Delhi District Court
State vs Satish Sharma And Others on 8 October, 2020
IN THE COURT OF ADDITIONAL
CHIEF METROPOLITAN MAGISTRATEI
ROUSE AVENUE DISTRICT COURTS, NEW DELHI
PRESIDING OFFICER : SH. VISHAL PAHUJA.
F.I.R. No: 267/10
PS Gokul Puri
U/s 147/148/332/427 r/w
section 149 IPC
State vs Satish Sharma and others
JUDGMENT
Case no. : 35/19 Date of commission of offence : 08.08.2010 Date of institution of the case : 07.06.2012 Name of the complainant : SI Avtar Singh Name of accused persons : 1. Satish Sharma and addresses s/o Sh. Kalu Ram, r/o F 247, Ganga Vihar, Delhi 110094. 2. Mohan s/o Sh. Feeku Shah, r/o B31, Bhagriti Vihar, Gokul Puri, Delhi. 3. Dharmendra Kumar s/o Sh. Mitha Lal, r/o H.no. D162, Ganga Vihar, Delhi110094. FIR No. 267/10 Page 1/50 State vs Satish Sharma & others. 4. Dheeraj Sharma s/o Sh. Radhey Shyam Sharma, r/o C193/A, Upper Ground Floor, Street no. 7, Bhajanpura, Delhi 110053. 5. Deepak, s/o Sh. Durga Lal, r/o H.no. D162, Ganga Vihar, Delhi 110094. 6. Prabhu Kumar s/o Sh. Surajmal, r/o D162, Ganga Vihar, Delhi110094. 7. Umesh Kumar, s/o Sh. Sakalu Lal, r/o D 162, Ganga Vihar, Delhi 110094. 8. Ramesh Kumar, s/o Sh. Neebu Lal, r/o H.no. D162, Ganga Vihar, Delhi110094. 9. Lala Ram Yadav, s/o Sh. Dukhi Ram, r/o F4 Ganga Vihar, Delhi 110094. 10. Angad Prasad, s/o Sh. Sh. Vishwanath Prasad r/o H.no. 421, Gali no. 7, Delhi110094. 11. Jagpal Giri, s/o Sh. Sant Giri, r/o H.no. F462, Ganga Vihar, Delhi 110094. FIR No. 267/10 Page 2/50 State vs Satish Sharma & others. 12. Akash Sharma s/o Late Sh. Devender Kumar Sharma, r/o H.no. F152, G.No. 3, Ganga Vihar, Delhi110094. (Juvenile) 13. Bhagwan Babu s/o Sh. Rameshwar Sahu, r/o B31, Street No. 1, Bhagirath Vihar, Delhi 110094. 14. Charan Singh, s/o Sh. Rehtu Mal, r/o C 239, Ganga Vihar, Delhi 110094. 15. Jai Bhagwan Goel, s/o Sh. Hari Ram Goel, r/o W21, Naveen Shahdra, Delhi110032. 16. Devender Kumar, s/o Lt. Sh. Vijay Kumar, r/o H.no. 3392, Jain Mandir wali gali, Arya Park, Old Sabji Mandi, Delhi110007. (Abated) 17. Surender Kumar, s/o Late Sh. Mangat Ram, r/o C1, C Block, East Jyoti Nagar, Delhi 110093. 18. Uma Shankar Pathak s/o Lt. Sh. Shivlal Pathak r/o D196, Ganga Vihar, Delhi. (Abated) FIR No. 267/10 Page 3/50 State vs Satish Sharma & others. 19. Pankaj Sharma, s/o Sh. Hari Shankar Sharma, r/o D281, Ganga Vihar, Delhi110094. 20. Lakhan Pal Sharma, s/o Sh. Pyarelal Sharma, r/o C197, Ganga Vihar, Delhi110094. 21. Vikas Malik, s/o Sh. Suresh Pal Malik, r/o D108, Ganga Vihar, Delhi110094. 22. Sunil Gupta @ Boby Gupta, s/o Sh. Ramesh and, r/o F197, Ganga Vihar, Delhi110094. Offence complained of or proved : U/s 147/148/332/427 r/w section 149 IPC. Plea of the accused persons : Pleaded not guilty Final Order : Accused persons namely Jai Bhagwan Goel, Surender Kumar, Sunil Gupta @ Bobby Gupta, Mohan, Vikas Malik, Deepak, Dharmendra Kumar, Umesh Kumar, Angad Prasad and Charan Singh stand convicted. Accused persons namely Satish Sharma, Dheeraj Sharma, Prabhu Kumar, Ramesh Kumar, Lala FIR No. 267/10 Page 4/50 State vs Satish Sharma & others. Ram Yadav, Jagpal Giri, Bhagwan Babu, Pankaj Sharma, Lakahan Pal Sharma stand acquitted Date on which reserved for : 30.09.2020 Judgment Date of announcing of Judgment : 08.10.2020 BRIEF STATEMENT OF THE FACTS FOR DECISION:
1. The accused persons namely Satish Sharma, Mohan, Dharmendra Kumar, Dheeraj Kumar, Deepak, Prabhu Kumar, Umesh Kumar, Ramesh, Lala Ram Yadav, Angad Prasad, Jagpal Giri, Akash Sharma (since Juvenile), Bhagwan Babu, Charan Singh, Jai Bhagwan, Devender Kumar (Abated), Surender Kumar, Uma Shanker Pathak (Abated), Pankaj Sharma, Lakhan Pal Sharma, Vikas Malik, Sunil Gupta @ Bobby Gupta have been prosecuted in this case for commission of offences under section 147/148/332/427 Indian Penel Code (herein short called IPC) r/w section 149 Indian Penel Code (herein short called IPC).
2. The allegations of the prosecution are that on 08.08.2010 at about 10 a.m., the Jan Kalyan Samiti (Reg.), Ganga Vihar organized a public meeting for discussing the matter of a plot measuring 4 Bigha and 19 Biswa out of Khasra No. 98, Gali No.5, Ganga Vihar, Delhi. The court of Senior Civil JudgecumRent Controller North FIR No. 267/10 Page 5/50 State vs Satish Sharma & others.
East District in Execution Petition No. 62/09 dated 08.01.2010 directed SHO, Gokul Puri to provide police protection to the decree holder for carrying out the repair work/replastering and reconstruction of the boundary wall of the suit property mentioned above. The boundary wall was erected by the decree holders Om Parkash etc. about one month ago from the date of incident. The Samiti was of the view that this plot was of Mahadev Mandir and a disputed property. The meeting was started at main road, Ganga Vihar. The speakers of this Samiti started exhorting and abetting the public to remove the structure/boundary wall of decree holder Om Parkash and others. At about 11 am, the local MLA Surender Kumar and thereafter Jai Bhagwan Goyal, President, Rashtrawadi Sena, reached the spot and they also started making objectionable statements, raised slogans of Har Har Mahadev and led the unlawful assembly towards the plot. The police talked to them and later warned them not to indulge in any unlawful activity, but they were adamant and started pelting stones over the police. Constable Harbir from police station Bhajanpura and other policemen sustained injuries due to the stone pelting. The unlawful assembly started damaging the boundary wall of said plot, a car Tata Indica number DL 3CW 5147 parked in the gali outside the plot and set the articles on fire. When the additional force reached the spot, the members of unlawful assembly started fleeing away. Eight persons of this assembly namely, 1. Dheeraj Sharma, 2. Angad 3. Jagpal, 4. Satish FIR No. 267/10 Page 6/50 State vs Satish Sharma & others.
Sharma, 5. Mohan, 6. Bhagwan Babu, 7.Umesh Kumar and 8. Dharmendra, were apprehended on the spot in the act of damaging the wall. The accused 9. Deepak, 10. Ramesh, 11. Lala Ram and
12. Prabhu Kumar were apprehended on the spot in the act of damaging the car. The accused 13. Akash Sharma (since Juvenile),
14. Jai Bhagwan Goel 15. Devender Kumar (abated) and 16. Charan Singh Bharawaj were apprehended on the spot and the allegation on them are that they set the articles on fire and damaged the room constructed in the plot. The accused Surender Kumar, Uma Shankar Pathak (Abated), Pankaj Sharma, Lakahan Pal Sharma, Vikas Malik and Sunil Gupta @ Boby Gupta were arrested later on as they along with others managed to flee from spot. Someone in the public snatched a handicam from one of the complainants namely, Parveen Jain, who also stated about the theft of some household articles Gas Cylinder, Gas Burner, utensils, etc. from the plot and a bag containing Rs. 50,000/, documents of car, etc. from the car. On this section 356/379/380 IPC were added in the case. The photographs of the spot, the broken gate, cooler, fan of the room, big clubs (dande) and stones were also taken into police possession. On the complaint of SI Avtar Singh, present FIR was registered on 08.08.2010 u/s 147/148/149/186/332/353/436/452/ 427/356/379/381 IPC.
FIR No. 267/10 Page 7/50State vs Satish Sharma & others.
3. After conclusion of the investigation the police filed the charge sheet on 07.06.2012 u/s 147/148/149/186/332/353/436/452/ 427/356/379/381 IPC. Ld. Predecessor of this court took cognizance and summoned the accused persons. Since offence under section 436 of the Indian Penal Code was exclusively triable by Sessions Court, the case was committed to learned Sessions Court vide order dated 06.08.2012. However, upon hearing on charge, the learned Sessions Court observed vide order dated 28.02.2015 that on the basis of facts alleged, offence under section 436 IPC was not made out. Rest of the offences were triable by Court of Magistrate, hence the case was remitted back.
4. During the proceedings, the accused Akash Sharma was declared juvenile on 27.08.2014 and the accused Devender Kumar had expired accordingly the proceedings against him were abated vide order dated 15.04.2017.
5. Ld. Predecessor of this Court after hearing the arguments on charge, framed a formal charge upon the accused persons namely Satish Sharma, Mohan, Dharmendra Kumar, Dheeraj Kumar, Deepak, Prabhu Kumar Kumar, Umesh Kumar, Ramesh Kumar, Lala Ram Yadav, Angad Prasad, Jagpal Giri, Bhagwan Babu, Charan Singh, Jai Bhagwan Goel, Surender Kumar, Uma Shanker Pathak, Pankaj Sharma, Lakhan Pal Sharma, Vikas Malik, Sunil @ FIR No. 267/10 Page 8/50 State vs Satish Sharma & others.
Bobby Gupta on 21.01.2019 u/s 147/148/332/427 read with section 149 IPC to which they pleaded not guilty and claimed trial.
6. During trial, the accused Uma Shankar Pathak expired and the proceedings against him were abated vide order dated 01.10.2019.
PROSECUTION EVIDENCE:
7. To prove its case, the prosecution has examined twenty two witnesses.
8. PW 1 Shri Pritam Singh proved the registration of the FIR Ex. PW1/A. This witness was cross examined on behalf of accused persons.
9. PW2 Shri Surender Pal deposed that in the morning of 08.08.2010, the kawarias were performing religious ceremonies at Ganga Vihar. 300 / 400 persons assembled there at Main Road for the purpose of demolishing the wall of his plot / field bearing Khasra no. 98 at Ganga Vihar. As per him the mob raised slogan of "Har Har Mahadev" and he was advised by the police official to remove himself to police station for his safety. PW2 further deposed that when he returned back in the evening, he saw the cycle of his brother Om Prakash was missing, the car of Mr. Praveen Jain, friend FIR No. 267/10 Page 9/50 State vs Satish Sharma & others.
of his brother, was damaged. He further deposed that he knew 4-5 persons who were in the mob namely Lakhan Pal Sharma, Uma Shankar Pathak & Bobby (Sunil) and further stated that he does not know the name of other persons and can identify the said accused persons if shown to him. This witness was cross examined on behalf of accused persons.
10. PW3 HC Rajiv Ballyan deposed that on 08.08.2010 he was on duty from 09:00 AM to 09:00 PM at PS Gokul Puri. He along with W/Ct. Balesh, HC Rajinder, HC Bharat Pal and other police officials went to Gali No. 5, Ganga Vihar where a Sabha was going on. He further stated that the MLA of the area Surender Singh and the leader of Shiv Sena Party Jai Bhagwan Goel were giving speech and provoking the persons present in the Sabha. After that, some persons came with "lathi dandas" shouting "todo todo diwar ko". Thereafter, the accused Jai Bhagwan Goel tried to put fire in the plot. The accused Uma Shankar snatched the camera of cameraman of some person namely Jain. He further deposed that around 10-12 persons damaged the vehicles and after that left the spot. This witness identified accused Jai Bhagwan Goel and accused Surender Singh in the court. This witness was also cross examined on behalf of accused persons.
FIR No. 267/10 Page 10/50State vs Satish Sharma & others.
11. PW 4 Shri Raj Kumar deposed that on 08.08.2010 at about 088.30 AM at Ganga Vihar Main Road, some members of Jan Kalyan Samiti had erected a stage and were giving provocative speeches to the public of around 300400 who were gathered there and they were chanting "har har mahadev". It is further deposed that contents of the provocative speech was "badmasho ne jabardasti kabja kiya hai or isko yaha se hatana hai". It is further deposed that all the persons started moving towards his house and the police took him to the police station. In the evening when he returned back to the spot, he saw that the wall and roof of his house was broken, articles including a water motor pump, cycle, cooler etc. were looted and the place was put on fire. PW4 further deposed that camera of his friend was snatched by those persons and Indica car of his friend was damaged. This witness identified accused Lakhanpal Sharma and Uma Shankar Pathak in the court. This witness was cross examined on behalf of accused persons.
PW 5 Shri Jagdish deposed on the same lines as that of PW4 Sh. Raj Kumar. This witness was also cross examined on behalf of accused persons.
12. PW 6 Sh. Praveen Jain deposed that on 08.08.2010, he was residing at House No. 1/7541, Gali No. 12, East Gorakh Park, Shahdara, Delhi. PW6 on the request of his friend Raj Kumar Goswami went to the plot in his car bearing no. DL3CW5147 at FIR No. 267/10 Page 11/50 State vs Satish Sharma & others.
about 09:15 AM. He found persons organizing a Sabha raising slogans of "har har mahadev" and were giving provocative speeches. He started making video from his handicam. Some boy from the gali came and snatched his handicam and ran away. As per PW6 the public started pelting stones on the police and he went inside to save himself. The public broke the boundary wall and put his car on fire. PW6 went to the police station where his statement was recorded and his car was released vide supardarinama Ex. PW 6/A. This witness identified accused Surender Kumar, Uma Shankar Pathak, Lakhan Pal Sharma, Bhagwan Goel in the court as the persons who were part of the mob. This witness identified his car in the photographs proved Ex. PW5/1 to Ex. PW5/3. It is further deposed by PW6 that one bag containing Rs. 50,000/, keys of his factory were missing from his car. This witness was cross examined on behalf of accused persons.
13. PW 7 Ct. Pramod Kumar deposed that on 08.08.2010, he was posted as Constable at PS Gokul Puri and was on duty with SI Avtar Singh, W/SI Bimlesh, HC Bhart Pal, HC Ram Singh and HC Rajinder Singh along with other police staff at DBlock, Ganga Vihar where some meeting of Jan Kalyan Samiti was going on. A stage was set and some persons including Charan Singh, Jai Bhagwan Goel, Local MLA Surender Singh were addressing the public which were 500 1000 in number. As per PW7 they were addressing that "plot no.98 FIR No. 267/10 Page 12/50 State vs Satish Sharma & others.
hai jisme bhoomafia ne kabja kar liya ha or iski deewar girani hai or kabje se mukti dilani hai" and were raising slogans of "har har mahadev". The crowd started moving towards the plot and hurled stones on the police. Some police staff including Harbir Singh was injured. It is further deposed that the mob damaged the wall of the plot and a room inside the same and took away certain articles like cylinder, cycle and put the remaining articles on fire. It is further deposed that extra police force was called and accused Satish Sharma, Charan Singh, Lakhan Pal Sharma and other persons who were 1012 in number were apprehended at the spot. This witness further deposed that the mob also damaged one Indica car standing with the boundary wall and 4 persons were arrested out of which he remembered the name of Prabhu Kumar and Lala Ram. As per PW 7 accused Surender Kumar and Jai Bhagwan Goel put fire inside the plot. PW7 exhibited on record the seizure memo vide which case properties were seized as Ex. PW7/1 to Ex. PW7/3. He also identified the arrest memos and the search memos exhibited as Ex. PW7/4 to Ex. PW7/17 and Ex. PW7/18 to Ex. PW7/31 respectively. This witness also identified the broken ceiling fan Ex. P
1. He also identified accused Jai Bhagwan Goel, Surender Kumar, Bobby, Mohan and Uma Shankar Pathak in the court. This witness was also cross examined on behalf of accused persons.
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14. PW8 W/HC Ajnesh proved the DD no. 13 B Ex.PW8/A. This witness was also cross examined on behalf of accused persons.
15. PW9 Constable Devender Kumar deposed on the same lines as that of PW7 Ct. Pramod Kumar. This witness additionally deposed that rioters Vikas Sharma, Umesh, Dharmendra, Angad, Jai Pal and others were apprehended on the spot at around 01:00 PM. Accused Deepak, Ramesh, Prabhu Kumar and Lala Ram were apprehended while they were damaging the car, accused Akash Sharma, Charan Singh Bhardwaj, Jai Bhagwan Goel and Devender Kumar were controlled while damaging the room in the plot. This witness further stated that accused Jai Bhagwan Goel put the articles in the room on fire. This witness identified accused Jai Bhagwan Goel, Uma Shankar Pathak, Vikas Malik, Umesh Kumar, Deepak, Dharmendra Kumar, Mohan and Surender Kumar in the court. This witness was cross examined on behalf of accused persons.
16. PW10 Head Constable Harbir deposed that on 08082010 he was posted in PS Bhajanpura where he received a message regarding some incident. Thereafter, he alongwith SHO Concerned reached the spot i.e Ganga Vihar, where a meeting was going on and talks regarding the grabbing of the land was also going on. Accused namely Jai Bhagwan Goel and Devender were also at the FIR No. 267/10 Page 14/50 State vs Satish Sharma & others.
spot who were giving provocative speech from the stage, due to which the public gathered, got excited. Thereafter, all the persons started moving towards the land and when the police officials tried to stop them, they started throwing stones towards them due to which he got injury on his right hand thumb. PW10 further deposed that Ct. Ram Naresh took him to the hospital for treatment from where he came back at the Police station and recorded his statement. The identity of the accused persons Uma Shankar Pathak, Dharmendra, Deepak, Umesh Kumar, Mohan, Vikas Malik, Jai Bhagwan Goel was not disputed, hence established by this witness. This witness was cross examined on behalf of accused persons.
17. PW11 ASI Jitender Prakash and PW12 ASI Balbir also deposed on the same lines as that of PW7 Ct. Pramod Kumar. PW 11 witness additionally deposed that the gathering was led by MLA Surender and Jai Bhagwan Goel. PW11 identified accused Jai Bhagwan Goel, Angad and Surender Kumar in the court. PW12 identified Jai Bhagwan Goel and Surender Kumar. Both these witnesses identified the car in the photograph already Ex. PW5/1 to PW5/3. These witnesses were also cross examined on behalf of accused persons.
18. PW13 Sh. Chokha Singh exhibited the photographs Ex.PW5/1 to Ex.PW5/3 and Ex.PW13/1 to Ex.PW13/18. This witness was cross examined on behalf of accused persons.
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19. PW14 ASI Ram Singh deposed that on 08.08.2010 he was posted as Head Constable at police station Gokul Puri and was on beat duty in Ganga Vihar. As per PW14 some public persons were having meeting in Gali No. 5 which was attended by local MLA and the President of Shiv Sena. It is further deposed that provocative speeches were given after which the mob became violent and broke the wall of a plot. Accused Jai Bhagwan was arrested and taken to PS Nand Nangri. This witness identified accused Jai Bhagwan in the court. This witness was cross examined on behalf of accused persons.
20. PW15 ASI Rajender Singh deposed that on 08.08.2010, he along with SI Avtar Singh went to the place where meeting was going on in Ganga Vihar. As per PW15 some speeches were going on after which the mob resorted to violence and broke the wall of a plot and put on fire some article lying in the room in that plot. PW15 further deposed that the mob damaged a car parked outside the plot which was identified by this witness. PW15 further deposed that police tried to stop the mob but they hurled stones on them and some of them were detained and arrested on the spot. This witness was cross examined on behalf of accused persons.
21. PW16 Head Constable Ram Naresh deposed that on 08.08.2010 he along with SHO reached the spot i.e Gali No. 4, D Block Ganga Vihar and saw a huge gathering of public at the spot.
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Someone from the crowd was giving speech and suddenly there was a stone pelting from the public side due to which some policemen got injured. PW16 took one injured police personal to GTB hospital. This witness was cross examined on behalf of accused persons.
22. PW17 Head Constable Manish deposed on the same lines as that of PW7 Ct. Pramod Kumar. This witness identified accused Jai Bhagwan Goel and Charan Singh Bharadwaj in the court. This witness was cross examined on behalf of accused persons.
23. PW18 SubInspector Ishwari Prasad deposed on the same lines as that of PW7 Ct. Pramod Kumar. This witness additionally deposed that on 01.11.2010 he was entrusted with the investigation. With the permission of the court, he arrested accused Surender Kumar in the court and recorded his disclosure statement. He exhibited on record the arrest memo and personal search memo of accused Surender Kumar as PW18/A and PW18/B respectively. Disclosure statement as Ex. PW18/C. This witness identified accused Surender Kumar and Jai Bhagwan Goel in the court. This witness was cross examined on behalf of accused persons.
24. PW19 Dr. Devender Kumar proved the MLC A3711/2010 ExPW10/A of patient Harbir Singh and Xray requisition slip Ex.PW19/A. This witness was cross examined on behalf of accused persons.
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25. PW20 Dr. Rehan Ul Haq identified the signature and handwritings of Dr. S. Wermani and proved the MLC Ex.PW10/A. This witness was cross examined on behalf of accused persons.
26. PW21 Retired SubInspector Avtar Singh deposed on the same lines as that of PW7 Ct. Pramod Kumar. This witness being the IO additionally deposed that he arrested accused Jai Bhagwan vide arrest memo Ex. PW21/A and personal search memo is Ex. PW21/B, arrest memo of accused Devender Kumar Ex. PW21/C and his personal search memo Ex. PW21/D. He also exhibited on record the complaint as Ex. PW21/E, order of court dated 08.01.2010 as Ex. PW21/F, site plan as Ex. PW21/G. This witness relied upon the documents already exhibited on record by PW7 and PW13. This witness identified accused Jai Bhagwan Goel in the court. This witness was cross examined on behalf of accused persons.
27. PW22 Dr. Rashmi Kumari exhibited on record the opinion given by her on X ray requisition slip as Ex. PW22/A. This witness was cross examined on behalf of accused persons.
28. No other witness was left to be examined, thus, Prosecution Evidence was closed on 26.02.2020.
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STATEMENT OF ACCUSED PERSONS U/S 313 Criminal Procedure Code (herein short called Cr.P.C.):
29. Statement of accused persons U/s 313 Cr.P.C. were recorded separately in which all incriminating circumstances appearing in evidence against accused persons were put to them to which they stated that they are innocent. They have been falsely implicated in the present case. Accused persons stated that they were not present at the spot and they do not know why their names have been given in the present case as an accused. They feigned ignorance about the incident and denied their involvement in any of the offence. Accused Surender and Jai Bhagwan Goel specifically stated that they being known personalities of the area and being public figures who regularly complained against police officials for their lapses have been targeted by police by implicating their name in this case. Accused persons opted not to lead defence evidence.
ARGUMENTS:
30. Ld. APP for state has argued that on a combined reading of prosecution witnesses testimony, offence U/s 147/148/332/427 IPC r/w section 149 IPC are proved beyond doubt. It is argued by Ld. APP that the prosecution witnesses have supported each others testimony thereby proving on record the charges framed against the FIR No. 267/10 Page 19/50 State vs Satish Sharma & others.
accused persons. It is further pointed out that the discrepancies occurring in the testimony of Prosecution Witnesses are minor in nature and do not go to the root of the case. In his concluding remarks Ld. APP submitted that accused persons to achieve unlawful and illegal object created an unlawful assembly and despite resistance by police they went ahead committing the offences herein so they are liable to held guilty by the court.
31. On the other hand, Ld. counsels for accused persons have argued that there is no legally admissible evidence against the accused persons as all the star witnesses have failed to identify the accused persons and there is no testimony qua the role of the accused persons in the incident. It is further argued that the accused persons have not been arrested from the spot and have been implicated subsequently. Ld. Counsels pointed out that there are several material infirmities and contradictions in the testimony of Prosecution Witnesses when compared to each other and also with respect to their examination in chief which clearly shows that the witnesses are either interested witness or their presence at spot is doubtful rendering their testimonies highly unreliable to be considered. Arguing further Ld. counsel submitted that prosecution has failed to prove the guilt of accused persons beyond reasonable doubt due to tainted testimony of Prosecution Witnesses, hence accused persons are entitled to be acquitted.
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FINDINGS:
32. Arguments adduced by Ld. APP for State and Ld. Defence Counsels for the accused persons have been heard at length. Evidences and documents on record perused carefully.
33. I have bestowed my thoughtful consideration to the rival submissions made before me. Before proceeding further let the relevant provisions of law be reproduced for further reference.
Section 141 Unlawful assembly - An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is First To overawe by criminal force, or show of criminal force, the Central or any State Government or Parliament or the Legislature of any State, or any public servant in the exercise of the lawful power of such public servant; or Second To resist the execution of any law, or of any legal process; or Third To commit any mischief or criminal trespass, or other offence; or Fourth By 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, FIR No. 267/10 Page 21/50 State vs Satish Sharma & others.
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.
Section 146 IPC 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 provides for its punishment.
Section 148 IPC - Rioting, armed with deadly weapon - Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
Section 149 IPC - 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.
FIR No. 267/10 Page 22/50State vs Satish Sharma & others.
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 extend to three years, or with fine, or with both.
Section 425 IPC Mischief--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 any 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 427 IPC provides for punishment of mischief committed cause loss or damage to the amount of fifty rupees or upwards.
34. Now coming to evidence led on record by Prosecution Witnesses. It is to be seen whether they withstood the test of cross examination or not.
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35. As far as the accused persons i.e. accused no. 1 Satish Sharma, accused no. 4 Dheeraj Kumar, accused no. 6 Prabhu Kumar Kumar, accused no. 8 Ramesh Kumar, accused no. 9 Lala Ram Yadav, accused no. 11 Jagpal Giri, accused no. 13 Bhagwan Babu and accused no. 19 Pankaj Sharma are concerned they have not been identified by any of the prosecution witnesses during their testimony. Accused Dheeraj Kumar, Jagpal Giri, Satish Sharma, Bhagwan Babu were alleged to have been arrested from spot while damaging wall. Accused Ramesh, Lala Ram and Prabhu Kumar Kumar were allegedly arrested while damaging the car whereas accused Pankaj Sharma allegedly ran away from spot and was arrested after 3 years of the incident. Nothing incriminating came against the aforesaid accused persons. As the identify of above accused person could not be established, they cannot be held guilty for any of the offences alleged herein.
36. PW1 and PW8 have proved FIR Ex. PW1/A and DD no. 13B as Ex. PW8/A respectively. Ex. PW8/A is the DD entry which proves the departure of PW21, PW18, PW19, PW15, PW14, PW12, PW11, PW9, PW7, PW3 to the place of incident. There is no dispute raised by the accused persons with respect to genuinity and promptness of registration of FIR. Mere suggestion about its being ante time and date has been given to PW1 during cross examination. Immediately after the occurring of incident, FIR was FIR No. 267/10 Page 24/50 State vs Satish Sharma & others.
registered leaving no doubt of any manipulation in the same.
37. PW2 Sh. Surender Pal in his examination in chief did not identify any of the accused persons except accused Lakhan Pal Sharma. As per him when he returned in the evening from police station he saw the cycle of his brother Om Prakash was missing, the car of Mr. Praveen Jain who was the friend of his brother, was damaged and some of other articles like gas cylinder were missing. During his cross examination he categorically admitted that he did not see accused Lakhan Pal Sharma or any other accused persons at the spot at the time of incident. Further, in his cross examination he stated that he went back to his home straight from the police station so his statement in examination in chief that he returned at the plot and saw articles missing found to be completely contradictory. Further, in his cross examination he categorically admitted that the boundary wall in question was completely damaged before the date of incident i.e. 08.08.2010 which is again completely contradictory version to that of case of prosecution. This witness did not support the case of the prosecution in any manner on the material aspects. Infact, he admitted that there have been cross cases going on between him, his brother and the accused Uma Shankar etc. that attributes the motive of his being interested witness in support of his brother. Above all as per PW2 he was removed to PS at around 10.30 PM whereas the alleged incident took place FIR No. 267/10 Page 25/50 State vs Satish Sharma & others.
between 11.00 AM to 12.00 noon as per complaint so there was no occasion for PW2 to witness the same. Hence, the testimony of PW2 though being independent witness is highly unreliable and therefore cannot be given any credence.
38. PW3 HC Rajiv Ballyan identified accused Jai Bhagwan Goel and Surender Singh in his examination in chief. As per PW3 accused Surender Singh and Jai Bhagwan Goel were giving speech to the gathering provoking the public persons present in the sabha by saying "todo todo deewar ko". PW3 further stated that 1012 persons caused damage to the vehicle and left the spot whereas the case of prosecution is that persons damaging car were apprehended on spot so this statement of PW3 is contradictory on the face of it. This witness claimed during his cross examination to have signed the arrest memo of 89 accused persons in the police station but when confronted no document including arrest memo was found to have been signed by this witness. This witness stated that accused Uma Shankar was aged 30 years and he can identify him whereas the age of accused Uma Shankar was actually around 70 years at the time of incident so this statement of PW3 also found to be made in air, and creates doubt of his being present at the spot at the time of incident. PW3 could not tell the name of police officials who accompanied him to spot when confronted during cross examination. PW3 in his examination in chief stated that accused Jai Bhagwan FIR No. 267/10 Page 26/50 State vs Satish Sharma & others.
Goel and MLA Surender Kumar were exhorting "todo todo diwar ko"
whereas no other PW has mentioned so in their testimony. This witness was found to be in possession of one document on which details of case were mentioned and same was admitted by him during his cross examination so his testimony being tutored one cannot be relied upon that too in view of the other material contradictions appearing in his cross examination. The discrepancies discussed above are material enough to discard the testimony of PW3.
39. PW4 Raj Kumar in his examination in chief identified the accused Lakhan Pal Sharma and Uma Shankar Pathak as the only persons who were giving provocative speeches at the spot. This witness did not identify any other accused in the court. Admittedly, this witness was not present at the time of commission of the offences as he himself stated that he was taken to the police station after 08.30 AM and remained there till the evening. In his examination in chief he stated that in the evening when he returned back to the spot he saw wall of his house was broken and the articles such as water motor pump and cycle etc were put on fire whereas in his cross examination he stated that he went to his house from the police station along with his brother which is totally a contradictory statement. This witness also admitted that there have been pendency of cross cases between him, his brothers and FIR No. 267/10 Page 27/50 State vs Satish Sharma & others.
accused Uma Shankar Pathak and in the other cases his brothers were sent to jail so motive of his being interested witness and false implication of the accused persons cannot be ruled out. The testimony of PW4 being full of contradictions is highly unreliable and does not support the case of prosecution in any manner.
40. PW5 Sh. Jagdish is also one of the brother of PW2 and PW4 and deposed on the same lines as that of PW4. He also could not identify the accused persons as part of the mob. He did not even identify the car in the photographs Ex. PW5/1PW5/3. During his cross examination it has come on record that slogan "har har mahadev" was being chanted by the kawariyas and not accused persons. He also admitted the pendency of cross cases between him, his brothers and the accused Uma Shankar Pathak and Lakhan Pal Sharma. So motive to implicate accused persons being interested witness cannot be ruled out. This witness was also removed to police station along with his other brother at around 10.00 AM so he cannot be said to have witnessed the incident as alleged here in. The testimony of PW5 is exactly same in line with PW2 and PW4 so it can also be not relied upon being un corroborative and doubtful.
FIR No. 267/10 Page 28/50State vs Satish Sharma & others.
41. PW6 Praveen Jain identified accused Surender Kumar, Uma Shankar, Lakhan Pal Sharma and Jai Bhagwan Goel in the court. As per his examination in chief he saw them organizing a sabha at the spot and raising slogans of 'har har mahadev' and were giving provoking speeches. He started making video from his handicam but some boy came and snatched his handicam and ran away. As per PW6 public started pelting stones and broke the boundary wall and put his car on fire. During his cross examination PW6 stated to have moved to police station at around 09.45 - 10 AM so the incident of violence which took place after 10 AM as per prosecution story cannot be said to have been witnessed by even PW6. There are several infirmities in the testimony of PW6 which creates doubt regarding his presence at the spot at the time of incident and also that he is interested witness. Firstly, he could not tell the description of the snatcher who snatched his handicam when asked during his cross examination. He did not make any effort to chase the snatcher and categorically stated that none of the accused was snatcher. During investigation no bills of Handicam has been produced by PW 6 to prove that actually he had any handicam at that point of time. Secondly, even after reaching the PS and remaining there for 1015 minutes he did not come to spot to have his vehicle which is very strange and is remained unexplained in his testimony. Thirdly, as he comes to spot at the request of his friend Rajkumar but did not stay with him in PS till evening nor he is bothered to inquire about his car soon after coming from PS which is expected from a person of such FIR No. 267/10 Page 29/50 State vs Satish Sharma & others.
closeness. As per PW6 he went to the plot and from there to the PS whereas the meeting was held at 300400 metres away from the plot so this shows that PW6 falsely claimed to have witnessed the gathering where speeches were made. In his examination in chief he stated to have recorded his statement with the police when he went to police station whereas in his cross examination he stated that no statement was recorded by police on 08.08.2010. The testimony of PW6 is also full of inconsistencies and does not inspire confidence to be believed upon. As rightly pointed out by Ld. Counsels for accused persons, testimony of PW6 cannot be relied upon as it failed the test of truthfulness.
42. PW7 Ct. Parmod identified accused Jai Bhagwan Goel, Surender Kumar, Bobby and Mohan addressing public gathering that finally resorted to violence. He categorically stated that the mob damaged the wall of plot and damaged the articles including Indica Car. He also proved on record the seizure memos of case property Ex. PW7/1 to PW7/3. During his cross examination organising of meeting was also proved vide Ex. D1. No material contradiction or infirmity appeared in his cross examination. His testimony on material aspects remain unrebutted and uncontroverted.
PW9 Ct. Devender Kumar in his testimony identified accused persons namely Jai Bhagwan Goel, Uma Shankar Pathak, Vikas Malik, Umesh Kumar, Deepak, Dharmendra Kumar, Mohan and FIR No. 267/10 Page 30/50 State vs Satish Sharma & others.
Surender Kumar. In his examination in chief this witness categorically stated that the accused MLA Surender Kumar and Jai Bhagwan Goel were addressing the public gathering and they were raising provocative speeches. The mob got excited and moved towards the plot and damaged the wall of the plot and gate of the room inside the plot. Despite warning by the police the mob remained uncontrolled and even damaged an Indica Car parked outside the plot and took away the articles. He further deposed that accused Jai Bhagwan Goel put the articles on fire and shouted 'har har mahadev'. No material contradiction appeared in his testimony during cross examination by the Ld. Counsels for the accused persons. His testimony on the material aspects remained uncontroverted.
Ld. Counsels for the accused persons pointed out some of the variations and infirmities in the testimony of PW7 and PW9 and claimed their testimony to be blemished one. There are minor discrepancies in the testimony of PW7 and PW9 but they are not material enough to wash away the substratum of incident. They do not discredit the testimony with respect to root of the case and does not negate the testimony completely. The argument of Ld. Counsels are without any substance, thus stands rejected.
43. PW10 Ct. Harbir identified the accused persons namely Uma Shankar Pathak, Dharmendra, Deepak, Umesh Kumar, Mohan, FIR No. 267/10 Page 31/50 State vs Satish Sharma & others.
Vikas Malik and Jai Bhagwan Goel. This witness stated that accused Jai Bhagwan Goel and Devender were giving provocative speeches addressing issue of grabbing of land. The public gathered on the spot got excited and started pelting the stones. This witness proved his injury suffered due to pelting of the stones by the public gathered in the meeting. Though he could not see the persons who threw the stones but it has been categorically stated that the stone was thrown by the person who was part of the mob. The Ld. Counsel for accused persons point out the discrepancy in the testimony of PW10 regarding the fact that he returned to Gokulpuri PS from hospital instead of his PS Bhajanpura and that as per him speech was given by only one person in contradiction to version of other Prosecution Witnesses. This court is of the view that discrepancies pointed out are not material enough to wash away the credibility of PW10. This witness has supported the case of prosecution on all the material aspects. Thus, his testimony is very much reliable and creditworthy.
44. PW11 ASI Jitender Prakash identified the accused persons namely Jai Bhagwan Goel, Angad and Surender Singh during his testimony. As per PW11 the gathering was led by accused Surender and Jai Bhagwan Goel who made provocative speech and raised slogans 'har har mahadev'. On being provoked the mob started proceeding towards the plot with lathis and dandas in hand and when the police tried to spot them they started pelting stones. This FIR No. 267/10 Page 32/50 State vs Satish Sharma & others.
witness categorically stated that the mob demolished the boundary wall of the plot and damaged the Indica Car bearing no. DL3CW5147 parked inside the plot. As per him the mob also damaged the room inside the plot and other articles lying therein.
PW12 ASI Balbir identified the accused Jai Bhagwan Goel and Surender Kumar. As per this witness a mob gathered at Ganga Vihar under the leadership of Jai Bhagwan Goel and Surender Kumar. Upon raising of religious slogans the mob became uncontrolled and started moving towards the plot and damaged the articles outside the plot. Some articles lying inside the plot were also damaged.
Ld. Counsels for accused persons pointed out some infirmities and contradictions in the cross examination of PW11 such as that SHO came on spot whereas SHO was on leave on that day. Secondly, PW11 claimed that his statement was recorded by IO at around 01.30 PM whereas other Prosecution Witnesses stated that statements were recorded in the evening. Similarly, they argued that testimony of PW12 is also not reliable being full of doubts which hint towards his absence on the spot. To the mind of this court these are minor discrepancies which are bound to occur due to lapse of considerable time as the testimony of PW11 is recorded after almost 10 years so such few discrepancies in his testimony does not discredit his version altogether when all other material aspects have been established by him. Similarly, no material contradiction FIR No. 267/10 Page 33/50 State vs Satish Sharma & others.
occurred in testimony of PW12 that can shake his veracity. Testimony of both these witnesses are reliable and support the case of prosecution.
45. PW13 Sh. Chokha Singh exhibited on record the photographs Ex.PW5/1 to Ex.PW5/3 and Ex.PW13/1 to Ex.PW13/18. Ld. Counsels argued that photos do not bear the date and time nor they have been proved in accordance with law as neither certificate u/s 65B has been filed nor the negatives have been filed. It is pertinent to note that no objection has been raised by Ld. Counsels for accused persons as to mode of proof w.r.t. documents Ex. PW5/1 to Ex. PW5/3 and Ex. PW13/1 to Ex. PW13/18 i.e. the photographs during exhibition of documents in examination in chief. The seizure memos pertaining to the article reflected in aforesaid photographs have not been disputed anywhere in the testimonies of Prosecution Witnesses on the aspect of seizure of damaged articles. During the cross examination of PW13 it is nowhere suggested that the photographs are fake or doctored. Merely non mentioning of date and time does not negate the evidentiary value of photographs. Hence, the testimony of PW13 cannot be outrightly rejected and the evidentiary value of photos Ex. PW5/1 to Ex. PW5/3 and Ex. PW13/1 to Ex. PW13/18 corroborates the case of prosecution.
FIR No. 267/10 Page 34/50State vs Satish Sharma & others.
46. PW14 ASI Ram Singh identified the accused Jai Bhagwan Goel. As per him local MLA and the President of Shiv Sena were present at the public meeting and gave provocative speeches after which mob became violent and break the wall of the plot. This witness introduced a new fact of placing installation of shivling in the corner of the park during his cross examination which is missing in the version of all the other prosecution witnesses. As per him there were 50 persons on dias and around 10 persons gave speeches which is again contrary to the version of other prosecution witnesses. PW14 during his cross examination stated that after dispersal of public they again came back which is also major contradiction as compared to testimony of other Prosecution Witnesses. As per him the incident of installation of shivling was photographed but no such photograph was placed on record. Lastly he stated that accused Jai Bhagwan was taken to PS Nand Nangri and PW14 also went to same PS which is also material contradiction vizaviz the testimony of other Prosecution Witnesses. In view of the above pointed statements of PW14 his presence on the spot becomes doubtful, hence his testimony is highly unreliable to be acted upon.
47. PW15 ASI Rajender Singh testified on the aspect of unlawful assembly and the violence resorted by the mob and putting the articles on fire and the mob damaging the car parked outside the plot but this witness did not identify any of the accused persons. The FIR No. 267/10 Page 35/50 State vs Satish Sharma & others.
happening of incident is proved by this witness as nothing contradictory has come on record during his cross examination on this aspect.
48. PW16 Head Constable Ram Naresh did not identify any of the accused persons however, he was the person who took injured Ct. Harbir to the hospital from the spot and no cross examination on this aspect was conducted by the Ld. Counsels for the accused persons resulting in his unrebutted testimony on this aspect. This witness supports the testimony of Ct. Harbir PW10.
49. PW17 Head Constable Manish identified accused Jai Bhagwan Goel and Charan Singh. As per him crowd was gathered including local MLA and accused Jai Bhagwan Goel. Some speeches were made after which the public became violent and caused damage to the plot and the car which was parked outside the plot and the articles were set on fire. The testimony of PW17 remained unrebutted during the cross examination as material aspects of the incident has been corroborated by his testimony.
50. PW18 SubInspector Ishwari Prasad also categorically deposed about the sequence of events and the incident happened on the fateful day i.e. 08.08.2020. As per him accused MLA FIR No. 267/10 Page 36/50 State vs Satish Sharma & others.
Surender Kumar and Jai Bhagwan Goel along with other public persons were holding stage and giving speech. In their speech they were stating that mafia has grabbed vacant plot that has to be demolished. The people who were part of mob started throwing stones and the people who were having dandas started attacking. People present there also put a car make Indica on fire. This witness identified accused Surender Kumar and Jai Bhagwan Goel only. No material contradiction recorded in his testimony during cross examination by the Ld. Counsels for the accused persons. His testimony on the material aspects remained uncontroverted.
Ld. Counsels for the accused persons argued that there are some contradictions in the statement of PW18 w.r.t. the timings of the sequence of events it makes the testimony of PW18 highly unreliable. Ld. Counsel pointed out to the statement of PW18 wherein he stated that Mr. Jain was present at around 1.00 to 1.30 PM when his handicam was snatched whereas as per PW6 Mr. Jain himself left the spot at around 10 AM. Another contradiction pointed out was that PW18 stated that IO took the accused persons to the police station at around 02.00 PM whereas as per PW21 Retd. SI Avtar Singh he remained at the spot till evening. Further as per PW18 he along with other police officials reached at the spot at around 08.25 AM whereas the departure entry made by the IO itself is of 09.25 AM. Similarly, it is argued that PW17 could not tell what exact words were uttered by speakers w.r.t. to plot. Further, as per FIR No. 267/10 Page 37/50 State vs Satish Sharma & others.
PW17 his statement was recorded between 11 AM to 12 Noon where statements were recorded after the incident after 2 PM so testimony of PW17 is also not reliable.
After going through the entire testimony, this court does not find the discrepancies pointed out by Ld. Counsel material enough to shake the creditworthiness of witness PW17 and PW18 when their testimony on the material aspects remained intact. The minor variation in the testimony cannot be read in isolation and such minor discrepancies does not go to the root of the case. As observed earlier few discrepancies are bound to occur when testimony of witnesses is recorded after 10 years of the happening of incident and they cannot be expected to state each fact verbatim especially w.r.t. to the timings.
51. PW19 Dr. Devender Kumar GTB Hospital proved the xray requisition slip pertaining to injured Harbir Ex. PW19/A. PW20 Dr. Rehan Ul Haq, GTB Nagar proved on record the MLC Ex. PW10/A. PW22 Dr. Rashmi Kumari proved on record the X ray requisition slip as Ex. PW22/A. All the three documents were duly proved on record by the prosecution witnesses and there is no challenge made by accused persons to their authenticity.
FIR No. 267/10 Page 38/50State vs Satish Sharma & others.
52. PW21 Retired SubInspector Avtar Singh also categorically deposed about the sequence of events and the incident happened on the fateful day i.e. 08.08.2020. As per him accused MLA Surender Kumar and Jai Bhagwan Goel along with other public persons were holding stage and giving speech. In their speech they were stating that mafia has grabbed vacant plot that has to be demolished. The people who are part of mob started throwing stones and the people who were having dandas starting attacking. People present there also put a car make Indica on fire. This witness identified accused Jai Bhagwan Goel only.
Ld. Counsel for accused persons argued that testimony of PW21 is full of contradictions, hence, cannot be relied upon. It is pointed that PW21 stated that meeting was of Jan Kalyan Smiti whereas in complaint it is mentioned Janta Kalyan Smiti. He admitted that car was not mechanically inspected that shows that car was not damaged and further that seized case property was not produced before the court so the damage of any article could not be established.
This court do not find any force in the argument put forth by the Ld. Counsels that infirmities pointed above are material or sufficient to wash away the testimony of PW21. It does not make any difference whether meeting was called by Jan Kalyan Smiti or Janta Kalyan Smiti as the accused persons were found present on the spot of incident being part of mob and has been correctly identified by FIR No. 267/10 Page 39/50 State vs Satish Sharma & others.
Prosecution Witnesses. Further, absence of mechanical inspection of Indica Car does not negate the fact of its being damaged. Vehicle reflecting in photo Ex. PW5/1 to Ex. PW5/3 clearly shows its condition. The seizure memos have not been challenged by accused persons. As discussed in the testimony of PW13, the evidentiary value of photographs still subsist and corroborate the oral testimony of Prosecution Witnesses on the aspect of damage caused to the articles during incident. Hence, this argument is without any force and therefore stands rejected.
The testimony of PW21 who prepared the rukka and is the most important witness who investigated the case and established all the events in sequence. During his cross examination he explained the circumstances in which offences were committed. No major contradiction came out in his testimony during the cross examination. His testimony corroborated with the testimony of other police witnesses discussed earlier. Hence, the testimony of PW21 is crucial evidence which remained unrebutted and uncontroverted.
53. As the emphasis of Ld. Counsels were on the minor variations and discrepancies appearing in the testimony of Prosecution Witnesses, it is important to discuss some landmark cases where the effect of such statements have been deliberated upon.
FIR No. 267/10 Page 40/50State vs Satish Sharma & others.
54. In the case of Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat, (1983) 3 SCC 217 Hon'ble Apex Court held that much importance cannot be attached to minor discrepancies on the following reasons: "(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.
(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human taperecorder.
(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guesswork on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the timesense of individuals which varies from person to person.
FIR No. 267/10 Page 41/50State vs Satish Sharma & others.
(6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which takes place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
(7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing crossexamination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment.
55. In the case of Vijay @ Chinee v. State of MP Hon'ble Supreme Court of India held that
20. It is settled legal proposition that while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the prosecution case, may not prompt the Court to reject the evidence in its entirety.
22. In State of U.P. Vs. M.K. Anthony AIR 1985 SC 48, this Court laid down certain guidelines in this regard, which require to be followed by the courts in such cases. The Court observed as under : "While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, draw backs and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not FIR No. 267/10 Page 42/50 State vs Satish Sharma & others.
touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Cross examination is an unequal duel between a rustic and refined lawyer."
56. In State Vs. Saravanan & Anr. AIR 2009 SC 152, while dealing with a similar issue, this Court observed as under : ".....while appreciating the evidence of a witness, minor discrepancies on trivial matters without affecting the core of the prosecution case, ought not to prompt the court to reject evidence in its entirety. Further, on the general tenor of the evidence given by the witness, the trial court upon appreciation of evidence forms an opinion about the credibility thereof, in the normal circumstances the appellate court would not be justified to review it once again without justifiable reasons. It is the totality of the situation, which has to be taken note of. Difference in some minor detail, which does not otherwise affect the core of the prosecution case, even if present, that itself would not prompt the court to reject the evidence on minor variations and FIR No. 267/10 Page 43/50 State vs Satish Sharma & others.
discrepancies."
24. It is settled proposition of law that even if there are some omissions, contradictions and discrepancies, the entire evidence cannot be disregarded. After exercising care and caution and sifting the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution witness. As the mental capabilities of a human being cannot be expected to be attuned to absorb all the details, minor discrepancies are bound to occur in the statements of witnesses (vide Sohrab & Anr. Vs. The State of M.P. AIR 1972 SC 2020; Bharwada Bhogini Bhai Hirji Bhai Vs. State of Gujarat AIR 1983 SC 753; Prithu @ Prithi Chand & Anr. Vs. State of Himachal Pradesh (2009) 11 SCC 588; and State of U.P. Vs. Santosh Kumar & Ors. (2009) 9 SCC 626).
57. In State of UP v. Naresh (2011) 4 SCC 324, the Hon'ble Supreme Court of India after considering a large number of its earlier judgments held:
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 FIR No. 267/10 Page 44/50 State vs Satish Sharma & others.
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. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.
58. In view of the law discussed above it can be safely concluded that marginal variations in the statements of witnesses highlighted by Ld. Counsels for accused persons herein do not render the evidence brittle.
59. Another argument of Ld. Counsel was that the independent witnesses did not support the case of prosecution so in their absence, the testimony of police witnesses cannot be given due weightage.
60. In this regard, this court would reproduce para 2426 of Girja Prasad (Dead) v. State of Madhya Pradesh, Hon'ble Supreme Court of India wherein Hon'ble Supreme Court of India held that
24. "It is well settled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite possible that in a given case, a Court of Law may not base conviction solely on the evidence of Complainant or a police official but it is not the law that police witnesses should FIR No. 267/10 Page 45/50 State vs Satish Sharma & others.
not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. There is no rule of law which lays down that no conviction can be recorded on the testimony of police officials even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. But, if the court is convinced that what was stated by a witness has a ring of truth, conviction can be based on such evidence.
25. It is not necessary to refer to various decisions on the point. We may, however, state that before more than halfacentury, in the leading case of Aher Raja Khima v. State of Saurashtra, AIR 1956 SC 217, Venkatarama Ayyar, J. stated:
The presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not judicial approach to distrust and suspect him without good grounds therefor. Such an attitude could do neither credit to the magistracy nor good to the public. It can only run down the prestige of the police administration. (emphasis supplied)
26. In Tahir v. State (Delhi ), (1996) 3 SCC 338, dealing with a similar question, Dr. A.S. Anand, J. (as His Lordship then was) stated:
Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case.
61. Now in the light of above judgment it can be summarized that if the court finds the testimony to be trustworthy that inspires FIR No. 267/10 Page 46/50 State vs Satish Sharma & others.
confidence and discrepancies do not affect the core of prosecution case then such testimony can form the basis of recording conviction. In here the police witnesses were coherent, consistent, categorical and corroborative to each other in their testimony and established the ring of truth by leading cogent evidence on record.
62. Now embarking upon section 149 IPC, it is to be seen whether an offence is committed by any member of unlawful assembly in prosecution of the common object or it must be such that member of assembly knew to be likely to be committed. If the above ingredients are established then each member of such assembly would be liable for the same u/s 149 IPC, though each member may not have acted overtly. This section creates a constructive or vicarious liability of members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. Mere participation does not make a member of assembly liable for some charge unless it is established that accused shared the common object or he knew that an offence is likely to be committed. Even if the offence committed is not in direct prosecution of common object of the assembly, it may yet fall u/s 149 IPC, if it is found that the offence was such that the members knew to be likely to be committed. The acts of assembly must be immediately connected with common object by virtue of nature of object.
FIR No. 267/10 Page 47/50State vs Satish Sharma & others.
63. In view of the above broad parameter for invoking section 149 IPC it is to be seen whether prosecution has been able to establish in the present case that unlawful assembly in prosecution of their common object committed the alleged offence and the accused can be held guilty for those offence with the aid of section 149 IPC.
From the testimony of PW7, 9, 10, 11, 12, 15, 17, 18 and 21 it has been categorically established that there was an assembly of people at Ganga Vihar with common object to trespass and obtain the possession of plot measuring 4 bigha and 19 biswa out of khasra no. 98, gali no. 5, Ganga Vihar, Delhi, thus constituting an unlawful assembly and in prosecution of the common object, the members of unlawful assembly used force and violence and caused damage to the property such as boundary wall, articles lying therein including Indica Car and ceiling fan etc and in pursuance of the same it also injured a police official Ct. Harbir with intent to prevent him and to deter him from discharging his duty as public servant. The above prosecution witnesses were consistent, coherent, categorical and corroborative to each other in their testimony where they testified that accused formed an unlawful assembly with the common object to take over the possession of above said property. The inference from the circumstances can also be drawn in this case. There being heavy arrangement of police to avoid any intoward incident but the unlawful assembly in pursuance to their common object did not bother about the law enforcement agency and proceeded towards FIR No. 267/10 Page 48/50 State vs Satish Sharma & others.
accomplishing their object which was again an unlawful object and committed various offences. Hence, accused persons namely accused no. 15 Jai Bhagwan Goel, accused no. 17 Surender Kumar, accused no. 22 Sunil Gupta @ Boby Gupta, accused no. 2 Mohan, accused no. 21 Vikas Malik, accused no. 5 Deepak, accused no. 3 Dharmendra Kumar, accused no. 7 Umesh Kumar, accused no. 10 Angad Prasad and accused no. 14 Charan Singh being member of unlawful assembly are liable to be held guilty with the aid of section 149 IPC for the offences u/s 147/332/427 IPC. As recovery of deadly weapon has not been proved on record, Section 148 IPC is not attracted and proved. Accordingly, accused persons i.e. accused no. 15 Jai Bhagwan Goel, accused no. 17 Surender Kumar, accused no. 22 Sunil Gupta @ Boby Gupta, accused no. 2 Mohan, accused no. 21 Vikas Malik, accused no. 5 Deepak, accused no. 3 Dharmendra Kumar, accused no. 7 Umesh Kumar, accused no. 10 Angad Prasad and accused no. 14 Charan Singh stand convicted for the offences u/s 147/332/427 IPC r/w section 149 IPC.
64. Identity of the accused Lakhan Pal could not be established during the trial as he was identified by the prosecution witnesses whose testimony has been found to unreliable and discarded by court as discussed in earlier paragraphs, therefore, the role of aforesaid accused could not be attributed as alleged by the FIR No. 267/10 Page 49/50 State vs Satish Sharma & others.
prosecution. So he is entitled to be given benefit of doubt and is entitled to acquittal. Accordingly, accused persons i.e. accused no. 1 Satish Sharma, accused no. 4 Dheeraj Sharma, accused no. 6 Prabhu Kumar, accused no. 8 Ramesh Kumar, accused no. 9 Lala Ram Yadav, accused no. 11 Jagpal Giri, accused no. 13 Bhagwan Babu, accused no. 19 Pankaj Sharma, accused no. 20 Lakhan Pal Sharma stand acquitted for want of sufficient evidence and non establishment of their identity during the trial.
Digitally signed by VISHAL VISHAL PAHUJA
PAHUJA Date:
2020.10.08
16:28:13 +0530
ANNOUNCED IN THE OPEN (VISHAL PAHUJA)
COURT ON 08.10.2020 ACMMI/RADC/DELHI
Containing 50 pages all signed by the presiding officer.
(VISHAL PAHUJA) ACMMI/RADC/DELHI FIR No. 267/10 Page 50/50 State vs Satish Sharma & others.