Delhi District Court
State vs . Asif Namberdar & Ors. on 19 December, 2014
IN THE COURT OF Ms. SHEETAL CHAUDHARY PRADHAN:
METROPOLITAN MAGISTRATE10 (SOUTHEAST): SAKET
COURTS:NEW DELHI
State Vs. Asif Namberdar & Ors.
FIR No. 175/1997
U/s 147/148/149/186 IPC & Section 29 &
30 (f) & (g) of D. M. C. Act
P.S. Sriniwaspuri
J U D G M E N T
Serial No. of the Case : 187/2/14
Unique Identification No. : 02406R0039971999
Date of Institution : 21.12.1999
Date on which case reserved for
judgment : 24.11.2014
Date of judgment : 19.12.2014
Name of the complainant : Shri Ram Kumar Dahiya
Presiding Officerpolling Station
No.57, Ward No.7, Lecturer
FIR No. 175/1997
P.S. Sriniwaspuri Page No.1 of 43
Sarvodaya Vidyalaya, Gulabi
Bagh, Delhi
Date of the commission of offence : 23.02.1997
Name of accused : (i) Asif Namberdar
s/o Shri Abdulwali
r/o 180, Gali No.4, Zakir
Nagar, New Delhi
(ii) Asif Chaudhary
s/o Shri Javed Chaudhary
r/o B15, Batla House,
Muradi Road, Jamia Nagar
(Expired)
(iii) Yusuf
s/o Shri Kamrul Islam
r/o A84, Noor Nagar
Extension, Johri Farm
Okhla Village, New Delhi
(iv) Soech Danish
s/o Shri Abdul Ali
r/o H. No.47, Joga Bai,
Zakir Nagar, New Delhi
FIR No. 175/1997
P.S. Sriniwaspuri Page No.2 of 43
(v) Naseem
s/o Shri Subeer Ahmed
r/o D199, Gali No.17,
Zakir Nagar, New Delhi
(vi) Owaish Mohammad
Khan
s/o Shri Afsar Mohd. Khan
r/o 189, Main Road, Zakir
Nagar, New Delhi
(vii) Mohd. Jahangir @
Sephu
s/o Shri Abdul Salim
r/o 211, Zakir Nagar, New
Delhi
(viii) Zaved Alam
s/o Shri Khurshid Alam
r/o 379/14, Zakir Nagar,
New Delhi
(Since Expired)
Offence complained of : U/s 147/149/186/353 IPC &
Section 29 & 30 D. M. C.
Act, 1957
FIR No. 175/1997
P.S. Sriniwaspuri Page No.3 of 43
Offence charged of : U/s 147/149/186 IPC &
Section 29 & 30 (f) (g) D. M.
C. Act, 1957
Plea of the accused : Pleaded not guilty.
Final order : Acquitted
Date of Institution : 21.12.1999
Date on which case reserved
for judgment : 24.11.2014
Date of judgment : 19.12.2014
BRIEF STATEMENT OF REASONS FOR
THE DECISION OF THE CASE
BRIEF FACTS:
Briefly the case of the prosecution is that the present FIR was registered on a complaint of Shri Ram Kumar Dahiya stating that he was the Presiding Officer at polling station No.57 at Ward No.7 on 23.02.1997 i.e.when 23 persons reached at the polling station No.57 and suddenly snatched the ballot papers and threw them out and mob of people was also there outside the room. The complainant construing the polling party as well as staff of police and the SHO on duty tried to pacify them but the condition became out of control and thereafter those people had torn the paper of other FIR No. 175/1997 P.S. Sriniwaspuri Page No.4 of 43 polling booth also. From there polling booth, 37 ballot papers were torn and statement of polling officials were attached with the complaint, for inquiry and hence, present complaint.
2. On the basis of the above mentioned complaint, the present FIR was registered. Investigation was carried out and on the conclusion of the investigation, charge sheet was filed in the court on 21.12.1999. Copy of the charge sheet was supplied to the accused in compliance of Section 207 Cr.P.C on 06.03.2000.
3. On the basis of material placed on record, on 28.04.2003 charge was framed against the accused persons under Section 147/186 IPC read with Section 149 IPC & Section 29 & 30 (f) & (g) of D. M. C. Act, 1957 IPC to which they pleaded not guilty and claimed trial.
4. It is evident to discuss the testimonies of all the prosecution witnesses in the present matter. Prosecution examined as many as twenty three (23) witnesses in order to prove its case.
(PWs SI Bijender & Ct. Raj Kumar who have been numbered same, for the sake of convenience, Ct. Raj Kumar shall be read as PW13A) FIR No. 175/1997 P.S. Sriniwaspuri Page No.5 of 43 (PW Inspector Ramphal & PW retired ASI Ramesh have been numbered same, for the sake of convenience retired ASI Ramesh shall be read as PW16A) (PW Inspector Ajit Singh & PW retired HC Kitab Singh have been numbered same as PW17, for the sake of convenience retired retired HC Kitab shall be read as PW17A) (PW Inspector Ct. Ramesh Chand & Smt. Sudesh Juneja have been numbered same PW18, however, for the sake of convenience Smt. Sudesh Juneja shall be read as PW18A) PW1 Shri Ram Kumar Dahiya (the complainant) deposed that on 23.02.1997 while he was posted as Presiding Officer a booth No.57 at Ward No.7, at Okhla Primary School as MCD Election were going on, 23 persons entered into the room, at that time concerned SHO Ishwar Singh was also present and the complainant & the SHO concerned tried to pacify them but the said persons suddenly came inside and snatched 36 ballot papers from the hand of the concerned officer and thereafter had torn them. In this regard, he made a complaint to the police Ex.PW1/A. During the crossexamination, PW1 stated, he cannot identify the persons who came to the polling booth and he cannot identify any person who had come to polling booth. He went to the concerned DCP 5 th Battalion in connection with the case at Kingsway Camp and the police had not conducted any proceedings regarding this matter in his presence. His statement was once recorded in the year 1999 in the DCP office and no other FIR No. 175/1997 P.S. Sriniwaspuri Page No.6 of 43 proceedings was conducted in his presence.
PW2 Constable Anil Kumar deposed that on 23.02.1997 he was posted at P.P.Okhla as head and on that day MCD General Election was going on and he was performing his duty at Jamia Milia Islamiya College polling station. At about 12:00 noon a mob suddenly came there on booth No.27, 28 & 37 and they started tearing the ballot paper from the above said booth after snatching them from the concerned official and they also threw the ballot boxes outside the room. At that time, Inspector Joginder Singh, HC Balbir Singh and other staff member were also present. They tried to control the said mob but could not succeed and in the above said mob accused Danish, Javed Alam, Yunus and Salim @ Mota were also present. Witness correctly identified all accused persons. Thereafter, additional force reached at the spot and the accused persons and the mob present there ran away. His statement was recorded by IO.
During the crossexamination, PW2 stated that in the said election his duty started from 10:00PM on 22.02.1997 till the end of the polling. There was heavy crowd and it was correct that he cannot identify the entire crowd/mob which entered inside the room where the polling was going on. However, he had seen the accused persons in the said mob. Also he knew the accused persons prior to the incident as they were living in the area FIR No. 175/1997 P.S. Sriniwaspuri Page No.7 of 43 of P.P. Okhla now P.S. Jamia Nagar and during that incident, he remained at the spot. The additional force was called by Inspector Joginder Singh and statement of PW2 was recorded by the IO only once but he did not remember the exact date of the same. Statement was recorded on the same day and he had not participated in any other proceeding.
PW3 Shri Chaman Lal Katahal deposed that on 23.02.1997 he was working with Army Headquarters as ACSO and was deputed in election duty of MCD election at Jamia Milia College as Presiding Officer. As per his memory, one Rajender Singh and 34 more persons were also deputed and at around 12:00 noon when they were busy in discharging their election duty with lightening speed, some persons entered into the room, number he cannot tell as he was busy but they suddenly entered and may be were about 1015 in number. He further deposed that during that time persons who entered the room had snatched all the documents which the officials were holding and thrown away the same. The ballot papers which were in his hand were snatched and taken away and he did not know as to what was done to those ballot papers by those persons. Further one lady constable was also posted outside the room and he had not lodged any complaint to the officials in this context. However, his senior who was incharge has submitted his report. Police recorded his statement.
FIR No. 175/1997 P.S. Sriniwaspuri Page No.8 of 43
During crossexamination by Ld. APP for the State, PW3 stated that it was correct that he had given a complaint in writing to his returning officer and the same was Ex.PW3/A which was in his own handwriting. However, witness could not identify the culprits as the incident had happened suddenly and also that he had not seen any weapon of offence in the hands of the offenders. He further stated that he had not stated to the police in his statement U/s 161 Cr.P.C. that the mob was armed with lathis and dandas, but when he peeped outside his room, he saw some persons carrying lathis and dandas but he could not say, if those persons were the same who had committed the offence. Due to passing of time, PW3 was not able to recollect about the identity of the persons and PW3 was not able to identify the accused persons.
During the crossexamination by Ld. Counsel for all accused, PW3 stated, where he was Presiding Officer, there was no police official in his room and he cannot say, if any police official was present outside the room apart from one lady constable. Further on 23.02.1997 no police official met him or made any inquiry from him and no police official contacted him regarding the present case and he was called only once at P.S. Vikaspuri and he was never called at police station Sriniwaspuri. Lastly, police had not made any inquiry in his presence and police did not record his FIR No. 175/1997 P.S. Sriniwaspuri Page No.9 of 43 statement.
PW4 HC Balbir Singh deposed that on 23.02.1997 while he was posted at P.P. Okhla, P.S. Sriniwaspuri along with Inspector Jogender Singh and were deputed at Ward No.7, Booth No.27, 28 & 37 as MCD Election were going on in Jamia Milia College, at about 12:00 noon, mob consisting of about 200250 people armed with lathis and dandas came there and attempted to get into election booth. Efforts were made to stop them but one person namely Javed Alam who was Janta Dal candidate was leading the said mob and another person was accused Asif Chaudhary (since expired) (witness identified the accused persons, namely, Naseem Ahmed, Danish & Naseeb apart from accused Nayeeb). They made entry into the booth forcibly and snatched ballot papers, ballot boxes which were thrown and other election material were torn and thrown and subsequently left the spot after raising slogans. His statement was recorded by the IO and that he knew the culprits by their names and could identify others and again identified accused Yusuf, Naseem & Owais Khan. He further stated that he had given the names of accused persons in his statement U/s 161 Cr.P.C. to the IO.
During crossexamination by Ld. APP for the State, on the point of identity, PW4 stated, it was correct that in his statement he had identified as Yunus, Soaib, Danish, Ashish Chaudhary, Naeem @ Mota and FIR No. 175/1997 P.S. Sriniwaspuri Page No.10 of 43 Javed Alam. Further he admitted that he could identify the other persons not by name but by their identity and it was only for the reasons that the incident happened in the year 1997 he was not able to recollect every content of his statement and also the accused persons were armed with lathis and dandas.
During the crossexamination by Ld. Counsel for all accused, PW4 stated, he was deputed at polling booth from 10:00PM of 22.02.1997. He was discharged from his duty at about 03:00PM on 23.02.1997 and remained at booth till he was discharged and he was posted at P.P. Okhla Head, for one year. Further he had not arrested the accused persons in any case while his posting at P.P. Okhla Head. Further, he knew accused Javed due to the reason, as he used to arrange political meeting and other accused persons used to accompany him. Further he came to know about them during election campaigning. Further he could not identify the mob as it contained about 200250 people and out of which only 3040 persons entered into the polling booth and they had entered about 12:00 noon and raised slogan for about 5 minutes. He further deposed that he firstly met with the IO and gate of the police post of Okhla at 10:00PM who recorded his statement but thereafter he had never met the IO. It was further correct that only 200250 people entered the polling both and PW4 remained at the police station from 05:00PM to 10:00 PM and his statement was FIR No. 175/1997 P.S. Sriniwaspuri Page No.11 of 43 recorded by IO on 24.02.1997 at 09:00AM at Police post.
PW5 Shri Bhim Singh (Deputy DirectorAir Force) deposed that on 23.02.1997 he was posted as Assistant Civilian Staff Officer in Defence Air Foce Headquarters and on that day he was on election duty at polling station No.28, Ward No.7, Jamia Milia and was the presiding officer of the polling station. On that day, at about 11:4512:00 noon a mob entered in the polling booth having in their hand lathis and dandas and attacked on the police officials. They snatched the polling paper and election articles from the polling official and started giving them beatings. They took out the ballot papers and election articles from polling booth. The police officials posted in the polling booth tried to control the situation but they could not control the same. He submitted his written complaint to his returning officer of Ward No. 7, Booth No.28, Jamia Milia Ex.PW5/A. During the crossexamination by Ld. Counsel for all accused, PW5 stated, police officials standing outside were immediately informed and met them. Police officials also met them at their Office after sometime of the incident (PW5 was confronted with his statement examinationinchief where he had stated that accused persons were carrying lathis and dandas only). Further, police officials had met them only once (confronted with his statement Ex.PW5/A where he had not mentioned that he FIR No. 175/1997 P.S. Sriniwaspuri Page No.12 of 43 was attacked by lathis and dandas. Further police had not recorded statement of any person in his presence or made any site plan.
PW6 Shri K. C. Gahoi deposed that on 23.02.1997 he was employed with Ministry of Defence (Air Headquarters), R. K. Puram at Directorate of Stores and was on election duty in Jamia area but he could not recollect the exact place. He deposed that on that day beside him other staff members were also there and his duty was to supervise the casting of votes in the election that is when at about 11:45AM and 12:00 noon a mob came and had torn the ballot paper and therefore he reported the matter in writing to his returning officer on the same day (Said complaint was not on record). He further deposed that he cannot identify the persons who he had referred in his complaint. Further during investigation he was never asked by the police to identify those persons who committed the offence, thereafter witness was asked to identify, if the said persons were present in the court for which he refused (accordingly, witness did not identify the accused persons in the court).
Examinationinchief was deferred for want of aforesaid complaint. Thereafter, witness was never recalled for further examination.
PW7 Shri R. K. Chadha deposed that at the time of MCD FIR No. 175/1997 P.S. Sriniwaspuri Page No.13 of 43 Election held on 1997 he was working at Naval Headquarters (Directorate of Works) as Private Secretary. During the MCD Election held on 23.02.1997 at Jamia Milia Institute at Okhla, Election was going on smooth in Booth No.45, Ward No.7 but suddenly noted that a number of people came in groups and started taking away election material i.e. ballot boxes, ballot papers and stamps etc. Further at 11:45AM they had torn many papers and took away many papers which they destroyed outside the booth. Though security people was there but due to the large crowd was there, the security personnel could not control them and due to the same the election was withheld and PW7 being presiding officer of the said booth lodged a complaint Ex.PW7/A with his returning officer and also lodged a complaint to the police station Sriniwaspuri through his returning officer. IO recorded his statement.
Opportunity to crossexamine PW7 was granted to the accused persons but they did not question anything to PW7.
PW8 Shri Diwan Chand deposed that at the time of MCD Election on 23.02.1997 he was working as Air Headquarters as Section officer and was deployed as Presiding Officer at Booth No.29 of the MCD Election held at Jamia Milia Secondary School under Okhla Constituency. During that time, 45 other staff members were also deployed at the said booth and election was going smooth but at about 12:45PM, all of sudden a FIR No. 175/1997 P.S. Sriniwaspuri Page No.14 of 43 violent mob having lathis in their hand attacked the polling booth. They were about 200 in number and aged between 1525 years of age who entered the polling booth forcibly and snatched the ballot boxes and other material used, unused and threw them out of the room. They destroyed the material which was issued to booth No.29 and took away some material. One police man was also positioned in the booth but he could not control the situation as the mob was in large number. In the meantime, someone informed that the police was coming, therefore, mob tried to run away from the spot. After about an hour, Election Commission officer along with some senior officer and extra police force came in the booth and situation was control. Present incident was brought to the notice of Election Commission Officer i.e. RO, ARO and Section Officer. PW8 made a written complaint to the Returning Officer ward No.7, booth No.29, Okhla which was Ex.PW8/A. Opportunity to crossexamine PW8 was granted to the accused persons but they did not question anything to PW8.
PW9 Shri N. K. Jain deposed that at the time of MCD Election on 23.02.1997 he was working at Navel Headquarters as Section Officer and was deployed as Presiding Officer at Booth No.44, Jamia Polytechnic Okhla constituency. At about 11:45AM a mob entered his polling booth having sticks in their hands and started taking all their polling material including ballot FIR No. 175/1997 P.S. Sriniwaspuri Page No.15 of 43 boxes and went away. PW9 made a complaint to the Returning officer Ward No.7 vide Ex.PW9/A and IO recorded his statement.
Opportunity to crossexamine PW9 was granted to the accused but he did not question anything to PW9.
PW10 retired HC Surender Kumar deposed that on 23.02.1997 he was posted at P.S. Sriniwaspuri and his duty hours were from 04:00PM to 12:00 midnight. On that day, at about 08:25AM Ct. Rajender who was sent by SI R. R. Khatana handed him the rukka, upon which present FIR Ex.PW10/A was registered. He endorsed the rukka and gave a copy of FIR to Ct. Rajender to be handed over to SI R. R. Khatana.
Opportunity to crossexamine PW10 was granted to the accused persons but they did not question anything to PW10.
PW11 Inspector Satish Sharma deposed that the investigation of the present was assigned to him in May 1998 and during investigation, he recorded the statement of witnesses and obtained sanction U/s 195 Cr.P.C. Ex.PW11/A and thereafter he was transferred from P.S. Sriniwaspuri and investigation was handed over to another police official.
Opportunity to crossexamine PW11 was granted to the accused persons but they did not question anything to PW11.
PW12 HC Prem Prakash deposed that on 23.02.1997 during FIR No. 175/1997 P.S. Sriniwaspuri Page No.16 of 43 MCD General Election his duty was at Ward No.7 on route No.29 and 32 polling Station, in the complex of Jamia University. Ct. Satbir who was from Okhla Police Post and SI Ranjit Dahiya were with him. SI Ranjit Dahiya was the supervisor along with other police staff. Between 11:0012:00 noon a mob constituting 200250 person gathered at the booth armed with lathis and dandas and out of some persons from the mob entered into the booth and had torn off the ballot papers and taken the ballot boxes. They tried to control the mob including the persons who had torn the ballot papers from the ballot boxes and SI Ranjit Dahiya took out his pistol and showed the same to the mob and gave warning to the members of unlawful assembly for not obstructing the work of public servant and warned that appropriate action will be taken against the defaulters. Thereafter mob disappeared slowly and all eight persons who were leading the unlawful assembly had torn the ballot papers and had thrown ballot boxes were identified as Arif Namberdar, Asif Chaudhary, Yusuf, Naseem, Mohd. Jahangir, Javed Alam and two others whose name PW12 did not remember in association with other members of the unlawful assembly. All the six accused persons were identified by PW12. He further stated that on the date of incident i.e. 23.02.1997 they were the members of unlawful assembly who were leading the mob with the common object to cause obstruction in the duty of public servants and in the course of FIR No. 175/1997 P.S. Sriniwaspuri Page No.17 of 43 the same had torn the ballot papers with the assistance of the mob (identity of seventh accused was not disputed by his counsel) During the crossexamination by Ld. Counsel for all accused persons, PW12 stated that he remained posted in P. P. Okhla from January 1996 to April 1997 and prior to the incident he was knowing the accused persons by their faces and even knew accused persons by their names. His duty was at polling booth from 04:00AM till the completion of election process and other related works. He remained at the spot till 02:0003:00PM on the date of incident. The torn ballot papers and ballot boxes were not seized in his presence and his statement was recorded on next day at the police post by IO whose name he did not remember. IO had recorded the statement of PW12 and other persons which he could not tell. Further in the mob PW12 did not know any other persons except the accused persons and all the accused persons had also disappeared from the spot along with the mob after warning was given by SI Ranjit Dahiya. Further there were more than 3040 persons who had lathis in their hand and mob gave beatings to SI Ranjit Dahiya and scuffled with him. He had mentioned this fact in his statement (confronted with the statement U/s 161 Cr.P.C wherein it was not recorded.) During investigation he along with IO had gone to search for accused persons but the date of the same he did not remember. FIR No. 175/1997 P.S. Sriniwaspuri Page No.18 of 43 He had not collected the torn ballot papers and same were maintained by the officers relating to Election Department, further that woman was not part of mob. There were school students also who were part of mob and took active part in destroying the ballot boxes. Prior to the incident, PW12 was not aware about the residential address and parentage of accused persons and he did not remember if he had met or seen the accused persons after the date of incident in the locality. PW12 further deposed that he cannot identify the ballot boxes or the ballot papers involved in the present incident due to lapse of time and as the incident occurred in the year 1999. He did not know about the broken locks of the ballot boxes PW13 SI Bijender deposed that the investigation of the present matter was assigned to him on 01.01.1999 and during the course of investigation he visited the office of Election Commission located at Kashmiri Gate and he had submitted the application for grant of permission U/s 195 Cr.P.C. and after obtaining permission by the SHO, same was marked to him on 29.10.1999 for necessary action. The permission is Ex.PW13/A. Opportunity to crossexamine PW13 was granted to the accused persons but they did not question anything to PW13.
PW13A Ct. Raj Kumar deposed that on 23.02.1997 his duty was at NDMC Primary School at Okhla Village and during the general FIR No. 175/1997 P.S. Sriniwaspuri Page No.19 of 43 election at ward no.7. On that day, at about 11:15AM a candidate of Congress namely Saleem along with his 5060 supporters visited there and started making hue and cry stating that in the election some cheating was going on and forcibly entered into the polling booth and meanwhile one more candidate namely Javed Alam of Janta Dal along with 150 to 200 supporters entered into the gate of school forcibly the PW13A was deputed and despite best efforts they had torn the ballot papers after reaching the polling booth. The 'ballies' were detached by all of them after doing the same and they fled away from the spot. Witness identified the accused Javed Alam who had entered the polling booth forcibly and had torn the ballot papers and thereafter also identified all the accused persons stating that they were supporters of accused Javed Alam on that day.
The ballot papers/documents which were torn by accused Javed Alam and his associate and accused Saleem were identified by PW13A which were Ex.P1 (Colly).
Opportunity to crossexamine PW13A was granted to the accused persons but they did not question anything to PW13A.
PW14 HC Rajender Singh deposed that on 23.02.1997 he was posted as Constable at P.P. Okhla Head and the IO had handed over to him the rukka for the registration of the present matter and after getting the FIR No. 175/1997 P.S. Sriniwaspuri Page No.20 of 43 registration of FIR at P.S.Sriniwaspuri, he returned to Jamia College and handed over the copy of FIR and original rukka to the IO.
Opportunity to crossexamine PW14 was granted to the accused but he did not question anything to PW14.
PW15 Shri Darshan Singh deposed that on 23.02.1997 he was working as Presiding Officer in MCD General Election at polling Station of Ward No.7 Booth No.755, MCD Girl School along with other staff. At about 12:00 noon the mob entered the polling station and 34 persons from the mob entered his room where he was working and started tearing the ballot papers and voters list. In this regard, he made a complaint Ex.PW15/A to SHO P.S. Sriniwaspuri. Thereafter, PW15 deposed that he cannot identify the aforesaid persons who entered in his room and had torn the ballot papers and voter list. The torn ballot papers and ballot boxes are Ex.P1 & Ex.P2.
During the crossexamination by Ld. Counsel for all accused except accused Javed & Owaish Khan, PW15 stated that he had told the police that the mob and 34 persons came to the polling station and had torn the ballot papers (confronted with the statement Ex.PW15/A, wherein it was not so recorded) During the crossexamination by Ld. Counsel for accused Javed & Owaish Khan, PW15 stated that there were 45 booths in MCD FIR No. 175/1997 P.S. Sriniwaspuri Page No.21 of 43 Girls Primary School and there were some voters present outside the polling room. However, at that time only one voter was permitted in the room and he was present with four polling officer and a peon. Further he had conveyed regarding the incident to his Sector Officer, and also gave a complaint Ex.PW15/A in respect to same. He admitted that the police had not collected any information after he made the complaint and he did not know as to how many polling station were, Incharge of one Sector officer and further he did not remember, as to what time Sector officer reached the spot. Police staff were already present but he did not know as to when the SHO and IO reached at the spot. He had stated that the mob was unruly in his complaint as they had started snatching the ballot papers and had also torn them. The ballot papers torn were from 601 to 700 which were given to him on the date of incident but he did not remember the name of the officer who had issued the ballot papers.
PW15 admitted that the police had not recorded the statement of persons who was having control of ballot papers. He remained at the polling spot till 05:00PM and the polling had stopped after the incident but he did not remember the time when he had returned the polling material as the incident was 15 years old. Further that ACP and Commissioner of Police had also come to his office regarding the present incident and ACP recorded his FIR No. 175/1997 P.S. Sriniwaspuri Page No.22 of 43 statement. However, PW15 stated that he did not understand who the IO is and therefore cannot say who had recorded his statement and it had given any statement apart from one given to ACP. Police had called at Police Line for inquiring about the present incident and his statement was written by ACP in his writing. He had not made any complaint to SHO except complaint Ex.PW15/A (confronted with statement U/s 161 Cr.P.C, wherein it is not so recorded). The Sector officer has not given any statement to the police in his presence and that there were some police persons already on duty and the mob did not enter into the polling room and only 45 persons entered in the polling room and they were young, probably aged between 2030 years. The persons who entered in the polling room were unarmed (confronted with statement U/s 161 Cr.P.C.) except snatching the ballot papers nothing more had happened in the polling room and the mob have not touched the ballot boxes (confronted with statement U/s 161 Cr.P.C.).
PW16 Inspector Ramphal deposed that on 23.02.1997 his duty was in MCD General Election at Jamia Polytechnic at Booth No.44, 45 & 45A of Ward No.7 and he was working as SI. On that day at about 12:00 noon a mob consisting of 4050 persons forcibly entered the booth and started tearing of the ballot papers and threw the ballot boxes and also torn the voter list. They tried to restrain the aforesaid illegal assembly but could not do the FIR No. 175/1997 P.S. Sriniwaspuri Page No.23 of 43 same and active members of the said assembly were namely Shoaib Danish, Mohd. Jahangir, Naseem Khan, Javed Alam, Yunus, Aslam, Asif Chaudhary, Owaish Mohammad Khan & Asif Nambardar. The mob was led by accused Javed Alam who was candidate of Janta Dal. Accused persons with the help of other members of unlawful assembly damaged the ballot boxes. IO seized the ballot boxes numbering 16 and some ballot papers and documents relating to the election with the seal of RP vide memo Ex.PW16/A and the scene of occurrence was also photographed. Witness identified all the accused persons except accused Asif Nambardar and Shoaib Danish (they were exempted through counsel).
Opportunity to crossexamine PW16 was granted to the accused persons but they did not question anything to PW16.
PW16 A retired ASI Ramesh deposed that on 23.02.1997 while he was on election duty at booth NO.29, 30, Harcharan Singh at Ward No.7 and the Incharge of the booth was SI Ranjit Singh. Ct. Prakash Singh and Constable Satbir was also along with him along with other police officers. On that day at about 12:15PM a mob entered the booth by creating a noise and police tried to control the mob but they did not stop and snatched the wooden sticks of the police officials and had torn the ballot papers and destroyed the ballot boxes. They remained at the polling booth for about 1520 minutes and FIR No. 175/1997 P.S. Sriniwaspuri Page No.24 of 43 later left the spot. The mob was alleging that the voting was not conducted fairly and therefore will not allow same to take place. They were about 200250 people in the mob which he could not identify since the incident had occurred 15 years ago.
During crossexamination by Ld. APP for the State, PW16A stated that police had recorded his statement and he was aware of some people of mob and had named Shoaib, Naseem, Mohd. Jahangir, Yunus and Javed Alam, the candidate of Janta Dal in his statement and also that they were active members of the mob who had destroyed the ballot papers and ballot boxes. Thereafter, the witness identified the accused persons present on that day and stated that he was not able to remember the same due to lapse of time.
During the crossexamination by Ld. Counsel for all the accused persons except accused Naseem, PW16A stated that he remained posted at P.S. Sriniwaspuri in the year 1997 for less than a period of one year and he was posted at P.P. Okhla for only 4 days prior to the date of incident. Prior to the incident, witness had never seen the accused persons and he had heard from the persons who gathered at the spot that accused Javed Alam was the candidate of Janta Dal and he admitted that at that time he was not aware of accused Javed Alam and further he did not FIR No. 175/1997 P.S. Sriniwaspuri Page No.25 of 43 know that accused persons were supporting which candidate in the election. Further his duty was at booth no.29 & 30 and the same started at 06:00AM on the date of incident. The distance between the booth and police post was about 01 km. He was on duty along with SI Ranjit Singh and other two constables Prakash Chand & Balbir and he did not remember the name of the booth incharge of booth No.29 & 30. He further deposed that mob entered forcibly and when he tried to stop them with the help of wooden sticks, they snatched the same from PW16A. He informed the incharge regarding the incident. SI Ranjit reached the spot after 5 minutes and PW16A tried to apprehend the accused persons. It was correct that the poster of candidates were displayed at Okhla and he did not remember if he had seen the poster of Janta Dal Candidate Javed Alam. Lastly higher police official also reached the spot and IO had not recorded statement of any election officer in his present and the mob was carrying arms. The mob had destroyed the election material in the booth including furniture and PW16A remained at the spot till 03:0004:00PM.
Opportunity to crossexamine PW16A was granted to the accused Naseem but he did not question anything to PW16A.
PW17 Inspector Ajit Singh deposed that on 23.02.1997 his duty was in MCD General Election at MCGP Primary School, Okhla at booth FIR No. 175/1997 P.S. Sriniwaspuri Page No.26 of 43 no.5558 of Ward No.7. On that day, at about 11:15AM a mob consisting of 5060 persons entered the polling booth forcibly and after 23 minutes another mob of around 200 persons entered the booth and caused obstruction in the election proceeding and restrained the public servants in their duty which they were performing at that time and had torn the ballot papers, voter list and other documents relating to election proceeding and caused damage to ballot boxes. The aforesaid unlawfully assembly was asked to leave the polling station but they did not do so and remained in the booth forcibly by disobeying the instruction given to them in order to conduct peaceful election. He did not remember the name of members of unlawful assembly but could identify the accused in the court that they were the members of the unlawful assembly. PW17 had informed telephonically at P. P. Okhla upon which several senior officer visited there. IO prepared the site plan at his instance Opportunity to crossexamine PW17 was granted to the accused persons but they did not question anything to PW17.
PW17A retired HC Kitab Singh deposed that on 23.02.1997 he was posted at P.P. Okhla and on that day he was working along with other officers at Nagar Nigam Primary School Okhla Village. On that day, election was going on at the polling booth that is when at about 11:00AM, 1520 FIR No. 175/1997 P.S. Sriniwaspuri Page No.27 of 43 persons arrived at the booth and broke the line and entered into the polling booth and destroyed the ballot papers. Somehow he overpowered them and pushed them out of the public polling booth but he did not remember the name of persons whom they were supporting.
During crossexamination by Ld. APP for the State, PW17A stated that it was correct that he along with SI Rajbir were on duty on the booth and the persons who had come to the polling booth were the supporters of Janta Dal candidate Shri Javed Alam and he could not remember the same due to lapse of time.
During the crossexamination by Ld. Counsel for all accused persons, PW17A stated that he was posted at P.S. Okhla two months prior to the incident and he was posted at MCD Primary school on election duty along with one SI and one constable whose names he did not remember as PW17A had retired from service. His duty started from 07:00AM on the date of incident and he was on duty to take care of three rooms comprising polling booth. However, he did not remember the number of booths but at about 11:0011:15AM about 1520 persons suddenly reached the polling booth whom he tried to stop but they still entered and had torn the ballot papers and ran away. He had informed the SHO about the incident from the wireless set and in about 15 minutes the IO and other police official FIR No. 175/1997 P.S. Sriniwaspuri Page No.28 of 43 reached at the spot and in his statement he disclosed the name of Janta Dal candidate Javed Alam because the mob was shouting his name and accused Javed Alam reached the spot later on. Thereafter PW17A pointed towards accused Asif Namberdar stating to him as Javed Alam. Thereafter PW17A was confronted with his statement recorded U/s 161 Cr.P.C. where he had mentioned the number of persons who entered the booth and had torn the ballot papers as 78. PW17A had stated that officers on election duty had also reported regarding the present incident to senior officers.
Opportunity to crossexamine PW17A was granted to the accused Naseem but he did not question anything to PW17A.
PW18 HC Ramesh Chand deposed that on 23.02.1997 he was posted on duty at MCD General Election at MCGP Primary School at booth no.55 of Ward No.7. On that day, at about 11:15AM a mob consisting 5060 persons entered the booth forcibly which was led by Mohd. Saleem of Congress along with his supporters namely Shoaib, Danish, Yunus and others and they were saying that there was something illegal going in the election and they shall not allow to voters to vote and that is when 23 members out of the unlawful assembly entered the booth and torn the ballot papers, voter list and other document relating to election proceedings. After a short while another unlawful assembly comprising of 150200 members FIR No. 175/1997 P.S. Sriniwaspuri Page No.29 of 43 entered the booth which was led by Javed Alam of Janta Dal along with his supporters Naseem, Asif Chaudhary and other members whose name he did not remember. They were also raising their voice stating that illegality was going on in election and obstructed the election proceeding and detached the ballies and caused damage to ballot boxes. After using force all the members of unlawful assembly fled away from the spot.
Witness identified the accused persons.
During the crossexamination by Ld. Counsel for accused, PW18 stated that his duty at MCD Primary School on the day of incident at 05:00AM and he was posted there along with Inspector Ajit Singh that is when at about 11:15AM, about 5060 persons entered polling station with Congress candidate Mohd. Salim who was accompanied with accused Shoaib , Danish, Yunus and Janta Dal candidate Javed Alam, Naseem, Sheikhu and Asif Chaudhary @ Asif Nambardar. The janta dal candidate was accompanied 150200 persons. The witness stated that he had mentioned Asif Chaudhary as Asif Namberdar as the mob was naming him so and he did not know that Asif Chaudhary had already expired and admitted that he had not named accused Asif Namberdar in his statement before the IO or the court. In the school there were 4 polling booth No.55 to 58 but he did not remember the number of rooms where the polling was going on. He stated FIR No. 175/1997 P.S. Sriniwaspuri Page No.30 of 43 that he tried to stop congress candidate Mohd. Saleem and his supporters from entering the polling booth and had also informed regarding the same to the IO. The mob accompanying congress candidate Mohd. Saleem forbily entered the polling booth mentioning the illegality in election process and had torn the ballot papers and damaged the ballot boxes and mob was carrying danda and remained inside the booth for a period of 1520 minutes. In the meantime, supporters of Janta Dal also reached there who were about 1520 in numbers.
Witness could not identify accused Shoaib, Danish, Yunus & Sheikhu. Witness stated that he could identify accused Javed Alam since he was local politician who had staged many rallies and it was accused Javed Alam and his supporters who had grievances regarding illegality in election process. Further, he did not know what had happened inside the polling booth as he remained at the gate and he came to know regarding the ballot boxes and ballot papers damaged from the noise emanating from the polling booth and he saw the torn ballot papers only once the mob had left the spot. Further that he did not know if the ballot papers were torn and ballot boxes were damaged by the mob led by congress candidate Mohd. Salim or by accused Javed Alam of Janta Dal. Aforesaid two mobs remained at the spot for about 1020 minutes and IO reached the spot after about 2022 minutes. FIR No. 175/1997 P.S. Sriniwaspuri Page No.31 of 43 Further he had not given any information regarding the present incident personally to the IO and his statement was recorded by IO only once in the both and IO had made preliminary inquiry. However, IO had recorded the statement of other witnesses. Other police official i.e. Ct. Raj Kumar and HC Sahib Singh also remained at the gate at the time of incident.
PW18A Smt. Sudesh Juneja deposed that she did not remember the day but it was February 1997 when she was performing duty in General Election in one of the ward at polling station at Jamia Milia along with other staff members. Voting was in progress but at about 11:3011:45AM, they found that a mob of many persons armed with lathis, danda, sticks came and started snatching the ballot papers and told them to close the election proceedings in the said ward. They entered in the ward thereafter took away all the ballot papers and went away from the room.
During crossexamination by Ld. APP for the State, PW18A stated that she did not remember whether the election were general election, parliamentary election or assembly election and she did not know as to how many polling booth were there in the said building where she was on duty but there were 5 members on election duty in the said polling booth with her. She was the presiding officer and ballot papers were lying on the table and it was around 11:1511:30AM when the mob entered the polling station but she did FIR No. 175/1997 P.S. Sriniwaspuri Page No.32 of 43 not remember the exact number of same and she did not know as to who was leading the mob. Further she had not seen any of the accused persons forming the part of the mob and police came to the spot once the mob had left the polling booth. She did not remember who recorded her statement and she could not state if her statement was recorded by the police or by the officer from election office or by the press but she had made the same before she left the polling booth. No ballot paper was torn in the polling booth in her presence and none of the election material beside the ballot paper were destroyed but they were just thrown and taken away. She had not made any statement to any person who recorded her statement as mentioned in Secton 161 Cr.P.C. She did not remember if she had made any statement to any authority.
Opportunity to crossexamine PW18A was granted to all the accused persons but they did not question anything to PW18A.
PW19 Shri Darshan Singh deposed that he did not remember the date month, year of the incident when he had performed duty as Presiding Officer in the Election. He did not remember the number of the same but he had heard a noise at 11:00AM outside the booth that 34 persons entered the booth and had taken away the ballot papers and torn the same and left the spot. He did not remember, if the police inquired anything FIR No. 175/1997 P.S. Sriniwaspuri Page No.33 of 43 from him regarding this case.
During crossexamination by ld. APP for the State, PW19 admitted that the date of incident was 23.02.1997 and he performed his duty at MCD General Election in ward No.7 at Jamia Milia polling booth During the crossexamination by Ld. Counsel for all the accused persons, PW19 stated that he did not remember exactly in which building the booth was situated but the same was primary school. There were 5 other staff members in election duty with him and he was the incharge of the polling station. He did not know as to how many persons entered, whether there were voters or mob and after the incident no police came inside the polling station and he did not remember if the police met him or record the statement. Further, persons who entered the polling station were armed with weapon. He did not remember how many ballot papers were taken away by them and he could not identify those persons who had entered inside the booth due to lapse of time. He had not made any complaint in respect to the present matter to the circle officer but some person from the election office had come to inquire and upon his request, he had made a complaint to SHO concerned. He did not remember whether the same were General Election, Parliamentary Election or Assembly Election.
FIR No. 175/1997 P.S. Sriniwaspuri Page No.34 of 43
5. After completion of the prosecution evidence, prosecution evidence was closed on 01.12.2012 and statement of the accused persons as mandated by Section 313 r/w 281 Cr.P.C was recorded on 01.02.2013 & 15.02.2013 and all the incriminating circumstances came in evidence put to the accused persons for explanation where all the accused persons had denied the allegations leveled against them and stated that they were not aware about any such incident and they were falsely implicated by political opponents due to political rivalry.
6. All accused persons stated that they do not want to lead DE except accused Asif Nambardar & Shoaib Danish.
Accused Asif Nambardar & Shoaib Danish got examined one witness in their defence.
DW1 Asif Mohammad Khan deposed that he was contesting election of MCD on 23.02.1997 and was an independent candidate. At that time Salim, Jitender and Javed Alam was candidate from Congress, BJP and Janta Dal and at about 12:30PM while he was on round during voting on booths and reached near Polytechnic Maharani Bagh, he received information regarding some untoward incident at the booth of Jamia Milia Islamia University, Middle School. On that day, Mohd. Wasim Khan and FIR No. 175/1997 P.S. Sriniwaspuri Page No.35 of 43 Owaish Mohammad Khan since morning had accompanied him on the round and upon receiving the information, DW1 reached University Booth within 15 minutes where he was told that some ballot boxes had been taken away from the booth by some mob and he found some ballot boxes lying on the road. Police force was present in large number and the polling was stopped.
During crossexamination by Ld. APP for the State, DW1 deposed that he cannot produce any document to show that Owaish Mohammad was accompanying him on the date of incident. During voting only candidates are authorized to enter the polling station and the persons accompanying the candidate are asked to stay outside the polling booth. He further stated that he came to know that accused Mohd. Owaish Mohammad Khan was arrested after the result of election. Further, he had won the election but he had never informed regarding the presence of accused Owaish with him on the date of incident.
7. Before appreciating the evidence, I would like to have a glance at relevant statutory provisions necessary for the disposal of this case.
As per Section 147 IPC :
Punishment for rioting--Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both FIR No. 175/1997 P.S. Sriniwaspuri Page No.36 of 43 As per Section 149 IPC:
Every member of unlawful assembly guilty of offence committed in prosecution of common objection--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.
As per Section 186 IPC:
Obstructing public servant in discharge of public functions--Whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.
Section 29 Delhi Municipal Corporation Act, 1957 : Removal of ballot papers (for ballot boxes or the voting machines) from polling station to be an offence (1) Any person who at an election fraudulently takes or attempts to take a ballot paper (or a ballot box or a voting machine or a part thereof) out of a polling station FIR No. 175/1997 P.S. Sriniwaspuri Page No.37 of 43 or willfully aids or abets the doing of any such act, shall be punishable with imprisonment for a term which may extend to five hundred rupees, or with both.
(2) If the Presiding Officer of a polling station has reason to believe that any person is committing or has committed an offence punishable under subsection (1), such officer may, before such person leaves the polling station, arrest or direct a police officer to arrest such person and may search such person or cause him to be searched by a police officer:
PROVIDED that when it is necessary to cause a woman to be searched, the search shall be made by another woman with strict regard to decency.
(3) Any ballot paper found upon the person arrested on search (for ballot box or a voting machine or part there of found being carried away by a person outside the polling station) shall be made over Section 30 (f) & (g) Delhi Municipal Corporation Act, 1957
(f) without due authority destroys, takes, opens or otherwise interferes with any ballot box or ballot paper then in use for the purposes of the election: or
(g) fraudulently or without due authority, as the case may be, attempts to do any of the foregoing acts or willfully aids or abets the doing of any such acts.FIR No. 175/1997 P.S. Sriniwaspuri Page No.38 of 43
8. Learned APP for the State had argued that all the prosecution witnesses had supported the case of the prosecution and all the witnesses in their testimonies have very clearly deposed that accused persons in the present matter has committed the offence of rioting in the MCD Election held on 23.02.1997 and had committed the same with common object to obstruct the public officer who were discharging their public function of conducting the election process. The accused persons in connivance with each other had destroyed the public property and destroyed the ballot papers and thereby committed the offence punishable U/s 147/186 read with Section 149 IPC and offences punishable U/s 29 & 30 (f) & (g) of Delhi Municipal Corporation Act, 1957.
9. On the other hand, the Ld. Counsel for all the accused has argued that the prosecution has miserably failed to establish its case since the prosecution witnesses have not supported the version of the prosecution in their examinationinchief or in the crossexamination. He further argued that many witnesses examined by the prosecution have been crossexamined by the prosecution itself which has shattered the story of prosecution. He further argued that the prosecution witnesses have even not supported or FIR No. 175/1997 P.S. Sriniwaspuri Page No.39 of 43 identified the accused persons in the present matter. It is further argued that all the accused persons belonged to different political party, therefore, there was no occasion for them to act in connivance with each other. He has prayed that the accused persons be acquitted as prosecution has failed to establish the guilt of the accused persons beyond reasonable doubt and benefit of same shall be given to the accused persons.
10. I have heard Learned Counsel for all accused and Learned APP for the State and gone through the material available on record and has considered the testimony of various witnesses.
11. Briefly the prosecution story on th basis of complaint and chargesheet filed was that all the accused persons having common intention and with the common object committed rioting by entering the polling booth on 23.02.1997 during the MCD Election and had torn the ballot papers with the help of mob also led the same and caused damage to the election articles. Further they are alleged to have disrupted the public servant in discharge of their official duties.
12. With this judgment, the trial of 17 years have come to end and FIR No. 175/1997 P.S. Sriniwaspuri Page No.40 of 43 the most glaring part of the trial, is that, the prosecution witnesses which were about 23 (twenty three) in number have given contradictory statement and the prosecution was forced to crossexamine most of its witnesses, whether they were public witnesses or the police official. The testimony of all the prosecution witnesses when deeply examined does not inspire confidence as none of the witnesses have corroborated the story of prosecution in substance or in periphery. The prosecution has miserably failed to substantiate the offence alleged against the accused persons since the prima facie requirement of establishing the identity of the accused persons had been completed derailed. PW1 the material eye witness and the complainant of the present matter upon whose complaint the FIR was registered could not identify the accused persons. Moreso, PW3, PW4 HC Balbir Singh, PW15 have not identified the accused persons. The testimony of all the witnesses if examined in detail is narrated in a parrot fashion, where all the witnesses have narrated that the incident had occurred in their respective polling booth which were all different, at the same time i.e. between 11:45AM to 12:00 noon. The same shows, it to be highly improbable, to my mind since the alleged accused persons could not have been present, at the same time in different places together to commit the offence stated to be rioting. Considering that all the witnesses examined by the prosecution were deputed FIR No. 175/1997 P.S. Sriniwaspuri Page No.41 of 43 for duty at different polling booths and the distance between the polling booth, the accused persons could have not led the mob gathered in the similar fashion at all places which casts a shadow on the story of the prosecution. Further all the prosecution witnesses have given contradictory statement in respect to whether the alleged mob was carrying any weapon at that time or not. Lastly if we perused the testimony of all the witnesses, it is narrated by the witnesses that the mob gathered at the spot were large in number between 200250 people and due to the same the onus to establish that the same was led by the accused persons was on the shoulders of prosecution which the prosecution has failed to establish beyond reasonable doubt, therefore, benefit of the same shall be given to the accused person.
13. The cardinal rule in the criminal law is that prosecution has to prove their case beyond reasonable doubt and the benefit of the doubt has to be given to the accused.
In Partap V. State of U.P., AIR 1976 SC 966, the Hon'ble Supreme Court dealt with the question of burden of proof and observed as under:
"The phrase "burden of proof" is not defined in the Act. In respect of criminal, cases, it is an accepted principle of criminal jurisprudence that the burden is always on the prosecution and never shifts. This flows from FIR No. 175/1997 P.S. Sriniwaspuri Page No.42 of 43 the cardinal principle that the accused is presumed to be innocent unless proved guilty by the prosecution and the accused is entitled to the benefit of every reasonable doubt.
14. In view of above discussion, the accused persons, namely, Asif Nambardar, Yusuf, Danish, Naseem, Mohd. Jahangir & Owaish Mohammad Khan are acquitted of offence punishable U/s 147/149/186 IPC & Section 29 & 30 (f) (g) D. M. C. Act, 1957.
Pronounced in open court (SHEETAL CHAUDHARY PRADHAN)
on 19.12.2014 MM10 (SouthEast): Saket Courts:
New Delhi:19.12.2014
FIR No. 175/1997
P.S. Sriniwaspuri Page No.43 of 43