Delhi District Court
State vs Gora Chand Dass & Ors. on 7 September, 2022
State v. Gora Chand Dass & Ors.
IN THE COURT OF SH. VAIBHAV MEHTA,
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE 03,
ROUSE AVENUE DISTRICT COURTS, NEW DELHI
STATE VS GORA CHAND DASS & ORS.
FIR No. 236/15
PS Burari
U/s. 186/332/147/149
/506 (I) IPC & Section 3
of PDPP Act.
JUDGMENT
1 Serial No. of the case : 33/2019
2 Date of commission : 21.02.2015
3 Date of institution of the case : 19.05.2022
4 Name of complainant : SI Ajay Kumar
5 Name of accused : 1. Gora Chand Dass S/o
Sh. Anadi Charan Dass
Digitally 2. Sanjeev Jha S/o. Sh.
signed by
VAIBHAV Sushil Jha
VAIBHAV MEHTA
MEHTA Date:
2022.09.07
17:17:20
3. Balram Jha S/o. Sh. Ram
+0530
FIR No. 236/15 PS Burari 1 of 149
State v. Gora Chand Dass & Ors.
Karan Jha
4. Atma Santosh S/o Sh.
Sunil Pratap Singh
5. Shyam Gopal Gupta S/o.
Sh. Sita Ram
6. Kishore Kumar S/o Sh.
Mira Lal
7. Lalit Mishra S/o Sh. Indra
Kant Mishra
8. Jagdish Chandra Joshi S/o
Sh. S.D. Joshi
9. Shashi Mohan S/o Sh.
R.S. Kotmala
10. Narender Singh Rawat
S/o Sh. Bache Singh
11. Neeraj Pathak S/o Sh.
Muninder Pathak
12. Narender Kumar S/o. Sh.
Soni
13. Basant Goswami S/o. Sh.
K.N. Goswami
FIR No. 236/15 PS Burari 2 of 149
State v. Gora Chand Dass & Ors.
14. Narayan Yadav @
Thekedar S/o Sh. Nakshatra
Yadav
15. Raju Malik S/o. Sh.
Mazid Malik
16. Anil Kaushik S/o. Late
Sh. Banwari Dass
(discharged vide order
dated 08.01.2019)
17. Vinod Singh S/o. Sh.
Vikram Singh.
18. Roshan Kumar Mishra
S/o. Sh. Lalan Mishra
19. Akhileshpatti Tripathi
S/o. Sh. Abhayanand
Tripathi
20. Ashok Kumar S/o. Sh.
Veerpal Singh
21. Ravi Kumar S/o. Sh.
Subhash Chandra
(Proceedings against
accused got abated vide
order dated 02.04.2018)
FIR No. 236/15 PS Burari 3 of 149
State v. Gora Chand Dass & Ors.
22. Ravi Prakash Jha S/o. Sh.
Vinod Kumar Jha
23. Ismail Islam S/o. Sh.
Ahamad Islam
24. Manoj Kumar S/o. Sh.
Rajkumar
25. Vijay Pratap Singh S/o.
Sh. Dashrath Singh
26. Prem Shankar S/o. Late
Sh. Badri Prasad
27. Heera Devi W/o. Sh.
Govind Sagar
28. Arun Jha S/o. Sh. Sushil
Jha
29. Yaswant @ Yash Bhatia
W/o. Sh. Jaipal Singh Bhatia
6 State represented by : Sh. Lalit Pingolia, Ld. APP
7 Offence complained of : U/s
147/148/149/186/353/332/
427/506/325/34 IPC and
Section 3 PDPP Act
8 Plea of accused : Pleaded not guilty
9 Arguments heard on : 25.07.2022
10 Final order : Gora Chand Dass, Vinod
FIR No. 236/15 PS Burari 4 of 149
State v. Gora Chand Dass & Ors.
Singh, Atma Santosh,
Roshan Kumar Mishra,
Narender Kumar S/o Sh.
Soni, Narendra Yadav @
Thekedar, Shashi Mohan,
Basant Goswami, Prem
Shankar & Arun Jha
acquitted for offence u/s
147/186/332/506/149 IPC
and Section 9 of PDPP Act.
and
Sanjeev Jha, Akhileshpatti
Tripathi, Balram Jha,
Shyam Gopal Gupta,
Kishore Kumar, Lalit
Mishra, Jagdish Chandra
Joshi, Narender Singh
Rawat, Neeraj Pathak,
Raju Malik, Ashok Kumar,
Ravi Prakash Jha, Ismail
Islam, Manoj Kumar,
Vijay Pratap Singh, Heera
FIR No. 236/15 PS Burari 5 of 149
State v. Gora Chand Dass & Ors.
Devi and Yaswant @ Yash
Bhatia acquitted u/s 506
IPC and Section 3 of PDPP
Act and Convicted under
sections 147/186/332/149
IPC.
11 Date of judgment : 07.09.2022
BRIEF FACTS AND REASONS FOR DECISION
1. The brief facts of the case of prosecution are that on 20.02.2015 all the accused persons were the members of an unlawful assembly and some members of this assembly had assaulted Ct. Vikas, SI Ajay Kumar and other police staff members with the common object of committing the offence of assault and also committed the offence of rioting and further committed the offence of breaking the public property and vehicles lying in PS. It is the case of the prosecution that the accused persons being members of this unlawful assembly caused criminal intimidation to Ct. Vikas and SI Ajay Kumar and therefore are guilty of offence punishable under Section 147/148/149/186/353/332/427/506 of IPC and 3 of the FIR No. 236/15 PS Burari 6 of 149 State v. Gora Chand Dass & Ors.
Prevention of Damage to Public Property Act (PDPP Act). Thereafter, the present FIR got registered against accused persons for offence U/s. 147/148/149/186/353/332/427/506/ 34 of IPC and Section 3 of the Prevention of Damage to Public Property Act (PDPP Act).
CHARGE
2. Prima facie case of commission of offences under Section 147/186/332/506/149 of IPC and Section 3 of the Prevention of Damage to Public Property Act (PDPP Act) was made out against all accused persons and charge was framed upon the accused persons on 10.01.2019 wherein they pleaded not guilty and claimed trial.
Proceedings against accused Ravi Kumar got abated vide order dated 02.04.2018 and accused Anil Kaushik was discharged vide order dated 08.01.2019 passed by the Ld. Predecessor Court.
ADMISSION U/S 294 Cr.PC
3. During the course of evidence, statement of accused persons were recorded under section 294 Cr.PC wherein they did not dispute the identity of certain documents and admitted the same in terms of section 294 Cr.P.C. Accused FIR No. 236/15 PS Burari 7 of 149 State v. Gora Chand Dass & Ors.
persons had admitted the following document:
(i) FSL report as Ex. X1.
EVIDENCE LED BY THE PROSECUTION
4. The prosecution has examined 24 witness.
PROSECUTION WITNESS
PW1 Ct. Vikas Santri performed duty at
the gate.
PW2 ASI Bharat Rattan Injured/ police official
present at PS
PW3 HC Puran Chand Duty Officer
PW4 Ct. Rakesh Assisted the IO
PW5 Ct. Ram Kishan Police official present at PS
PW6 Dr. Shashi Kant Kumar CMO/ Proved MLCs of
injured persons
PW7 Ct. Satish Injured/ Police official
present at PS
PW8 Ct. Dinesh Kumar Assisted the IO
PW9 Dr. Sanklap Pandey Proved MLCs
PW10 SI Ajay Kumar Complainant/IO of another
FIR No. 231/15
PW11 HC Hari Narayan Brought register no. 19
PW12 ASI Jagat Pal Assisted the IO
PW13 HC Jai Prakash Assisted the IO
PW14 HC Satish MHC (M) brought Register
no. 19 & 21 of FIR NO.
231/15
PW15 HC Irsad Ahmed Photographer
FIR No. 236/15 PS Burari 8 of 149
State v. Gora Chand Dass & Ors.
PW15 ASI Gurdeep Singh Proved mechanical
(wrongly inspection reports
mentioned as
PW15)
PW16 ASI Diwan Singh Assisted the IO
PW17 Ct. Babu Lal Injured/ Police official
present at PS
PW18 SI Sombir Proved inspection report of
the spot
PW19 Insp. Sher Singh Proved DD entry no. 49A,
the then SHO of PS Burari
PW20 Ct. Rahul Injured
PW21 SI Sanjay Kumar Gupta 1st IO of the case
PW22 Satish Sharma The then ACP, Civil Lines
PW23 SI Sunil Kumar 2nd IO of the case
5. Prosecution has relied upon the following
documents:
Exhibited Contents Exhibits
by
PW1 Ct. Statement U/S 161 CrPC of EX PW 1/DA
Vikas Ct Vikash
PW2 ASI Statement U/S 161 CrPC of EX PW 2/DA
Bharat Rattan Ct Bharat Rattan
PW3 HC FIR EX PW 3/A
Puran Chand Endorsement on Rukka EX PW 3/B
PW4 Ct. Seizure Memo of Samsung EX PW 4/A
Rakesh Mobile Black Color
Seizure Memo of Samsung EX PW 4/B
Mobile White Color
Statement of U/s 161 CrPC of EX PW 4/C
FIR No. 236/15 PS Burari 9 of 149
State v. Gora Chand Dass & Ors.
Ct Rakesh
PW5 Ct. Ram Statement U/S 161 CrPC of EX PW 5/A
Kishan Ct Ram Kishan
Supplementary statement U/S EX PW 5/B
161 Cr.PC of Ct Ram Kishan
PW6 Dr. MLC of Bharat Lal EX PW 6/A
Shashi Kant MLC of Pardeep EX PW 6/B
Kumar
MLC of Vijay Kumar EX PW 6/C
MLC of Satish Kumar EX PW 6/D
MLC of Balram Jha EX PW 6/E
MLC of Lalit Mishra EX PW 6/F
MLC of Yashpal Singh EX PW 6/G
MLC of Manoj EX PW6/H
MLC of Ismail Islam EX PW6/I
MLC of Vijay Pratap Singh EX PW6/J
MLC of Ravi Kumar EX PW6/K
PW8 Ct. Arrest Memo of accused EX PW 8/A
Dinesh Kumar Manoj
Arrest Memo of accused EX PW 8/B
Ismail Islam
Arrest Memo of accused EX PW 8/C
Vijay Pratap
Personal Search Memo of EX PW 8/D
accused Manoj
Personal Search Memo of EX PW 8/E
accused Ismail Islam
Personal Search Memo of EX PW 8/F
accused Vijay Pratap Singh
Statement U/S 161 CrPC of EX PW 8/DA
Ct Dinesh
PW9 Dr. MLC of Vinod Singh EX PW 9/A
Sanklap MLC of Babloo Yadav EX PW 9/B
FIR No. 236/15 PS Burari 10 of 149
State v. Gora Chand Dass & Ors.
Pandey MLC of Gora Chand Dass EX PW 9/C
MLC of Rahul EX PW 9/D
MLC of HC Bharat Ratan EX PW 9/E
MLC of HC Mohan Lal EX PW 9/F
MLC of Raj Malik EX PW 9/G
MLC of Kishore Kumar EX PW 9/H
MLC of Sujeet Kumar EX PW 9/I
MLC of Atma Santosh EX PW 9/J
MLC of Shashi Mohan EX PW 9/K
MLC of Ct. Babu Lal EX PW 9/L
MLC of Shyam Gopal Gupta EX PW 9/M
MLC of Ravi Prakash Jha EX PW 9/N
MLC of Narender Singh EX PW 9/O
PW10 SI Ajay Statement of SI Ajay Kumar EX PW 10/A
Kumar Arrest Memo of accused EX PW 10/B
Ashok Kumar
Arrest Memo of accused Ravi EX PW 10/C
Kumar
Arrest Memo of accused Ravi EX PW 10/D
Prakash Jha
Personal Search Memo of EX PW 10/E
accused Ravi Prakjash Jha
Personal Search Memo of EX PW 10/F
accused Ravi Kumar
Personal Search Memo of EX PW 10/G
accused Ashok Kumar
Site Plan EX PW 10/H
Seizure Memo of broken EX PW 10/I
glass and bricks
Seizure Memo of Damaged EX PW 10/J
Vehicle
FIR No. 236/15 PS Burari 11 of 149
State v. Gora Chand Dass & Ors.
DD No 5B Dated 21.02.2015 EX PW 10/DA
DD No 6B dated 21.02.2015 EX PW 10/DB
DD NO 8B dated 21.02.2015 EX PW 10/DC
DD No 10B dated 21.02.2015 EX PW 10/DD
Complaint of Sanjeev Jha EX PW 10/DE
Dated 20.02.2015
PW11 HC Copy of duty Roaster of PS EX PW 11/A
Hari Narayan Staff (COLLY)
PW13 HC Jai Photographs EX PW 13/114
Prakash Statement U/S 161 CrPC of Mark EX PW 13/DA
Ct Jai Prakash
PW14 HC Entry no. 1757 in register No. EX PW 14/A
Satish 19 regarding sending of
mobile to FSL
Entry No 1758 in register no. EX PW 14/B
19 regarding deposition of
case property
Road Certificate regarding EX PW 14/C
sending aforesaid case
property/ mobile phone to
FSL
Acknowledgment of case EX PW 14/D
property acceptance
PW15 Retd. Mechanical inspection report EX PW 15/1 to
ASI Gurdeep of damaged vehicles PW15/10
Singh
Copy of FIR No. 231/15 EX PW16/DX1
PW16 ASI DD No 88B dated 20.02.2015 EX PW 16/DX2
Diwan Singh
DD No 84B dated 20.02.2015 EX PW 16/DX3
DD No 91B dated 20.02.2015 EX PW 16/DX4
Statement U/S 161 CrPC of EX PW 16/DX5
HC Diwan Singh
PW17 Ct. Statement U/S 161 CrPC of EX PW 17/A
FIR No. 236/15 PS Burari 12 of 149
State v. Gora Chand Dass & Ors.
Babu Lal CT Babu Lal
PW18 SI Prepared inspection report of EX PW 18/A
Sombir the spot
PW19 Insp. DD No 49A EX PW 19/A
Sher Singh Statement U/S 161 CrPC of EX PW 19/B
Inspector Sher Singh
DD Entry No. 78B EX PW 19/C
Certified copy of complaint EX PW 19/D1
of Sanjeev Jha
PW 22 Request made to Magistrate EX PW 22/A
Satish Sharma u/s 195 Cr.PC to obtain
Sanction
Statement U/S 161 CrPC of EX PW 22/D1
ACP Satish Sharma
PW23 SI Duty Roaster of PS Staff EX PW 23/1 (Colly)
Sunil kumar FSL report Dated 10.06.2016 EX X1
CD of the day of incident by EX P1
FSL
6. PW1 Ct. Vikas deposed that on 20.02.2015, at about 8.30 pm, two persons came to the PS Burari and met with SI Ajay Kumar and after some time, 3040 public persons also came to PS and asked the handing over of two accused persons of FIR No. 231/2015 of P.S Burari they had to beat the abovesaid accused persons. PW1 further stated that SI Ajay Kumar tried to convince the public persons, but they were shouting and were saying that they will call the MLA of the area and after 1520 minutes, one Santro car came to PS in which 45 persons were sitting. PW1 further stated that he FIR No. 236/15 PS Burari 13 of 149 State v. Gora Chand Dass & Ors.
tried to stop the abovesaid Santro car but it did not stop and all persons came out from the Santro car and MLA Sanjeev Jha said that "tu janta nahi mai kon hoon, main iss area ka MLA hoon, aur teri vardi utarwa doonga". PW1 also stated that MLA Sanjeev Jha pushed him due to which he fell down and received injuries on his chest and back and in the meanwhile, SHO Burari came at PS and tried to pacify the MLC, but to no avail after which MLA Sanjeev Jha and other persons (who came with him) called around 300350 people at PS. PW1 deposed that thereafter, Akhileshpatti Tripathi i.e. MLA of Model Town also came to PS and his senior officers also came to PS and tried to pacify the mob, but all in vain and both the MLAs and their supporters were saying that "policewalo ko sabak sikhane ka samay aa gaya hai", and started pelting stones on PS building and the government vehicles and also tried to set fire to the police station building and also tried to damage the gate of PS. PW1 also stated that the policemen who were trying to control the crowd also sustained injuries in the said incident and the public were warned with the loud hailer not to indulge in violence and to disperse after which some supporters had left the police station and crime team also came to PS and took photographs FIR No. 236/15 PS Burari 14 of 149 State v. Gora Chand Dass & Ors.
of the scene of the incident after which IO recorded his statement at PS.
7. PW2 ASI Bharat Rattan deposed that on 20.02.2015 he was posted at police post Jharoda when at 8.30 pm, duty officer informed him that public persons were gathered in PS Burari and thereafter, he came to PS and saw that there were around 200 people present there and were shouting against the police persons and SHO of PS Burari and other police officers were trying to pacify the crowd.
PW2 further deposed that at around 10.00 pm, Ahileshpati Tripathi i.e. MLA of Model Town also came to PS along with 5060 supporters and also raised slogans against the police. PW2 also stated that SHO PS Burari tried to convince the mob through loud speaker, but the public persons present there got agitated and started damaging the public property of PS Burari and he also got injured due to stone pelting by the public and was shifted to Aruna Asaf Ali Hospital by PCR van and got medically examined and his statement was recorded on the next day by the IO.
8. PW3 HC Puran Chand proved the FIR as Ex. PW 3/A and also proved the endorsement on rukka as Ex. PW 3/B. FIR No. 236/15 PS Burari 15 of 149 State v. Gora Chand Dass & Ors.
9. PW4 Ct. Rakesh deposed that on 20.02.2015, at around 5.00-6.00 pm, around 30 to 40 persons came to PS and met with SI Ajay Kumar and they were also asking about the case bearing FIR No. 231/15, but after sometime, the above said people started raising slogans to hand over the two persons who were arrested by SI Ajay Kumar and SI Ajay Kumar tried to pacify them and after 2025 minutes, MLA Sanjeev Kumar Jha came to PS by private Santro car along with 45 persons. PW4 further deposed that Santri/ Ct. Vikas stopped MLA Sanjeev Jha and the person who came along with him after which MLA Sanjeev Jha told the Santri/ Ct. Vikas that how he stopped his car as he was MLA of the area. PW4 further stated that thereafter, MLA Sanjeev Jha and his supporters entered into the chamber of SHO and MLA Sanjeev Jha told SHO to take action against Santri/ Ct. Vikas as he stopped his car and in the meanwhile, around 400500 people gathered there and were shouting as "Delhi Police haai haai".
PW4 also stated that SHO tried to convince the mob, but the mob did not listen and at around 7.00 to 8.00 pm, MLA Akhilesh Tripathi of Model Town came to PS and the mob became uncontrolled and the mob started pelting stones in the police station and due to pelting of stones government FIR No. 236/15 PS Burari 16 of 149 State v. Gora Chand Dass & Ors.
vehicle parked in the police station and also gamla got damaged and police persons and public persons received injuries due to pelting of stone by mob. PW4 further stated that mob was dispersed by the police and he also made video from his mobile phone and further on 14.05.2015, his mobile phone was seized by the IO vide seizure memo Ex. PW4/A and one Samsung mobile phone was also seized by the IO which was given to the IO by Ct. Jagat Pal vide seizure memo Ex. PW4/B.
10. PW5 Ct. Ram Kishan deposed that on 20.02.2015, at around 10.30 pm he was present in the police station when about 200300 people came to PS and started raising slogans "Delhi Police Haai Haai" and MLA Sanjeev Kumar Jha and MLA Akhilesh Tripathi were also present there and were standing outside SHO's room and some of the persons present in the mob were giving threats to set fire to the police station. PW5 also stated that when the police tried to remove the mob from the police station by using slight force, they started pelting stones, due to which many government vehicles were damaged and some policemen got injured. PW5 identified the accused persons namely Kishore Kumar, Jagdish and Lalit Kumar as the persons who were abusing police personnels FIR No. 236/15 PS Burari 17 of 149 State v. Gora Chand Dass & Ors.
and also identified accused Sanjeev Jha.
11. PW6 Dr. Shashi Kant Kumar stated that on 21.02.2015, he examined certain patients namely Bharat Lal, Pradeep, Vijay Kumar, Satish Kumar, Balram Jha, Lalit Mishra, Yashpal Singh, Manoj, Ismail Islam, Ashok Kumar, Vijay Pratap Singh and Ravi Kumar and prepared their MLCs and proved the same as Ex. PW6/A to Ex. PW6/K respectively.
12. PW7 Ct. Satish deposed that on 21.02.2015, he was part of the Reserve Force when at about 9.00 p.m., he received instructions to reach PS Burari and when he reached there, he saw that there were 400500 public persons gathered there and also saw that accused Sanjeev Jha (MLA) was also present near room of SHO and some public persons were pressurizing the SHO to suspend SI Ajay and one constable. PW7 also stated that later on public persons resorted to stone pelting and thereafter ACP also came there who ordered them to remove the protesters from the police station. PW7 further stated that he also sustained injuries as a result of stone pelting on his chest and was taken for medical treatment to the hospital by PCR and IO recorded his statement on 30.03.2015.
FIR No. 236/15 PS Burari 18 of 149 State v. Gora Chand Dass & Ors.
13. PW8 Ct. Dinesh Kumar deposed that at about 8.30 pm, on the day of the incident, 3040 persons gathered at the police station and raised the demand of arrest of the accused persons in the case FIR No. 231/15 of PS Burai under Section 363 IPC and SI Ajay assured the mob that he would take proper course of action against the accused, but the mob did not pay any heed. PW8 further deposed that accused Sanjeev Jha also reached at PS and argued with and threatened Ct. Vikas, when he asked for his identity and further the persons who came alongwith coaccused Sanjeev Jha as well as the mob present there became violent and started pelting stones and broke the 'gamla', vehicles and case property which was kept in police station and the senior officials tried to convince the mob with the help of loudspeaker, but the mob as well as MLA Sanjeev Jha did not pay any heed. PW8 further stated that IO arrested the accused persons namely Manoj, Ismail and Vijay Pratap vide arrest memos Ex. PW8/A, Ex. PW8/B and Ex. PW8/C and IO also conducted their personal search vide memos Ex. PW8/D, Ex. PW8/E and Ex. PW8/F.
14. PW9 Dr. Sankalp Pandey deposed that on 28.04.2015, he was posted as Senior Resident at LNJP Hospital and he gave opinion regarding the nature of injuries FIR No. 236/15 PS Burari 19 of 149 State v. Gora Chand Dass & Ors.
based on Orthopedic examinations of the patients namely Vinod Singh vide MLC No. 5947 proved as Ex. PW9/A, Babloo Yadav vide MLC No. 5945 proved as Ex. PW9/B, Gora Chand vide MLC No. 5946 proved as Ex, PW9/C, Rahul vide MLC No. 5949 proved as Ex. PW9/D. PW9 also stated that he also gave opinion regarding the injuries to HC Bharat Rattan vide MLC No. 5950 proved as Ex. PW9/E, HC Mohan Lal vide MLC No. 5951 proved as Ex. PW9/F, Raju Malik vide MLC No. 5953 proved as Ex. PW9/G, Kishore Kumar vide MLC No. 5954 proved as Ex. PW9/H, Sujeet Kumar vide MLC No. 5955 proved as Ex. PW9/I, Atma Santosh vide MLC No. 5956 proved as Ex. PW9/J, Shashi Mohan vide MLC No. 5960 proved as Ex. PW9/K, Babu Lal vide MLC No. 5948 proved as Ex. PW9/L, Shyam Gopal Gupta vide MLC No. 5961 proved as Ex. PW9/M, Ravi Prakash Jha vide MLC No. 5962 proved as Ex. PW9/N, Narender Singh vide MLC No. 5958 proved as Ex. PW9/O. PW9 also stated that the nature of injuries of all the aforesaid people was simple in nature except Babu Lal whose injury was grievous.
15. PW10 SI Ajay Kumar is the complainant who stated that on 20.02.2015, the accused Prem Shankar alongwith FIR No. 236/15 PS Burari 20 of 149 State v. Gora Chand Dass & Ors.
accused Heera Devi and around 1520 people came to the PS and they asked him why he had released the accused persons, who were arrested in another case FIR No. 231/15 and those 1520 persons started raising slogans "Delhi Police Hai Hai". Thereafter, accused Sanjeev Jha and after some time, another coaccused Akhilesh Tripathi also reached the police station and the mob that had gathered at the PS including Heera Devi, Balram Jha and Shyam Gopal Gupta were raising slogans that "thane ko aag lada denge" and both MLAs also joined them and some of the persons in the mob started stone pelting due to which public property was damaged including government vehicles and some police men were also injured. PW10 further stated that at the time of the incident, they were able to apprehend and arrest six accused persons in his presence including accused Ravi Prakash, Ravi Kumar, Manoj and Vijay Pratap. PW10 proved his statement as Ex. PW10/A and he further proved the arrest memos of accused Ravi Prakash, Ravi Kumar and Vijay Pratap as Ex. PW10/B, PW10/C and PW10/D and also proved their personal search memos as Ex. PW10/E, Ex. PW10/F and Ex. PW10/G and IO also prepared site plan at his instance as Ex. PW10/H and further proved the seizure memo of the case property i.e. the broken glasses and bricks seized by the IO as Ex. PW10/I FIR No. 236/15 PS Burari 21 of 149 State v. Gora Chand Dass & Ors.
and of the damaged vehicles as Ex. PW10/J.
16. PW11 HC Hari Narayan brought the Register No. 19 pertaining to case FIR No. 236/15 and photocopies of duty roster of police officials of P.S Burari dated 20.02.2015 and proved the same as Ex. PW11/A.
17. PW12 ASI Jagat Pal deposed that he had videographed the incident from his mobile phone Samsung Grand 2 White colour and on 14.05.2015, he had handed over the said mobile phone to SI Sunil Kumar, DIU vide seizure memo already EX. PW4/B.
18. PW13 HC Jai Prakash deposed that on 20.02.2015, at 8.00 pm, accused Prem Shankar and other 2030 persons gathered at the police station and called the local MLA Sanjeev Jha and his supporters after which the accused Sanjeev Jha intimidated Ct. Vikas saying that "mai area ka MLA hoon aur mein tumahri vardi utrawa dunga" and accused Sanjeev Jha and his supporters had a scuffle with Ct. Vikas and despite objection by Ct. Vikas, accused Sanjeev Jha and his supporters entered into the police station. PW13 further deposed that accused Sanjeev Jha and Akhilesh Tripathi instigated the supporters and also provoked them for FIR No. 236/15 PS Burari 22 of 149 State v. Gora Chand Dass & Ors.
pelting stones and mob started pelting stones and damaged the case property lying in the PS as a result of which some police official present at the PS also sustained injuries. PW13 stated that thereafter accused persons namely Ashok, Ravi Prakash Jha and Ravi Kumar were apprehended by him at the spot and arrested and personally searched in his presence. PW13 identified the case property i.e Motorcyle, Maruti Car, Gramin Sewa Van, TSR and other case property in the photographs and identified the case property i.e. 14 photographs a Ex. PW13/114.
19. PW14 HC Satish, MHC (M) proved entry no. 1757 in register no. 19 of the present case and entry no. 1758 regarding deposition of case property as PW14/A and PW14/B respectively. PW14 also proved photocopy of the Road Certificate regarding sending of mobile phone to FSL for examination dated 10.06.2015 as Ex. PW14/C and the acknowledgment of case acceptance mentioned in the abovesaid register was proved as Ex. PW14/D.
20. PW15 HC Irsad Ahmed stated that on the day of the incident, he got clicked 27 photographs of the scene of crime at the direction of IO and handed over all the negatives to the IO.
FIR No. 236/15 PS Burari 23 of 149 State v. Gora Chand Dass & Ors.
21. PW15 ASI Gurdeep Singh (Technical) (wrongly mentioned as PW15) stated that on 23.02.2015, he reached PS Burari and as per directions of IO, he conducted mechanical inspection of ten vehicles vide mechanical inspection reports as Ex. PW15/1 to Ex. PW15/10.
22. PW16 ASI Diwan Singh stated that on 20.02.2015 at about 5:35 pm, he received a PCR call regarding forcefully taking of two persons away on a motorcycle and marked the said PCR call to SI Ajay thereafter, SI Ajay alongwith Ct. Ram Kishan left the Police Station for the spot in order to verify the above said PCR call. PW16 further stated that at about 07.00 pm, Ct. Ram Kishan returned to PS and handed over to him a rukka prepared by SI Ajay for registration of FIR and on the basis of rukka, he registered FIR No. 231/15 under section 363/34 IPC and handed over the copy of FIR and original rukka to Ct. Ram Kishan to hand over the same to SI Ajay. PW16 further deposed that at about 08.00 pm, SI Ajay alongwith some public persons returned to PS and they were arguing with SI Ajay and after sometime, Sanjeev Jha, MLA of Burari came to the police station in a santro car and santry / Ct. Vikas tried to stop Sanjeev Jha (MLA) at the gate of the police station, however he did not pay any heed and FIR No. 236/15 PS Burari 24 of 149 State v. Gora Chand Dass & Ors.
entered the PS. PW16 further stated that SHO was also present there and Sanjeev Jha (MLA) started misbehaving with the police staff of PS Burari and one lady namely Heera was accompanying Sanjeev Jha was saying in PS "Police ki yahee pitay karengay". PW16 further stated that one Balram, a lady namely Yash Bhatia, Akhileshpatti Tripathi MLA of Model Town alongwith some public persons also reached at PS after which SHO intimated the said fact to Assistant Commissioner of Police, who also reached at the PS and at about 10:30 pm, SHO warned the public persons through loudspeaker to leave the PS, but they did not leave the police station despite warning and continued raising slogans against Delhi Police and after sometime, extra police force was deployed and thereafter, the public persons started pelting stones on the police staff due to which mild force was used by the police to disperse the gathering of the people and due to pelting of stones, some police officials received injuries and some vehicles parked in the police station were damaged and thereafter Sanjeev Jha and Akhileshpatti Tripathi alongwith public persons left PS.
23. PW17 Ct. Babu Lal deposed that on 20.02.2015, FIR No. 236/15 PS Burari 25 of 149 State v. Gora Chand Dass & Ors.
accused persons namely Shyam Gopal Gupta, Anil Kaushik and Basant Goswami alongwith around 30 persons came to the police station and demanded handing over of two accused persons in a kidnapping case and upon refusal, those three above said accused persons started provoking the other persons and called the local MLA and at around 8:30 pm, accused persons Sanjeev Jha, Arun Jha, Neeraj Pathak and driver came to the police station in his Santro car and accused Sanjeev Jha misbehaved and abused Ct. Vikas and accused persons Neeraj Pathak, Shyam Gopal Gupta, and other persons started misbehaving with the police officials and accused Sanjeev Jha then called more of his other supporters and many more persons including accused persons namely Balram Jha, Narender Singh Rawat, Yash Bhatia, Heera Devi reached the police station.
PW17 deposed that at about 10 pm, accused Akhilesh Pati Tripathi also reached the police station alongwith 7080 supporters after which SHO requested accused Sanjeev Jha and accused Akhileshpatti Tripathi to remove the crowd from the police station and also asked the crowd to leave but to no avail and then the accused persons namely Shyam Gopal Gupta, Balram Jha, Heera Devi and Yash Bhatia started assaulting SI Ajay and accused Neeraj Pathak and Balram Jha FIR No. 236/15 PS Burari 26 of 149 State v. Gora Chand Dass & Ors.
forcibly put him on the ground and assaulted him with fists and leg blows after which he sustained injury on his shoulder and thereafter the mob started pelting stones on the police station.
24. PW18 SI Sombir, Incharge Crime Team deposed that on 21.02.2015, at about 12.35 a.m., he received a message from Control Room to reach police station Burari after which he alongwith his team including photographer Irsad and finger print expert ASI Jai Singh reached at police station Burari where they met IO SI Sanjay Kumar Gupta and after which he observed the crime scene and observed that some stone pelting was done there in which many vehicles were damaged and some flower pots were also found damaged and scattered and some motorcycles were lying down and PW18 also stated that the photographer Irsad took the photographs of the place of incident and he prepared the inspection report of the spot as Ex. PW18/A.
25. PW19 Inspector Sher Singh proved DD entry No. 49A as Ex.PW19/A and also proved the CD Ex.P1. In his statement u/s 161 Cr.PC, the then SHO Insp. Sher Singh has stated that on 20.02.2015, a large crowd had assembled at PS Burari who were demanding handing over of the accused FIR No. 236/15 PS Burari 27 of 149 State v. Gora Chand Dass & Ors.
persons involved in kidnapping case i.e. FIR NO. 231/15 of PS Burari and some persons in the crowd were raising slogans and provoking the crowd and at around 08.30 pm, the MLA of Burari Sanjeev Jha alongwith Neeraj Pathak, Arun Jha and his driver came to the PS and when Ct. Vikas tried to stop the vehicle at the gate, MLA Sanjeev Jha got angry and abused Ct. Vikas. It is further stated in the statement that thereafter accused Neeraj Pathak, Arun Jha, Shyam Gopal Gupta and others used force against SI Ajay and other police staff and in the meanwhile accused Balram Jha, Heera Devi and Yaswant @ Yash Bhatia came to the PS and were raising slogans and were instigating the crowd and at about 09.45 PM 10.00 PM, MLA Model Town Sh. Akhileshpatti Tripathi came with his supporters and was making provokating statement and at around 10.30 PM, he being the SHO tried to pacify the crowd using loudspeaker but to no avail after which ACP Civil Lines also came to the PS. PW Insp. Sher Singh has further stated that the crowd got violent after which mild force was used to control the crowd and thereafter both the MLAs left the PS with their supporters.
26. PW20 Ct. Rahul deposed that on 20.02.2015, at PS Burari, he saw that the mob was creating a lot of ruckus after FIR No. 236/15 PS Burari 28 of 149 State v. Gora Chand Dass & Ors.
which the public became violent and started stone pelting and he sustained injuries on his right shoulder due to stone pelting.
27. PW21 SI Sanjay Kumar Gupta deposed that on 20.02.2015, he was present in PS and he recorded the statement of SI Ajay already proved as Ex. PW10/A and prepared tehrir and made the endorsement already Ex. PW3/B. PW21 further deposed that he registered the FIR and at the instance of SI Ajay, he prepared the site plan already Ex. PW10/H and also prepared the seizure memo w.r.t. broken glass, stones etc., vide seizure memo already Ex. PW10/1. Thereafter, PW21 also deposed that SI Ajay handed over 6 persons which were detained by him namely Ismail, Ashok, Manoj. Vijay, Ravi Kumar and Ravi Prakash vide arrest memos already Ex. PW8/B, Ex. PW10/B, Ex. PW8/A, PW8/C, PW10/C and PW10/D and he also seized 10 damaged vehicles lying in malkhana vide seizure memo already Ex. PW10/J. PW21 further deposed that on 23.02.2015, he got the vehicles mechanically inspected vide memo already Ex. PW15/1 to Ex. PW15/10 respectively.
28. PW22 Satish Sharma, the then ACP deposed that on 20.02.2015, he reached at PS Burari after receiving a call that FIR No. 236/15 PS Burari 29 of 149 State v. Gora Chand Dass & Ors.
MLA Sanjeev Jha is creating disturbance in PS and on reaching PS he saw a large crowd gathered at PS and the people wanted suspension of SI Ajay and Ct. Vikas. PW22 further stated that he tried to pacify MLA Sanjeev Jha and MLA Akhileshpatti Tripathi but they insisted for suspension of police officials and called more people. PW22 further stated that the accused Sanjeev Jha and accused Akhileshpatti Tripathi started provoking the crowd for beating the police staff and for damaging the public property and also provoked the crowd for setting the vehicles on fire which were parked outside the PS. Thereafter, the crowd started manhandling the police officials on the provocation of MLAs mentioned above after which he ordered use of mild force to disperse the crowd. PW22 further stated that some police officials were injured in the scuffle and were sent to hospital. PW22 stated that after investigation, he made a request to the concerned Magistrate under Section 195 Cr.PC for obtaining the sanction proved as Ex.PW22/A.
29. PW23 SI Sunil Kumar, 2nd IO of the case deposed that on 26.02.2015 investigation of the present case was handed over to him by ACP, DIU and stated that five accused persons namely Ravi Prakash. Ismail Islam, Manoj. Ashok FIR No. 236/15 PS Burari 30 of 149 State v. Gora Chand Dass & Ors.
and Ravi were in JC when investigation was marked to him and the other 20 accused persons who were named in FIR were served notice under Section 41 Cr. P.C. to join the investigation. PW23 further deposed that two mobile phones were seized by him vide seizure memo already Ex.PW4/B and Ex.PW4/A after which he sent the seized mobile phones to the FSL and prepared the chargesheet against twenty five accused persons and same was submitted to the Court. PW23 further deposed that after almost one year, he received FSL result, accordingly and he prepared supplementary charge sheet and named four more accused persons in the supplementary chargesheet and recorded the statements of witnesses SI Ajay, SI Sanjay Gupta and others and filed the FSL result already Ex. XI alongwith the supplementary chargesheet in the Court.
30. Thereafter, PE was closed on 19.12.2020 and the matter got listed for recording of statement of accused persons.
EXAMINATION OF ACCUSED U/S 313 Cr.P.C.
31. Statement of accused persons u/s 313 Cr. P.C were recorded separately, wherein accused persons inter alia stated that this is a false and frivolous case against them and they FIR No. 236/15 PS Burari 31 of 149 State v. Gora Chand Dass & Ors.
were not involved in any rioting/sloganeering. The accused persons opted to lead defence evidence.
DEFENCE EVIDENCE LED BY THE ACCUSED PERSONS
32. Accused persons examined 14 witnesses in their defence.
DEFENCE WITNESSES
DW1 Kumar Ankit Public persons
DW2 Ratnakar Pandey
DW3 Dinesh Pratap Singh
DW4 Shailesh Kumar Sharma Journalist
DW5 Gyanendr Kumar Public persons
DW6 Rahul Singh
DW7 Prem Singh
DW8 Radha Kishan Sharma
DW9 Sh. Jagjeet
DW10 Sh. Dharamveer Upadhya
DW11 Sh. Sachin Yadav
DW12 Sh. Subhash Kumar
Pathak
DW13 Sh. Nirbhay Kumar
DW14 Sh. Anit Kumar Jha
33. DW1 Sh. Kumar Ankit deposed that on 20.02.2015 (exact date he did not remember) in the evening time, he was FIR No. 236/15 PS Burari 32 of 149 State v. Gora Chand Dass & Ors.
having tea at tea stall situated in front of police station Burari and at that time MLA of Burari Sh. Sanjeev Jha reaching at PS and after some time, MLA of Model Town, Sh. Akhileshpatti Tripathi also reached to the PS and after about half an hour, both MLAs came out from PS and left from there whereas more and more crowd started gathering there outside the police station to know what was going on there.
34. DW2 Sh. Ratnakar Pandey, DW3 Sh. Dinesh Pratap Singh, DW5 Sh. Gyander Kumar, DW6 Sh. Rahul Singh DW8 Sh. Radha Kishan Sharma, DW10 Sh. Dharamveer Upadhya, DW11 Sh. Sachin Yadav, DW12 Sh. Subhash Kumar Pathak and DW13 Sh. Nirbhay Kumar Singh deposed on the same lines as DW1.
35. DW4 Sh. Shailesh Kumar Sharma deposed that on 20.02.2015, some of his journalist friends informed him that there was a protest going on at police station Burari and he also reached there at about 7.008.00 p.m., when he saw that there was peaceful protest going on inside and outside police station, Burari. DW4 also stated that after some time, the newly elected MLA of the area Mr. Sanjeev Jha also came there and went inside the SHO's room PS Burari and after FIR No. 236/15 PS Burari 33 of 149 State v. Gora Chand Dass & Ors.
some time, Mr. Akhileshpatti Tripathi, MLA of Model Town also came there and went inside the SHO room of police station Burari and after about 2030 minutes, both the aforesaid MLAs namely Sanjeev Jha and Akhileshpatti Tripathi came out from the SHO room and requested public persons gathered there not to take law in their hands, behave peacefully and leave from there and thereafter, both the MLAs left from there.
36. DW7 Sh. Prem Singh stated that he was working at Petrol Pump, Burari and the petrol pump was near about 100 metres from Burari police station. DW7 further stated that on 20.02.2015 at about 8.009.00 p.m., MLA from Burari constituency Sh. Sanjeev Jha came in a car at his petrol pump and got filled the fuel in the car and left from the petrol pump.
37. DW9 Sh. Jagjeet stated that on the day of the incident there was a peaceful protest going on at P.S Burari in relation to a kidnapping case as police was not taking any action and then at about 5 P.M 5:30 P.M., Sh. Sanjeev Jha, local MLA of the area also came there and the police official present at the gate of PS Burari stopped the car in which MLA Sanjeev Jha was sitting and started abusing him and told him "Vid hayak hoga to apne ghar ka hoga" and also pointed his riffle FIR No. 236/15 PS Burari 34 of 149 State v. Gora Chand Dass & Ors.
towards the MLA Sanjeev Jha after which MLA Sanjeev Jha asked the SHO PS Burari to remove the said police official who had misbehaved with him. DW9 also stated that MLA Sanjeev Jha came out from the SHO room and asked the peo ple present there to maintain peace and not to indulge in any violence, otherwise, he would leave from there and in the meantime, DCP also reached there.
38. DW14 Sh. Anit Kumar Jha deposed on the same lines as DW1 and stated that local MLA Sanjeev Jha came there in a car and he went inside the SHO room PS Burari by walking through the gate of PS Burari and when MLA Sanjeev Jha was going inside the SHO room, some protesters also accompanied him to the SHO room and after some time one another MLA Akhileshpatti Tripathi also came in the SHO room and SHO Burari police station agreed to take appropriate action against the erring officers after which MLA Sanjeev Jha and MLA Akhileshpatti Tripathi came out of the SHO room and requested the crowd gathered there to leave the premises as SHO had agreed to take appropriate action in the kidnapping case.
39. Thereafter, DE was closed on 07.04.2022 and the matter was listed for final arguments.
FIR No. 236/15 PS Burari 35 of 149 State v. Gora Chand Dass & Ors.
40. I have heard the final arguments of Ld. APP for State and Ld. Counsels for all accused persons.
FINAL ARGUMENTS
41. The Ld. APP for the State has argued that the testimonies of prosecution witnesses are consistent and corroborate each other and is further supported by other material placed on record including the MLC of the injured police officials and so the prosecution has been able to prove the guilt of the accused persons beyond doubt.
The Ld. Defence counsel on the other hand has argued that there are serious inconsistencies in the deposition of prosecution witnesses and therefore, benefit of doubt should be given to the accused persons and they should be acquitted in the present case.
LEGAL PROVISIONS:
42. Section 141 IPC defines Unlawful assembly as: 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 FIR No. 236/15 PS Burari 36 of 149 State v. Gora Chand Dass & Ors.
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 FourthBy means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or Fifth By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.
Explanation.--An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.
Section 142 IPC states as follows: --Whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, FIR No. 236/15 PS Burari 37 of 149 State v. Gora Chand Dass & Ors.
is said to be a member of an unlawful assembly.
Section 143 IPC states as follows:--Whoever is a member of an unlawful assembly, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.
Section 145 IPC states as follows:--Whoever joins or continues in an unlawful assembly, knowing that such unlawful assembly has been commanded in the manner prescribed by law to disperse, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Section 146 IPC defines as Rioting: Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting.
Section 147 IPC relates to punishment for rioting:
Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may FIR No. 236/15 PS Burari 38 of 149 State v. Gora Chand Dass & Ors.
extend to two years, or with fine, or with both.
Section 149 IPC states as follows: 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.
It is well settled that Section 149 IPC creates a specific offence and deals with the punishment of that offence. To constitute an "unlawful assembly" there must be:
a) an assembly of five or more persons;
b) they must have a common object; and
c) the common object must be one of the five
specified in Section 141 IPC.
Thus, before there can be an unlawful assembly or rioting, there must be five persons who have common object and that object is one of those set out in Section 141 IPC. The object should be common to the persons who composed the assembly, that is to say, they should all be aware of it and FIR No. 236/15 PS Burari 39 of 149 State v. Gora Chand Dass & Ors.
concur in it. The word 'assemble' implies the meeting of persons animated by the same purpose with the intention of furthering it. But the mere combination or assemblage of five or more men does not render their meeting unlawful, unless the meeting was in pursuance of common unlawful object.
Applicability:
(i) In order to attract section 149 of the Code it must be shown that the incriminating act was done to accomplish the common object of unlawful assembly. It must be within the knowledge of the other members as one likely to be committed in prosecution of common object. If members of the assembly knew or were aware of the likelihood of a particular offence being committed in prosecution of a common object, they would be liable for the same under section 149. [Waman vs State of Maharashtra, AIR 2011 SC 3327: (2011) 7 SCC 295: JT 2011 (7) SC 24: (2011) 6 SCALE 594: 2011 Cr. LJ 4827].
(ii) When the charge is under section 149, the presence of the accused as part of unlawful assembly is sufficient for conviction even if no overt act is imputed to him. [Yunis Alias Kariya v. State of Madhya Pradesh, AIR 2003 SC 539].
FIR No. 236/15 PS Burari 40 of 149 State v. Gora Chand Dass & Ors.
(iii) Even if no overt act is imputed to a particular person, when the charge is under section 149, the presence of the accused as part of unlawful assembly is sufficient for conviction. [Yunis Alias Kariya v. State of Madhya Pradesh, AIR 2003 SC 539].
Common object: Inference of common object has to be drawn from various factors such as the weapons with which the members were armed, their movements, the acts of violence committed by them and the result. [Surendra vs State of Uttar Pradesh, AIR 2012 SC 1743: (2012) 4 SCC 776: 2012 (3) SCALE 354: 2012 Cr. LJ 2090].
Joint liability of members of unlawful assembly:
It is well settled that once a membership of an unlawful assembly is established, it is not incumbent on the prosecution to establish whether any specific overt act has been assigned to any accused. Mere membership of the unlawful assembly is sufficient. [State of Maharashtra vs Joseph Mingel Koli, (1997) 2 Crimes 228 (Bom)].
Vicarious liability:
Even the presence in the unlawful assembly, but with FIR No. 236/15 PS Burari 41 of 149 State v. Gora Chand Dass & Ors.
an active mind, to achieve the common object makes such a person vicariously liable for the acts of the unlawful assembly. [Amerika Rai vs State of Bihar, AIR 2011 SC 1379: (2011) 4 SCC 677: JT 2011 (5) SC 406: (2011) 2 SCALE 696].
Nexus between common object and offence: There must be nexus between the common object and the offence committed and if it is found that the same was committed to accomplish the common object every member of the assembly will become liable for the same. [Allauddin Mian Sharif Mian vs State of Bihar, (1989) Cr LJ 1466: AIR 1989 SC 1456].
Sections 186 IPC applies to a case where the accused voluntarily obstructs a public servant in the discharge of his public functions.
Voluntarily obstructs the use of the word 'voluntarily' indicates that the legislature contemplated the commission of some overt act of obstruction, and did not intend to render penal mere passive conduct. The word 'obstruction' means actual obstruction, i.e. actual resistance or obstacle put in the FIR No. 236/15 PS Burari 42 of 149 State v. Gora Chand Dass & Ors.
way of a public servant. The word implies the use of criminal force and mere threats or threatening language or mere abuse are not sufficient.
In the discharge of his public functions: Public functions contemplated by this section mean legal or legitimately authorized public functions, and are not intended to cover any act, that a public functionary may choose to take upon himself to perform. It must be shown that the obstruction or resistance was offered to a public servant in the discharge of his duties or public functions, as authorized by law. The mere fact of a public servant believing that he was acting in the discharge of his duties will not be sufficient to make resistance or obstruction to him amount to an offence.
Section 332 IPC Voluntarily causing hurt to deter public servant from his duty.--Whoever voluntarily causes hurt to any person being a public servant in the discharge of his duty as such public servant, or with intent to prevent or deter that person or any other public servant from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by that person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may FIR No. 236/15 PS Burari 43 of 149 State v. Gora Chand Dass & Ors.
extend to three years, or with fine, or with both.
Section 425 Mischief defines as under: Whoever with intent to cause or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or an such change in any property or in the situation thereof as destroys or diminishes its value or utility or affects it injuriously, commits "mischief".
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 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 FIR No. 236/15 PS Burari 44 of 149 State v. Gora Chand Dass & Ors.
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 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 506I IPC defines as under Punishment for criminal intimidationWhoever commits, the offence of criminal intimidation shall be punished with imprisonment of FIR No. 236/15 PS Burari 45 of 149 State v. Gora Chand Dass & Ors.
either description for a term which may extend to two years, or with fine, or with both.
Section 65B in The Indian Evidence Act, 1872 pertains to Admissibility of electronic records.--
(I) .........
(2) ........
(3) ........
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,--
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in subsection (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the FIR No. 236/15 PS Burari 46 of 149 State v. Gora Chand Dass & Ors.
certificate; and for the purposes of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
The Hon'ble Supreme Court in Judgment Anwar P. V v/s P. K. Basheer & Ors (2014) has observed that, "Any documentary evidence by way of an electronic record can be proved only in accordance with the procedure prescribed u/s 65B IEA.
The Hon'ble Supreme Court in Judgment Shafhi Mohammad v/s State of H. P (2017) has clarified the legal position in context of admissibility of electronic evidence to hold that furnishing of certificate u/s 65B was not mandatory provision & its requirement could be waived off in view of facts & circumstances & if interest of justice required the same.
Section 3 in The Prevention of Damage to Public Property Act, 1984 Mischief causing damage to public property.--
(1) Whoever commits mischief by doing any act in respect of any public property, other than public property of the nature referred to in subsection (2), shall be punished FIR No. 236/15 PS Burari 47 of 149 State v. Gora Chand Dass & Ors.
with imprisonment for a term which may extend to five years and with fine.
COURT OBSERVATIONS:
43. After going through the material on record including the testimony of prosecution witnesses, this court makes the following observations: (A) It is the case of the prosecution that on the night of 20.02.2015, all the accused persons being members of unlawful assembly assaulted Ct. Vikas, SI Ajay Kumar and other police staff in prosecution of the common object of committing assault and this unlawful assembly committed the office of rioting and some members of this assembly caused criminal intimidation to Ct. Vikas and SI Ajay Kumar. Furthermore, the prosecution has alleged that the accused persons being members of the unlawful assembly committed the offence of breaking public property in police station and vehicles lying there u/s 3 of PDPP Act.
(B) To understand whether the accused persons committed the abovesaid offences, the ingredients of the offences have to be understood.
FIR No. 236/15 PS Burari 48 of 149 State v. Gora Chand Dass & Ors.
Unlawful Assembly under section 149 IPC r/w section 141 IPC.
149. Every member of unlawful assembly guilty of offence committed in prosecution of common object. If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence."
The Supreme Court has consistently held that in order to convict an accused with the aid of Section 149, a clear finding needs to be given by the Court regarding the nature of unlawful common object. Furthermore, if any such finding is absent or if there is no overt act on behalf of the accused, the mere fact that the accused was armed would not be sufficient to prove common object.
In Kattukulangara Madhavan v. Majeed &Ors, (2017) 5 SCC 568 the Supreme Court has held that:
The mere presence of an accused in an unlawful assembly, when not as a curious onlooker or bystander, FIR No. 236/15 PS Burari 49 of 149 State v. Gora Chand Dass & Ors.
suggests that they were a part of the said assembly. When this presence is established by the prosecution, it is the conduct of the accused which must be examined in order to discern whether the accused continued to participate in the unlawful assembly for the achievement of the unlawful object, or not. Even in circumstances where the accused may not have the intention to participate in the object of the assembly, an inference whether exculpatory or inculpatory can be drawn from the conduct of the accused during their participation in that assembly. Furthermore, if there is no evidence which shows that the accused did not have knowledge of the unlawful object of the assembly, or that having gained knowledge of the same, he attempted to either prevent it or disassociate himself from the assembly, the mere participation of the accused in such an assembly would be deemed to be inculpatory.
In Lalji and Others v. State of U.P.,(1989) 1 SCC 437, the Supreme Court had observed as follows:
"Section 149 makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. Thus this section created a specific and distinct offence. In other words, it created a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of the FIR No. 236/15 PS Burari 50 of 149 State v. Gora Chand Dass & Ors.
assembly. However, the vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common objects of the unlawful assembly, or to such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. Once the case of a person falls within the ingredients of the section the question that he did nothing with his own hands would be immaterial. He cannot put forward the defence that he did not with his own hand commit the offence committed in prosecution of the common object of the unlawful assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object. Everyone must be taken to have intended the probable and natural results of the combination of the acts in which he joined. It is not necessary that all the persons forming an unlawful assembly must do some overt act. When the accused persons assembled together, armed with lathis, and were parties to the assault on the complainant party, the prosecution is not obliged to prove which specific overt act was done by which of the accused. This section makes a member of the unlawful assembly responsible as a principle for the acts of each, and all, merely because he is a member of an unlawful assembly. While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere FIR No. 236/15 PS Burari 51 of 149 State v. Gora Chand Dass & Ors.
presence in the unlawful assembly may fasten vicarious criminal liability under Section 149. It must be noted that the basis of the constructive guilt under Section 149 is mere membership of the unlawful assembly, with the requisite common object or knowledge."
It has, therefore, been held by the Supreme Court that once an individual is deemed to be a part of the unlawful assembly, it would not be open to the Courts to acquit some members on the ground that they themselves did not perform any violent act, or that there was no corroboration of their participation. Doing so would amount to forgetting the very nature and essence of the offence created by Section 149 IPC.
Furthermore, the common object of the unlawful assembly could be gathered from the nature of assembly, arms used by the members of the assembly, and the behaviour of the assembly at or before the scene of occurrence. It is an inference that is to be deduced from the facts and circumstances of the case, as has been stated in Lalji v. State of U.P. (supra).
Issue No.1: Whether accused persons were member of offence, if yes, what was the common object?
It is the case of the prosecution that all the accused FIR No. 236/15 PS Burari 52 of 149 State v. Gora Chand Dass & Ors.
persons were members of the unlawful assembly and the presence of the accused persons at the spot on the day of incident has been proved beyond doubt and the common object of the unlawful assembly was to overawe by criminal force the police officials of PS Burari and to teach them a lesson for not taking appropriate action against the accused persons involved in the case of kidnapping in another FIR No. 231/15 of PS Burari. Also it is alleged that the common object of the unlawful assembly was also to compel the police officials of PS Burari to handover the accused persons in FIR no. 231/15 to them so that they could beat them up which SI Ajay refused to do.
The defence counsel has argued that most of the accused persons were mere bystanders and onlookers and some were merely on their way home and police station was onroute to their home. It is also argued that some accused persons were peacefully protesting and it was the police officials of PS Burari who had started lathi charge on the peaceful protesters. The counsel for accused persons namely Sanjeev Jha and Akhileshpatti Tripathi have argued that they were not provoking /instigating the mob but had gone to police station to defuse the situation and pacify the crowd.
From the various judgments of the Hon'ble Delhi High FIR No. 236/15 PS Burari 53 of 149 State v. Gora Chand Dass & Ors.
Court and Hon'ble Supreme Court of India, it is clear that even the presence of the accused persons at the spot is sufficient to prove that they were members of unlawful assembly even if no overt act is attributed to them if it shown that the accused persons shared the common object of the unlawful assembly and this can be shown by the conduct of the accused persons. Furthermore, if no evidence has been brought by the defence which shows that the accused did not have knowledge of the unlawful object of the assembly, or that having gained knowledge of the same, he attempted to either prevent it or disassociate himself from the assembly then the mere participation of the accused in such an assembly would be deemed to be inculpatory.
To ascertain whether the accused persons were members of the unlawful assembly, their conduct on the day of the incident has to be seen to come to the conclusion that they shared common object of the unlawful assembly (if there was one) or whether they were all innocent bystanders and onlookers.
Issue No.2: Whether accused persons were involved in the offence of rioting as defined in section 146 IPC?
To prove the guilt of the accused persons for the FIR No. 236/15 PS Burari 54 of 149 State v. Gora Chand Dass & Ors.
offence of rioting under section 146 IPC the prosecution has to show that the accused persons being members of the unlawful assembly used force / violence in prosecution of the common object of the unlawful assembly.
Issue No. 3: Whether accused persons were involved in the offence of obstructing the public servant and had caused hurt to them and would be liable for the offence u/s 186/332 IPC?
To prove the guilt of the accused persons for the abovesaid offences, the prosecution has to show beyond doubt that the accused persons being members of the unlawful assembly had obstructed the police officials and whether any one of the members of the unlawful assembly had caused hurt to the police officials in prosecution of the common object of the unlawful assembly.
Issue No. 4: Whether accused persons were involved in the offence of criminal intimidation as defined in section 503 IPC?
In order to ascertain this fact the prosecution will have to show that any one or more of the accused persons had criminally intimated the police officials and whether this FIR No. 236/15 PS Burari 55 of 149 State v. Gora Chand Dass & Ors.
intimidation had caused alarm to the person who was subjected to criminal intimidation or it had caused the person to do any act which he is not legally bound to do.
Issue No. 5: Whether accused persons were involved in the offence u/s 3 of PDPP Act and had committed mischief: To prove the guilt of the accused persons for the abovesaid offence, the prosecution will have to show beyond doubt that the accused persons as members of the unlawful assembly had caused mischief as defined in Section 425 IPC to public property lying in the police station.
(C) The prosecution has placed on record two video footages taken from the mobile phone of one of the police officials. However, the said video footages have not been accompanied with certificate u/s 65B of Indian Evidence Act and therefore, the evidentiary value of the abovesaid video footage is questionable. Moreover, in one of the video footage (1.1 minute video), there is no identifiable face that can be seen and the other footage (4.56 minutes) pertains to the recording in the SHO room where the MLA Sanjeev Jha is seen sitting and talking to the SHO and no offence / illegal act FIR No. 236/15 PS Burari 56 of 149 State v. Gora Chand Dass & Ors.
is being shown as being committed by any of the accused persons. This court is of the view that the abovementioned video footages will not be of assistance either to the prosecution or to the accused persons and also noticing that certificate u/s 65B Indian Evidence Act has not been accompanied with the video footages, this court will disregard the video footages placed on record by the prosecution and will not take it into consideration while pronouncing the judgment.
(D) The Ld. defence counsel has argued that the prosecution has not placed on record the CCTV footage from the cameras installed in the police station and therefore, the best evidence available has not been brought by the prosecution which would adversely affect the prosecution's case. Perusal of record reveals that various prosecution witnesses were questioned by Ld. defence counsel on the point of availability of CCTV cameras and PW22 ACP Satish Sharma had stated in his cross examination that he does not know whether the CCTV cameras were working or not and infact PW17 Ct. Babu Lal, PW18 SI Sombir and PW21 SI Sanjay have stated in their cross examinations that there was no CCTV camera installed at PS Burari at the relevant time.
FIR No. 236/15 PS Burari 57 of 149 State v. Gora Chand Dass & Ors.
This question was put to the SHO of PS Burari during his deposition and PW19 Insp. Sher Singh (SHO of PS Burari on the day of incident) has stated that there was no CCTV cameras in the PS on the day of incident and further stated that till his tenure in PS Burari, no CCTV cameras were installed in the PS and that is why footage from the same was not placed on record by the prosecution.
(E) Furthermore, the Ld. defence counsel has also argued that the statements of the prosecution witnesses was recorded u/s 161 Cr.PC after a gap of almost three months and this delay has not been explained by the prosecution. This court has considered the statements of all the prosecution witnesses and has observed that the statement of ASI Bharat Rattan, HC Puran Chand, ASI Diwan Singh, Ct. Babu Lal, Insp. Sher Singh and ACP Satish Sharma was recorded almost three months after the date of the incident. However, this court has also noticed that statement of PW4 Ct. Rakesh, PW5 Ct. Ram Kishan and PW10 SI Ajay Kumar was first recorded on 21.02.2015 and statement of PW7 Ct. Satish, PW20 Ct. Rahul was first recorded on 30.03.2015. The prosecution in some cases has explained the delay in recording of the statement and in some cases they have not FIR No. 236/15 PS Burari 58 of 149 State v. Gora Chand Dass & Ors.
and statement of some of the witnesses has been recorded immedtialy after the alleged incident. This court has gone through the statements of all the prosecution witnesses individually and also as a whole and has compared them with the initial complaint and rukka prepared on the day of the incident to see what part and how much of the statements of these witnesses are believable / trustworthy and can be relied upon.
(F) The defence has produced 14 defence witnesses during DE, however, this court has noticed that the defence witnesses have given their depositions qua accused persons namely MLA Sanjeev Jha and MLA Akhileshpatti Tripathi only so as to show that the abovesaid accused persons had left the police station before any offence was committed on the day of the incident and no defence witnesses have been called for the remaining 25 accused persons.
Also it has been noted that there are some discrepancies in the testimonies of the defence witnesses which is contradictory to the statement of MLA Sanjeev Jha given by him u/s 313 Cr.PC. DW2 Rattankar Pandey is a hearsay witness as he has himself stated that he was standing outside the police station whole time and so could not have known FIR No. 236/15 PS Burari 59 of 149 State v. Gora Chand Dass & Ors.
personally what the MLAs Sanjeev Jha and Akhileshpatti Tripathi had said in the SHO's room and whether they were provoking the crowd or pacifying it. The defence witnesses have given different entry times of accused Sanjeev Jha and accused Akhileshpatti Tripathi. DW1 Kumar Ankit and DW10 Dharamveer have not mentioned any time. DW2 and DW3 have mentioned the time as around 07.00 pm to 08.00 pm in their cross examination. DW4 Sh. Sailesh Kumar has stated that he reached the police station around 07.00 pm to 08.00 pm and thereafter, accused Sanjeev Jha came to the police station and some time later, accused Akhileshpatti Tripathi came there. DW5 Gyaender Kumar has mentioned the time of incident around 06.30 pm to 08.00 pm whereas DW6 Rahul Singh has mentioned that MLA Sanjeev Jha came after 07.00 pm to the police station. DW8 has stated that accused Sanjeev Jha came to police station after about 08.00 pm whereas DW9 Jagjeet has stated that accused Sanjeev Jha came to the police station around 05.00 pm to 05.30 pm. There are many inconsistencies in the depositions of defence witnesses. Some defence witnesses have stated that accused Sanjeev Jha parked his car outside the PS and walked to the police station while others have stated that accused Sanjeev Jha went straight to the police station in his car. Only FIR No. 236/15 PS Burari 60 of 149 State v. Gora Chand Dass & Ors.
DW9 Jagjeet has stated that one police official stopped the car of accused Sanjeev Jha and this fact has not been stated by any other defence witness. Moreover, DW9 has stated that the police official was present at the gate and had abused the accused Sanjeev Jha and had pointed his riffle towards him and had told him "vidhaya hoga apne ghar pe" after which the accused Sanjeev Jha gave written complaint to the SHO. This fact has not been stated by any of the other defence witness. The complaint given by the accused Sanjeev Jha is placed on record (Ex. PW10/DE). PW10/DE is a complaint given by accused Sanjeev Jha against SI Ajay Kumar, Ct. Anil and Ct. Rakesh for threatening to kill him and manhandling him, however, there is no mention of this incident or complaint by any defence witness. Considering that none of the defence witnesses other than DW9 has mentioned regarding this complaint and this incident, casts a serious doubt as to their presence at the spot and compels this court to doubt their trustworthiness. Also noticing that the defence witnesses have given different times of entry of accused Sanjeev Jha and Akhileshpatti Tripathi (ranging from 05.00 pm to after 08.00 pm), this court is of the view that the defence witnesses have not given consistent deposition and have not even mentioned the incident which led to the filing of the complaint by FIR No. 236/15 PS Burari 61 of 149 State v. Gora Chand Dass & Ors.
accused Sanjeev Jha and therefore, their testimonies cannot be believed at face value.
(G) The Ld. defence counsel has relied upon a catena of judgments to support their case. This court has gone through all the judgments placed on record by the Ld. defence counsel alongwith the written arguments filed by them and duly considered them while pronouncing the judgment.
(H) This court has gone through the testimonies of all prosecution witnesses and has noticed that some prosecution witnesses have stated that accused persons were threatening them and were saying "thane ko aag laga dengye" and PW1 Ct. Vikas has stated that accused Sanjeev Jha had threatened him by saying "tumhari vardi uttarva dunga", however, none of these witnesses have stated that the accused persons caused alarm to them or that they were alarmed by the statements made by the accused persons caused them to do any act which they were not legally bound to do and so after taking into account the judgment of Hon'ble Delhi High Court in Kanshi Ram vs State, this court is of the view that offence u/s 506 IPC is not made out against any of the accused persons.
FIR No. 236/15 PS Burari 62 of 149 State v. Gora Chand Dass & Ors.
(I) The prosecution has alleged that all the accused persons as the part of the unlawful assembly committed the offence of breaking the public property including vehicles lying inside the police station. Perusal of record reveals that PW21 SI Sanjay Gupta claims to have seized 10 damaged vehicles lying in the malkhana vide seizure memo Ex. PW10/J and on 23.02.2015, he got the vehicles mechanically inspected.
PW15 HC Irshad Ahmed during his deposition deposed that he had taken the photographs of the scene of the crime and had handed over the same to the IO, however, Ld. APP during the court proceedings had admitted that none of these photographs and negatives were filed alongwith charge sheet.
PW13 HC Jai Prakash identified some damaged vehicles from 14 photographs Ex. PW13/114 and exhibited the same, however, the witness admitted that he did not take these photographs. The photographs that were taken by HC Irshad Ahmed PW15 as is stated by him in his evidence are not placed on record.
PW15 ASI Gurdeep Singh submitted that he carried out the mechanical inspection of ten vehicles Ex. PW15/1 to 15/10. After going through the mechanical inspection report, FIR No. 236/15 PS Burari 63 of 149 State v. Gora Chand Dass & Ors.
this court has noticed that Ex. PW15/10 is purportedly related to vehicle bearing no. DL 8CNB 0001, however, this vehicle is not part of the seizure memo Ex. PW10/J and the vehicle mentioned at serial no. 10 in the seizure memo (Ex. PW10/J) has not been mechanically inspected. Ld. defence counsel has argued that many of the vehicles mentioned in Ex. PW10/J appear to be private vehicles, most likely seized after an accident and lying in the police station. PW15 in his cross examination has admitted that he has not mentioned in the mechanical inspection report whether the damages on the vehicle in question are fresh damages as a result of stone pelting or are they old damages. Ld. defence counsel has argued that unless the mechanical inspector or another witness can claim affirmatively that the damage caused to the vehicles mentioned in the seizure memo was on account of the violence that took place on 20.02.2015, this entire evidence is farcical and the mechanical inspector ought to have shown in the seizures made vide Ex. PW10/J to determine whether the damage caused to the vehicles could have been caused by bricks and stones.
It is also argued that the statements of witnesses ought to have been recorded to show that 10 vehicles seized vide memo Ex.10/J did not have any damage preceding the FIR No. 236/15 PS Burari 64 of 149 State v. Gora Chand Dass & Ors.
incident and were damaged as a consequence of the violence that allegedly erupted in the police station on 20.02.2015.
This court after going through the material on record including the deposition of prosecution witnesses has observed that there are some infirmities in the case of prosecution as far as the accused persons damaging the public property and the vehicles lying in the PS is concerned. One of the vehicle mentioned in the seizure memo has not been mechanically inspected and Ex. PW15/10 pertains to mechanical inspection of vehicle no. DL 8CNB 0001 which is not mentioned in the seizure memo. The prosecution has not been able to explain this defect and has also not been able to explain the reasons why the photographs of the scene of the crime including that of damaged vehicles taken by the PW Irshad Ahmed has not been placed on record. Moreover, the mechanical inspector has nowhere stated that the damages on the vehicles were due to the act of the unlawful assembly on 20.02.2015 at PS Burari. Mere mention of damages on the inspection report of the vehicles without mentioning the cause of the damage or that it was recent damage cause due to stone pelting is not sufficient to convict the accused persons for offence u/s 3 of Prevention of Damage to Public Property Act. Therefore, this court is of the view that the prosecution FIR No. 236/15 PS Burari 65 of 149 State v. Gora Chand Dass & Ors.
has not been able to prove the guilt of the accused beyond doubt and has not been able to explain the defects in the chargesheet and so this court giving the accused persons benefit of doubt holds that none of the accused persons are guilty for the offence u/s 3 of Prevention of Damage to Public Property Act.
(J) The Ld. defence counsel has argued that the prosecution has not obtained sanction under section 195 Cr.PC qua four accused persons namely Prem Shankar, Heera Devi, Arun Jha and Yash Bhatia who were added as an accused in the supplementary chargesheet. Ld. APP has argued that the Sanction u/s 195 Cr.PC was filed alongwith the main chargesheet and no new sanction was required at the time of filing of supplementary chargesheet for the four newly added accused persons. This court has observed that Sanction u/s 195 Cr.PC was sought by the IO and written request was given for the same and same is exhibited as Ex. PW22/A. This court further is of the view that sanction sought u/s 195 Cr.PC is qua the offence and not the offender and once the sanction has been obtained and filed alongwith the main chargesheet there is no requirement of obtaining fresh sanction for newly added accused persons in the FIR No. 236/15 PS Burari 66 of 149 State v. Gora Chand Dass & Ors.
supplementary chargesheet and so the argument that fresh sanction should have been taken qua four accused persons namely Prem Shankar, Heera Devi, Arun Jha and Yash Bhatia does not hold good.
(K) Time of entry and departure of MLA Sanjeev Jha and Akhileshpatti Tripathi.
As per the prosecution witnesses the time of entrance of accused Sanjeev Jha is as follow:
Sr. Name of witness Entry time of accused No. Sanjeev Jha in PS 1 PW1 Ct. Vikas After 08.30 pm. 2 PW8 Ct. Dinesh Between 09.00 pm to 10.00 pm 3 PW12 ASI Jagat Pal After 09.30 pm 4 PW13 HC Jai Prakash After 08.00 pm 5 PW16 ASI Diwan Singh After 08.00 pm 6 PW17 Ct. Babu Lal After 08.30 pm 7 PW19 Insp. Sher Singh After 07.30 pm. So the general consensus as per the prosecution witnesses is that the accused Sanjeev Jha came to the police station around 08.00 pm 08.30 pm. The police officials cannot be excepted to know the exact time of the arrival of the MLAs keeping in view the fact that such a large gathering was stationed at the police station raising slogans and FIR No. 236/15 PS Burari 67 of 149 State v. Gora Chand Dass & Ors.
protesting and as per the prosecution's case also pelting stones. So this court is of the view that some leeway in time difference should be given to the prosecution witnesses.
As per the prosecution witnesses the time of entrance of accused Akhileshpatti Tripathi is as follow:
Sr. Name of witness Entry time of accused No. Akhileshpatti Tripathi 1 PW2 ASI Bharat Rattan After 10.00 pm. 2 PW17 Ct. Babu Lal About 10.00 pm. Most of the prosecution witnesses have stated that accused Akhileshpatti Tripathi came after some time of the arrival of the accused Sanjeev Jha and two prosecution witnesses have stated that accused Akhileshpatti Tripathi came to the police station around 10.00 pm. (L) Considering that there are total 27 accused persons, this court is of the view that it would be pertinent to discuss the case of the prosecution qua each and every accused person and from their conduct / behavior on the day of incident come to the conclusion whether they were part of the unlawful assembly and if any offences were committed by accused FIR No. 236/15 PS Burari 68 of 149 State v. Gora Chand Dass & Ors.
persons and the accused persons shared the common object of the unlawful assembly that is to say they were all aware of it and concurred in it.
In view of the case of prosecution, the accused persons are clubbed in the following categories:
(1.) Accused persons who were not active participants and are alleged to be present at the spot and are alleged to be the members of the unlawful assembly.
(2.) Accused persons who were active participants and are alleged to be present at the spot and are alleged to be the members of the unlawful assembly.
(3.) Accused persons who were active participants and were infact leading and provoking the crowd and were allegedly present at the spot being members of unlawful assembly.
(1.) Accused persons who were not active participants and are alleged to be present at the spot and are alleged to be the members of the unlawful assembly.
(i) Gora Chand Dass: The accused was not arrested during investigation, but the presence of the accused at the spot is not disputed. It is the case of the prosecution as FIR No. 236/15 PS Burari 69 of 149 State v. Gora Chand Dass & Ors.
mentioned in the chargesheet that accused Gora Chand Dass was one of the people who came to the police station at the behest of MLA Sanjeev Jha and alongwith others raised slogans against Delhi Police and also instigated and provoked the crowd. Also it is alleged in the chargesheet that accused Gora Chand Dass alongwith other people attacked the police as a result of which Ct. Pardeep got injured.
In his statement u/s 313 Cr.PC, the accused Gora Chand Dass has taken the defence that he was coming from his shop to his home and was crossing the police station when the police lathi charged him and he was taken to hospital for medical treatment. The accused Gora Chand Dass has taken the defence that he was an innocent passerby who was beaten up by the police without any reason and he has nothing to do with the alleged incident.
After going through the material on record including the testimony of the prosecution witnesses, this court has observed that the accused Gora Chand Dass was not named in the FIR and was not arrested during investigation. Also MLC no. 200571 of the accused Gora Chand Dass (Ex. PW9/C) was placed on record by the prosecution to show that the accused Gora Chand Dass was present at the spot at the time of the incident and was part of the unlawful assembly, FIR No. 236/15 PS Burari 70 of 149 State v. Gora Chand Dass & Ors.
however, the prosecution has not produced anything during trial to show that the accused Gora Chand Dass shared the common object of the unlawful assembly or was in any ways involved in rioting, stone pelting, obstruction, assault on police officials or damage to public property. Not even a single prosecution witnesses has deposed anything against the accused Gora Chand Dass and allegations against the accused that he alongwith other people attacked the police and caused injuries to Ct. Pradeep could not be substantiated as Ct. Pradeep was dropped from the list of witnesses vide order dated 06.09.2019 and no other prosecution witnesses including the police officials stated anything against the accused on the point of him attacking the police officials. Also nothing has been brought on record by the prosecution to show that the accused via his conduct/ behavior was associated with the unlawful assembly and was sharing its common object to overawe the police by force/ show of criminal force or to carry out assault upon police officials or to compel them to hand over accused persons in case FIR No. 231/15 to them for beating them and had criminally intimidated them / had damaged the public property lying in PS. So, this court is of the view that the prosecution has not been able to prove the guilt of the accused Gora Chand Dass FIR No. 236/15 PS Burari 71 of 149 State v. Gora Chand Dass & Ors.
beyond doubt and has been unable to show that he was part of unlawful assembly and the defence of the accused that he was a mere bystander cannot be ruled out. Therefore, this court giving the accused Gora Chand Dass the benefit of doubt acquits him for offences u/s 147/186/332/506I/149 IPC and Section 3 of PDPP Act.
(ii) Vinod Singh: The accused was not arrested during investigation, but the presence of the accused at the spot is not disputed. It is the case of the prosecution as mentioned in the chargesheet that accused Vinod Singh was one of the people who came to the police station alongwith accused Prem Shankar and was not listening to the police officials and had called MLA Sanjeev Jha to the PS. Also it is alleged in the chargesheet that accused Vinod Singh alongwith accused Atma Santosh and others attacked HC Bharat Rattan as a result of which he sustained injuries.
In his statement /s 313 Cr.PC, the accused Vinod Singh has taken a defence that he was returning home and was crossing the police station when the police lathi charged him and he was taken to hospital for medical treatment. The accused Vinod Singh has taken the defence that he was an innocent passerby who was beaten up by the police without FIR No. 236/15 PS Burari 72 of 149 State v. Gora Chand Dass & Ors.
any reason and he has nothing to do with the alleged incident.
After going through the material on record including the testimony of the prosecution witnesses, this court has observed that the accused Vinod Singh was not named in the FIR and was not arrested during investigation. MLC no. 200564 of the accused Vinod Singh (Ex. PW9/A) was placed on record by the prosecution to show that the accused Vinod Singh was present at the spot at the time of incident and was part of the unlawful assembly. However, the prosecution has not produced anything during trial to show that the accused Vinod Singh shared the common object of the unlawful assembly or was in any ways involved in rioting, stone pelting, obstruction, assault on police officials, criminal intimidation or had damaged public property lying in PS. Not even a single prosecution witnesses has deposed anything against the accused Vinod Singh and allegations against the accused that he alongwith Atma Santosh attacked HC Bharat Rattan (now ASI) and caused injuries to him could not be substantiated as PW2 ASI Bharat Rattan did not identify the accused in the court and deposed nothing against him and no other prosecution witnesses including the police officials stated anything against the accused on the point of him attacking HC Bharat Rattan (now ASI). SI Jitender identified FIR No. 236/15 PS Burari 73 of 149 State v. Gora Chand Dass & Ors.
the accused during investigation, however, he could not depose during the trial as he was dropped from the list of witnesses vide order dated 22.11.2019. Also nothing has been brought on record by the prosecution to show that the accused via his conduct / behavior was associated with the unlawful assembly and was sharing its common object to overawe the police by force / show of criminal force or to carry out assault upon police officials or to compel them to hand over accused persons in case FIR No. 231/15 to them for beating them and had criminally intimidated them / or had damaged the police property lying in PS. So, this court is of the view that the prosecution has not been able to prove the guilt of the accused Vinod Singh beyond doubt and has been unable to show that he was part of unlawful assembly and the defence of the accused that he was a mere bystander cannot be ruled out. Therefore, this court looking at the various contradictions in the deposition of the prosecution witnesses gives the accused Vinod Singh the benefit of doubt and acquits him for offences u/s 147/186/332/506I/149 IPC and Section 3 of PDPP Act.
(iii) Atma Santosh: The accused was not arrested during investigation, but the presence of the accused at the FIR No. 236/15 PS Burari 74 of 149 State v. Gora Chand Dass & Ors.
spot is not disputed. It is the case of the prosecution as mentioned in the chargesheet that accused Atma Santosh was one of the people who came to the police station on the day of the incident and was raising slogans against Delhi Police and also instigated and provoked the crowd. Also it is alleged in the chargesheet that accused Atma Santosh alongwith accused Vinod Singh and others attacked HC Bharat Rattan as a result of which he sustained injuries.
In his statement u/s 313 Cr.PC, the accused Atma Santosh has taken the defence that he was returning home and was crossing the police station when the police lathi charged him and he was taken to hospital for medical treatment. The accused Atma Santosh has taken the defence that he was an innocent passerby who was beaten up by the police without any reason and he has nothing to do with the alleged incident.
After going through the material on record including the testimony of the prosecution witnesses, this court has observed that the accused Atma Santosh was not named in the FIR and was not arrested during investigation. MLC no. 200561 of the accused Atma Santosh (Ex. PW9/J) was placed on record by the prosecution to show that the accused Atma Santosh was present at the spot at the time of incident and was part of unlawful assembly. However, the prosecution has FIR No. 236/15 PS Burari 75 of 149 State v. Gora Chand Dass & Ors.
not produced anything during trial to show that the accused Atma Santosh shared the common object of the unlawful assembly or was in any ways involved in rioting, stone pelting, obstruction, assault on police officials, criminal intimidation or had caused damage to public property. Not even a single prosecution witnesses has deposed anything against the accused Atma Santosh and allegations against the accused that he alongwith accused Vinod Singh attacked HC Bharat Rattan (now ASI) and caused injuries to him could not be substantiated as PW2 ASI Bharat Rattan did not identify the accused in the court and deposed nothing against him and no other prosecution witness including the police officials stated anything against the accused on the point of him attacking HC Bharat Rattan (now ASI). HC Bharat Rattan (now ASI) identified the accused during investigation, however, he failed to identify the accused in the court. Also nothing has been brought on record by the prosecution to show that the accused via his conduct / behavior was associated with the unlawful assembly and was sharing its common object to overawe the police by force/ show of criminal force or to carry out assault upon police officials or to compel them to hand over accused persons in case FIR No. 231/15 to them for beating them and had criminally FIR No. 236/15 PS Burari 76 of 149 State v. Gora Chand Dass & Ors.
intimidated them / had damaged the police property lying in PS. So, this court is of the view that the prosecution has not been able to prove the guilt of the accused Atma Santosh beyond doubt and has been unable to show that he was part of unlawful assembly and the defence of the accused that he was a mere bystander cannot be ruled out. Therefore, this court looking at various contradictions in the deposition of the prosecution witnesses gives the accused Atma Santosh the benefit of doubt and acquits him for offences u/s 147/186/332/506I/149 IPC and Section 3 of PDPP Act.
(iv) Roshan Kumar Mishra: The accused was not arrested during investigation, but the presence of the accused at the spot is not disputed. It is the case of the prosecution as mentioned in the chargesheet that accused was one of the people who came to the police station on the day of the incident and was part of the unlawful assembly.
In his statement u/s 313 Cr.PC, the accused Roshan Kumar Mishra has taken the defence that he was returning home and was crossing the police station when the police lathi charged him and he was taken to hospital for medical treatment. The accused Roshan Kumar Mishra has taken the defence that he was an innocent passerby who was beaten up FIR No. 236/15 PS Burari 77 of 149 State v. Gora Chand Dass & Ors.
by the police without any reason and he has nothing to do with the alleged incident.
After going through the material on record including the testimony of the prosecution witnesses, this court has observed that the accused Roshan Kumar Mishra was not named in the FIR and was not arrested during investigation. MLC no. 200565 of the accused Roshan Kumar Mishra was placed on record by the prosecution to show that the accused Roshan Kumar Mishra was present at the spot at the time of incident and was part of unlawful assembly. However, the prosecution has not produced anything during trial to show that the accused Roshan Kumar Mishra shared the common object of the unlawful assembly or was in any ways involved in rioting, stone pelting, obstruction, criminal intimidation, assault on police officials or had caused damage to public property. Not even a single prosecution witnesses has deposed anything against the accused Rohsan Kumar Mishra. SI Jitender Rana identified the accused during investigation, however, he could not depose during the trial as he was dropped from the list of witnesses vide order dated 22.11.2019. Also nothing has been brought on record by the prosecution to show that the accused via his conduct/ behavior was associated with the unlawful assembly and was sharing its FIR No. 236/15 PS Burari 78 of 149 State v. Gora Chand Dass & Ors.
common object to overawe the police by force/ show of criminal force or to carry out assault upon police officials or to compel them to hand over accused persons in case FIR No. 231/15 to them for beating them and had criminally intimidated/ had damaged the police property lying in PS So, this court is of the view that the prosecution has not been able to prove the guilt of the accused Roshan Kumar Mishra beyond doubt and has been unable to show that he was part of unlawful assembly and the defence of the accused that he was a mere bystander cannot be ruled out. Therefore, this court noting that not even a single witness deposed anything against the accused Roshan Kumar Mishra gives him the benefit of the doubt and acquits him for offences u/s 147/186/332/506 I/149 IPC and Section 3 of PDPP Act.
(v) Narender Kumar S/o Sh. Soni: The accused was not arrested during investigation and it is the case of the prosecution as mentioned in the chargesheet that accused Narender Kumar was one of the people who was at the police station on the day of incident and he alongwith MLA Sanjeev Jha, MLA Akhilesh Pati Tripathi and others threatened the police officials and threatened to set the police ablaze and further, it is stated in the chargesheet that the FIR No. 236/15 PS Burari 79 of 149 State v. Gora Chand Dass & Ors.
accused alongwith others was raising slogans against Delhi Police and also instigated and provoked the crowd.
In his statement u/s 313 Cr.PC, the accused Narender Kumar has taken the defence that he was not present at the police station on the date of incident and he has been falsely implicated in the present FIR.
After going through the material on record including the testimony of the prosecution witnesses, this court has observed that the accused Narender Kumar was named in the FIR and was not arrested during investigation. SI Ajay identified the accused Narender Kumar during investigation, however, PW10 SI Ajay Kumar failed to identify the accused Narender Kumar in the court and has not stated anything against him. The prosecution has not produced anything during trial to show that the accused Narender Kumar shared the common object of the unlawful assembly or was in any ways involved in rioting, stone pelting, obstruction, criminal intimidation, assault on police officials or had caused damage to public property. Not even a single prosecution witnesses has deposed anything against the accused Narender Kumar and allegations against the accused that he alongwith others instigated the mob and caused rioting could not be substantiated as SI Ajay who identified him during FIR No. 236/15 PS Burari 80 of 149 State v. Gora Chand Dass & Ors.
investigation failed to identify him during trial and did not say anything against the accused. This is contrary to the statement of SI Ajay u/s 161 Cr.PC recorded on 12.05.2015 wherein he has stated that accused Narender Kumar alongwith other accused persons was provoking the crowd and accused Narender Kumar alongwith Basant Kumar Goswami threatened to kill him. Also nothing has been brought on record by the prosecution to show that the accused via his conduct/ behavior was associated with the unlawful assembly and was sharing its common object to overawe the police by force/ show of criminal force or to carry out assault upon police officials or to compel them to hand over accused persons in case FIR No. 231/15 to them for beating them and had criminally intimidated them / had damaged the public property lying in PS. So, this court is of the view that the prosecution has not been able to prove the guilt of the accused Narender Kumar beyond doubt and has been unable to show that he was part of unlawful assembly and the defence of the accused that he was not present at the police station on the date of incident cannot be ruled out. Therefore, this court looking at the contradictory and nonsupportive testimony given by the prosecution witnesses especially SI Ajay during trial gives the accused Narender Kumar the FIR No. 236/15 PS Burari 81 of 149 State v. Gora Chand Dass & Ors.
benefit of the doubt and acquits him for offences u/s 147/186/332/506I/149 IPC and Section 3 of PDPP Act.
(vi) Narayan Yadav @ Thekedar: The accused was not arrested during investigation and it is the case of the prosecution as mentioned in the chargesheet that accused Narayan Yadav @ Thekedar was one of the persons who was present at the police station on the day of incident and he alongwith other accused persons was raising slogans against Delhi Police and also instigated and provoked the crowd.
In his statement u/s 313 Cr.PC, the accused Narayan Yadav @ Thekedar has taken the defence that he was not present at the police station on the day of the incident and he has been falsely implicated in the present FIR.
After going through the material on record including the testimony of the prosecution witnesses, this court has observed that the accused Narayan Yadav @ Thekedar was not named in the FIR and was not arrested during investigation. Also it has been observed that SI Ajay identified the accused Narayan Yadav @ Thekedar during investigation and PW10 SI Ajay Kumar during his deposition stated that he had identified the accused Narayan Yadav @ Thekedar on 12.05.2015 i.e. almost three months after the FIR No. 236/15 PS Burari 82 of 149 State v. Gora Chand Dass & Ors.
incident. However, PW10 SI Ajay Kumar failed to identify the accused Narayan Yadav @ Thekedar in the court. Also it is pertinent to mention that SI Ajay Kumar did not mention the name of the accused Narayan Yadav @ Thekedar in his first statement recorded u/s 161 Cr.PC on 21.02.2015 and only named the accused Narayan Yadav @ Thekedar in his supplementary statement recorded u/s 161 Cr.PC on 12.05.2015. In his abovesaid second statement, SI Ajay Kumar has stated that accused Narayan Yadav @ Thekedar alongwith other accused persons were present at the police station and was provoking the crowd and was telling the crowd to set fire to the police station and caused rioting. PW10 SI Ajay has not mentioned any of the above facts against the accused Narayan Yadav @ Thekedar in his deposition and has only stated that he identified accused Narayan Yadav @ Thekedar on 12.05.2015. There are various contradictions in the deposition of the prosecution witnesses as far as the role and conduct of the accused Narayan Yadav @ Thekedar is concerned and so it is questionable whether the accused was present at the police station on the day of the incident and was a member of the unlawful assembly and whether he shared the common object of the unlawful assembly or was in any ways involved in rioting, stone FIR No. 236/15 PS Burari 83 of 149 State v. Gora Chand Dass & Ors.
pelting, obstruction, criminal intimidation assault on police officials or damage to public property. Also nothing has been brought on record by the prosecution to show that the accused via his conduct / behavior was associated with the unlawful assembly and was sharing its common object to overawe the police by force/ show of criminal force or to carry out assault upon police officials or to compel them to hand over accused persons in case FIR No. 231/15 to them for beating them and had criminally intimidated/ had damaged the police property lying in PS. So, this Court in view of the various contradictions in the depositions of the prosecution witnesses especially PW SI Ajay has come to the conclusion that the prosecution has not been able to prove the guilt of the accused Narayan Yadav @ Thekedar beyond doubt and has been unable to show that he was part of unlawful assembly and the defence of the accused that he was not present at the police station on the date of incident cannot be ruled out. Therefore, this court looking at the contradictory testimony given by the prosecution witnesses especially SI Ajay during trial gives the accused Narayan Yadav @ Thekedar the benefit of doubt and acquits him for offences u/s 147/186/332/506I/149 IPC and Section 3 of PDPP Act.
FIR No. 236/15 PS Burari 84 of 149 State v. Gora Chand Dass & Ors.
(vii) Shashi Mohan: The accused was not arrested during investigation and his presence at the spot is not disputed. It is the case of the prosecution as mentioned in the chargesheet that accused Shashi Mohan was one of the people who was at the police station on the day of incident and he alongwith other accused persons was raising slogans against the Delhi Police and also instigated and provoked the crowd. MLC no. 200574 of the accused Shashi Mohan (Ex. PW9/K) was placed on record by the prosecution to show that the accused Shashi Mohan was present at the spot at the time of incident and was part of the unlawful assembly.
In his statement u/s 313 Cr.PC, the accused Shashi has taken the defence that he was returning home and was crossing the police station when the police lathi charged him and he was taken to the hospital for medical treatment. The accused Shashi Mohan has taken the defence that he was an innocent passerby who was beaten up by the police without any reason and he has nothing to do with the alleged incident.
After going through the material on record including the testimony of the prosecution witnesses, this court has observed that the accused Shashi Mohan was not named in the FIR and was not arrested during investigation. PW13 HC Jai Prakash has identified the accused Shashi Mohan in the FIR No. 236/15 PS Burari 85 of 149 State v. Gora Chand Dass & Ors.
court and has stated that accused Shashi Mohan was part of the crowd who was present at the spot on the date of incident.
It is pertinent to mention that PW13 HC Jai Prakash has not mentioned the name of the accused Shashi Mohan in his statement u/s 161 Cr.PC recorded on 12.05.2015 and has only named accused Ashok Kumar, Ravi Kumar and Ravi Prakash Jha. The prosecution has not been able to explain the contradiction in the statement given by PW13 HC Jai Prakash in the court to his statement recorded u/s 161 Cr.PC. Also the prosecution has failed to explain the reasons for delay in recording of the statement of witness as statement was recorded almost after three months of the incident. Perusal of record reveals that accused Shashi Mohan was identified by SI Jitender Rana during investigation, however, he could not depose during the trial as he was dropped from the list of witnesses vide order dated 22.11.2019 and so the only prosecution witness who identified the accused during investigation could not be examined during trial. The prosecution has not produced anything during trial to show that the accused Shashi Mohan shared the common object of the unlawful assembly or was in any ways involved in rioting, stone pelting, obstruction, assault, criminal intimidation, on police officials or had cause damage to public property. There FIR No. 236/15 PS Burari 86 of 149 State v. Gora Chand Dass & Ors.
are serious contradictions in the deposition of the prosecution witnesses from the statements given by them u/s 161 Cr.PC as far as accused Shashi Mohan is concerned. Also nothing has been brought on record by the prosecution to show that the accused via his conduct/ behavior was associated with the unlawful assembly and was sharing its common object to overawe the police by force/ show of criminal force or to carry out assault upon police officials or to compel them to hand over accused persons in case FIR No. 231/15 to them for beating them and had criminally intimidated them / had damaged the police property lying in PS. So, this court is of the view that the prosecution has not been able to prove the guilt of the accused Shashi Mohan beyond doubt and has been unable to show that he was part of unlawful assembly and the defence of the accused that he was innocent bystander cannot be ruled out. This court, looking at the contradictory testimony given by the prosecution witnesses especially HC Jai Prakash during trial, gives the accused Shashi Mohan the benefit of the doubt and acquits him for offences u/s 147/186/332/506I/149 IPC and Section 3 of PDPP Act.
(viii) Basant Goswami: The accused was not arrested during investigation, but the presence of the accused at the FIR No. 236/15 PS Burari 87 of 149 State v. Gora Chand Dass & Ors.
spot is not disputed. It is the case of the prosecution as mentioned in the chargesheet that accused Basant Goswami was one of the people who came to the police station alongwith accused Prem Shankar and was not listening to the police officials and had called MLA Sanjeev Jha to the PS. In his statement u/s 313 Cr.PC, the accused Basant Goswami has taken a defence that he accompanied Narayan Yadav @ Thekedar to the PS and he did not take part in any protest.
After going through the material on record including the testimony of the prosecution witnesses, this court has observed that the accused Basant Goswami was not named in the FIR and was not arrested during investigation. Also the prosecution has not produced anything during trial to show that the accused Basant Goswami shared the common object of the unlawful assembly or was in any ways involved in rioting, stone pelting, obstruction, assault on police officials or damage to public property. Not even a single prosecution witnesses has deposed anything against the accused Basant Goswami and allegations against the accused that he was part of the crowd could not be substantiated. SI Ajay Kumar identified the accused Basant Goswami during investigation, however, during trial PW10 SI Ajay Kumar did not identify FIR No. 236/15 PS Burari 88 of 149 State v. Gora Chand Dass & Ors.
the accused in the court and deposed nothing against him and only stated that he identified accused Basant Goswami about 23 months after the incident. However, PW10 SI Ajay Kumar failed to identify the accused Basant Goswami in the court. Also it is pertinent to mention that SI Ajay Kumar did not mention the name of the accused Basant Goswami in his first statement recorded u/s 161 Cr.PC on 21.02.2015 and only named the accused Basant Goswami in his second statement u/s 161 Cr.PC recorded on 12.05.2015. In his abovesaid second statement, SI Ajay Kumar has stated that accused Basant Goswami alongwith other accused persons were present at the police station and was provoking the crowd and he alongwith accused Narender Kumar threatened to kill him. PW10 SI Ajay has not mentioned any of the above facts against the accused Basant Goswami in his deposition and has only stated that he identified accused Basant Goswami on 12.05.2015. There are various contradictions in the deposition of the prosecution witnesses as far as the role and conduct of the accused Basant Goswami is concerned and so it is questionable whether the accused was a member of the unlawful assembly and whether he shared the common object of the unlawful assembly or was in any ways involved in rioting, stone pelting, obstruction, FIR No. 236/15 PS Burari 89 of 149 State v. Gora Chand Dass & Ors.
criminal intimidation, assault on police officials or damage to public property.
PW17 Ct. Babu Lal, in his deposition has stated that Basant Goswami alongwith other accused persons came to the PS and demanded handing over the accused persons in the kidnapping case and when SI Ajay refused his demand, Basant Goswami alongwith others started provoking the crowd and stated to call the local MLA. However, PW17 Ct. Babu Lal failed to identify the accused Basant Goswami in the court and also noting that SI Ajay has not mentioned anything regarding this conversation between him and accused Basant Goswami, the testimony of PW17 Ct. Babu Lal does not find any corroboration and so it is questionable whether the accused Basant Goswami was a member of unlawful assembly. It is pertinent to mention that statement u/s 161 Cr.PC of Ct. Babu Lal was recorded on 11.05.2015 almost three months after the incident and the prosecution has not been able to explain this delay in recorded of his statement. Also nothing has been brought on record by the prosecution to show that the accused via his conduct/ behavior was associated with the unlawful assembly and was sharing its common object to overawe the police by force/ show of criminal force or to carry out assault upon FIR No. 236/15 PS Burari 90 of 149 State v. Gora Chand Dass & Ors.
police officials or to compel them to hand over accused persons in case FIR No. 231/15 to them for beating them and had criminally intimidated them / had damaged the police property lying in PS. Therefore, this court in view of the various contradictions in the depositions of the prosecution witnesses especially PW SI Ajay and PW Ct. Babu Lal has come to the conclusion that the prosecution has not been able to prove the guilt of the accused Basant Goswami beyond doubt and has been unable to show that he was part of unlawful assembly and the defence of the accused that he was not part of the protest on the date of incident cannot be ruled out. Therefore, this court looking at the contradictory testimony given by the prosecution witnesses especially SI Ajay and Ct. Babu Lal during trial gives the accused Basant Goswami the benefit of the doubt and acquits him for offences u/s 147/186/332/506I/149 IPC and Section 3 of PDPP Act.
(ix) Prem Shankar: The accused was not arrested during investigation, but the presence of the accused at the spot is not disputed. The accused Prem Shankar was not named as an accused in the main chargesheet but his name was added in the supplementary chargesheet filed in 2018 FIR No. 236/15 PS Burari 91 of 149 State v. Gora Chand Dass & Ors.
almost three years after the date of incident. It is the case of the prosecution as mentioned in the supplementary charge sheet that accused Prem Shankar was the complainant in FIR No. 231/15 u/s 363 IPC of PS Burari and so he was called for interrogation and thereafter, SI Ajay gave his statement that accused Prem Shankar came to the police station 20.02.2015 alongwith 3040 persons w.r.t above mentioned FIR and demanded handing over of the accused persons in the above said FIR and thereafter, called the MLA Sanjeev Jha. After going through the supplementary chargesheet, this court has observed that the only allegation against the accused Prem Shankar is that he was the complainant in another FIR and he had called the MLA since he was apprehending that the police was not taking appropriate action against the alleged kidnappers. During investigation, the accused was identified by SI Ajay Kumar, however, during trial, SI Ajay failed to identify the accused Prem Shankar.
In his statement u/s 313 Cr.PC, the accused Prem Shankar has taken a defence that his brother's son was kidnapped and SI Ajay released the accused persons illegally and police named him in the supplementary chargesheet. The accused has also stated that he only called the MLA due to police inaction in FIR No. 231/15 and it was the police who FIR No. 236/15 PS Burari 92 of 149 State v. Gora Chand Dass & Ors.
had latthi charged him illegally.
After going through the material on record including the testimony of the prosecution witnesses, this court has observed that the accused Prem Shankar was named in the FIR and was not arrested during investigation. Also the prosecution has not produced anything during trial to show that the accused Prem Shankar shared the common object of the unlawful assembly or was in any ways involved in rioting, stone pelting, obstruction, assault on police officials or damage to public property. Not even a single prosecution witness has deposed anything against the accused Prem Shankar and the only allegation against the accused Prem Shankar is that he was the complainant in another FIR and he had called the MLA since he was apprehending that the police was not taking appropriate action against the alleged kidnappers. During investigation, the accused was identified by SI Ajay Kumar, however, during trial, SI Ajay failed to identified the accused Prem Shankar and did not stated anything against the accused. In light of the above, it is questionable whether the accused Prem Shankar was member of the unlawful assembly and whether he shared the common object of the unlawful assembly or was in any ways involved in rioting, stone pelting, obstruction, criminal FIR No. 236/15 PS Burari 93 of 149 State v. Gora Chand Dass & Ors.
intimidation, assault on police officials or had caused damage to public property. PW13 HC Jai Prakash has also stated that on the day of incident, accused Prem Shankar came to PS with 2030 persons and later on called the local MLA. Nothing has been brought on record by the prosecution to show that the accused via his conduct/ behavior was associated with the unlawful assembly and was sharing its common object to overawe the police by force / show of criminal force or to carry out assault upon police officials or to compel them to hand over accused persons in case FIR No. 231/15 to them for beating them and had criminally intimidated them / had damaged the police property lying in PS. This court after going through the material on record has come to conclusion that there is nothing concrete against the accused Prem Shankar to show that he was the member of unlawful assembly or had shared the common object of the unlawful assembly. The prosecution has not been able to prove the guilt of the accused Prem Shankar beyond doubt and has been unable to show that he was part of unlawful assembly and the defence of the accused that he was only present in the PS to demand action against the kidnappers who had kidnapped his brother's son in case FIR NO. 231/15 and was not part of any unlawful assembly cannot be ruled FIR No. 236/15 PS Burari 94 of 149 State v. Gora Chand Dass & Ors.
out. Therefore, this court giving the accused Prem Shankar the benefit of doubt acquits him for offences u/s 147/186/332/506I/149 IPC and Section 3 of PDPP Act.
(x) Arun Jha: The accused was not arrested during investigation and the accused Arun Jha was not named as an accused in main chargesheet, but his name was added in the supplementary chargesheet filed in 2018 almost three years after the date of incident. It is the case of the prosecution as mentioned in the supplementary chargesheet that accused Arun Jha was the brother of accused Sanjeev Jha and had accompanied him to the police station on the day of incident. During investigation, the accused was identified by SI Ajay Kumar and SI Ajay Kumar in his statement recorded u/s 161 Cr.PC stated that the accused Arun Jha alongwith other accused persons used force (dhakamukki) against him and Ct. Babu Lal on the day of incident.
In his statement u/s 313 Cr.PC, the accused Arun Jha has taken a defence that he has been falsely implicated in the present case and not even a single witness has deposed anything against him and his name was added in the supplementary chargesheet almost three years after the date of incident.
FIR No. 236/15 PS Burari 95 of 149 State v. Gora Chand Dass & Ors.
After going through the material on record including the testimony of the prosecution witnesses, this court has observed that the accused Arun Jha was not named in the FIR and was not arrested during investigation. Also the prosecution has not produced anything during trial to show that the accused Arun Jha shared the common object of the unlawful assembly or was in any ways involved in rioting, stone pelting, obstruction, criminal intimidation, assault on police officials or had caused damage to public property. Not even a single prosecution witnesses has deposed anything against the accused Arun Jha and the allegations against the accused Arun Jha that he used force against SI Ajay and Ct. Babu Lal could not be substantiated as PW10 SI Ajay in his deposition has not stated anything against accused Arun Jha and has not even identified him in the court. Also PW17 Ct. Babu Lal in his deposition only stated that MLA Sanjeev Jha came with his brother and has not stated anything w.r.t use of force against him by accused Arun Jha. Moreover, PW17 Ct. Babu Lal has failed to identify the accused Arun Jha in the court and so, it is questionable whether the accused Arun Jha was member of the unlawful assembly and whether he shared the common object of the unlawful assembly or was in any ways involved in rioting, stone pelting, obstruction, criminal FIR No. 236/15 PS Burari 96 of 149 State v. Gora Chand Dass & Ors.
intimidation, assault on police officials or had caused damage to public property. Also nothing has been brought on record by the prosecution to show that the accused via his conduct/ behavior was associated with the unlawful assembly and was sharing its common object to overawe the police by force/ show of criminal force or to carry out assault upon police officials or to compel them to hand over accused persons in case FIR No. 231/15 to them for beating them and had criminally intimidated them / had damaged the police property lying in PS. This court after going through the material on record has come to the conclusion that there is nothing concrete against the accused Arun Jha to show that he was the member of the unlawful assembly or had shared the common object of the unlawful assembly. The prosecution has not been able to prove the guilt of the accused Arun Jha beyond doubt and has been unable to show that he was part of unlawful assembly and the defence of the accused that he was not part of any protest cannot be ruled out. Therefore, this court giving the accused Arun Jha the benefit of doubt acquits him for offences u/s 147/186/332/506I/149 IPC and Section 3 of PDPP Act.
(2.) Accused persons who were active participants FIR No. 236/15 PS Burari 97 of 149 State v. Gora Chand Dass & Ors.
and are alleged to be present at the spot and are alleged to be the members of the unlawful assembly:
(xi) Ismail Islam, (xii) Ashok Kumar, (xiii) Manoj Kumar,
(xiv) Vijay Pratap Singh and (xv) Ravi Prakash Jha: As per the chargesheet, all abovesaid accused persons were part of the unlawful assembly and were destroying public property after which SI Ajay with the help of police staff got hold of the abovesaid five accused persons and Ravi Kumar (since deceased) at the spot and were arrested by SI Sanjay and their medical examination was carried out after which they were sent to judicial custody and were later granted bail.
The accused persons in their defence have stated that the present proceedings have been manipulated by the police officials and they have been wrongly arrested by the police and they were not a part of any mob.
PW10 SI Ajay Kumar in his deposition has stated that at the time of the incident, six accused persons involved in stone pelting were apprehended and handed over to SI Sanjay who arrested them on the same day. PW10 in his deposition further stated that accused Ravi Prakash, Ravi Kumar (since deceased), Manoj and Vijay Pratap were amongst the six FIR No. 236/15 PS Burari 98 of 149 State v. Gora Chand Dass & Ors.
apprehended persons, however, SI Ajay did not identify them in the court. PW10 SI Ajay proved the arrest memos and personal search memos of the abovesaid accused persons and stated that accused persons were arrested in his presence but he could not identify them in the court due to lapse of time.
PW8 Ct. Dinesh has stated in his deposition that IO SI Sanjay arrested accused Manoj, Ismail and Vijay Pratap vide arrest memos Ex. PW8/A, PW8/B and PW8/C and proved their personal search memos as Ex. PW8/D, PW8/E and PW8/F, however, he could not identify them due to lapse of time.
PW12 ASI Jagat Pal identified the accused persons namely Ashok, Ravi Prakash, Manoj and Vijay Pratap by their faces as the persons who were part of the crowd raising slogans against the Delhi Police.
PW13 HC Jai Prakash stated that on the day of incident, the senior police officers tried to pacify the mob, however, the mob started pelting stones at the police station building as a result of which the police vehicles, case property lying in the police station were damaged and some police officials also sustained injuries after which he apprehended accused persons namely Ravi Prakash Jha and Ravi Kumar (since deceased) while Ct. Dinesh apprehended accused FIR No. 236/15 PS Burari 99 of 149 State v. Gora Chand Dass & Ors.
persons namely Manoj, Ashok, Ismail Islam and Vijay Pratap. The witness identified the accused Ravi Prakash Jha in the court and stated that he cannot identified accused Manoj, Vijay Pratap and Ismail Islam due to lapse of time.
PW21 SI Sanjay Kumar stated in his deposition that on 20.02.2015, SI Ajay handed over to him six accused persons namely Ismail Islam, Ashok, Manoj, Vijay Pratap, Ravi Prakash and Ravi Kumar (since deceased). SI Sanjay Kumar correctly identified the accused persons namely Ismail Islam, Ashok and Manoj in the court and the identity of accused Ravi Prakash Jha was not disputed and his exemption application was moved by his counsel. SI Sanjay first identified the accused Lalit as accused Vijay but on second instance correctly identified the accused Vijay.
After going through the material on record including the statement u/s 161 Cr.PC of the prosecution witnesses, this court is of the view that the deposition of the prosecution witnesses in the court is consistent with their statements recorded u/s 161 Cr.PC and all the witnesses have deposed on the same point that the abovementioned accused persons namely Ismail Islam, Ashok Kumar, Manoj, Ravi Praksh Jha, Vijay Pratap and Ravi Kumar (since deceased) were part of the crowd that assembled at the police station on 20.02.2015 FIR No. 236/15 PS Burari 100 of 149 State v. Gora Chand Dass & Ors.
and the common object of this unlawful assembly was to teach the police officials a lesson for their inaction in the kidnapping in case FIR No. 231/15 of PS Burari and to overawe the police by show of criminal force. The unlawful assembly by means of criminal force or show of criminal force wanted to compel the police to hand over the accused persons in FIR NO. 231/15 of PS Burari and when the IO of that FIR, SI Ajay refused to do so then that unlawful assembly by way of show of force decided to teach the police a lesson and did not disperse when specifically directed by the SHO and other senior police officers of the police station. The moment the crowd failed to disperse despite repeated warning by ACP, SHO and other senior police officials and decided to overawe the police by force / show of force, the crowd became an unlawful assembly and all the members of the unlawful assembly were collectively responsible for all the actions done by its members in prosecution of the common object. Moreover, no evidence has been placed on record by the defence to show that the accused presons did not have the knowledge of the unlawful object of the assembly or that having gained knowledge of the same, they attempted to either prevent it or disassociate themselves from the assembly and so the mere participation of the accused FIR No. 236/15 PS Burari 101 of 149 State v. Gora Chand Dass & Ors.
persons would be deemed to be inculpatory. PW10 SI Ajay has specifically stated that the abovesaid accused persons were involved in stone pelting and they were apprehended by them at the spot. The testimony of PW SI Ajay is corroborated by PW8 Ct. Dinesh, PW12 ASI Jagat Pal, PW13 HC Jai Prakash and PW21 SI Sanjay. The abovementioned testimonies of the prosecution witnesses is further corroborated by the arrest memos and personal search memos placed on record by the prosecution and also the MLCs of HC Bharat Rattan, HC Mohan Lal and Ct. Babu Lal who sustained injuries as a result of stone pelting/ assault by the members of the unlawful assembly. The prosecution has thus shown that the abovesaid accused persons had shared the common object of teaching the police officials a lesson and to overawe them by show of force or force and in prosecution of their common object they pelted stones at police station resulting in inflicting injuries to police officials and thereafter, they were apprehended at the spot by the police officials. Therefore, this court is of the view that the prosecution has been able to prove beyond doubt that the accused persons namely Ismail Islam, Ashok, Manoj, Vijay Pratap and Ravi Prakash were part of an unlawful assembly as defined in Section 141 IPC and had indulged in stone FIR No. 236/15 PS Burari 102 of 149 State v. Gora Chand Dass & Ors.
pelting as a result of which some police officials sustained injuries and thereby obstructed the police officials from doing their duties and voluntarily caused hurt to the police officials by stone pelting and indulged in rioting and so the abovesaid accused persons are found guilty for offences u/s 143/147/149/186/332 IPC and would also be responsible for all the acts offences committed by any member of the unlawful assembly in prosecution of common object.
(xvi) Lalit Mishra, (xvii) Kishore Kumar and (xviii) Jagdish Chander: As per the chargesheet, the aforementioned three accused persons were part of the unlawful assembly and were raising slogans against the Delhi police and is also provoking and instigating the crowd. All the three aforementioned accused persons was not arrested during investigation, however, their presence on the spot is not disputed. All the aforesaid accused persons i.e. Lalit Mishra, Kishore Kumar and Jagdish Chander Joshi have taken the defence that they were going towards their house and were innocent bystanders who were beaten up by the police. The MLCs of all three aforementioned accused persons have been placed on record by the IO showing that the accused persons were present at the spot on the date of FIR No. 236/15 PS Burari 103 of 149 State v. Gora Chand Dass & Ors.
incident. During investigation, Ct. Ram Kishan identified the accused Kishore Kumar, Lalit Mishra and Jagdish Chander Joshi.
PW5 Ct. Ram Kishan in his deposition stated that on 20.02.2015, around 10.30 PM about 200300 people were present at the PS and were raising slogans "Delhi Police hai hai" and police tried to remove the mob by using slight force, after which they started pelting stones as a result of which government vehicles were damaged and police personnel were injured. PW5 Ct. Ram Kishan further stated that accused Kishore Kumar, Jagdish Chander Joshi and Lalit were also present in the mob and were abusing the police officials. The identity of the accused Jagdish Chander Joshi was not disputed as his exemption application was moved by his counsel. The MLC of accused persons namely Kishore Kumar, Lalit and Jagdish Chander Joshi has been placed on record by the prosecution and the MLC of accused Jagdish Chander Joshi is prepared on 21.02.2015 at 12.35 am and the MLC of accused Lalit Mishra is prepared on 21.02.2015 at 01.17 am and the MLC of accused Kishore Kumar is prepared on 21.02.2015 at 01.10 am. The MLC's show simple injury upon the accused persons as a result of assault. Considering that the accused persons were medically examined by the FIR No. 236/15 PS Burari 104 of 149 State v. Gora Chand Dass & Ors.
police on the date of incident and looking at their statement u/s 313 Cr.PC, the presence of the accused persons at the spot has been established by the prosecution. Also in light of the testimony of PW5 Ct. Ram Kishan who identified the accused persons during investigation, it is clear that the accused persons were active participants of the unlawful assembly and were raising slogans against Delhi police. The deposition of Ct. Ram Kishan in the court is consistent with his statement u/s 161 Cr.PC given by him to the IO and both the statement and the deposition in the court clearly specifies the role of accused persons namely Lalit Mishra, Jagdish Chander Joshi and Kishore Kumar and their active involvement as the members of the unlawful assembly with the object of the assembly being to overawe the police by show of criminal force / use of criminal force and to teach the police officials a lesson. The unlawful assembly by means of criminal force or show of criminal force wanted to compel the police to hand over the accused persons in FIR NO. 231/15 of PS Burari and when the IO of that FIR, SI Ajay refused to do so then that unlawful assembly by way of show of force decided to teach the police a lesson and did not disperse when specifically directed by the SHO and other senior police officers of the police station. The moment the crowd failed to disperse FIR No. 236/15 PS Burari 105 of 149 State v. Gora Chand Dass & Ors.
despite repeated warning by ACP, SHO and other senior police officials and decided to overawe the police by force / show of force, the crowd became an unlawful assembly and all the members of the unlawful assembly were collectively responsible for all the actions done by its members in prosecution of the common object. Nothing has been brought on record by Ld. defence counsel which would discredit the testimony of PW5 Ct. Ram Kishan and there is nothing on record which would compel the court to disbelieve the testimony of PW5 Ct. Ram Kishan. Moreover, no evidence has been placed on record by the defence to show that the accused persons did not have the knowledge of the unlawful object of the assembly or that having gained knowledge of the same, they attempted to either prevent it or disassociate themselves from the assembly and so the mere participation of the accused persons would be deemed to be inculpatory.
Therefore, this court is of the view that the prosecution has been able to prove beyond doubt that the accused persons namely Lalit Mishra, Jagdish Chander Joshi and Kishore Kumar were part of an unlawful assembly as defined in Section 141 IPC and had indulged in sloganeering and would also be responsible for all the acts offences committed by any member of the unlawful assembly in prosecution of common FIR No. 236/15 PS Burari 106 of 149 State v. Gora Chand Dass & Ors.
object.
(xix) Raju Malik and (xx) Narender Singh Rawat:
As per the chargesheet, the aforementioned two accused persons were part of the unlawful assembly and were raising slogans against the Delhi police and were also provoking and instigating the crowd. Both the two aforementioned accused persons were not arrested during investigation, however, their presence on the spot is not disputed. Both the aforesaid accused persons i.e. Raju Malik and Narender Singh Rawat have taken the defence that they were going towards their house and were innocent bystanders who were beaten up by the police. The MLC's of both the aforementioned accused persons have been placed on record by the IO showing that the accused persons were present at the spot on the date of incident. During investigation, Ct. Babu Lal identified the accused Narender Singh Rawat and SI Jitender Rana identified the accused Raju Malik during investigation.
PW17 Ct. Babu Lal in his statement u/s 161 Cr.PC has stated that accused Narender Singh Rawat was part of the crowd and was infact provoking and instigating the crowd and PW17 Ct. Babu Lal in his deposition has stated that on 20.02.2015, a large crowd had gathered at police station and FIR No. 236/15 PS Burari 107 of 149 State v. Gora Chand Dass & Ors.
MLA Sanjeev Jha was also present there who had called his supporters after which accused Narender Singh Rawat reached the police station and SHO requested the crowd to disperse but they did not listen and started pelting stones. The witness did not identify the accused Narender Singh Rawat in the court due to lapse of time. PW12 ASI Jagat Pal deposed that on 20.02.2015, a crowd of 300350 people came to PS and they were raising slogans against Delhi Police. PW12 ASI Jagat Pal identified the accused Narender Singh Rawat and Raju Malik as the persons who were part of the crowd and were raising slogans.
The MLC of accused persons namely Raju Malik and Narender Singh Rawat has been placed on record by the prosecution and the MLC of accused Raju Malik is prepared on 21.02.2015 at 01.10 am and the MLC of accused Narender Singh Rawat is prepared on 21.02.2015 at 01.25 am. The MLC's show simple injury upon the accused persons as a result of assault by police. Considering that the accused persons were medically examined by the police on the date of incident and looking at their statement u/s 313 Cr.PC, the presence of the accused persons at the spot has been established. Also in light of the testimony of PW12 ASI Jagat Pal and PW17 Ct. Babu Lal, it is clear that the accused FIR No. 236/15 PS Burari 108 of 149 State v. Gora Chand Dass & Ors.
persons were active participants of the unlawful assembly and were raising slogans against Delhi police. The deposition of Ct. Babu Lal in the court is consistent with his statement u/s 161 Cr.PC given by him to the IO and both the statement and the deposition in the court clearly specifies the role of accused namely Narender Singh Rawat. Also the testimony of ASI Jagat Pal clearly specifies the role of the accused Raju Malik and his active involvement as the member of the unlawful assembly with the object of the assembly being to overawe the police by show of criminal force / use of criminal force and to teach the police officials a lesson. The unlawful assembly by means of criminal force or show of criminal force wanted to compel the police to hand over the accused persons in FIR NO. 231/15 of PS Burari and when the IO of that FIR, SI Ajay refused to do so then that unlawful assembly by way of show of force decided to teach the police a lesson and did not disperse when specifically directed by the SHO and other senior police officers of the police station. The moment the crowd failed to disperse despite repeated warning by ACP, SHO and other senior police officials and decided to overawe the police by force / show of force, the crowd became an unlawful assembly and all the members of the unlawful assembly were collectively FIR No. 236/15 PS Burari 109 of 149 State v. Gora Chand Dass & Ors.
responsible for all the actions done by its members in prosecution of the common object. Nothing has been brought on record by Ld. defence counsel which would discredit the testimony of PW12 ASI Jagat Pal and PW17 Ct. Babu Lal and there is nothing on record which would compel the court to disbelieve their testimony. Also no evidence has been placed on record by the defence to show that the accused persons did not have the knowledge of the unlawful object of the assembly or that having gained knowledge of the same, they attempted to either prevent it or disassociate themselves from the assembly and so the mere participation of the accused persons would be deemed to be inculpatory.
Therefore, this court is of the view that the prosecution has been able to prove beyond doubt that the accused persons namely Raju Malik and Narender Singh Rawat were part of an unlawful assembly as defined in Section 141 IPC and had shared the common object of teaching the police officials a lesson to overawe them by force/ show of force and had failed to disperse when directed /warned by the ACP and other senior officers and would be responsible for all the acts offences committed by any member of the unlawful assembly in prosecution of common object.
FIR No. 236/15 PS Burari 110 of 149 State v. Gora Chand Dass & Ors.
(xxi) Heera Devi: The allegations against the accused as per the chargesheet are that the accused Heera Devi alongwith other accused persons was present in the police station on the day of incident and were saying that they will teach the police a lesson and had threatened to set the police station on fire and was also instigating the mob to carry out stole pelting. Also it is alleged that accused Heera Devi was part of the unlawful assembly and was raising slogans against the Delhi police and was also provoking and instigating the crowd to beat up the police and further accused Heera Devi alongwith other accused persons had used force against SI Ajay Kumar and Ct. Babu Lal. The accused was not named in the main chargesheet and her name was added in the supplementary chargesheet. Also the accused was not arrested during investigation. The accused Heera Devi was identified by SI Ajay Kumar and Ct. Vikas during investigation and have stated in their statement u/s 161 Cr.PC that the accused Heera Devi was raising slogans and instigated the mob. In her statement u/s 313 Cr.PC, the accused Heera Devi has taken the defence that her relatives were kidnapped and she went to police station to raise the issue with the SHO and she was involved in peaceful protest demanding suspension of SI Ajay Kumar and she was named FIR No. 236/15 PS Burari 111 of 149 State v. Gora Chand Dass & Ors.
as an accused 1½ years after the registration of the FIR. During evidence PW10 SI Ajay Kumar has stated that on 20.02.2015, accused Prem Shankar who is the complainant in the FIR No. 231/15 PS Burari u/s 363 IPC came to police station alongwith his relative Heera Devi and 1520 people demanding the handing over of the two accused persons in the kidnapping case to them after which the mob including accused Heera Devi, Shyam Gopal Gupta, Balram Jha etc. were raising slogans "thane ko aag laga denge aur sara thana thode kar police walo ki pitai kar dengye". PW10 SI Ajay further stated that accused Heera Devi was part of the crowd and he had identified her in the year 2016. SI Ajay identified the accused Heera Devi in the court as one of the person who were part of the mob and raising slogans. PW16 ASI Diwan Singh stated that on the day of incident a lady namely Heera Devi was present in the police station with MLA Sanjeev Jha and PW16 ASI Diwan Singh identified the accused Heera Devi as one of the persons who were part of the mob and was present on the day of incident. PW17 Ct. Babu Lal also in his deposition stated that accused Heera Devi alongwith other accused persons was present at the police station on the day of incident and the SHO had asked the crowd to leave the police station, but the crowd did not pay any heed. PW17 Ct.
FIR No. 236/15 PS Burari 112 of 149 State v. Gora Chand Dass & Ors.
Babu Lal further stated that female protesters had threatened to set the police station on fire and were saying that they would repeat the revolution of 1857. PW17 further stated that accused Heera Devi alongwith other accused persons namely Yash Bhatia, Balram Jha, Shyam Gopal Gupta started assaulting SI Ajay. There are some inconsistencies in the deposition of PW10 SI Ajay and PW17 Ct. Babu Lal as to the factum of accused Heera Devi assaulting the police officials. PW10 SI Ajay has stated in his statement u/s 161 Cr.PC that the accused Heera Devi alongwith other accused persons assaulted Ct. Babu Lal whereas PW17 Ct. Babu Lal in his deposition has stated that accused Heera Devi alongwith other accused persons assaulted SI Ajay. The prosecution witnesses have given consistent testimonies on the point of presence of the accused Heera Devi on the spot on the day of incident and her being member of the unlawful assembly. Infact the accused Heera Devi has herself admitted that she was present in the police station on the day of incident and was involved in peaceful protest, however, PW10 SI Ajay, PW16 ASI Diwan Singh and PW17 Ct. Babu Lal all have stated that accused Heera Devi was part of the crowd and was raising slogans against Delhi Police and had failed to disperse despite repeated warnings by the senior FIR No. 236/15 PS Burari 113 of 149 State v. Gora Chand Dass & Ors.
officers of police and was actively involved in the unlawful assembly. The defence of the accused Heera Devi that she was involved in peaceful protest does not appear to be true in light of consistent testimonies of prosecution witnesses and the minor inconsistencies in the deposition of the PW's SI Ajay, PW Ct. Babu Lal on the point of her assaulting the police officials is not sufficient to totally disbelieve the version of the prosecution that the accused Heera Devi was the part of the unlawful assembly.
PW10 SI Ajay Kumar has specifically stated that accused Heera Devi was raising slogans and threatening to set the police station on fire and to beat up the police and PW17 Ct. Babu Lal also stated that the female protesters were threatening that they will set the police station on fire. The prosecution witnesses have given consistent deposition that the accused Heera Devi was the part of the unlawful assembly and protest was not peaceful and the crowd failed to disperse despite repeated warnings by the senior police officers and the common object of this unlawful assembly was to teach the police officials a lesson for their inaction in the kidnapping in case FIR No. 231/15 of PS Burari and to overawe the police by show of criminal force. The unlawful assembly by means of criminal force or show of criminal FIR No. 236/15 PS Burari 114 of 149 State v. Gora Chand Dass & Ors.
force wanted to compel the police to hand over the accused persons in FIR NO. 231/15 of PS Burari and when the IO of that FIR, SI Ajay refused to do so then that unlawful assembly by way of show of force decided to teach the police a lesson and did not disperse when specifically directed by the SHO and other senior police officers of the police station. The moment the crowd failed to disperse despite repeated warning by ACP, SHO and other senior police officials and decided to overawe the police by force / show of force, the crowd became an unlawful assembly and all the members of the unlawful assembly were collectively responsible for all the actions done by its members in prosecution of the common object. Moreover, no evidence has been placed on record by the defence to show that the accused did not have the knowledge of the unlawful object of the assembly or that having gained knowledge of the same, she attempted to either prevent it or disassociate herself from the assembly and so the mere participation of the accused would be deemed to be inculpatory.
Therefore, this court is of the view that the prosecution has been able to prove beyond doubt that the accused Heera Devi was part of the unlawful assembly as defined in Section 141 IPC and had failed to disperse despite repeated warnings FIR No. 236/15 PS Burari 115 of 149 State v. Gora Chand Dass & Ors.
by the senior police officers and would be responsible for all the acts offences committed by any member of the unlawful assembly in prosecution of common object.
(xxii) Yash Bhatia: The allegations against the accused Yash Bhatia as per the chargesheet is that the accused Yash Bhatia was part of the unlawful assembly and was raising slogans against the Delhi police and was also provoking and instigating the crowd to set the police station on fire and she alongwith other accused persons was involved in a scuffle with SI Ajay Kumar and Ct. Babu Lal and had pushed them. The accused was not named in the main chargesheet and her name was added in the supplementary chargesheet. Also the accused was not arrested during investigation. The accused Yash Bhatia was identified by SI Ajay Kumar during investigation and in his statement u/s 161 Cr.PC, SI Ajay has stated that the accused Yash Bhatia alongwith accused Heera Devi and others raised slogans against Delhi Police and had instigated the people there and she alongwith other accused persons namely Balram Jha and Shyam Gopal Gupta started assaulting Ct. Babu Lal and used force against him also. In her statement u/s 313 Cr.PC, she has taken the defence that she was not FIR No. 236/15 PS Burari 116 of 149 State v. Gora Chand Dass & Ors.
present in the police station on the day of incident and she was a volunteer for the Aam Aadmi Party. During evidence PW10 SI Ajay Kumar has stated that a large crowd had gathered in the police station on 20.02.2015 who were raising slogans against the police and were also involved in stone pelting and also destroyed the public property. PW10 SI Ajay in his deposition stated that accused Yash Bhatia was part of the crowd and he had identified her in the year 2016. SI Ajay identified the accused Yash Bhatia in the court as one of the persons who was part of the mob and was raising slogans. PW16 ASI Diwan Singh stated that on the day of incident a lady namely Yash Bhatia alongwith some public persons reached the police station and was raising slogans against the Delhi Police and despite warning by the SHO, the said persons did not disperse. PW16 ASI Diwan Singh identified the accused Yash Bhatia as one of the persons who were part of the mob and was present on the day of incident. PW17 Ct. Babu Lal also in his deposition stated that accused Yash Bhatia alongwith other accused persons reached the police station at the behest of MLA Sanjeev Jha and the SHO had asked the crowd to leave the police station, but the crowd did not pay any heed. PW17 Ct. Babu Lal further stated that female protesters had threatened to set the police station on FIR No. 236/15 PS Burari 117 of 149 State v. Gora Chand Dass & Ors.
fire and were saying that they would repeat the revolution of 1857. PW17 further stated that accused Yash Bhatia alongwith other accused persons namely Heera Devi, Balram Jha, Shyam Gopal Gupta started assaulting SI Ajay. There are some inconsistencies in the deposition of PW10 SI Ajay and PW17 Ct. Babu Lal as to the factum of accused Yash Bhatia assaulting the police officials. PW10 SI Ajay has stated in his statement u/s 161 Cr.PC that the accused Yash Bhaita alongwith other accused persons assaulted Ct. Babu Lal whereas PW17 Ct. Babu Lal in his deposition has stated that accused Yash Bhatia alongwith other accused persons assaulted SI Ajay. The prosecution witnesses have given consistent testimonies on the point of presence of the accused Yash Bhatia on the spot on the day of incident. PW10 SI Ajay and PW16 ASI Diwan Singh and PW17 Ct. Babu Lal all have stated that accused Yash Bhatia was part of the crowd and was raising slogans against Delhi Police and had failed to disperse despite repeated warnings by the senior officers of police and was actively involved in the unlawful assembly. The defence of the accused Yash Bhatia that she was not present in the police station on the day of incident does not appear to be true in light of consistent testimonies of prosecution witnesses i.e. PW10 SI Ajay, PW16 ASI Diwan FIR No. 236/15 PS Burari 118 of 149 State v. Gora Chand Dass & Ors.
and PW17 Ct. Babu Lal and the minor inconsistencies in the deposition of the PW's SI Ajay, PW Ct. Babu Lal is not sufficient to totally disbelieve the version of the prosecution that the accused Yash Bhatia was the part of the unlawful assembly. After going through material on record including statement u/s 161 Cr.PC of prosecution witnesses, this court is of the view that testimony of PW10 SI Ajay Kumar, PW16 ASI Diwan Singh and PW17 Ct. Babu Lal is consistent on the point of presence of accused at the spot and she shared the common object of the unlawful assembly which was to teach police officials a lesson and to overawe the police by force / show of force. The unlawful assembly by means of criminal force or show of criminal force wanted to compel the police to hand over the accused persons in FIR NO. 231/15 of PS Burari and when the IO of that FIR, SI Ajay refused to do so then that unlawful assembly by way of show of force decided to teach the police a lesson and did not disperse when specifically directed by the SHO and other senior police officers of the police station. The moment the crowd failed to disperse despite repeated warning by ACP, SHO and other senior police officials and decided to overawe the police by force / show of force, the crowd became an unlawful assembly and all the members of the unlawful FIR No. 236/15 PS Burari 119 of 149 State v. Gora Chand Dass & Ors.
assembly were collectively responsible for all the actions done by its members in prosecution of the common object. However, this court is of the view that the prosecution has not been able to show that accused Yash Bhatia herself assaulted Ct. Babu Lal and SI Ajay.
Therefore, this court is of the view that the prosecution has been able to prove beyond doubt that the accused Yash Bhatia was part of the unlawful assembly as defined in Section 141 IPC and had failed to disperse despite warning by the senior police officers and would also be responsible for all the acts offences committed by any member of the unlawful assembly in prosecution of common object.
(3.) Accused persons who were active participants and are alleged to be present at the spot and were infact leading and provoking the crowd.
(xxiii) Shyam Gopal Gupta, (xxiv) Balram Jha and (xxv) Neeraj Pathak: As per the chargesheet, the aforementioned three accused persons were present in the police station and were saying that they will teach police a lesson and were threatening to set the police station on fire and were also instigating the crowd. It is further alleged in FIR No. 236/15 PS Burari 120 of 149 State v. Gora Chand Dass & Ors.
the chargesheet that the accused Shyam Gopal Gupta alongwith other accused persons had called MLA Sanjeev Jha to the police station after which MLA Sanjeev Jha came with his associates and followers including accused Neeraj Pathak. All the three aforementioned accused persons were not arrested during investigation. It is further alleged in the chargesheet that accused Shyam Gopal Gupta alongwith MLA Akhileshpatti Tripathi were instigating the crowd to carry out stone pelting and accused Balram Jha was saying and instigating the crowd to beat up the SHO. In the charge sheet, it is mentioned that accused Balram Jha alongwith Shyam Gopal Gupta, Yash Bhatia and Heera Devi had used force against SI Ajay Kumar and accused Balram Jha and Neeraj Pathak assaulted Ct. Babu Lal. The MLC of the accused Shyam Gopal Gupta and accused Balram Jha has been placed on record by the prosecution to show that they were present at the spot on the day of incident.
Accused Neeraj Pathak has taken the defence that he was not present in the police station on the day of the incident. Accused Balram Jha has taken the defence that he was returning home and was crossing the police station when he was lathi charged by the police and was not involved in any protest. Accused Shyam Gopal Gupta had taken the FIR No. 236/15 PS Burari 121 of 149 State v. Gora Chand Dass & Ors.
defence that he was not part of any protest and he was beaten up by the police without any fault of his.
During investigation, accused Balram Jha was identified by Ct. Babu Lal, SI Jitender Rana, ASI Diwan Singh and SI Sanjay Gupta. Also during investigation, accused Shyam Gopal Gupta was identified by Ct. Babu Lal, SI Jitender Rana, SI Sanjay Gupta while accused Neeraj was identified by Ct. Babu Lal and SI Ajay Kumar.
PW1 Ct. Vikas identified the accused Neeraj Pathak by face and stated that the accused Neeraj Pathak came in the santro car to the police station alongwith MLA Sanjeev Jha on the date of the incident.
PW2 ASI Bharat Rattan in his deposition has stated that on 20.02.2015, a large crowd of around 200 people were present at the PS and were shouting against the police and amongst the mob the witness identified the accused Shyam Gopal Gupta, Balram Jha and Neeraj Pathak and stated that these persons were present amongst the crowd and were shouting against the police and were part of the unlawful assembly. The MLC of HC Bharat Rattan (now ASI) proved as Ex. PW9/E has been placed on record by the prosecution which shows that injuries sustained by him as simple in nature. PW10 SI Ajay stated that on the day of incident a FIR No. 236/15 PS Burari 122 of 149 State v. Gora Chand Dass & Ors.
large crowd had gathered at the police station and the accused persons including accused Heera Devi, Shyam Gopal Gupta and Balram Jha were part of the mob and were raising the slogans: "thane ko aag laga denge aur sara thana thode kar police walo ki pitai kar denge". PW10 SI Ajay identified the accused Shyam Gopal Gupta in the court. The identity of the accused Balram Jha was not disputed as his exemption application was moved by his counsel.
PW13 HC Jai Prakash identified the accused Shyam Gopal Gupta as part of the crowd and identified the accused Shyam Gopal Gupta in the court. PW16 ASI Diwan Singh identified the accused Balram Jha as part of the crowd who was raising slogans against the Delhi Police on the day of the incident. PW16 ASI Diwan Singh identified the accused Balram Jha in the court. PW17 Ct. Babu Lal in his deposition stated that on 20.02.2015 at about 08.00 PM, accused Shyam Gopal Gupta alongwith other accused persons came to the police station and were demanding handing over of the accused persons involved in case FIR NO. 231/15 of PS Burari and when the IO SI Ajay Kumar refused their demands, accused Shyam Gopal Gupta alongwith other accused persons started provoking the persons present in the PS and called the local MLA after which at around 08.30 FIR No. 236/15 PS Burari 123 of 149 State v. Gora Chand Dass & Ors.
PM, local MLA Sanjeev Jha alongwith Neeraj Pathak and others came to police station and thereafter, MLA Sanjeev Jha called his other supporters after which accused Balram Jha, Heera Devi, Yash Bhatia and others reached the police station. PW17 Ct. Babu Lal has stated that the crowd failed to disperse despite repeated warnings and accused Shyam Gopal Gupta, Balram Jha, Heera Devi and Yash Bhatia assaulted SI Ajay Kumar and accused Balram Jha and Neeraj Pathak forcefully put him on the ground and assaulted him with fists and leg blows as a result of which he received injuries on his shoulder and thereafter, the mob started pelting stones on the police station. PW17 identified the accused Shyam Gopal Gupta and Balram Jha in the court and identity of accused Neeraj Pathak was not disputed as his exemption application was moved by his counsel.
The MLC (Ex. PW9/L) of PW17 Ct. Babu Lal has been placed on record by the prosecution which shows the injuries sustained by him as grievous in nature and mentions "tenderness over right shoulder". The MLC of Ct. Babu Lal further corroborated his testimony that he was beaten up by accused persons Balram Jha and Neeraj Pathak as a result of which he received injuries on his shoulder. It is the case of the prosecution that the accused persons namely Shyam FIR No. 236/15 PS Burari 124 of 149 State v. Gora Chand Dass & Ors.
Gopal Gupta, Balram Jha and Neeraj Pathak threatened to set the police station on fire, however, no one other than PW10 SI Ajay has stated anything in this regard and not even a single witness has stated in their deposition that they were alarmed by the threatening slogans raised by the accused persons, therefore, this court is of the view that the offence of criminal intimidation is not made out against the accused persons Shyam Gopal Gupta, Balram Jha and Neeraj Pathak. Also this court has observed that PW10 SI Ajay has not stated anything regarding the accused persons Shyam Gopal Gupta and Balram Jha beating him and looking at the inconsistencies in the deposition of the prosecution witnesses especially SI Ajay in regard to the abovesaid accused persons beating the police officials, this court is of the view that the prosecution has not been able to show that the accused persons namely Shyam Gopal Gupta and Balram Jha assaulted SI Ajay.
After going through material on record including statement u/s 161 Cr.PC of prosecution witnesses, this court is of the view that testimony of PW1 Ct. Vikas, PW2 ASI Bharat Rattan, PW10 SI Ajay Kumar, PW13 HC Jai Prakash, PW16 ASI Diwan Singh and PW17 Ct. Babu Lal is consistent on the point of presence of accused persons Shyam FIR No. 236/15 PS Burari 125 of 149 State v. Gora Chand Dass & Ors.
Gopal Gupta, Balram Jha and Neeraj Pathak at the spot and that they shared the common object of the unlawful assembly which was to teach the police officials a lesson and to overawe the police by force / show of force. The unlawful assembly by means of criminal force or show of criminal force wanted to compel the police to hand over the accused persons in FIR NO. 231/15 of PS Burari and when the IO of that FIR, SI Ajay refused to do so then that unlawful assembly by way of show of force decided to teach the police a lesson and did not disperse when specifically directed by the SHO and other senior police officers of the police station. The moment the crowd failed to disperse despite repeated warning by ACP, SHO and other senior police officials and decided to overawe the police by force / show of force, the crowd became an unlawful assembly and all the members of the unlawful assembly were collectively responsible for all the actions done by its members in prosecution of the common object. Moreover, no evidence has been placed on record by the defence to show that the accused presons did not have the knowledge of the unlawful object of the assembly or that having gained knowledge of the same, they attempted to either prevent it or disassociate themselves from the assembly and so the mere participation of the accused FIR No. 236/15 PS Burari 126 of 149 State v. Gora Chand Dass & Ors.
persons would be deemed to be inculpatory. Also the prosecution in light of unequivocal testimony of PW17 Ct. Babu Lal (duly corroborated by his MLC placed on record) has been able to that the accused persons namely Balram Jha and Neeraj Pathak assaulted Ct. Babu Lal and inflicted injuries on his person.
Therefore, this court is of the view that the prosecution has been able to prove beyond doubt that the accused persons namely Shyam Gopal Gupta, Balram Jha and Neeraj Pathak were part of the unlawful assembly as defined in Section 141 IPC and were part of the mob and accused Shyam Gopal Gupta and Balram Jha had indulged in sloganeering and accused Balram Jha and Neeraj Pathak had as members of the unlawful assembly assaulted Ct. Babu Lal and inflicted injuries on his person in prosecution of the common object of the assembly to teach the police a lesson and to overawe the police by show of force / use of force and so accused persons namely Shyam Gopal Gupta, Balram Jha and Neeraj Pathak would be responsible for all the acts/ offences committed by them in prosecution of the common object and would also be responsible for the acts / offences committed by any other member of the unlawful assembly in prosecution of the common object.
FIR No. 236/15 PS Burari 127 of 149
State v. Gora Chand Dass & Ors.
(xxvi) Sanjeev Jha and (xxvii) Akhileshpatti
Tripathi: As per the chargesheet, the accused persons namely Sanjeev Jha and Akhileshpatti Tripathi were part of the unlawful assembly and were infact leading the mob and were instigating and provoking the mob. In the chargesheet, it is alleged by the prosecution that the accused Sanjeev Jha was called to the police station Burari by some persons aggrieved by the alleged inaction of the police in a kidnapping case in FIR No. 231/15 and the accused Sanjeev Jha went alongwith his supporters to the police station and had an altercation with the Ct. Vikas at gate and thereafter, went to the SHO's room and demanded action against SI Ajay and Ct. Vikas after which the accused Akhileshpatti Tripathi came to the police station alongwith his supporters and the abovesaid accused persons alongwith others started raising slogans against Delhi Police. It is the case of the prosecution that abovesaid accused persons were instigating and provoking the crowd after which the crowd turned violent and started pelting stones as a result of which some police officials got injured.
The accused persons were not arrested during investigation, however, their presence at the spot is not FIR No. 236/15 PS Burari 128 of 149 State v. Gora Chand Dass & Ors.
disputed. The accused persons have taken the defence that they went to the police station to pacify the crowd and on the assurance given by the SHO of PS Burari, they left the PS before the crowd turned violent. During investigation, Ct. Babu Lal, SI Jitender and SI Sanjay Gupta identified the accused Sanjeev Jha and accused Akhileshpatti Tripathi was identified by SI Jitender.
Ld. counsel for the abovesaid accused persons have relied upon the testimonies of defence witnesses to show that the accused persons Sanjeev Jha and Akhileshpatti Tripathi left the police station before the crowd turned violent.
The Ld. Defence Counsel has produced 14 defence witnesses during DE, however, this court has noticed that the defence witnesses have given their depositions qua accused persons namely MLA Sanjeev Jha and MLA Akhileshpatti Tripathi only so as to show that the abovesaid accused persons had left the police station before any offence was committed on the day of the incident.
This court has noted that there are some discrepancies in the testimonies of the defence witnesses which is contradictory to the statement of MLA Sanjeev Jha given by him u/s 313 Cr.PC and the testimonies of defence witnesses do not mention major facts relating to accused Sanjeev Jha FIR No. 236/15 PS Burari 129 of 149 State v. Gora Chand Dass & Ors.
and have given different entry times of accused Sanjeev Jha as explained earlier in the judgment. The accused Sanjeev Jha in his statement u/s 313 Cr.PC has stated that he did not have any altercation or argument with Ct. Vikas and he was not stopped at the gate and he directly went to the room of SHO. This statement is contradictory to the deposition of DW9 Sh. Jagjeet who had stated that the accused Sanjeev Jha stopped at the gate and was threatened by the police officials.
There are many inconsistencies in the depositions of defence witnesses as elucidated earlier. Also the factum of one police official stopping the car of accused Sanjeev Jha has been stated by only one defence witness and parts of his testimony also is inconsistent with the statement given by accused Sanjeev Jha which compels this court to doubt the trustworthiness of the defence witnesses. The document Ex. PW10/DE i.e. the complaint given by the accused Sanjeev Jha is on the record and in the complaint it is mentioned that the moment accused Sanjeev Jha entered the PS, SI Ajay Kumar, Ct. Anil and Ct. Rakesh started misbehaving with him and his colleagues and Ct. Anil said; "MLA hoga apne ghar ka" and Ct. Rakesh said: "Mein abhi tumko tamiz sikhata hun". In the complaint given by accused Sanjeev Jha, it is mentioned that SI Ajay threatened to kill him and Ct.
FIR No. 236/15 PS Burari 130 of 149 State v. Gora Chand Dass & Ors.
Rakesh pointed a riffle towards him and his colleagues Vikas Goswami and Pankaj were slapped repeatedly. None of the defence witnesses have mentioned anything regarding the abovesaid incident which happened at the entrance of the police station and so this court is of the view that the non mention of the abovesaid incident compels this court to doubt the credibilty of the defence witnesses. Also noticing that the defence witnesses have given different times of entry of accused Sanjeev Jha, this court is of the view that the defence witnesses have not given consistent deposition and have not even mentioned the incident which led to the filing of the complaint by accused Sanjeev Jha and therefore, their testimonies cannot be believed at face value.
Now we come to the testimony of prosecution witnesses to see if the prosecution has proved the guilt of the accused Sanjeev Jha and Akhileshpatti Tripathi beyond doubt.
PW1 Ct. Vikas in his deposition has stated that on 20.02.2015, at about 8.30 PM, at the gate of PS Burari, two persons came to PS and after 1520 minutes, one Santro Car came to the PS in which 45 persons were sitting and when he tried to stop the above said Santro Car from entering into the PS, all persons came out from the Santro Car and accused FIR No. 236/15 PS Burari 131 of 149 State v. Gora Chand Dass & Ors.
Sanjeev Jha said that "tu janta nahi mein kaun hoon, mein es area ka MLA hoon, aur teri vardi uttarwa dunga". PW1 Ct. Vikas further stated that accused Sanjeev Jha pushed him, due to which he fell down and received injuries on his chest and back after which accused Sanjeev Jha called his supporters to the PS and coaccused Akhileshpatti Tripathi also came at the PS and thereafter, both accused Sanjeev Jha alongwith Akhileshpatti Tripathi and their supporters were saying "policewalo ko sabak sikhane ka samay aa gaya" and started pelting stones on the PS building and the government vehicles as a result of which the policemen trying to control the mob sustained injuries.
PW2 ASI Bharat Rattan deposed that on 20.02.2015, at around 10.00 PM, accused Akhileshpatti Tripathi also came to PS alongwith 5060 supporters and also raised slogans against the police and MLA Sanjeev Jha was already present there and SHO Burari tried to convince the mob through loudspeaker but public persons there got agitated and they started damaging the public property at PS Burari and he also got injured due to stone pelting by the public.
PW4 Ct. Rakesh in his deposition has stated that accused Sanjeev Jha came to the PS alongwith 45 persons and when Santri/ Ct. Vikas stopped accused Sanjeev Jha then FIR No. 236/15 PS Burari 132 of 149 State v. Gora Chand Dass & Ors.
accused Sanjeev Jha told Ct. Vikas that how he (Ct. Vikas) stopped the car after which accused Sanjeev Jha alongwith his supporters entered the chamber of SHO and asked the SHO to take action against santri /Ct. Vikas as he stopped his car. PW4 further stated that later accused Akhileshpatti Tripathi came to the police station after which the mob became uncontrolled and the mob started pelting stones in the police station.
PW8 Ct. Dinesh Kumar in his deposition has stated that on the day of incident, the mob called accused Sanjeev Jha and when accused Sanjeev Jha reached at PS, Santri Ct. Vikas stopped the accused Sanjeev Jha and threatened him by saying " tum mujhe nahi jante, mein yahan ka MLA hoon, tumahri ek minute me vardi uttrawa dunga". Thereafter, the persons who came alongwith accused Sanjeev Jha as well as the mob present there became violent and Senior Officers tried to convince the mob as well as accused Sanjeev Jha, but mob as well as accused Sanjeev Jha did not pay any heed and started pelting stones, broke the 'gamla', vehicles and case property which were kept in police station.
PW10 SI Ajay Kumar in his deposition has stated that accused Sanjeev Jha reached at the PS in his Santro Car and at the gate of PS, Ct. Vikas tried to stop the car to establish FIR No. 236/15 PS Burari 133 of 149 State v. Gora Chand Dass & Ors.
his identity, but accused forcefully entered into the PS after pushing Ct. Vikas and accused Sanjeev threatened Ct. Vikas by saying that: "Mai tumari vardi utrawa dunga aur mai thana committee ka adhyaksh hoon". Accused Sanjeev Jha came into the room of SI Ajay and asked him to handover the two arrested persons of kidnapping case and said that how the Santri had dared to stop him at the gate of PS. PW10 further deposed that accused Sanjeev Jha said to him that "tum sab mile hua ho aur senior officer se keh kar tumahari vardi utrawa dunga" and thereafter, accused Sanjeev Jha pushed him and came out his room by saying to call more persons to teach a lesson to them after which ACP as well as SHO tried to convince accused Sanjeev Jha but to no avail and thereafter, accused Akhileshpatti Tripathi also joined the mob and some persons in the mob started stone pelting as a result of which some police officials got injured.
PW12 ASI Jagat Pal deposed that on 20/21.02.2015, at around 9.30 to 10.00 pm, accused Akhileshpatti Tripathi and accused Sanjeev Jha alongwith around 200300 people came to the PS and started raising slogans against the Delhi Police.
PW13 Jai Prakash in his deposition stated that on the day of incident, accused Sanjeev Jha and his supporters had a scuffle with Ct. Vikas and also intimidated him after which FIR No. 236/15 PS Burari 134 of 149 State v. Gora Chand Dass & Ors.
accused Sanjeev Jha and his supporters called other persons. PW13 further stated that later MLA Akhileshpatti Tripathi also came with his supporters and joined the accused Sanjeev Jha and both the MLAs were instigating the supporters by saying that "aaj inko maza chakha dete hain, inko aaj sidha karna hain ki dubara kisi karyakarta ko hath na laga sake, hamari baat thane mein suni ja sake" and were also instigating the crowd. PW13 further stated that senior police officers tried to pacify the mob, but to no avail and mob then started pelting stones as a result of which police officials got injured.
PW16 ASI Diwan Singh in his deposition has stated that accused Sanjeev Jha misbehaved with police staff and entered into the police station and accused Sanjeev Jha alongwith accused Heera Devi were saying that "police ki yahi pitai karenge". Accused Akhileshpatti Tripathi alongwith coaccused Balram, Yash Bhatia and some others public persons also reached the police station after which at about 10.30 pm, SHO warned the public persons through loudspeaker to leave the police station but they did not leave and started pelting stones as a result of which the police officials got injured and thereafter, the public persons alongwith accused Sanjeev Jha and accused Akhileshpatti FIR No. 236/15 PS Burari 135 of 149 State v. Gora Chand Dass & Ors.
Tripathi left the PS. PW17 Ct. Babu Lal in his deposition has stated that accused Sanjeev Jha alongwith his brother Arun Jha and Neeraj Pathak and driver came to the police station in Santro car and misbehaved and abused Ct. Vikas and went into the room of the SHO. SI Ajay also came there after which accused Sanjeev Jha asked to call other supporters and thereafter, many more persons including Balram Jha, Narender Rawat, Yash Bhatia, Heera Devi reached the police station. PW17 further stated that at about 10 pm, MLA co accused Akhilesh Pati Tripathi also reached the police station alongwith 7080 supporters and SHO requested both accused Sanjeev Jha and the MLA Akhileshpatti Tripathi to remove the crowd from the police station, however, the accused Sanjeev Jha and MLA Akhileshpatti Tripathi did not cooperate and later on the crowd started pelting stones on the police station and the police had to resort to mild force to disperse the crowd after which both the MLAs left the police station with their supporters.
PW19 Insp. Sher Singh the then SHO of PS Burari has deposed on the same lines as other prosecution witnesses as far as the incident of accused Sanjeev Jha qua Ct. Vikas is FIR No. 236/15 PS Burari 136 of 149 State v. Gora Chand Dass & Ors.
concerned and has unequivocally stated that he alongwith ACP Civil Lines and other police staff tried to pacify accused Sanjeev Jha and his supporters, but accused Sanjeev Jha was adamant to take action against Ct. Vikas who had dared to stop him at the main gate. PW19 has further stated that the crowd was getting out of control when in the meantime, the other MLA Akhileshpatti Tripathi reached the PS and joined the agitation by shouting slogans. PW19 has further deposed that both the MLAs and their supporters were pacified by him and ACP Civil Lines but they were not listening to their request and so announcement was made directing the crowd to vacate the police station premises, but crowd did not listen and manhandled some police officials who got injured and so to avoid further damage to life and property light force was used to push the agitators outside the police station premises.
PW22 Sh. Satish Sharma in his deposition has deposed that accused Sanjeev Jha and accused Akhileshpatti Tripathi were provoking the crowd for beating the police staff and damaging the public property and also provoked the crowd for putting the vehicles on fire which were parked outside the PS after which the crowd then started manhandling the police officials on the provocation of accused persons Sanjeev Jha and Akhileshpatti Tripathi as a result of which some police FIR No. 236/15 PS Burari 137 of 149 State v. Gora Chand Dass & Ors.
officials also received injuries.
As per the prosecution witnesses the time of entrance of accused Sanjeev Jha is as follow:
Sr. No. Name of witness Entry time of accused Sanjeev Jha in PS 1 PW1 Ct. Vikas After 08.30 pm. 2 PW8 Ct. Dinesh Between 09.00 pm to 10.00 pm 3 PW12 ASI Jagat Pal After 09.30 pm 4 PW13 HC Jai Prakash After 08.00 pm 5 PW16 ASI Diwan Singh After 08.00 pm 6 PW17 Ct. Babu Lal After 08.30 pm 7 PW19 Insp. Sher Singh After 07.30 pm. As per the prosecution witnesses the time of entrance of accused Akhileshpatti Tripathi is as follow:
Sr. No. Name of witness Entry time of accused Akhileshpatti Tripathi 1 PW2 ASI Bharat Rattan After 10.00 pm. 2 PW17 Ct. Babu Lal About 10.00 pm. So the general consensus as per the prosecution witnesses is that the accused Sanjeev Jha came to the police station around 08.00 pm 08.30 pm. The police officials cannot be excepted to know the exact time of the arrival of FIR No. 236/15 PS Burari 138 of 149 State v. Gora Chand Dass & Ors.
the MLAs keeping in view the fact that such a large gathering was stationed at the police station raising slogans and protesting and as per the prosecution's case also pelting stones. So this court is of the view that some leeway in time difference should be given to the prosecution witnesses.
Most of the prosecution witnesses have stated that accused Akhileshpatti Tripathi came after some time of the arrival of the accused Sanjeev Jha and two prosecution witnesses have stated that accused Akhileshpatti Tripathi came to the police station around 10.00 pm. After going through the testimony of prosecution witnesses, the court has observed that most of the prosecution witnesses have not mentioned the time of departure of accused Sanjeev Jha and Akhileshpatti Tripathi. PW1 Ct. Vikas has also stated that both the MLAs were present at the spot when their supporters were pelting stones on the police station building. PW8 Ct. Dinesh has stated in his deposition that around 11.30 PM, the persons who accompanied the MLA and the others became violent after which senior officials tried to convince the mob as well as accused Sanjeev Jha, but they did not pay any heed and continued pelting the stones. From the testimony of PW8 Ct. Dinesh, accused Sanjeev Jha was present in the FIR No. 236/15 PS Burari 139 of 149 State v. Gora Chand Dass & Ors.
police station well after 11.30 pm. PW10 SI Ajay Kumar has stated that the mob gathered in the police station and were raising slogans "thane ko aag laga denge aur sara thana thod kar police walo ki pitai kar dengey" after which the MLA joined them and some persons in the mob started stone pelting as a result of which some policemen got injured. PW10 has further stated that the stone pelting was done around 11.30 pm. From the testimony of PW10 SI Ajay, accused Sanjeev Jha was present in the police station well after 11.30 pm. PW16 has stated that around 10.30 PM, SHO warned the public persons to disperse and when the crowd did not leave, extra police force was summoned after sometime after which the public persons started pelting stones as a result of which the police officials got injured and thereafter, accused persons Sanjeev Jha and Akhileshpatti Tripathi left the police station. So from the testimony of PW16, the accused persons were present in the police station well after 11.00 pm after the crowd had started stone pelting at the police officials.
PW17 Ct. Babu Lal has stated that the mob started pelting stones on the police station after which the police had to resort to mild force to disperse the crowd and after this FIR No. 236/15 PS Burari 140 of 149 State v. Gora Chand Dass & Ors.
accused persons namely Sanjeev Jha and Akhileshpatti Tripathi left the police station alongwith their supporters. So from the testimony of PW17, both the abovesaid accused persons were present at the time of pelting of stones by the crowd.
PW22 Sh. Satish Sharma the then ACP, Civil Lines has in his deposition stated that both the MLAs (accused Sanjeev Jha and Akhileshpatti Tripathi) were provoking the crowd for beating the police staff and damaging the property and he was making request to the mob to disperse but the mob did not pay any heed to his request and the crowd then starting manhandling the police officials on provocation of the aforesaid MLAs after which he ordered use of mild force for dispersal of the crowd. So as per testimony of PW22, both the aforesaid accused persons were present in the PS at the time when the crowd had turned violent and was manhandling the police officials.
Ld. counsel for the accused persons namely Akhileshpatti Tripathi and Sanjeev Jha have argued that both these accused persons were not present at the PS when the crowd had turned violent and the said fact can be ascertained from the deposition of the witnesses and DD numbers placed on record by the prosecution.
FIR No. 236/15 PS Burari 141 of 149 State v. Gora Chand Dass & Ors.
DD No. 32A dated 20.02.2015 lodged at 05.35 pm mentions the forceful apprehension of two boys on motorcycle.
DD No. 45A dated 20.02.2015 lodged at 08.50 pm mentions the arrest of two accused persons w.r.t kidnapping case in case FIR NO. 231/15 u/s 363/34 IPC and also mentions that relatives of victim including Smt. Heera Devi had come to the police station and had threatened him that she is volunteer for the Aam Aadmi Party and will get him dismissed from service and later Smt. Heera Devi alongwith others demanded handing over of two accused persons so that they can beat them up.
DD No. 48A dated 20.02.2015 lodged at 10.30 pm mentions that MLA Sanjeev Jha alongwith his supporters came to the PS and are sloganeering against Delhi Police after which the SHO and other senior officers were informed accordingly.
DD No. 49A dated 20.02.2015 lodged at 10.45 pm by SHO PS Burari mentions that some persons claiming to be AAP workers have come to PS and had misbehaved with SI Ajay and they have started raising slogans and were making calls to gather more people at PS and local MLA Sanjeev Jha was also misbehaving and threatening Santri /Ct. Vikas FIR No. 236/15 PS Burari 142 of 149 State v. Gora Chand Dass & Ors.
and MLA started threatening the staff as well as him and he continued instigating his supporters after which the matter was referred to Senior Officers and ACP also came to the PS. The SHO Insp. Sher Singh in this DD No. 49A has also mentioned that MLA Sanjeev Jha and his supporters were requested repeatedly not to take law in their hands and to maintain peace and harmony, but they did not listen and but were adamant to create law and order problem and later MLA Akhileshpatti Tripathi and Balram Jha and others including some lady workers were creating law and order problem and damaging public property and were also manhandling the police officials and were also saying: "In police walo ko abhi sudhar lo, fir paanch saal koi dikkat nahi aayegi".
DD No. 88B dated 20.02.2015 lodged at 11.52 pm mentions that a large crowd (supporters of Aam Aadmi Party) was gathered at the PS and was pelting stones at PS as a result of which HC Kailash has got injured and is going to hospital.
DD No. 5B dated 21.02.2015 lodged at 12.07 am mentions lathi charge by the police on the uncontrollable crowd.
DD No. 10B dated 21.02.2015 lodged at 12.16 am FIR No. 236/15 PS Burari 143 of 149 State v. Gora Chand Dass & Ors.
mentions a quarrel at PS Burari.
This court has gone through the testimonies of all prosecution witnesses and also gone through their statements recorded u/s 161 Cr.PC and this court is of the view that the prosecution witnesses have given consistent testimonies which is supported by the MLCs of the injured police officials and also by the various DD entries placed on record by the prosecution. The abovementioned DD entries in no way exonerate the accused persons namely Sanjeev Jha and Akhileshpatti Tripathi but infact corroborate the testimony of the prosecution witnesses. DD Nos. 48A and 49A clearly specify the role of the accused Sanjeev Jha and Akhileshpatti Tripathi and mentions how they were provoking the crowd and creating law and order problem and DD No. 88B mentions the violent nature of the crowd.
From the abovesaid DD entries placed on record by the prosecution and the testimonies of PW1 Ct. Vikas, PW8 Ct. Dinesh Kumar, PW10 SI Ajay Kumar, PW16 ASI Diwan Singh, PW17 Ct. Babu Lal and PW22 Sh. Satish Sharma the then ACP, this court is of the view that the prosecution has been able to establish that both the accused persons namely Sanjeev Jha and Akhileshpatti Tripathi were present at the spot when the crowd turned violent and infact had played a FIR No. 236/15 PS Burari 144 of 149 State v. Gora Chand Dass & Ors.
major role in provoking and instigating the crowd.
After going through material on record including the statement u/s 161 Cr.PC of prosecution witnesses, MLCs of injured police officials and various DD entries placed on record by the prosecution, this court is of the view that testimonies of PW1 Ct. Vikas, PW2 ASI Bharat Rattan, PW4 Ct. Rakesh, PW8 Ct. Dinesh Kumar, PW10 SI Ajay Kumar, PW12 ASI Jagat Pal, PW13 HC Jai Prakash, PW16 ASI Diwan Singh, PW17 Ct. Babu Lal, PW19 Insp. Sher Singh and PW22 Sh. Satish Sharm (the then ACP) are consistent on the point of presence of accused persons Sanjeev Jha and Akhileshpatti Tripathi at the spot and it is clear from their testimonies that the abovesaid accused persons were not only active participants but were infact leading the crowd and were infact provoking them and they shared the common object of the unlawful assembly which was to teach police officials a lesson and to overawe the police by force / show of force. The unlawful assembly by means of criminal force or show of criminal force wanted to compel the police to hand over the accused persons in FIR NO. 231/15 of PS Burari and when the IO of that FIR, SI Ajay refused to do so then that unlawful assembly by way of show of force decided to teach the police a lesson and did FIR No. 236/15 PS Burari 145 of 149 State v. Gora Chand Dass & Ors.
not disperse when specifically directed by the SHO and other senior police officers of the police station. The moment the crowd and the aforesaid accused persons who were leading the crowd failed to disperse despite repeated warning by ACP, SHO and other senior police officials and decided to overawe the police by force / show of force, the crowd became an unlawful assembly and all the members of the unlawful assembly were collectively responsible for all the actions done by its members in prosecution of the common object. The allegations raised by the prosecution against accused Sanjeev Jha that he criminally intimidated Ct. Vikas could not be proved as Ct. Vikas has nowhere stated that he was alarmed by the threatening statement made by accused Sanjeev Jha.
Therefore, this court is of the view that the prosecution has been able to prove beyond doubt that the accused persons namely Sanjeev Jha and Akhileshpatti Tripathi were part of the unlawful assembly as defined in Section 141 IPC and were part of the mob and they had indulged in sloganeering and had provoked the crowd which encouraged them to get violent as a result of which they resorted to stone pelting thereby causing injuries on the persons of PW HC Bharat Rattan, HC Mohan Lal and Ct. Babu Lal and so were FIR No. 236/15 PS Burari 146 of 149 State v. Gora Chand Dass & Ors.
part of the unlawful assembly which had obstructed the police officials from doing their duties. Some members of this unlawful assembly had assaulted Ct. Babu Lal and had inflicted injuries on HC Bharat Rattan and HC Mohan Lal due to their act of stone pelting and had indulged in rioting and the common object of this unlawful assembly was to teach the police a lesson and to overawe the police by show of force / use of force and so accused persons namely Sanjeev Jha and Akhileshpatti Tripathi would be responsible for all the acts/ offences committed by them in prosecution of the common object and would also be responsible for other acts / offences committed by any member of the unlawful assembly in prosecution of common object.
(M) This court has gone through all the averments made by Ld. defence counsel and the judgments relied upon by them and have already discussed the contentions raised by Ld. defence counsel earlier in the judgment and have categorically explained the role of each and every accused and whether there is sufficient material on record to convict them for the offences alleged.
44. For the reasons mentioned above, this court acquits the FIR No. 236/15 PS Burari 147 of 149 State v. Gora Chand Dass & Ors.
accused persons namely Gora Chand Dass, Vinod Singh, Atma Santosh, Roshan Kumar Mishra, Narender Kumar S/o Sh. Soni, Narender Yadav @ Thekedar, Shashi Mohan, Basant Goswami, Prem Shankar & Arun Jha for offences u/s 147/186/332/506/149 IPC and Section 3 of PDPP Act and convicts the accused persons namely Sanjeev Jha, Akhileshpatti Tripathi, Balram Jha, Shyam Gopal Gupta, Kishore Kumar, Lalit Mishra, Jagdish Chandra Joshi, Narender Singh Rawat, Neeraj Pathak, Raju Malik, Ashok Kumar, Ravi Prakash Jha, Ismail Islam, Manoj Kumar, Vijay Pratap Singh, Heera Devi and Yaswant @ Yash Bhatia for offences u/s 147/186/332/149 IPC and acquits them for offences u/s 506 IPC and Section 3 PDPP Act.
45. The accused persons namely Gora Chand Dass, Vinod Singh, Atma Santosh, Roshan Kumar Mishra, Narender Kumar S/o Sh. Soni, Narender Yadav @ Thekedar, Shashi Mohan, Basant Goswami, Prem Shankar & Arun Jha are directed to furnish bail bonds/ surety bonds u/s 437A Cr.PC.
46. Let accused persons namely Sanjeev Jha, Akhileshpatti Tripathi, Balram Jha, Shyam Gopal Gupta, Kishore Kumar, FIR No. 236/15 PS Burari 148 of 149 State v. Gora Chand Dass & Ors.
Lalit Mishra, Jagdish Chandra Joshi, Narender Singh Rawat, Neeraj Pathak, Raju Malik, Ashok Kumar, Ravi Prakash Jha, Ismail Islam, Manoj Kumar, Vijay Pratap Singh, Heera Devi and Yaswant @ Yash Bhatia be heard on quantum of sentence. Digitally signed by VAIBHAV VAIBHAV MEHTA MEHTA Date:
2022.09.07 17:17:28 +0530 Announced in the open (VAIBHAV MEHTA) court on 07.09.2022 ACMM03 / RADC NEW DELHI FIR No. 236/15 PS Burari 149 of 149