Delhi District Court
State vs Mohan Kumar & Ors. on 20 March, 2008
1
IN THE COURT OF SH. RAVINDER SINGH: METROPOLITAN
MAGISTRATE: KARKARDOOMA : SHAHDARA : DELHI.
State V/s Mohan Kumar & Ors.
FIR No. 300/96
PS Kalyanpuri
U/s 147/148/149/186/332/353/323 IPC
JUDGMENT:
a Sl No of the Case : 147/97 b Date of Institution of case : 19.5.97 c Date of Commission of Offence : 8.7.96 d Name of complainant : Inspector N.S. Chauhan
e Name of the Accused & his :1. Mohan Kumar S/o Vinod Kumar parantage & address R/o 15/335,Kalyanpuri, Delhi
2. Shanti Kaur W/o Veer Singh R/o 30/165, Kalyanuri
3. Munesh Chand S/o Jwala Prasad R/o 19/277, Kalyanpuri, Delhi
4. Bal Kishan S/o Ramesh Chand R/o 15/500, Kalyanpuri, Delhi
5. Yas Pal S/o Ram Phal R/o 19/10, Kalyanpuri, Delhi
6. Ramesh Chauhan S/o Shyam Singh R/o 12/175, Trilokpuri, Delhi f Offence complained of : U/s 147/148/149/186/332/353/323 IPC g Plea of the Accused : Pleaded not guilty h Order Reserved : 29.2.08 i Final order : Accused Mohan convicted j Date of such order : 11.3.08 BRIFE STATEMENT FOR THE REASONS FOR DECISION:
Brief facts of the case is that on 8.7.96 at about 11 PM all the accused persons along with other persons formed an unlawful assembly on Chand Cinema Chowk, Kalyanpuri by trespassing on the road and obstructed the traffic when DESU official did not reach there as demanded by the accused persons then they all instigated the other members of the assembly and pelted stones (deadly weapon) in prosecution of common object of assembly on vehicles standing in traffic jam and other discriminately and did not deter despite pursuation of police personnel present there and instead pelted stones on them as 2 well as nearby shops and thereby caused simple hurt to HC Devender Singh, HC Narender Pal, Ct. Rambir and public person Kali Prasad. Besides this accused also voluntarily obstructed public persons from discharging their duties of maintaining tranquility and law and order Complaint was filed in PS Kalyanpuri. The FIR No. 300/96 was registered in the PS Kalyanpuri against the accused U/S 147/148/149/186/332/353/323 IPC. Statement of witnesses were recorded, site plan was prepared, accused was arrested and after completion of all necessary investigation challan U/s 173 Cr. P.C was presented in the court for trial.
2. Accused persons were summoned by the Court to face trial so copy of challan as required under section 207 Cr. PC, was supplied to them. Thereafter case were fixed for consideration of charge.
3. After hearing arguments and on perusal of record, prima facie charge for the offences under Section 147/148/149/186/332/353/323 IPC were made out against all the accused persons. Charge was framed accordingly against them on
7.4.98. Thereafter case was fixed for prosecution evidence.
4. In support of its case prosecution has produced and examined fourteen witnesses namely PW1 Dr. R. Singhal, PW2 HC Tota Ram, PW3 Dr. Devender Kumar, PW4 Pramod Kumar, PW5 A.K. Patnaik, PW6 Ct. Dinesh Kumar, PW7 Inspector N.S. Chauhan, PW8 Ct. Mukesh Tyagi, PW9 HC Narender Singh, PW10 HC Devender Singh, PW11 HC Hari Singh, PW12 Ct. Mukesh Kumar, PW13 Inspector S.P. Rana and PW14 HC Jai Pal, 4A PW1 Dr. R. Singhal has testified that on 9.7.96 he had examined HC Devender Singh, HC Narender Pal, Rambir and Kallu Prasad vide MLC Ex.PW1/A to D respectively.
4B PW2 HC Tota Ram has testified that on 9.7.96 he received 3 rukka from Ct. Satish Kumar which was sent by Inspector N.S. Chauhan so he registered a case FIR No. 300/96 Ex.PW2/A. 4C PW3 Devender Kumar has testified that about 1-1½ years back at 10/11 PM he was present on his shop near Chand Cinema and a mob of 100/200 persons had gathered and raised slogans and thereafter started pelting of stones. He further testified that police personnel also present on the spot on the other side. He further testified that he could not see who had pelted the stones and he did not know who had received injuries on that day. He further testified that the police officials got his signature on blank papers.
4D PW4 Pramod Kumar has testified that about three years back in night there was crowd of 15-20 persons came on the Chowk of Kalyanpuri and complaining about the electricity. He further testified that nothing was happened in his presence. This witness was cross examined by Ld. APP as he resiled from his earlier statement but nothing material has come on record.
In cross examination he denied the presence of the accused persons on the spot.
4E PW5 A.K. Patnaik testified that he was posted as DCP East on 11.10.96 and he made complaint u/s 195 Cr.PC. Same is Ex.PW5/A. In cross examination nothing material has come on record which discredit the version of this witness.
4F PW6 Ct. Dinesh has testified that on 8.7.96 he was DD writer in PS Kalyanpuri and he had made entry No. 52D, 66B and 69B in roznamcha. Copy are Ex.PW6/A to C respectively.
In cross examination he testified that FIR was not recorded during his duty hour.
4G PW7 Inspector N.S. Chauhan testified that on 8.7.96 he received information at about 9.30 PM that a crowd collected near Chand Cinema and blocked the traffic. So he along with SHO, HC 4 Narender Pal, HC Devender, Ct. Paras Ram Ct. Jai Pal reached on the spot where 200/250 persons were collected and shouting slogan DESU Hai Hai. He further testified that the crowd was being led by Mohan jee who is present in the Court. Accused Mohan refused to withdraw the dharna till DESU official came there. The dharna was peaceful till 10.00 PM thereafter accused Mohan incited the members of the crowd that they cannot wait further more for DESU official thereafter crowd started pelting stones on the traffic. PW7 further testified that he tried to persuade Mohan and the crowd but on incitement of accused Mohan his associated members of the crowd started pelting stones on the police party. HC Narender fell unconscious due to injuries from stones. Additional force called for scattering the crowd. He further testified that 4-5 shops damaged due to pelting of stones and shopkeeper also received injuries. PW7 further testified that he apprehended accused Mohan and Shanti Kaur on the spot. Both of them also received injuries so they removed to SDN hospital. He prepared tehrir Ex.PW7/A and got the case registered through Ct. Parsh Ram. PW7 further testified that he arrested accused Yashpal, Babloo Mishtri, Bal Kishan Sharma and Ramesh Chauhan on the next day.
4H PW8 Mukesh Tyagi has testified that on 8/9.7.96 injured Kali Prasad came to PS in car. Blood was oozing from his forehead. Wind screen, side window glasses of taxi were broken. He further testified that Kali Prasad stated to him that some people pelted stones on him and therefore he sustained injuries. He further testified that he handed over the injured to police after MLC.
In cross examination he has testified that he had taken the injured to LBS hospital by TSR and he came back by TSR.
4I PW9 HC Narender Singh has testified that on 8.7.96 he along with Addl. SHO N.S. Chauhan and some other staffs members went to the spot where 200/250 persons were collected and shouting slogan against DESU official. He further testified that accused Mohan, Yashpal, Shanti Kaur, Ramesh Chauhan, Munesh Gupta, Babloo Mishtri 5 started pelting stones on the traffic. He received injury on left eye. He further testified that at that time they got agitated encouraging the mob and when the police intervened they started pelted stones. He suffered injures so he was removed to SDN hospital by Ct. Yashpal.
In cross examination PW9 admitted that the accused persons named by him in his statement made in the Court, not known to him personally and he also admitted that he disclosed their names after going through file before giving his statement. He admitted that none of the accused persons were arrested in his presence. He further testified that he had not kept any stone for handing over to the IO.
4J PW10 HC Devender testified that on 8.7.96 he along with Addl. SHO N.S. Chauhan, HC Narender, Ct. Jai Pal and some other staffs members went to the spot where 200/250 persons were collected and blocked the traffic and also shouting slogan against DESU official. He further testified that accused Mohan, Yashpal, Shanti Kaur, Ramesh Chauhan, Munesh Gupta, Babloo Mishtri started pelting stones on the traffic. He further testified that when police tried to intervened, accused persons and mob started pelting stones over police party. He received injury on his hand. He further testified that Ct. Narender and Ct. Rambir also received injury. He further testified that mob was also pelting the stones over shops and dhabas. He further testified that accused Mohan and Shanti Kaur were apprehended by police officials. He further testified that he was removed to SDN hospital.
In cross examination PW10 admitted that the accused persons named by him in his statement made in the Court, were not known to him prior to alleged occurrence. PW10 also testified that the crowd was not directed by any police official to be unlawfully at any point of time nor any warning to disperse was given nor any promulgation of 144 Cr.PC. was announced. He also testifed that there was no light because non-supply of electricity at Chand Cinema. PW10 denied the suggestion that the accused was brought from their respective houses and arrest was shown at the spot.
64K PW11 HC Hari Singh testified that on 8.7.96 he along with Addl. SHO N.S. Chauhan and some other staffs members went to the spot where 200/250 persons were collected and shouting slogan against DESU official. He further testified that accused Mohan, Yashpal, Shanti Kaur, Ramesh Chauhan, Munesh Gupta, Babloo Mishtri started pelting stones on the traffic. He further testified that HC Narender, HC Devender and Ct. Rambir received injuries. He further testified that accused Mohan and Shanti were arrested from the spot and site plan was prepared in his presence by the IO. He further testified that stones were take into possession vide memo Ex.PW11/A and personal search of accused was conducted vide memo Ex.PW11/B. In cross examination PW11 admitted that the accused Ramesh was not arrested in his presence and he had not seen him pelting any stone. Further PW11 identified accused Munesh as Gurmeet Singh. PW11 denied the suggestion to the effect that all the accused were picked up from their houses and their arrest was shown at PS. 4L PW13 Inspector S.P. Rana testified that on 8.7.96 he was posted as SHO Kalyanpuri and on that day he along with Addl. SHO went to Chand Cinema on the information of traffic jam where the accused persons were present there and shouting slogans against DESU. PW13 also testified that accused Mohan provoked the people and they started pelting stone on vehicles. PW13 further testified that he tried to convince them but they came forward for pelting stones. Some police official and public persons also sustained injuries. Addl. force was called, so many persons from the mob fled away whereas accused Mohan and Shanti Kaur were apprehended on the spot.
In cross examination PW13 testified that he did not remember who informed the name of accused persons Ramesh, Yash Pal and Babloo and he cannot identify the accused persons except Mohan and Shanti Kaur by their respective names. He further admitted that 2/3 persons were known to him prior to the incident as he was the SHO of the area however he did not know if anyone amongst the 7 accused persons made complaint against him. PW13 also admitted that no warning from legal promulgation for Section 141 Cr.PC. were done by any higher official nor demanded the same. PW13 denied the suggestions to the effect that he had named Shanti Kaur because of only lady amongst the accused persons and further Mohan jee and Shanti Kaur were not present on the alleged day of incident.
4M PW14 HC Jai Pal has testified that on 7.8.96 he was present in the area of beat on patrolling. He saw a crowd of 250 persons near Chand Cinema as there was no electricity at that time and the crowed shouted slogan Hai Hai against DESU so there was traffic jam. After some time the crowd started pelting stone on the traffic. The police present at the spot tried to pacify the crowd but corwd also started pelting stones on the police officials. HC Narender sustained injury. He took him SDN hospital for medical examination.
This witness was cross examined on the point of date of incident by Ld. APP. PW14 in his cross examination denied the suggestion to the effect that he was not present on the spot.
5. Statement of all the accused persons was recorded U/s 313 Cr PC as per procedure prescribed u/s 281 Cr.PC. wherein they stated that they had not obstructed the traffic on public road near Chand Cinema. Further they had neither pelted stones on the vehicles nor on the police officials. They further testified that they are innocent and they have been falsely implicated by the police in the present case. However, accused persons have not examined any witness in their defence.
6. I have heard the arguments of Ld. Defence counsel Sh. R.P. Kaushik and Ld. APP for the State in length besides going through the evidence on record and relevant provisions of law.
87. The present case FIR Ex.PW2/A was registered on the complaint Ex.PW7/A of Addl. SHO N.S. Chauhan/PW7. In his complaint Ex.PW7/A, PW7 stated that Dharna was going on peacefully upto 10.30 PM at Chand Cinema. Intially people called DESU officials on the spot.
Mohan jee incited the people that they cannot wait any more for DESU officials. So Mohan jee and his associates Babloo Mishtri, Ramesh Chauhan, Munesh Gupta and Shanti Kaur and owner of Welcome Restaurant Yashpal incited the people who were sitting on Dharna to pelt stones on traffic. He along with other staffs tried to disperse the crowd but Mohan jee and his above said associates incited crowd to pelt stones on police. Seeing the worse condition, additional force was called and when additional force came at the spot, people of crowd and their leader ran away however he apprehended Mohan jee and Shanti Kaur with the help of staff whereas other persons of crowd disappeared by taking the advantage of darkness.
8. Witnesses of prosecution PW3, PW7, PW9, PW10, PW11, PW13 and PW 14 all have testified that a crowd of 200-250 persons were collected at Chand Cinema Chowk and raised slogan against DESU officials. PW7 and PW13 categorically testified that accused Mohan Jee led the crowd and they have incited the members of the crowd by saying that they cannot wait further for DESU officials and thereafter crowd started pelting stones on the traffic. Accused Mohan and Shanti were apprehended on the spot by PW7 and therefore accused Mohan was also arrested and his personal search was conducted by PW7 vide memo Ex.PW11/B. PW13 also identified the accused Mohan in the Court during examination in chief as he knew the accused Mohan being the SHO of the area. The identity of accused Mohan is not deputed.
99. PW7 in his examination in chief has testified as under:-
"They had blocked the traffic of both the sides. The crowd was being led by Mahan jee, whom the witness identified correctly out of the accused persons. On being asked, accused Mohan stated that they will withdraw Dharna till DESU Officials came there. The Dharna remained till 10.00 PM. Then accused incited the members of crowd by stating that they cannot wait further for the DESU Officials. Members of crowd thereafter started pelting stones on the traffic. I along with police staffs tried to persuade accused Mohan and the crowd. On the incitement accused Mohan and associates, members of crowd started pelting stones on the police party as well. HC Narender Pal fell unconscious on the spot on sustaining injury from stone. I called Addl. Force. When it came at about 11.00 PM the crowd started scattering towards Trilokpuri. While running pelted stones on the shops falling on the road. As a result of which 4-5 shops sustained damaged. Some shopkeepers were also injured. I along with police staffs apprehended accused Mohan Jee and Shanti Kaur on the spot. Since both of them had injuries hence they were sent to SDN hospital for medical examination.
10. PW13 in his examination-in-chief has testified that I found accused persons present in the Court along with their associates 200-250 in number, shouting slogans against DESU and had blocked the road. They carried on shouting till 10.30 PM. At about 11.00 PM accused Mohan present in the Court provoked the people and they started pelting stones on the vehicles passing by and standing there and on passersby. I tried to convinced them but they came forward pelting stones. Some police officials and public persons also sustained injuries. Addl. Force was called at the spot. After their arrival, many persons from mob fled away from there and accused Mohan, Shanti Kaur were apprehended at the spot.
11. From the evidence on record it is clear that 200-250 public persons were gathered at Chand Cinema Chowk for demonstration against DESU where members of crowd pelted stones. None of the prosecution witnesses testified that accused Mohan incited the members of crowd for pelting of stones either on traffic or on police. The testimonies of PW7 and PW13 are contradictory to the DD 66B Ex.PW6/B. According to this DD the information was conveyed to PS by 10 Lady Ct. Sushila of PCR at 10.15 PM that police officials be sent to the spot as the glasses of vehicles were breaking near Chand Cinma. On this information some police officials sent to spot vide DD 69B Ex.PW6/C. It is further pertinent to mention here that PW7 and PW13 both have testified that accused Mohan and Shanti Kaur had received injuries so they were sent to SDN Hospital for medical examination but it is very strange that neither the MLC of accused Mohan and Shanti placed on record nor it was explained by the prosecution as to how both of them received injuries. In view of this, it cannot be said that PW9 and PW10 received injuries due to pelting of stones by crowd which was incited by accused Mohan by saying that they cannot wait any more.
12. It is further pertinent that the stones which were pelted by the crowd have not been produced in the Court though the seizure memo of stones Ex.PW11/A was prepared by PW7. It is also pertinent that members of crowd did not armed with any kind of weapon before the incident. Further the pelting of stones was not the object of assembly as members of crowd demonstrated against DESU. In these circumstances, I am of the considered opinion that unidentified persons pelted stones by their own on the traffic only so there was no use of criminal force against police officials. Accordingly all the accused persons are acquitted for the offence punishable u/s 148/332/353 IPC.
13. It is clear from the testimonies of PW7 and PW13 that the crowd had been led by accused Mohan for demonstration against DESU official at Chand Cinema Chowk when the DESU Officials did not reach on the spot then accused Mohan incited the member of assembly by saying that they cannot wait any more and thereafter crowd started pelting. The pelting of stones of crowd obstructed the police officials in discharge of his duties and rioting. In view of this, accused Mohan is convicted for the offence punishable u/s 147/186/149 IPC.
14. In Major Vijay Singh Man Khotia Vs. State of H.P. 2002 Crl.L.J. 3165 Hon'ble Justice held that "It is true that article 19 (1) of 11 Constitution of India guarantees to every citizen to every right to assemble peacefully and without arms and article 19 (1) (d) guarantees the right to move free will throughout the territory of India. It is from these rights that the right to take out a procession flows. If the procession carries play card or shout slogans or halt from time to time and speeches are made, right of speech and expression as guaranteed by article 19 (1) (a) is also exercised. However, these rights are subject to Constitutional and statutory restrictions and can be exercised subject to such restrictions only. When such right are exercised on a public way, it has to be ensured that it is done peacefully and in an orderly manner without infringement of the rights of others. Every member of public has a right to use a highway and such right to subject to similar right of others members of the public. The act of sitting in Dharna and stopping other persons and vehicles from passing through the highway will not be a lawful exercise of the right of the processionists but will be violative of the rights of others and will amount to public nuisance, rioting and causing of illegal restraint to others who are stopped from passing/repassing through the public highway."
15. In Ram Dular Vs. State of Bihar 2004 Crl.L.J. 635 (SC) Hon'ble Supreme Court held that "Coming to the question whether Section 149 IPC has application when presence of more than 5 persons is established, but only four are identified, Section 149 IPC does not require that all the five persons must be identified what is required to be established in the presence of five persons with a common intention of doing an act. If that is established merely because the other persons present are not identified that does not in any way effect applicability of Section 149 IPC.
16. PW7 arrested accused Yashpal, Babloo Mishtri, Bal Kishan, Ramesh Chauhan and Munesh Chand on next date i.e. 10.7.96 PW7 neither in his examination in chief nor in his complaint Ex.PW7/A has disclosed how he came to know the name of accused Yashpal, Babloo Mishtri, Bal Kishan, Ramesh Chauhan and Munesh Chand. Further 12 PW7 also failed to explain how he arrested these accused persons and on whose instance and from where he arrested these accused persons. No witness has been examined to depose that these persons were arrested on their instance.
17. PW13 has testified that except Mohan Jee and Shanti Kaur he had not known the other accused persons. PW3 and PW4 have also not identified the accused persons in the Court. Further PW9/HC Narender Singh, PW10/HC Devender Singh and PW11/HC Hari Singh all have testified that they had not known the accused persons prior to the alleged occurrence and they did not know how the name of the accused persons recorded in their statement u/s 161 Cr.PC. and further they testified that they disclosed the name of accused persons in the Court after going through the case file. In these circumstances, the testimonies of PW9, PW10, PW11 and PW13 are not reliable regarding identity of accused Yashpal, Babloo Mishtri, Bal Kishan, Ramesh Chauhan and Munesh Chand.
18. In view of this, the presence of accused Yashpal, Babloo Mishtri and Munesh Gupta are doubtful and therefore benefit of doubt is given to them and they are acquitted for the offence for which they stand charged in the instant case.
19. The evidence against accused Shanti Kaur that she was apprehended on the spot by PW7. After the close scrutiny of testimonies of PW7 and PW13 they both have deposed that accused Mohan Jee and Shanti Kaur were apprehended on the spot. The arrest memo of accused Shanti Kaur has not been proved on record as neither the witness to arrest the lady constable has been examined nor PW7 exhibited the arrest memo of accused Shanti Kaur. Further neither PW7 nor PW13 has testified a single word that accused Shanti Kaur incited or pelted the stones either on the traffic or on the police force. Further other prosecution witnesses have also failed to identify accused Shanti Kaur in the Court. So a mere innocent presence in a assembly of 13 persons does not make the accused a member of unlawful assembly, unless it is shown by direct or circumstantial evidence that the accused shared the common object of the assembly so the mere presence of accused Shanit Kaur on the spot does not make her a member of unlawful assembly and therefore she cannot be convicted with the aid of Section 149 IPC. In Babu Hamid Khan Mishtri Vs. State of Maharashtra Crl.L.J. 2395 Hon'ble Supreme Court held that "Mere presence of a person does not make a member of unlawful assembly. In view of this, accused Shanit Kaur is also acquitted by giving her benefit of doubt for the offence for which she stands charged in the instant case.
20. PW8 has testified that Kali Prasad came in PS on 8.7.96 and informed him that he received injuries due to pelting of stone of crowd at Chand Cinema so he took him to hospital and get his MLC Ex.PW1/D done. Prosecution has failed to examine Kali Prasad in the Court. In the absence of testimony of Kali Prasad it cannot be said that he received injuries due to pelting of stones of crowd near Chand Cinema and accordingly all the accused persons are acquitted for the charge punishable u/s 323 IPC.
21. In view of above discussion, I am of the considered opinion that prosecution has failed to prove its case beyond reasonable doubt against accused Yashpal, Babloo Mishtri, Bal Kishan, Ramesh Chauhan, Shanti Kaur and Munesh Chand and therefore they are acquitted for the offence for which they stand charged in the instant case by giving them the benefit of doubt thereof. However, accused Mohan Jee is held guilty for the offence punishable u/s 147/149/186 IPC and accordingly accused Mohan is convicted thereunder. Announced in the open Court on 11.3.08 (Ravidner Singh) Metropolitan Magistrate, KKD Courts, Delhi 14