOR DECISION
1. The brief facts of the case of prosecution are that on 28.04.1998 at about 07.45 pm, at khasra no. 533/1, Village Gadaipur, ND, all accused persons were members of an unlawful assembly with the common object of such assembly to commit rioting and thereby entered into the property of complainant Sh. Shankar Lal with intent to commit an offence or to intimidate, insult FIR No. 221/1998, PS: Mehrauli 2 of 25 State v. Om Prakash & Ors.
or annoy and caused simple hurt to complainant Shankar Lal, his father Mohan Das and brother Raj Kumar in the prosecution of the common object of the assembly and also criminally intimidated complainant Shankar Lal and his family members with intent to cause alarm and commit criminal trespass thereupon. Accordingly the FIR u/s 147/148/149/447/323/506 IPC was registered against the accused persons.
CHARGE
2. Prima facie case of commission of offences under Section 148/447/149/323/506 IPC was made out against all accused persons and charge u/s 148/447/149/323/506 IPC was framed upon all the accused persons on 01.07.2000 wherein they pleaded not guilty and claimed trial.
EVIDENCE LED BY THE PROSECUTION
3. The prosecution has examined thirteen witnesses.
PROSECUTION WITNESS
PW1 Shankar Lal Complainant
PW2 Mohan Dass Eye witness and father of
complainant
PW3 Raj Kumar Brother of complainant/
injured
PW4 Prem Singh Record Clerk, AIIMS
FIR No. 221/1998, PS: Mehrauli 3 of 25
State v. Om Prakash & Ors.
PW5 Ct. Dharmender Assisted the IO
PW6 Ct. Ram Jeevan Assisted the IO
PW7 HC Satbir Singh Ist IO of the case
PW8 Dr. Suman Bandhu Asst. Professor
PW9 W/SI Sunil Lamba Duty Officer
PW10 HC Ranbir Singh Prepared DD No. 2A
PW11 Rajbir Record clerk, AIIMS
PW12 Dipender Kumar Patwari
PW13 Ct. Satender Assisted the IO
4. Prosecution has relied upon the following documents: Exhibited by Contents Exhibits PW1 Shankar Lal Statement PW1/A PW4 Prem Singh MLC's PW4/A & PW4/B PW7 HC Satbir Endorsement PW7/A Singh PW8 Dr. Suman Xray report PW8/A Bandhu PW9 W/SI Sunil Copy of FIR & PW9/A & PW9/B Lamba endorsement PW10 HC Ranbir Rojnamcha and DD entry PW10/A Singh PW11 Rajbir Identified signature and PW11/A handwriting on MLC PW12 Dipender Copy of khasra girdawari PW12/A Kumar of khasra no. 533/1 Copy of owner cum PW12/B possession of Mohan Dass Copy of khasra no. 534 PW12/C Copy of jamabandi PW12/D FIR No. 221/1998, PS: Mehrauli 4 of 25 State v. Om Prakash & Ors.
Aksh Shizra PW12/E
5. PW1 Sh. Shankar Lal deposed that on 28.04.1998 at about 07.45 AM, he alongwith his father Sh. Mohan Dass and his brother namely Raj Kumar was present in his fields situated in khasra no. 533/1 of village Gadaipur and in the adjoining fields belonging to Govind Ram, Om Prakash, Narender Kumar and Gur Dayal a plastic factory was running at that time and on the day of incident, accused Narender Kumar and Om Prakash were breaking the wall of the factory and were putting the debris in his field and had made a dola amidst his field.
PW1 Sh. Shankar Lal further deposed that he told accused Narender Kumar and Om Prakash not to put the malba in his fields but both accused said that this land belongs to them after which accused Narender and Om Prakash started abusing him and when he objected, both accused entered into his fields with lathis and assaulted him on his head. PW1 Sh. Shankar Lal further stated that when he raised alarm, his father and brother who were present in the fields came and intervened after which Bhagwan Das, Parmanand, Srichand and Manoj also came there and entered in their fields and gave beatings to them and his father called the police from PCO which was available near their fields and all accused left after giving threat of dire consequences to them. PW1 FIR No. 221/1998, PS: Mehrauli 5 of 25 State v. Om Prakash & Ors.
stated that PCR took them to AIIMS hospital where they were medically examined and his statement Ex.PW1/A was recorded by police in the hospital.
6. PW2 Mohan Dass deposed that on 28.04.1998 at about 07.45 AM, he went to his farm/ fields in khasra no. 533/1 of village Gadairpur alognwith his sons Shankar Lal and Raj Kumar and there they saw that accused Narender, Om Prakash, Bhagwan Das, Parmanand, Sri Chand son of Vyapari Lal and Sri Chand S/o Sh. Jaggu Mal as well as Manoj Kumar were putting malba/ debris from the factory of accused Narender Kumar in his fields after breaking the wall of factory which is adjoining to their fields after which he told all accused not to do so, but all accused abused him. PW2 deposed that his son Shankar intervened and all accused collectively gave beatings to his son with lathies and iron rod and when he tried to rescue his son from all accused, he also sustained injuries on his leg and left hand and then he informed police regarding said incident from the nearby PCO. At about 08.15 AM, police came at the spot and they were taken to AIIMS hospital. When he was in hospital, a police person came there and inquired regarding the incident and his statement was recorded. After treatment he was discharged from hospital.
FIR No. 221/1998, PS: Mehrauli 6 of 25 State v. Om Prakash & Ors.
7. PW3 Raj Kumar deposed that on 28.04.1998 at about 07.45 AM, he alongwith his father went to their field and as they reached there, accused Narender Kumar alongwith Bhagwan Das, Om Prakash, Manoj Kumar, Sri Chand S/o Sh. Vypari Lal and Sri Chand S/o Sh. Jaggu Mal were standing in the field and were breaking the wall with the help of two labourers and the malba/ debris was shifted in his field on the directions given by accused persons after which his brother Shankar Lal objected, but all accused did not agree. PW3 further stated that all accused came in his field with lathies and attacked his father and at the time of incident, he was present in his field situated in khasra no. 534, which is adjoining the place of occurrence. PW3 Raj Kumar further stated that all accused gave beatings to his brother Shankar Lal in his presence and which he tried to rescue his brother, he was also beaten with lathies after which his father informed police by telephone and at about 09.00 the PCR came there and all of them were taken to AIIMS hospital and were medically examined and their statements were recorded. PW3 identified all accused in the court and also stated that they also threatened him and his family members with dire consequences.
8. PW4 Prem Singh Rawat produced the record of MLC no.
33984/98 pertaining to patient namely Shankar Lal S/o Sh. Mohan FIR No. 221/1998, PS: Mehrauli 7 of 25 State v. Om Prakash & Ors.
Dass and stated that as per MLC the injuries were simple & blunt and the MLC was prepared by Dr. Ekki Rimchan on 28.04.1998. PW4 also produced the record of MLC No. 33986/98 pertaining to Mohan Dass prepared by same doctor and he identified the signatures of abovesaid doctor on MLC's Ex. PW4/A and PW4/B.
9. PW5 Ct. Dharamdass deposed that on 28.04.1998 he received the original endorsement and copy of FIR no. 221/98 from DO and thereafter he went to PS Mehrauli and met SI Jagdish and gave copy of FIR and original endorsement to him after which he alongwith SI Jagdish went to Khasra No. 533/1, village Gadaipur and met Shankar Lal S/o Sh. Mohan Dass. PW5 stated that IO prepared site plan at the instance of Shankar Lal and on the pointing out of Shankar Lal, Narender Kumar alongwith Om Prakash were arrested vide arrest memo Ex. PW5/C and PW5/D and their personal search was conducted vide memos Ex.PW5/A and PW5/B and further stated that on 02.05.1998 he alongwith SI Jagdish and Ct. Ram Jeevan went to village Gadaipur and arrested accused Sri Chand, Manoj, Paramand and one other accused whose name he does not remember, at the instance of Shankar Lal and personal search of abovesaid was also conducted vide memos Ex. PW5/E to PW5/I. FIR No. 221/1998, PS: Mehrauli 8 of 25 State v. Om Prakash & Ors.
10. PW6 Ct. Ram Jeevan deposed that on 02.05.1998 he joined the investigation alongwith Ct. Dharam Dass and SI Jagdish Prasad after which they went to village Gadaipur and accused Manoj Kumar, Sri Chand S/o Jaggu Mal, Sri Chand S/o Vypari Mal and Parmanand were arrested in his presence.
11. PW7 HC Satbir Singh deposed that on 28.04.1998 on receiving DD No. 2A regarding incident, he alongwith Ct. Satender went to the spot i.e. Village Gadaipur & came to know that injured had been shifted to hospital after which they reached AIIMS hospital and met injured Shankar Lal & two other injured. PW7 stated that he made endorsement Ex. PW7/A and it was sent through Ct. Satender for registration of FIR.
12. PW8 Dr. Suman Bandhu proved the report of Xray of Mohan Dass Ex. PW8/A and deposed that the report showed no fracture.
13. PW9 W/SI Sunil Lamba proved the copy of FIR Ex. PW9/A and rukka on endorsement Ex. PW9/B.
14. PW10 HC Ranbir Singh deposed that on 28.04.1998 he received message through wireless and proved the DD No. 2A Ex.
FIR No. 221/1998, PS: Mehrauli 9 of 25 State v. Om Prakash & Ors.
PW10/A & same was handed over to HC Satbir.
15. PW11 Rajbir i.e. Record Clerk, AIIMS identified the handwriting and signatures of Dr. Rajiv Kumar on MLC No. 33985/98 of injured Raj Kumar Ex. PW11/A.
16. PW12 Dipender Kumar i.e. Patwari produced the original record of khasra girdwari register of village Gadaipur for the period of 1994 to 1999 and as per record the same khasra no. 533/1 had been in possession of Kanhaiya Lal S/o Sh. Gulab Mal from 08.10.1994 to 27.03.1998 and the recorded owner of abovesaid khasra is Mohan Das S/o Sh. Gulab Mal who repossessed the same khasra no. with effect 22.04.1998.
17. PW13 Ct. Satender deposed on the same lines as PW7 HC Satbir Singh.
18. Thereafter, PE was closed on 30.05.2015.
EXAMINATION OF ACCUSED U/S 313 Cr.P.C.
19. Statements of all accused u/s 313 Cr.PC were recorded on 07.10.2016 separately wherein they opted to lead evidence in their defence.
FIR No. 221/1998, PS: Mehrauli 10 of 25
State v. Om Prakash & Ors.
DEFENCE EVIDENCE
20. Defence examined eleven witnesses.
DW1 Sh. Ladda Ram Known to the accused
DW2 Sh. Ram Nath Known to the accused
DW3 Sh. Mohan Lal Ahuja Known to the accused
DW4 Sh. Dharam Pal Known to the accused
DW5 Sh. Rajbir Singh MRT, AIIMS hospital
DW6 Sh. Gurdyal Singh Known to the accused
DW7 Sh. Shiv Kumar Jindad Patwari
DW8 Sh. Vinay Kumar BSES official
DW9 Sh. Ashok Kumar Pahuja Known to the accused
DW10 Sh. Chander Bhan Known to the accused
DW11 Sh. Bhagwan Dass Known to the accused
21. Documents relied on by defence.
Exhibited by Contents Exhibits
DW2 Identity cards DW2/1 & DW2/2
DW3 Copy of adhar card DW3/1
DW5 Copy of order of DW5/A
destruction of record
DW7 Aks Shizra / massavi of DW7/A
year 1995
Jamabandi DW7/B
Khasra girdawaris DW7/C
Copy of field book DW7/D
Copy of khatoni of khasra DW7/E
Copy of girdawari DW7/F
FIR No. 221/1998, PS: Mehrauli 11 of 25
State v. Om Prakash & Ors.
DW8 Electricity connection DW8/A
installation record in the
name of Mohan Dass
DW11 MLC dated 28.04.1998 DW11/A
22. DW1 Sh. Ladda Ram proved the document Ex. DW1/A and stated that he came to know about the fight between the labourers and the complainant and further stated that complainant has falsely implicated accused persons as they want to take control on Jhule Lal Mandir.
23. DW2 Sh. Ram Nath proved the document i.e. Icard issued by Election Commission and Icard issued from the factory namely Asian Paints as Ex.DW2/1 and DW2/2.
24. DW3 Mohan Lal, DW4 Dharampal & DW9 Sh. Ashok Kumar Pahuja have deposed on the same lines as DW1 and stated that the fight between the lobourers and complainant as a result of which injuries were sustained by the labourers and it was infact the complainant Shankar Lal who was abusing the labourers and was pelting stones and was the aggressor.
25. DW5 Sh. Rajbir Singh i.e. MRT deposed that the summoned record is not available as it has been destroyed. The FIR No. 221/1998, PS: Mehrauli 12 of 25 State v. Om Prakash & Ors.
copy of the order of destruction of record is Ex. DW5/A.
26. DW6 Sh. Gurdayal Singh deposed that the family of accused is having a dispute with the complainant since 1997 and therefore, complainant has implicated the accused persons in a false case.
27. DW7 Sh. Shiv Kumr Jindad i.e. Patwari brought the summoned record Aksh Sizara/ massavi of year 1955 of Village Gadaipur and proved the same as Ex. DW7/A. He also proved the jamabandi of Khasra No. 526/1, 526 /2, 533/1, 533/2, 534, 535/2, 536, 530, 531 and 532 for the year 198586 as Ex. DW7/B and proved the khasra girdawari of the aforementioned khasra numbers as Ex. DW7/C. DW7 also proved the copy of filed book w.r.t aforementioned khasra numbers as Ex. DW7/D and proved the copy of khatauni of khasra no. 298/7 as Ex. DW7/E and the copy of girdawari as Ex. DW7/F.
28. DW8 Vinay Kumar deposed that Mohan Dass had applied an application for seeking electricity connection for agriculture purpose at khasra no. 5331/2, Village Gadaipur and he produced complete installation record pertaining to the case in the name of Mohan Dass S/o Sh. Gulabmal as Ex. DW8/A (OSR).
FIR No. 221/1998, PS: Mehrauli 13 of 25 State v. Om Prakash & Ors.
29. DW10 Sh. Chander Bhan deposed that on 28.04.1998 at about 07.30 am, he alongwith Sh. Gurdayal was called to PS Mehrauli where he found that his name alongwith name of Sh. Gurdayal was also listed alongwith accused persons by the complainant and it was found that he was wrongly listed as a accused by the complainant which was later discovered by the IO during enquiry. DW10 has further deposed that this case has been wrongly registered against accused as there is a dispute between the parties regarding Jhule Lal Mandir.
30. DW11 Sh. Bhagwan Dass deposed that pm 28.04.1998, at about 08.00 am, he saw a fight between labourers and Sh. Shankar, Mohan Lal and Raju and when he tried to intervene and stop the fight, he got hit on the left hand shoulder by lathi after which he went to AIIMS hospital where he got medical examination carried out. DW11 proved the MLC dated 28.04.1998 Ex. DW11/A.
31. Thereafter DE was closed vide order dated 23.04.2018 and matter was listed for final arguments.
FINAl ARGUMENTS
32. The Ld. APP has submitted that prosecution witnesses have given consistent statements and statement of the complainant FIR No. 221/1998, PS: Mehrauli 14 of 25 State v. Om Prakash & Ors.
Shankar Lal finds corroboration from the testimony of other prosecution witnesses. Therefore, the prosecution has been able to prove its case against accused persons beyond doubt. On the other hand, ld. Defence counsel has argued that there are material inconsistencies in the deposition of the complainant and they are at variance with the statement given by him u/s 161 Cr.PC. The counsel for the accused further argued that it is a motivated and false complaint and the prosecution has failed to discharge the onus of proof and so benefit of doubt be given to the accused.
LEGAL PROVISIONS
33. Section 441 IPC defines as Criminal trespass: Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit, "criminal trespass"
Section 447 IPC is stated as such: Punishment for criminal trespass: Whoever commits criminal trespass shall be punished with imprisonment of either description for a term which may extend to three months, with fine or which may extend to five FIR No. 221/1998, PS: Mehrauli 15 of 25 State v. Om Prakash & Ors.
hundred rupees or with both.
For proving case u/s 447 IPC and to find out accused guilty of criminal trespass the prosecution should be able to establish that:
a) The accused entered into / upon property of another.
b) Such property was in the possession of another.
c) The accused entered into such property with intent to
(i) commit an offence;
(ii) to intimidate/ insult or annoy;
(iii) the person in possession of such property.
Section 319 defines hurt as : Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.
Section 323 IPC defines Punishment for voluntarily causing hurt Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
Section 503 defines criminal intimidation as under Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that FIR No. 221/1998, PS: Mehrauli 16 of 25 State v. Om Prakash & Ors.
person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to commit to do any act which that person is legally to do, as the means of avoiding the execution of such threat, commits criminal intimidation.
Ingredients of section 503 IPC:
(I) Threatening a person with any injury:
(i) To his person, reputation, or property; or
(ii) To the person or reputation of any one in whom that person is interested.
(II) Threatening a person with any injury:
(a) to cause alarm to that person, or
(b) to cause the person to do any act which he is not legally bound to do as the any act which he is not legally bound to do as the means of avoiding the execution of such threat. Or
(c) to cause that person to omit to do any act which that person is legally entitled to do as the means of avoiding the execution of such threat.
Whoever threatens another The gist of the offence is the effect which the threat is intended to have upon the mind of the person threatened, and it is clear that before it can have any effect upon his mind it must be either made to him by the person threatening or communicated to him is some way. The threat FIR No. 221/1998, PS: Mehrauli 17 of 25 State v. Om Prakash & Ors.
referred to in this section must be a threat communicated, or uttered with the intention of its being communicated to the person threatened for the purpose of influencing his mind.
Section 506 IPC defines as under Punishment for criminal intimidationWhoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Section 141 IPC defines as 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 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...............
FIR No. 221/1998, PS: Mehrauli 18 of 25 State v. Om Prakash & Ors.
Fifth..................
Section 147 IPC defines as 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.
Section 148 IPC defines as 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.
Section 149 IPC defines as 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.
COURT OBSERVATIONS
34. I have considered the submissions of Ld. APP for the State and of Ld. Defence counsel. I have also gone through the evidence FIR No. 221/1998, PS: Mehrauli 19 of 25 State v. Om Prakash & Ors.
on record very carefully and after assessing it, this court makes the following observations:
(a) PW Shankar Lal is the complainant and is the main witness of the prosecution witness who stated that on 28.04.1998 at about 07.45 am, when he went to his field with his father Mohan Dass and his brother Raj Kumar, he saw accused persons namely Om Prakash & Virender at the adjoining field who were breaking the wall of their factory and putting the debris in his field and when he protested to the same, accused persons Om Prakash and Narender started abusing him and entered into his field and started assaulting him with lathies.
PW1 Shankar Lal further stated when he shouted for help, his brother Raj Kumar and his father Mohan Dass intervened after which accused persons namely Bhagwan Dass, Parmanand, Manoj and Sri Chand S/o Sh. Viyapari Mal also came there and entered into his field and collectively gave beatings to him, his brother Raj Kumar and his father Mohan Dass.
(b) The testimony of PW1 Shankar Lal is corroborated in part by PW2 Mohan Dass and PW3 Raj Kumar and there are certain inconsistencies in the testimonies of PW1 to that given by PW2 Mohan Dass and PW3 Raj Kumar.
FIR No. 221/1998, PS: Mehrauli 20 of 25 State v. Om Prakash & Ors.
(c) PW2 Mohan Dass has stated in his examination in chief that on 28.04.1998 he alongwith his sons Shankar Lal and Raj Kumar saw accused persons Om Prakash, Narender, Bhagwan Dass, Parmanand, Manoj Kumar, Sri Chand S/o Sh. Viyapari Mal and Sri Chand S/o Sh. Jaggu Mal put the debris/ malba from the factory of Om Prakash into their fields and when they protested, all accused persons collectively gave beatings to him and his sons.
(d) PW2 Mohan Dass has not stated anything about them being threatened / criminally intimidated by the accused persons and has stated that all seven accused persons came together and gave beatings to him and his sons.
Whereas PW1 had stated that initially Om Prakash and Narender had entered their field and given them beatings and later on accused Bhagwan Dass, Parmanand, Manoj and Sri Chand S/o Sh. Viyapari Mal had entered and given beatings to them.
(e) PW1 the complainant has not mentioned the role of Sri Chand S/o Sh. Jaggu Mal in the incident and has given a version inconsistent to that of PW2 Mohan Dass and PW3 Raj Kumar.
(f) The testimonies of PW2 Mohan Dass and PW3 Raj
FIR No. 221/1998, PS: Mehrauli 21 of 25
State v. Om Prakash & Ors.
Kumar corroborated the testimony of the complainant as far as the factum of injuries sustained by them is concerned.
(g) Further the factum of injuries sustained by the complainant and his family members is further corroborated by the MLC's of Sh. Shankar Lal, Sh. Mohan Dass and Sh. Raj Kumar which shows the injuries sustained by them as simple in nature.
(h) There are inconsistencies between the testimonies of main prosecution witnesses as far as offence u/s 506 IPC is concerned. While the complainant PW1 Shankar Lal has stated in his examination in chief that the accused persons left the spot after giving threat for dire consequences, PW2 Mohan Dass i.e. father of the complainant has not stated anything w.r.t any threat leveled by accused persons. Non mention of this fact by PW2 Mohan Dass is material as he was present at the spot at the time of incident and has corroborated the testimony of the complainant as far as the injuries inflicted by the accused persons is concerned. Therefore, this court is of the view that prosecution has not been able to prove the guilt of the accused persons for offence u/s 506 IPC.
(i) As far as offence of rioting is concerned, there are certain inconsistencies in the testimonies of the main prosecution witnesses FIR No. 221/1998, PS: Mehrauli 22 of 25 State v. Om Prakash & Ors.
as regards to the number of accused persons at the spot. For offence u/s 146 IPC, there must be an unlawful assembly and in order to constitute an unlawful assembly, there must be five or more persons present at the spot having common object as outlined section 141 IPC. The complainant has clearly stated in his examination in chief that initially only accused Om Prakash and Narender had entered into his field and later on after the father and brother of the complainant intervened accused persons Bhagwan Dass, Parmanand, Manoj Kumar and Sri Chand S/o Sh. Viyapari Lal and inflicted injuries. Therefore, on the basis of the testimony of complainant, there was no common object of the accused persons and at the most only common intention as defined under section 34 IPC is made out. Therefore, the prosecution has failed to prove the guilt of the accused persons u/s 148/149/506 IPC.
(j) Accused persons have produced many witnesses to show that malba / debris was not being thrown by them on the land of the complainant, therefore, there was no cause for them to trespass the land of the complainant and caused injuries to complainant and his family members and the complaint lodged by the complainant is a motivated one.
Furthermore, accused persons have also raised the defence that the complainant had an argument with the labourers and it was FIR No. 221/1998, PS: Mehrauli 23 of 25 State v. Om Prakash & Ors.
the labourers who had caused injuries to the complainant and his family members.
(k) However, no labourer were brought by the defence for deposing in this regard. Also the accused persons have not substantiated their defence by placing on record any tangible / material evidence.
(l) The testimony of PW1 Shankar Lal, PW2 Mohan Dass and PW3 Raj Kumar duly corroborated by their MLC is sufficient to prove the guilt of accused persons Om Prakash, Narender Kumar, Bhagwan Dass, Permanand, Sri Chand S/o Sh. Viyapari Mal and Manoj Kumar.
(m) The complainant has not made any specific allegations against accused Sri Chand S/o Sh. Jaggu Mal in his examination in chief. Therefore, this court acquits accused Sri Chand S/o Sh. Jaggu Mal for offences u/s 148/149/447/323/506 IPC.
(n) However, the prosecution has been able to prove the guilt of the remaining accused persons Om Prakash, Narender, Bhagwan Dass, Parmanand, Sri Chand S/o S. Viyapari Mal and Manoj Kumar for offence u/s 323/447/34 IPC.
FIR No. 221/1998, PS: Mehrauli 24 of 25 State v. Om Prakash & Ors.
35. For the reasons mentioned above, this court is of the view that the prosecution has been able to prove the guilt of the accused persons namely Om Prakash, Narender, Bhagwan Dass, Parmanand, Sri Chand S/o Sh. Viyapari Mal and Manoj Kumar beyond doubt for offences u/s 323/447/34 IPC. Therefore, they are convicted for offences u/s 323/447/34 IPC and are acquitted for offences u/s 506/148/149 IPC. Accused Sri Chand S/o Sh. Jaggu Mal is acquitted for offences u/s 148/149/447/323/506 IPC and he is directed to furnish bail bonds u/s 437A Cr.PC.
36. Let remaining accused persons Om Prakash, Narender, Bhagwan Dass, Parmanand, Sri Chand S/o Sh. Viyapari Mal and Manoj Kumar be heard on quantum of sentence.
Announced in the open (VAIBHAV MEHTA)
court on 21.08.2018 MM5 (South), Saket Courts
New Delhi
FIR No. 221/1998, PS: Mehrauli 25 of 25