Delhi District Court
State vs 1. Arjun on 18 November, 2019
IN THE COURT OF
Dr. SATINDER KUMAR GAUTAM : ADDL. SESSIONS JUDGE-03 :
EAST DISTRICT : KARKARDOOMA COURTS : DELHI.
Sessions Case No. : 331 of 2016
State Versus 1. Arjun
S/o Sh. Rajendra
R/o 1920 Jhuggi,
Kalyanpuri, Delhi.
2. Sunny
S/o Sh. Gurmeet Singh
R/o 20/74, Kalyanpuri, Delhi.
3. Rajendra Singh
S/o Sh. Bhag Singh
R/o 20/80, Kalyanpuri, Delhi.
4. Jaswant Singh
S/o Sh. Bhag Singh
R/o 20/80, Kalyanpuri, Delhi.
5. Ashok Singh @ Ashoki
S/o Sh. Balwant Singh
R/o 20/80, Kalyanpuri, Delhi.
6. Vijendra Singh @ Rahul
S/o Sh. Bhag Singh
R/o 20/80, Kalyanpuri, Delhi.
7. Mahendra Kaur
W/o Sh. Ashok Singh
R/o 20/166, Kalyanpuri, Delhi.
SC No. 331/16 State Vs. Arjun Etc. Page No.: 22 of 22
FIR No. : 40/2015
Under Section : 186/353/332/308/34 IPC
Police Station : Kalyanpuri
Chargesheet Filed On : 15.03.2015
Chargesheet Allocated On : 17.07.2015
Chargesheet received by this Court on: 30.07.2015
Undersigned presided over this Court : 06.11.2017
Judgment Reserved On : 18.11.2019
Judgment Announced On : 18.11.2019
JUDGMENT
1. The brief facts of the prosecution case are that on 13.01.2015, on receipt of DD no. 32A from PCR, ASI Shiv Murti alongwith Ct. Rajdeep reached at the spot i.e. road at Block no.20, Kalyanpuri where they came to know that there were quarrel and stone pelting on the police officials who were stopping the accused persons to playing DJ. No injured person/eye witness was found at the spot. They also came to know that all the injured persons were already sent to LBS Hospital. Thereafter, they reached at LBS Hospital and collected the MLCs of injured Shalu, Ct. Lokendra, Bhag Singh, SI Sandeep, Jitendra, Manbir Singh, Ashok and Jaswant Singh. Statement of injured SI Sandeep Kumar was recorded in the LBS Hospital who narrated the entire incident in detail.
2. On the basis of statement of complainant, the case u/s 186/353/332/308/34 IPC was registered. SI Sandeep handedover the custody of accused Sunny in the hospital. Site plan was prepared at his SC No. 331/16 State Vs. Arjun Etc. Page No.: 22 of 22 instance. Accused Sunny was arrested in the police station. On 12.02.2015, accused Arjun, Jaswant Singh, (Bhag Singh, since expired), Ashoki, Mahindra Kaur, Rahul and Rajender were also arrested. On 26.02.2015, accused Arjun was arrested. On conclusion of the investigation, chargesheet was filed against the accused persons before the court of ld. MM for the offences punishable under Sections 186/353/332/308/34 IPC.
3. After compliance of provisions of Sec. 207 CrPC by the court of Ld. MM, the case was committed to the Court of Sessions as Sec. 308 IPC was exclusively triable by it.
4. Vide order dated 10.09.2015, charge under Section 186/353/332/308/34 IPC was framed against accused Arjun and Sunny. On 30.11.2017, separate charge under Section 186/353/332/308/34 IPC was also framed against remaining accused persons namely Rajendra Singh, Jaswant Singh Bhag Singh (now expired), Ashok Singh @ Ashoki, Virendra Singh @ Rahul and Mahendra Kaur. To the said charges, all accused persons pleaded not guilty and claimed trial.
5. The Prosecution in support of its case examined fourteen witnesses in all.
PW1 SI Sandeep Kumar stated that he alongwith Ct.
Lokendra (PW3), Ct. Kirorimal (PW4), ASI Manvir (PW6), Ct. Ashok Kumar (PW7) and Ct. Jitender (PW8) were on emergency/patrolling duty in the area of Kalyanpuri. When he alongwith his staff reached at Block20, Kalyanpuri at about 10.00 pm, they found that DJ was playing in loud SC No. 331/16 State Vs. Arjun Etc. Page No.: 22 of 22 volume and some persons were also present and dancing. PW1 told them to stop the music as the same was in violation of the guidelines of Hon'ble Supreme Court and the DJ was stopped and all police officials left from there. After about 15 minutes, when they all reached at said place, they found that those persons were still playing DJ in high volume. When PW1 told them to stop the music and warned them to take legal action against them and then they left from said place. PCR call was also lodged about playing the music on DJ in this regard. After receiving information through wireless set, he alongwith his staff again reached the spot and found that the music on DJ was playing on high volume by those persons. When PW1 asked them to stop the DJ, accused Jaswant Singh told that it was the festival of Lohri and they should be allowed to celebrate and DJ will continue to whole night and thereafter, accused Jaswant, Sunny, Arjun, Rajendra, Rahul, Ashoki and his wife started manhandling with the police officials and on instigation of accused Bhag Singh (since expired), all accused persons alongwith their other associates started pelting stones upon the police officials. In the stone pelting incident, Ct. Jitender, Ct. Ashok, HC Manvir and Ct. Lokender sustained injuries on various parts of body apart from one child namely Shalu and accused Bhag Singh. When police team apprehended accused Sunny, accused Bhag Singh and Jaswant Singh threatened them to falsely implicate in criminal case. Thereafter, ERV vehicles reached at the spot and injured police officials and accused Sunny were taken to LBS hospital. PW1 proved his statement Ex.PW1/A, arrest SC No. 331/16 State Vs. Arjun Etc. Page No.: 22 of 22 and personal search memos of accused Sunny vide Ex.PW1/B and PW1/C. PW3 Ct. Lokendra, PW4 Ct. Kirorimal, PW6 ASI Manvir, PW7 Ct. Ashok Kumar, PW8 Ct. Jitender are the injured/victims of present case and they have also narrated the entire incident on the same lines as stated by PW1 SI Sandeep. PW8 Ct. Jitender also proved the arrest memo, personal search memo, disclosure statement and pointing out memo qua accused Jaswant Singh vide Ex.PW8/A to PW8/D. PW8 also proved the arrest memo, personal search memo and disclosure statement of accused Ashok @ Ashoki vide Ex.PW8/E to PW8/G. PW2 ASI Yatvir has proved the copy of DD no. 32A regarding playing of DJ in Block20, Kalyanpuri.
PW5 ASI Yatender Singh has proved the endorsement on rukka vide Ex.PW5/A, copy of FIR Ex.PW5/B, Certificate u/s 65B of Indian Evidence Act Ex.PW5/C and DD no.5A regarding lodging of FIR vide Ex.PW5/D. PW9 W/HC Raj Kumar has proved DD no.47B regarding departure entry with regard to Bat Patrolling as per Chitta Roster alongwith Arms & Ammunition vide Ex.PW9/A. PW10 SI Shiv Murti is the investigating officer and has conducted all the proceedings of present case. Apart from the arrest memos, personal search memos and disclosure statements of accused Sunny, Arjun, and Rajender Singh, PW10 also proved the endorsement Ex.PW10/A, site plan Ex.PW10/B, previous involvement record of accused Jaswant Singh SC No. 331/16 State Vs. Arjun Etc. Page No.: 22 of 22 vide Ex.PW10/K and also collected complaint u/s 195 CrPC from concerned ACP Rohit Meena vide Ex.PW10/O. PW11 W/Ct. Sunita proved the arrest memo, personal search memo and disclosure statement of accused Mahindra Kaur vide Ex.PW11/A to PW11/C. PW12 Ct. Vishnu proved the arrest memo, personal search memo and disclosure statement of accused Bijendra @ Rahul vide Ex.PW11/A to PW11/C. PW13 Ct. Anuj Bhati is the witness of arrest, personal search and disclosure statement of accused Rajendra Singh.
PW14 Ct. Rajdeep Singh has accompanied with IO ASI Shiv Murti to the spot on receipt of DD no.32A.
6. During the course of trial, accused Bhag Singh expired on 18.12.2018 and proceedings against him were abated vide order dated 16.01.2019.
7. During prosecution evidence, the accused persons in their statement u/s 294 CrPC have admitted the following documents :
(1) MLCs of injured persons namely ASI Manvir Singh, Ct. Lokender, Ct. Ashok, SI Sandeep and Ct. Jitender, all dated 13.01.2015 Ex.C1 to Ex.C5 respectively to be proved by PW Dr. Sandeep Mittal, CMO, LBS Hospital;
(2) Opinion given on the MLC of Ct. Lokender Ex.C6 to be proved by PW Dr. Shwetabh, SR (Surgery), LBS Hospital;
SC No. 331/16 State Vs. Arjun Etc. Page No.: 22 of 22 (3) Opinion given on the MLC of Ct. Lokender Ex.C7 to be proved by PW Dr. Amit, SR (Surgery), LBS Hospital;
(4) Statement of MHC(M) with register no.19.
8. After conclusion of the prosecution evidence, the statement of all accused persons were recorded under Section 313 CrPC in which they denied all the incriminating circumstances against them. They pleaded their innocence and further pleaded their false implication. All the accused persons stated that they were celebrating the festival of Lohri and they had not obstructed any public road nor played DJ set in high volume or after 10.00 pm, in fact, the police officials have tried to cause eve teasing with the ladies of their family and when they raised objection to the acts of police officials, they were beaten by the police officials and have been falsely implicated in this case. Accused persons have not lead any evidence in their defence.
9. Ld. Addl. PP for the State argued that prosecution has been able to prove the charges against the accused persons as the testimonies of the prosecution witnesses are trustworthy, reliable and cogent. There is no iota of evidence to disbelieve the same. No material contradiction or discrepancy has occurred which may hamper the prosecution case in any manner. Ld. Addl. PP further submitted that the accused persons are liable to be convicted in accordance with the charges framed against them.
10. Per contra, Ld. defence counsel has completely refuted the said contentions with the submissions that the accused has been falsely SC No. 331/16 State Vs. Arjun Etc. Page No.: 22 of 22 implicated in this case and there is no previous case history against them. No recovery was effected from the accused persons. Even they have not been arrested in the manner as deposed by the police witnesses. One of the contentions of the ld. defence counsel is that if case of the prosecution case is taken as gospel truth, even then no public witnesses were examined who were also present at the time of the alleged crime. It is further argued that the police officials did not make any sincere efforts to cite any witness from the public at the time of apprehension of accused persons and other proceedings. All the witnesses as cited by the prosecution are police officials and are interested witnesses and that there are material contradictions. Ld. defence counsel prayed for acquittal of the accused persons submitting that prosecution case is full of doubts.
11. Having heard the rival contentions and going through the material on record as well as the judgments cited and relied upon by the Ld. counsel for the accused.
12. There is no dispute to the fact that case of the prosecution case rests upon the testimonies of PW1 SI Sandeep Kumar; PW3 Ct. Lokendra, PW4 Ct. Kirorimal, PW6 ASI Manvir, PW7 Ct. Ashok Kumar and PW8 Ct. Jitender for the crime committed at the spot.
13. The directions of Hon'ble Supreme Court of India regarding Noise Pollution Implementation of Laws for Restricting use of Loud Speakers and High Volume producing sound systems are as under :
"xxxxx 2. No one shall beat a drum or tomtom or blow a trumpet or beat or sound any instrument or use any SC No. 331/16 State Vs. Arjun Etc. Page No.: 22 of 22 sound amplifier at night (between 10 pm and 6 am) except in public emergencies.
xxxxx No horn should be allowed to be used at night (between 10 pm and 6 am) in residential areas except in exceptional circumstances. xxxxx"
14. Hon'ble Supreme Court in a two judge bench comprising Chief Justice of India (CJI) R.C. Lahoti and Justice Ashok Bhan in its judgment reported in Writ Petition (C) No. 72 of 1998 (with Civil Appeal No. 3735 of 2005) dated 18.07.2005 [AIR 2005 SC 3136] observed that banning the use of loudspeakers between 10 pm and 6 am in public places (except in emergencies), in response longpending petition pertaining to noise pollution caused by loudspeakers, generators and vehicles.
15. Qua, contention of ld. defence counsel that no other public witness was examined, has no value in the eyes of law. It is well settled law that it is not the number of witnesses which is material rather it is the quality of the evidence which counts. For this, court is taking support from a judgment reported as Kishan Chand Vs State of Haryana, JT 2013 (1) SC
222. Hence, as the above contention of the ld. defence counsel is of no support to the accused persons.
16. Even Section 134 Indian Evidence Act is also to the same effect. As per this Section - No particular number of witnesses shall in any case be required for the proof of any fact as such, to prove any fact,, there is no bar of number of witnesses.
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17. It is well settled that the police officials are competent witnesses and conviction against the accused persons can be based on their sole testimony but an onerous duty has been cast upon the court to scrutinise their statements very closely in order to form an opinion whether they are reliable and trustworthy. In Ajmer Singh V. State of Haryana [(2010) 3 Supreme Court Cases 746] the Hon'ble Supreme Court held as follows:
"We can not forget that it may not be possible to find independent witness at all places, at all times. The obligation to take public witnesses is not absolute. If after making efforts which the court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The Court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence.".
18. Apart from that in another case reported as Karamjit Singh Vs State (Delhi Admn.), 2003 III AD (SC) 353, Hon'ble Apex Court clearly observed that the presumption that a person acts honestly applies as much in favour of a police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. There is no principle of law that without corroboration by independent witnesses their testimony can not be relied upon.
19. Now, court has to see whether the testimony of the material SC No. 331/16 State Vs. Arjun Etc. Page No.: 22 of 22 witnesses is reliable and trustworthy or not.
20. All these witnesses i.e. PW1 SI Sandeep Kumar; PW3 Ct. Lokendra, PW4 Ct. Kirorimal, PW6 ASI Manvir, PW7 Ct. Ashok Kumar and PW8 Ct. Jitender in unequivocal terms narrated about the crime committed. All these witnesses identified the accused persons who were present at the spot and committed the crime. PW1 SI Sandeep Kumar stated as follows:
"On 13.01.2015, I was posted at PS Kalyan Puri as Sub Inspector. On that day, I was on emergency duty from 9:00 pm to 8:00 am (14.01.2015). On that day I alongwith HC Manbir Singh, Ct. Jitender, Ct. Kirodi Mal, Ct. Ashok and ct. Lokender were patrolling in the area of PS Kalyan Puri and when we reached at Block20, Kalyan Puri at about 10.00 pm and found that DJ was playing in loud volume and some persons were also present and some of them were dancing. I told them to stop the music as the same was in violation of the guidelines of Hon'ble Supreme Court. The DJ was stopped by those persons and thereafter we let from there. After about 15 minutes, when we again reached abovementioned place, we found that DJ was playing in high volume. I told them to stop the music and I also warned that if they found playing music again in violation of the guidelines. Legal action be taken against them. Thereafter we left the place.
Later on, PCR call was lodged about playing the music on the DJ and in this regard, I was informed through wireless set. I alongwith my staff again reached the spot. I found that the music on the DJ was playing by those persons on high volume. I told them to stop the SC No. 331/16 State Vs. Arjun Etc. Page No.: 22 of 22 music and during that the person namely Jaswant Singh told me that it was their festival of Lohri and we should allow them to celebrate and the DJ will continue the whole night. Thereafter the persons namely Jaswant, Sunny, Arjun, Rajender, Rahul, Ashoki and wife of Ashoki started manhandling with us on the instigation of Bhaag Singh who asked the abovenamed accused persons to beat the police officials to made us run from the spot. Thereafter the abovementioned persons and some of their associates started pelting stones over the police officials. One stone hit on the head of Ct. Lokender. As a result of injuries sustained by these stones, I, Ct. Jitender, Ct. Ashok, HC Manbir and Ct. Lokender sustained injuries. In this incident, one child namely Shalu and Bhaag Singh also received injuries due to pelting of the stones. When we attempted to apprehend Sunny and apprehended him, thereafter Bhaag Singh and Jaswant Singh threatened us to falsely implicate in criminal case....."
21. Remaining witnesses namely PW3 Ct. Lokendra, PW4 Ct. Kirorimal, PW6 ASI Manvir, PW7 Ct. Ashok Kumar and PW8 Ct. Jitender also toed the lines of PW1 SI Sandeep Kumar regarding the crime committed by the accused persons. All these witnesses also identified the accused persons as being responsible for the crime committed in the present matter.
22. Another contentions of ld. defence counsel regarding contradictions and improvements, court is of the view that from time to time in catena of judgments by superior courts, this issue has been dealt with. Hon'ble Apex Court has laid down in catena of judgments that only major contradictions and discrepancies need be considered. Minor discrepancies SC No. 331/16 State Vs. Arjun Etc. Page No.: 22 of 22 are to be ignored. Reference may be taken from the judgment reported as A. Shankar v. State of Karnataka, (2011) 6 SCC 279, wherein it was observed as follows :
"In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety."
23. Minor discrepancies in the statements of witnesses are of no help to the accused. In Siddiqua Vs. Narcotics Control Bureau (2007) Crl LJ 1471 of Hon'ble High Court of Delhi, the Hon'ble High Court of Delhi also observed that minor discrepancies are very natural to occur in testimony of different witnesses and testimony of witnesses can not be rejected on the ground that there were minor discrepancies or contradictions. The Hon'ble Delhi High Court in the said judgment held as follows:
"A small contradiction here and there about the timings or preparation of Test Report, could not make the testimonies of the witnesses doubtful. In my opinion, where the witnesses do not make any contradictions SC No. 331/16 State Vs. Arjun Etc. Page No.: 22 of 22 and all witnesses parrot like repeat the same statement, one after another, such statements would not be natural statements. It has now been scientifically proved that if ten persons watch one incident and if they are all asked to describe the same incident after some time, each person shall give a description of the incident which will not match in minute details with the description of the other. Minor discrepancies are very natural to occur in testimony of different witnesses and the testimony of witnesses can not be rejected on the ground that there were minor discrepancies or contradictions."
24. Hon'ble Delhi High Court has further observed as follows in the said judgment :
"The Court has to consider the entire evidence as has been adduced before it and then come to a conclusion. Learned counsel for the appellant can not lift one sentence from here and another sentence from there and ask the Court that the case should depend upon that sentence in the testimony. It is only after considering the entire statement of a witness that the Court has come to a conclusion that the witness was credit worthy or not. The Court has to silt grain from the chaff. It is well recognised that minute details of incident, with the passage of time, go out of memory. In all such cases, the Court has to see whether the over all testimony of the was truthful and whether the incident, as claimed by the prosecution had happened or not. The proof beyond reasonable doubt, only means that the Court should see that all the material ingredients of the offence have been proved by cogent evidence. The prosecution agency is also a human agency and the Court should accept accuracy standards only to the extent which can be SC No. 331/16 State Vs. Arjun Etc. Page No.: 22 of 22 expected from a normal human being. The Court should not accept super human standards from the prosecution agency in all aspects. What the Court has to see is that the investigation has been done in a fair and proper manner and there is no false implication of the accused."
25. Regarding contradictions, learned counsel for the accused could not point out any material contradiction which might make the prosecution version doubtful. Minor discrepancies in the statements of witnesses are of no help to the accused and be ignored in view of the above discussion and observations of the judgments.
26. Accused persons have been charged for the offences punishable under Sec. 186/353/332/308/34 IPC. Now, the court has to see for what offence(s), the accused persons can be held guilty.
27. Section 186 IPC is reproduced as follows :
"Whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be punished xxxxxx."
This Section provides for voluntarily obstructing a public servant in the discharge of his duties. It must be shown that the obstruction or resistance was offered to a public servant in discharge of his duties or public functions as authorised by law.
28. To facilitate the matter, Section 353 IPC is reproduced as under:
"Whoever assaults or used criminal force to any person being a public servant in the execution of his duty as SC No. 331/16 State Vs. Arjun Etc. Page No.: 22 of 22 such, public servant, or with intent to prevent or deter that person from discharging this duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be xxxxx".
29. Sections 186 and 353 of Penal Code relate to two distinct offences and while the offence under later Section is a cognizable offence, the one under the former is not so. The ingredients of the two offences are also distinct. Section 186 IPC is applicable to a case where the accused voluntarily obstructs a public servant in the discharge of his public functions but under Sec. 353 IPC, the ingredients of assault or use of criminal force while the public servant is doing his duty as such is necessary. The quality of the two offences is also different. Section 186 occurs in Chapter X of the Penal Code dealing with contempts of the lawful authority of public servants, while Section 353 occurs in Chapter XVI regarding the offences affecting the human body. This is also a clear indication that use of criminal force contemplated under Sec. 353 IPC is against a person and not against any inanimate object.
30. The ingredient of Sec. 353 are that the accused assaulted or used criminal force to a public servant, that the public servant at the time of the offence was acting in the discharge of a duty imposed on him by law as such public servant or that the offence was committed with intent to prevent or deter the officer from discharging a duty imposed on him by law as such or that it was committed in consequence of something done or attempted to SC No. 331/16 State Vs. Arjun Etc. Page No.: 22 of 22 be done by the public servant in the lawful discharge of a duty imposed on him by law as such.
31. To bring home the guilt an offence under Sec. 353 IPC, the prosecution is to prove the points (1) or (2)as in Sec. 352 IPC. The prosecution is to prove further (3) the victim of assault or user of force was a public servant within the meaning of Sec. 21 IPC. (4) the assault or user of force was made on such public servant while he was executing his duty as a public servant; or the assault or user f force was made with an intention to prevent or deter the public servant concerned from discharging his duty qua public servant; or the assault or user of force was made in consequence of anything done or attempted to be done by the concerned public servant in discharge of his duty qua public servant.
32. No contention has been raised to the effect that none of the victim was public servant or they were not discharging their duties as public servants.
33. Apart from that, rather every police official/officer is always on duty. Even if any crime took place in presence of police official, he is duty bound to prevent the said crime with utmost sincerity and capability. According to the Explanation (2) of Sec. 21 IPC, the person who in fact discharged the duty of the police office which bring him under the definition of public servant. As such, the police officials were assaulted in the execution of their duty as public servants which covered under the definition of "public servant" and they were assaulted with intent to prevent and deter SC No. 331/16 State Vs. Arjun Etc. Page No.: 22 of 22 them from discharging their duties as public servants. Apart from that accused persons have failed to furnish any account to the effect that they were not present at the spot, on the date and time as alleged. The accused persons have not adduced any evidence in their defence.
34. Besides the above, accused persons are also charged for the offence punishable under Section 308 IPC reads as under :
"Attempt to commit culpable homicide Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both".
35. It was held in Bishan Singh & Anr. vs. State (2007) 13 SCC 65 that, "before an accused can be held to be guilty under Section 308 IPC, it was necessary to arrive at a finding that the ingredients thereof, namely, requisite intention or knowledge was existing. There cannot be any doubt whatsoever that such an intention or knowledge on the part of the accused to cause culpable homicide is required to be proved."
36. In Velu @ Javelu Vs. State, 2004 CriLJ 3783, it was held that where only one blow was given on the head and that too under sudden flash of anger and without premeditation, it was only a case under Sec. 324 IPC SC No. 331/16 State Vs. Arjun Etc. Page No.: 22 of 22 and not under Sec. 308 IPC.
37. From time to time in catena of judgments, Hon'ble High Courts and even Hon'ble Apex Court, it was observed for the purpose of this Section what is material is "the intention or knowledge", not the consequences of the actual act done for the purpose of carrying out the intention.
38. There was no preplanning or premeditation. Accused persons were warned by the police officials several times not to play DJ and suddenly matter took an ugly turn and in a fit of anger, injuries were sustained to the injured police officials at the hands of the accused persons.
39. Facts and circumstances of the present case is a clear indication that there was no preplanning or premeditation to cause injury to the injured person and as such, in the facts and circumstances of the case offence under Section 308 IPC is not made out against the accused persons.
40. However, there is no dispute to the proposition of law that any of the accused person can be held guilty for the lesser offence though charge not framed against the said accused persons.
41. Section 324 IPC is reproduced as follows:
"Whoever except in the case provided for by Section 334, voluntarily caused hurt by means of any instrument fort shooting, stabbing or cutting or any instrument which, used as weapon of offence, is likely to cause death, or by means of fire or by heated xxxxxxxx shall be punished with imprisonment of either description for a term which may extend to three years, or with fine or SC No. 331/16 State Vs. Arjun Etc. Page No.: 22 of 22 with both."
42. Ordinarily, every man is responsible for criminally act done by him. No man can be held responsible for an independent act and wrong committed by anther. The principle of criminal liability is that the person who commits an offence is responsible for that and he can only be held guilty. However, Section 34 of the IPC makes an exception to this principle. It lays sown a principle of joint liability in the doing of a criminal act. The essence of that liability is to be found in the existence of common intention, animating from the accused leading to the doing of a criminal act in furtherance of such intention. It deals with the doing of a criminal act in furtherance of common intention. In such situation, each person is liable for the result that as if he had done that act himself. The soul of Sec. 34 IPC is the joint liability in doing a criminal act. Section 34 IPC is part of the original Code of 1860 as drafted by Lord Macaulay. The original section as it stood as "When a criminal act is done by several persons, each of such persons is liable for that act in the same manner as if the act was done by him alone."
43. In a case reported as Prakash Vs. State of Madhya Pradesh, 2006 X AD (S.C.) 515, it was observed that :
"xxxx Proof of participation by acceptable evidence in certain circumstances would lead to a conclusion that the accused had a common intention to commit the offence - Presence or absence of community of interests my not of much significance - Although a prearranged plan and meeting of minds is one of the prerequisites to infer common SC No. 331/16 State Vs. Arjun Etc. Page No.: 22 of 22 intention, a prior concert, however, can be inferred from the conduct of the accused - Totality of the circumstances must be taken into consideration in arriving at such a conclusion
- Common intention on the part of appellant evident - Appeal dismissed.
44. It was observed by Lordship that :
"Proof of participation by acceptable evidence in certain circumstances would lead to a conclusion that the accused had a common intention to commit the offence. Presence or absence of community of interests may not of much significance. Each case, however, has to be considered on its own merit. Facts of each case may have to be dealt with differently. Common intention may develop on the spot. Although a prearranged plan and meeting of minds is one of the prerequisite to infer common intention, a prior concert, however, can be inferred from the conduct of the accused. The role played by him, the injuries inflicted and the mode and manner in which the same was done as also the conduct of all the accused are required to be taken into consideration for arriving at a finding as to whether the accused hared a common intention with others or not, Common intention may have to be inferred also from other relevant circumstances of the case. The totality of the circumstances must be taken into consideration in arriving at such a conclusion".
45. Circumstances and evidence leading to conclusion that all the accused persons shared common intention with another to commit the offence in hand.
46. Accordingly, in view of the aforesaid discussion and the material on record, the prosecution failed to bring home the guilt of the accused persons for the charges framed u/s 308/34 IPC. As such, all accused persons namely Arjun, Sunny, Rajendra Singh, Jaswant Singh, Ashok SC No. 331/16 State Vs. Arjun Etc. Page No.: 22 of 22 Singh @ Ashoki, Vijendra Singh @ Rahul and Mahendra Kaur are hereby acquitted for the offence u/s 308/34 IPC.
47. However, there is sufficient material through the evidence of PW1 SI Sandeep Kumar, PW3 Ct. Lokendra, PW4 Ct. Kirorimal, PW6 ASI Manvir, PW7 Ct. Ashok Kumar, PW8 Ct. Jitender, who are corroborated the allegations to attract the provisions of charges for the offences punishable under Sections 186 and 353 IPC as the accused persons caused hindrance in sovereign functions while executing the duty of law and and order on the said date, time and place. It is also proved by the prosecution beyond reasonable doubt by pelting stones, the prosecution witnesses as deposed above sustained the injuries, the same has been proved by them through their MLCs. Hence, prosecution also proved its case for the offence u/s 324/34 IPC. As such, court is of the view that the prosecution has been able to prove its case beyond all reasonable doubts against the accused persons for the offence punishable under Sec. 186/353/324/34 IPC. As such, accused persons namely Arjun, Sunny, Rajendra Singh, Jaswant Singh, Ashok Singh @ Ashoki, Vijendra Singh and Mahendra Kaur are held guilty for the offences punishable under Sections 186/353/324/34 IPC and as such, are convicted accordingly. Announced in the open Court Dated : 18th November, 2019 (Dr. Satinder Kumar Gautam) Additional Sessions Judge03 (East) :
Karkardooma Courts : Delhi.
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