Delhi District Court
2.95 vs The State Of U. P on 16 July, 2008
-:1:-
IN THE COURT OF SH. NARINDER KUMAR
ADDL. SESSIONS JUDGE, FAST TRACK COURTS,
ROHINI : DELHI
SC No. 163/06 (RBT)
Date of institution of the case: 25/03/2006
Date for reservation of Order: 16th of July, 2008
Date of Decision: 16th of July, 2008
State
Versus
1) Virender Kumar
S/o Sh. Jokhai Ram
R/o H.No. 9/241, Khichripur,
Trans Yamuna, Delhi.
2) Munna Lal
S/o Sh. Bhaiya Lal
R/o Jhuggi No.C-61,
Wazirpur Industrial Area, Delhi.
3) Ramesh Chander
S/o Sh. Ram Mandir Maurya,
R/o H.No. N-3/193, Shaeed Sukhdev Nagar,
Wazirpur Industrial Area, Delhi,
4) Uday Bhan
S/o Sh. Dal Chand
R/o C-299, Shaeed Sukhdev Nagar,
Wazirpur Industrial Area, Delhi.
5) Ram Avtar
S/o Sh. Ram Aadhar Yadav,
R/o AG/162, Shalimar Bagh, Delhi.
-:2:-
6) Khaweshwar Sharma
(since proclaimed offender)
S/o Neela Kantha
7) Ram Prakash
S/o Sh. Hari Shankar Pandey
R/o H.No. C-298,
Shaeed Sukhdev Nagar Colony,
Wazirpur Industrial Area, Delhi.
8) Sushil Kumar Jha
S/o Sh. Nav Kant Jha,
R/o House No. A-92,
Tugalakabad Village, Bazar Mohalla,
Nehru Place, Delhi.
9) Ram Avtar (since proclaimed offender)
S/o Sh. Lakhan
10) Lal Dev
S/o Sh. Lakhan Kamat,
R/o house No. B-427,
Gali No. 105, Sriram Chowk,
Wazirpur Industrial Area, Delhi.
11) Tiju Prasad
S/o Sh. Ram Adhar,
R/o Village Nyosa, PO Bada Khajni,
District Gorakhpur, U.P.
At Present: R/o Jhuggi No. 138,
Chuna Bhatti, Kirti Nagar, Delhi.
12) Shiv Kumar (since proclaimed offender)
S/o Sh. Samour
13) Om Prakash
S/o Sh. Jhawar,
R/o Village Tehraghat,
Siddharth Nagar, U.P.
14) Jai Prakash (since proclaimed offender)
S/o Sh. Jagdish Prasad
-:3:-
15) Munna Lal (since proclaimed offender)
S/o Sh. Banwari Lal
16) Vinod Kumar
S/o Sh. Dev Karan,
R/o House No. K-195,
Wazirpur Industrial Area, Delhi,
17) Basi Ahmad
S/o Sh. Shamsuddin,
R/o House No. 35,
Mohalla Nasraliq, Mandi Gobind Garh,
Punjab.
18) Mahavir Singh
S/o Sh. Paras Ram,
R/o Village Maharajpur,
Post Office Indergarh,
Distt. Farukhabad, Kannoj (UP)
19) Pappu
S/o Sh. Shiv Singh,
R/o House No. 2365,
Tri Nagar, Delhi.
20) Virender
S/o Sh. Toofani,
R/o H.No. Not known,
A block, Shaeed Sukhdev Nagar,
Wazirpur Industrial Area, Delhi
21) Mohd. Saleem
S/o Sh. Phool Mohd.,
R/o Factory No. B-26,
Wazirpur Industrial Area, Delhi.
22) Hari Lal
S/o Sh. Shambu Ram,
R/o Jhuggi No. E-310,
Shaeed Sukhdev Nagar,
Wazirpur Industrial Area, Delhi.
-:4:-
23) Mahaveer (since deceased)
S/o Sh. Hundi Ram
24) Parmeshwar Mandal
S/o Sh. Ganesh Mandal,
R/o 218, Village Khyala, Delhi.
25) Pancham
S/o Sh. Nanua,
R/o Jhuggi No.D-35,
Wazirpur Industrial Area, Delhi.
26) Ram Sewak
S/o Sh. Aghanu Kamat,
R/o Jhuggi No.B-429,
Plot No.105, Wazirpur Industrial Area, Delhi.
27) Dalip Singh
S/o Sh. Vaishak Singh,
R/o H. No. B-482, Plot No. 105,
Wazirpur Industrial Area, Delhi,
28) Om Prakash
S/o Sh. Kishan Lal,
R/o H.No. H-417, Shakurpur,
J. J. Colony, Delhi.
29) Satanand Jha
S/o Sh. Badri Jha,
R/o Jhuggi No. SC-207,
Shaeed Sukhdev Nagar,
Wazirpur Industrial Area, Delhi.
Also at: Village Chunni, PO Chunni,
District Sipol, Saharsa, Bihar.
30) Ashok
S/o Sh. Gokul,
R/o Agra Rajpur Rajeshwar Mandir,
Shamshabad Road, U.P.
-:5:-
31) Ram Iqbal
S/o Sh. Tirath Yadav,
R/o Jhuggi No. B-419, Plot No. A105,
Wazirpur Industrial Area, Delhi.
32) Ganesh (since proclaimed offender)
S/o Sh. Bhagwati
33) Gopal Singh
S/o Sh. Mohan Singh,
R/o House No. not known,
Trans Yamuna, Khazuri, Bhajanpura, Delhi.
34) Naibu Lal
S/o Sh. Datadeen
R/o B-408, Shaeed Sukhdev Nagar,
Wazirpur Industrial Area, Delhi.
35) Manu Kumar
S/o Sh. Upender Jha,
R/o Village Sripur, PS Pratapganj,
District Sipol, Saharsa, Bihar.
36) Surender Jha
S/o Sh. Bhilanand Jha,
R/o House No. C-260,
Shaeed Sukhdev Nagar,
Wazirpur Industrial Area, Delhi.
37) Jeevan Kant
S/o Sh. Rama Kant,
R/o C-514, near Jagdamba Mandir,
Shaeed Sukhdev Nagar,
Wazirpur Industrial Area, Delhi
38) Suraj (since proclaimed offender)
S/o Sh. Subrahan
39) Prem (since proclaimed offender)
S/o Sh. Birbal
-:6:-
40) Brij Lal
S/o Sh. Kunju,
R/o D-1256, J J Colony,
Bawana, Delhi
41) Shyam Narayan (since proclaimed offender)
S/o Sh. Hari Ram
42) Hari Lal (since proclaimed offender)
S/o Sh. Achhe Lal
43) Sat Narayan
S/o Sh. Ram Charan,
R/o Jhuggi No. B-427,
Shaeed Sukhdev Nagar,
Wazirpur Industrial Area, Delhi.
44) Raj Kumar
S/o Sh. Jitender Prasad Kamat,
R/o B-429, Plot A-105,
Wazirpur Industrial Area,
Shaeed Sukhdev Nagar, Delhi.
45) Ram Prasad Kamat
S/o Sh. Jitender Prasad Kamat,
R/o B-429, Plot A-105,
Wazirpur Industrial Area,
Shaeed Sukhdev Nagar, Delhi
46) Vijay Jha
S/o Sh. Nageshwar Jha,
R/o H.No. P-110, Street No. 6,
Shankar Nagar, Shahdara, Delhi
47) Rajender (since proclaimed offender)
S/o Sh. Kamla Yadav
48) Banwari (since proclaimed offender)
S/o Udho
-:7:-
49) Bindeshwar Sade
S/o Sh. Chanchal Sade,
R/o Jhuggi No. 429,
Wazirpur Industrial Area, Delhi
50) Ishtkhar Ahmad
S/o Sh. Sageer Ahmad,
R/o H.No. Jhuggi of Habib,
K-Block, Jahangirpuri, Delhi
51) Gulam Hussain
S/o Sh. Dil Dar,
R/o 104/10,
Wazirpur Industrial Area, Delhi
52) Mishri Lal
S/o Sh. Munnar,
R/o 1044/A,
Nathu Pura, Delhi
53) Daya Shankar
S/o Sh. Raja Ram,
R/o Village Sihapar,
Distt. Sidharth Nagar, U. P.
54) Vajid Ali (since proclaimed offender)
S/o Sh. Rafiq
55) Ram Narayan
S/o Sh. Lagan Singh,
R/o village Kasiapur,
Distt. Siddharth Nagar, UP.
56) Baij Nath
S/o Sh. Shiv Prasad,
R/o Jhuggi No. E-35,
Shaeed Sukhdev Nagar,
Wazirpur Industrial Area, Delhi
-:8:-
57) Brahm Pal
S/o Sh. Mishri Lal,
R/o Living as a tenant in a house
in a colony known as Satya Babu Colony,
Kundli, Sonepat, Haryana
58) Shyam Sunder
S/o Sh. Malkhan Singh,
R/o C-465, Shaeed Sukhdev Nagar,
Wazirpur Industrial Area, Delhi
59) Ram Jatan
S/o Sh. Shiv Mangal,
R/o In a rented Jhuggi, in the area
of Wazirpur Industrial Area, Delhi.
60) Summi (since deceased)
S/o Sh. Ramua
61) Jaggi
S/o Sh. Ganpat Lal,
R/o 94-B, Nehru Nagar,
Near Vimhans Hospital, Delhi
62) Neeraj Kumar
S/o Sh. Medha Kant Thakur,
R/o H.No. 119/296, Darshan Purva,
across the water tank, Kanpur, U.P.
63) Kamal Bahadur (since proclaimed offender)
S/o Rakesh Bahadur
64) Ram Adhar
S/o Sh. Sahati age- not known
R/o H.No. C-364, Shaeed Sukhdev Nagar,
Wazirpur Industrial Area, Delhi-52,
-:9:-
65) Chiranjeev (since proclaimed offender)
S/o Sh. Dhalai Jha
66) Gaboo Ram
S/o Sh. Suneharika,
R/o A-83, Shaeed Sukhdev Nagar,
Wazirpur Industrial Area, Delhi
67) Nanumal
S/o Sh. Umrao,
R/o Jhuggi No.479,
Wazirpur Industrial Area, Delhi.
68) Kapil Dev
S/o Sh. Ram Sagan,
R/o Jhuggi No. E-79,
Wazirpur Industrial Area, Delhi.
69) Ram Gyan
S/o Sh. Sami Nath,
R/o Jhuggi No. E-87,
Wazirpur Industrial Area, Delhi.
70) Ashok Kumar
S/o Sh. Ashrafi Mandal,
R/o a rented Jhuggi (No. Not known),
Shaeed Sukhdev Nagar,
Wazirpur Industrial Area, Delhi.
71) Manohar Jha
S/o Sh. Babu Nandan Jha,
R/o Jhuggi near Jagdamba Mandir,
Wazirpur Industrial Area, Delhi,
72) Shiv Narain (since proclaimed offender)
S/o Sh. Bhagwat Kamat
73) Ram Sanjeevan
S/o Sh. Sunder,
R/o Village Banspur,
District Rai Bareilly, U.P.
-:10:-
74) Manoj Kumar
S/o Sh. Prahlad,
R/o Village Dumri
Post Bishanpura,
District Gorakhpur, U.P.
75) Videshi
S/o Sh. Mithai Lal,
R/o Jhuggi No. C-9, A-Block,
Wazirpur Industrial Area, Delhi.
76) Ram Bachan (since deceased)
S/o Sh. Shivaji Pandey
77) Shyam Singh
S/o Sh. Ram Surat
R/o Village Rampur,
Post Jokara, Lat Ghat,
P.S. Raunapark,
Distt. Azamgarh, U.P.
78) Kishor Prasad
S/o Sh. Kumar Prasad,
R/o House No. D-25,
Shaeed Sukhdev Nagar,
Wazirpur Industrial Area, Delhi.
79) Jawahar Yadav
S/o Sh. Bansh Raj Yadav,
R/o D-30, Shaeed Sukhdev Nagar,
Wazirpur Industrial Area, Delhi
80) Ram Sharan
S/o Sh. Bechain,
R/o Jhuggi No. D-29,
Shaeed Sukhdev Nagar,
Wazirpur Industrial Area, Delhi.
-:11:-
81) Jiya Lal
S/o Sh. Ram Awadh,
R/o Jhuggi No. E-28/1,
Shaeed Sukhdev Nagar,
Wazirpur Industrial Area, Delhi.
82) Raj Kumar
S/o Sh. Doej Ram,
R/o Village Rampur Sudi Chakraja,
District Azamgarh, UP.
83) Narayan Kumar
S/o Sh. Diwakar,
R/o Jhuggi No. 224-C,
Near Jagdamba Mandir,
Wazirpur Industrial Area, Delhi.
84) Mithlesh
S/o Sh. Bhim Shankar,
R/o Jhuggi No. C-264,
Wazirpur Industrial Area, Delhi.
85) Heera Lal
S/o Sh. Raj Bali,
R/o Jhuggi No. E-50,
Wazirpur Industrial Area, Delhi,
86) Babu Lal
S/o Nagai
R/o E-49, Wazirpur Industrial Area,
Delhi.
87) Ajay Kumar
S/o Sh. Kapaleshwar,
R/o Village Singalpur,
Shalimar Bagh, Delhi
88) Chatar Pal (since deceased)
S/o Sh. Bullan
-:12:-
89) Madan Kumar
S/o Sh. Inder Kant,
R/o Village Brijvasan,
Gurgaon, Haryana.
90) Amal Kishor
S/o Sh. Gore Lal,
R/o Jhuggi No. C-265,
Shaeed Sukhdev Nagar,
Wazirpur Industrial Area, Delhi.
91) Ram Lakhan
S/o Sh. Pati Ram,
R/o Village Maharajpur,
PO Indergarh, District Kannauj, U.P.
92) Heera Lal (since proclaimed offender)
S/o Sh. Sehdev
93) Paras Nath
S/o Sh. Ram Kripal,
R/o Village Banspur,
Post Etoda Bujurg,
Distt. Rai Barielli, U.P.
94) Inder Pal
S/o Sh. Ram Swaroop,
R/o in a rented house, Gali No. 2,
Mukundpur, Radha Vihar,
Near Jahangir Puri, Delhi.
95) Babu Lal
S/o Sh. Andhu,
R/o B-405, Shaeed Sukhdev Nagar,
Wazirpur Industrial Area, Delhi.
96) Sanjay
S/o Sh. Ram Surat,
R/o In a jhuggi (No. not known),
Wazirpur Industrial Area, Delhi.
97) Ram Sharan (since proclaimed offender)
S/o Sh. Anoop Bhandari
-:13:-
98) Jagdish Kamti (since proclaimed offender)
S/o Sh. Ramdeh Kamti
99) Chhotey Lal
S/o Sh. Lauteon,
R/o H.No. D-50,
Shaeed Sukhdev Nagar,
Wazirpur Industrial Area, Delhi.
100) Raj Kishor
S/o Sh. Deena Nath,
R/o In a rented house,
Wazirpur Industrial Area, Delhi.
101) Ram Ugra
S/o Sh. Ram Singh,
R/o Jhuggi No. C-257,
Wazirpur Industrial Area, Delhi.
102) Shobh Narayan
S/o Sh. Ram Sharan,
R/o Jhuggi No. C-80,
Shaeed Sukhdev Nagar,
Wazirpur Industrial Area, Delhi.
103) Shyam Lal
S/o Sh. Kuber,
R/o Jhuggi No. C-193,
Wazirpur Industrial Area, Delhi.
104) Mahesh Mehto
S/o Sh. Ram Roop Mehto,
R/o Jhuggi No. C-89,
Wazirpur Industrial Area, Delhi.
105) Jageshwar
S/o Sh. Baij Nath,
R/o Jhuggi No. B-181/1,
Shaeed Sukhdev Nagar,
Wazirpur Industrial Area, Delhi.
-:14:-
106) Shobhi
S/o Sh. Jagan Nath,
R/o Godown No. E-133,
Shastri Nagar, Delhi.
107) Kallu
S/o Sh. Baij Nath,
R/o Village and Post Office Parasrampur,
District Pratapgarh, U.P.
108) Kalap Nath
S/o Sh. Lal Bahadur,
R/o D-410, Shaeed Sukhdev Nagar,
Wazirpur Industrial Area, Delhi.
109) Ram Sharan
S/o Sh. Hanuman Prasad,
R/o 228, Chander Shekhar Azad Colony,
Wazirpur Industrial Area, Delhi.
110) Radhey Shyam (since proclaimed offender)
S/o Sh. Batoor
111) Ram Umesh
S/o Sh. Badai,
R/o Village Badaipurva,
Distt. Sidharth Nagar, U.P.
112) Uday Kant
S/o Sh. Babu Nandan,
R/o Jhuggi of Amal Kishore,
Wazirpur Industrial Area, Delhi.
113) Bhavesh Kumar
S/o Sh. Digambar Jha
R/o H. No. A-34,
Village Azadpur, Delhi.
-:15:-
114) Sanjay Kumar
S/o Sh. Tej Narayan
R/o Jhuggi No. C-260,
Shaeed Sukhdev Nagar,
Wazirpur Industrial Area, Delhi.
115) Anil Kumar
S/o Sh. Nav Kant Jha
R/o C-222, Shaeed Sukhdev Nagar,
Wazirpur Industrial Area, Delhi
116) Rakesh
S/o Sh. Madan
R/o Jhuggi No. C- 307,
Saheed Sukhdev Nagar T-Huts,
Delhi.
117) Ramjeet
S/o Sh. Raj Dev,
R/o Village Beerkhet,
Tehsil Tanda, District Faizabad, U.P.
118) Ram Babu
S/o Sh.Kaleshwar Kamat,
R/o House No. (not known),
Gali No.3, Ashram Raod,
Nand Gram, Ghaziabad, UP.
119) Sehdev
S/o Sh. Hansraj,
R/o Village Rudholi,
Tehsil Saiganj,
District Jaunpur, U.P.
120) Ram Bahor
S/o Sh. Pardesi
R/o Jhuggi No. 126, Chuna Bhatti,
Harijan Camp, Kirti Nagar, Delhi.
121) Vinod Kumar (since proclaimed offender)
S/o Sh. Hari Shankar
-:16:-
122) Gajender Kumar
S/o Sh. Jag Dev,
R/o Jhuggi of Bhilu,
Wazirpur Industrial Area, Delhi.
123) Durga Nand (since proclaimed offender)
S/o Sh. Bhoop Narain
124) Mukhtiar Singh
S/o Sh. Ram Lal,
R/o Khasra No. 62/2,
Kishan colony, Prahladpur Bangar,
PS Bawana, Delhi.
125) Mool Chand (since deceased)
S/o Sh. Sajju
126) Rati Ram (since proclaimed offender)
S/o Sh. Bal Kishan
127) Kali Charan
S/o Sh. Baladeen
R/o D-527, Shaeed Sukhdev Nagar,
Wazirpur Industrial Area, Delhi.
128) Anaar Kali
S/o Sh. Dharam Raj,
R/o Jhuggi No. C-39,
Shaeed Sukhdev Nagar,
Wazirpur Industrial Area, Delhi
129) Satish Chand
S/o Late Sh. Kailash Prasad,
R/o H.No.C-51 X, Janta Flats Slum,
Jahangir Puri, Delhi
130) Bhupender
S/o Sh. Devi Prasad
R/o H.No. D-507,
Shaeed Sukhdev Nagar,
Wazirpur Industrial Area, Delhi.
-:17:-
131) Shyam Sunder
S/o Sh. Govind Prasad
R/o Jhuggi No.C-66,
Shaeed Sukhdev Nagar,
Wazirpur Industrial Area, Delhi
132) Kishan Lal
S/o Sh. Prasadi Lal
R/o at Patri, Ashok Vihar Crossing, Delhi.
133) Sohan Devi
W/o Sh. Laxman
R/o E-254, Shaeed Sukhdev Nagar group,
Wazirpur Industrial Area, Delhi,
134) Jugal Kishor
S/o Sh. Baleshwar
R/o D-533, Shaeed Sukhdev Nagar,
Wazirpur Industrial Area, Delhi,
135) Dev Pal
S/o Sh. Nathu Singh,
R/o H.No. D-428,
Shahid Sukhdev Nagar,
Wazirpur Industrial Area, Delhi
FIR No. 43/1995
PS Ashok Vihar
U/s. 147, 323, 325, 333, 353 and 427
read with Sec. 149 IPC and under
Section 3 & 4 of Prevention of
Damage to Public Property Act.
JUDGMENT
First the Facts
1. All above named accused, except those whose names find mentioned at serial Nos. 6, 9, 12, 14, 15, 32, 38, -:18:- 39, 41, 42, 47, 48, 54, 63, 65, 72, 92, 97, 98, 110, 121, 123 and 126 (who are proclaimed offenders), accused No. 23, 60, 76, 88 and 125 (who are no more in this world) have been facing trial for offences under Section 147, 323, 325, 333, 353 and 427 read with Section 149 Indian Penal Code and under Section 3 & 4 of Prevention of Damage to Public Property Act.
2. Occurrence is alleged to have taken place on 30.1.1995 in between 9.15 a.m to 10.55 a.m in a park known as DDA Park, in D-Block, Ashok Vihar, Phase-I, Delhi, in which the accused and several others are said to have formed an unlawful assembly, then caused hurt and grievous hurt to police officials and officers, obstructed them in discharge of their official duty and caused damage to public property and the property of residents of C & D Blocks of Ashok Vihar, Phase I.
3. On 30/01/1995 at about 08:15 a.m., information was received at Police Post Wazirpur Industrial Area through PCR that a constable had been killed by a jhuggi dweller living across railway track. This information was assigned to ASI Suresh Chand for inquiry and investigation, but ultimately -:19:- found to be false. On reaching the spot, the ASI actually found one Dalip Kumar lying on the ground. He wanted removal of Dalip Kumar to hospital for immediate relief and medical aid, but the jhuggi dwellers who were did not permit him to do so.
4. At about 08:25 a.m., ASI Suresh Chand informed Inspector P. P. Singh, the then Station House Officer of Police Station Ashok Vihar that a huge mob had collected at the spot and that the mob was very much violent. The SHO rushed to the spot and at the same time requisitioned additional force from the police station. On reaching the spot, the SHO found one Dalip Kumar lying on the ground. The SHO asked his staff to remove Dalip Kumar to hospital for immediate relief and medical aid, but the jhuggi dwellers who were about 700/800 in number did not permit them to remove Dalip Kumar.
5. Accused persons are stated to be members of the mob. The mob insisted that constable Virender Singh who was on duty in the park be handed over to them, the reason being that he had given beatings to Dalip Kumar leading to his death. The SHO tried to pacify the mob but in vain. Sensing -:20:- gravity of the situation, the SHO informed the senior officers and requisitioned additional force to tackle the situation. The SHO instructed some of the staff to bring weapons from the police station. These instructions were complied with.
6. Thereafter, Sh. Karnal Singh, the then DCP (North West), Sh. Krishan Kumar, the then Additional DCP, Sh. T. S. Bhalla, the then ACP Ashok Vihar, Sh. Prem Nath, then ACP, PG Cell, North-West District, Addl. SHO, P. S. Ashok Vihar and SHO, Police Station Saraswati Vihar and a number of other police officials from North-West District reached the spot. Additional force from Delhi armed police also reached the spot.
7. Case of prosecution is that on one side of the park, there is a railway track. Across the railway track is jhuggi cluster. Jhuggi dwellers used to ease themselves in the park and thereby create insanitary condition for residents of Ashok Vihar, Phase I. DDA constructed a wall by the side of the park towards the railway track. But jhuggi dwellers demolished a portion of that wall and they used to pass through the park and a number of jhuggi dwellers used to ease themselves in the said park.
-:21:-
8. Senior police officers tried to persuade the mob and to remove Dalip Kumar to hospital. At that time, accused persons, who were part of the mob, started pelting stones at the police party resulting in injuries.
9. DCP Karnal Singh warned that the mob should get dispersed but this warning had no effect. Rather the mob started pelting stones once again. Thereafter the DCP ordered use of teargas shelling to disperse the mob but because the wind was blowing in reverse direction, and it had no impact. At that time, instead of getting dispersed, the mob started marching towards the houses in the area. Finding that mob was going to commit serious crime, the DCP is alleged to have ordered firing in the air to scare the mob away, but this too had no effect. It is case of prosecution that finding no alternative and further giving warning to the mob to disperse, the DCP ordered firing.
10. Then as per directions of the DCP, Constable Sat Prakash, Constable Om Pal Singh, Constable Tehzib Haider and Head Constable Pawan Kumar fired five rounds. It was only after firing by the police that the mob started dispersing. 123 accused persons were arrested from the spot. -:22:-
11. Mukhtiar Singh (accused No.124); Phool Chand (since deceased) son of Sajju; Rati Ram (since proclaimed offender); Kali Charan (accused No.127); Anaar Kali (accused No.128); Satish Chander (accused No.129); Sohan Devi (accused No.133); Bhupender (accused No.130); Shyam Sunder Saxena (accused No.131); Kishan Lal (accused No.132); Jugal Kishor (accused No.134) and Dev Pal (accused No. 135) were arrested later on.
12. Ruqqa was prepared and sent from the spot to the Police Station Ashok Vihar where present case came to be registered. Pieces of teargas shells, pieces of glasses, empty cartridges, iron rods, lathies were picked up from the spot and seized. . Stones and pieces of broken glasses were seized.
13. Constable Om Pal Singh, Head Constable Pawan Kumar, Constables Tehzib Haider and Constable Sat Prakash produced their service rifles and six empties each, which were also seized.
14. Dead body of above referred to Dalip Kumar was ultimately removed from the spot and sent to the hospital. Inquest proceedings were carried out in respect of dead body -:23:- of Dalip Kumar.
15. Inspector Bishan Mohan of Crime Branch took up investigation of the case on 31/01/1995. The Inspector reached Hindu Rao Hospital and took into possession three sealed parcels purporting to contain blood stained clothes of some of the injured, and blood stains clothes of another injured, who had already died.. The Inspector also carried out inquest proceedings in respect of the dead bodies of Babu Ram, Ram Bachan Pathak, Chander Bhan and Pramod Kamat. On 01/02/1995, Dr. C. B. Dabas conducted autopsy on the dead bodies. Other injured persons were medicolegally examined at different hospitals.
16. On completion of investigation, challan was put in court. After compliance with provisions of Section 207 CrPC, case came to be committed to Hon'ble Court of Session. Charge
17. Prima facie case having been made out, charge for offences U/s. 147, 323 read with Section 149, 325 read with Section 149, 333 read with Section 149 IPC, 353 read with Section 149 IPC, 427 read with Section 149 IPC & 3 & 4 of Prevention of Damage to Public Property Act was framed -:24:- against all the accused. Since the accused persons pleaded not guilty and claimed trial, prosecution was called upon to lead evidence.
Prosecution Evidence
18. In order to prove its case, prosecution examined in all 44 witnesses:
PW19 SI Yashpal Singh has been examined to prove recording of FIR Ex. PW19/A on the basis of ruqqa sent by SI Bhanwar Singh and received by him at PS Ashok Vihar on 30.01.95 through Constable Kuldeep Singh.
Medical evidence is available in the statements of:
PW1 Dr. C.B. Dabas;
PW2 Dr. P.N. Gupta;
PW4 Dr. Sudhir Mittal;
PW5 Sh. Rakesh Sharma, Record Clerk,
Aruna Asaf Ali Hospital-Civil Hospital;
PW6 Dr. Ranjiv Gupta;
PW7 Dr. Dilip Kumar;
PW8 Sh. K.V. Singh, Record Clerk, Hindu
Rao Hospital, Delhi;
PW9 Sh. Anil Kumar, Junior MRT from ESI
-:25:-
Hospital, Basai Darapur;
PW43 Sh. Pale Ram, Record Clerk, Aruna
Asaf Ali Hospital-Civil Hospital; and
PW44 Sh.Santosh Kumar Upadhyay, Sunder
Lal Jain Hospital.
By way of medical evidence, autopsy reports in respect of dead body of Ram Bachan Pathak, Babu Ram, Chander Bhan and Pramod Kamat, conducted on 01.02.95, 01.02.95, 03.02.95 and 04.02.95 respectively have been placed on record and got proved as Ex. PW1/A, Ex. PW1/B, Ex. PW1/M and Ex. PW1/N. The other medico legal reports proved by these witnesses depict injuries observed on their person at the time of their medico legal examination. Some of them were medico legally examined on 01.02.95; some were so examined on 03.02.95, 04.02.95, 30.01.95 and 14.02.95.
Some of the injured persons were medico legally examined at Hindu Rao Hospital; some at D.R. Maternity and Nursing Home, in the area of Phase- IInd, Ashok Vihar; some at Aruna Asaf Ali Hospital-Civil Hospital; some at Upchar Clinic, C-132, Ashok Vihar, Delhi,; some at Sunder Lal Jain Hospital; and -:26:- others at ESI Hospital, Basai Darapur, Delhi.
PW10 Smt. Sharanjeet, PW11 Sh. Atma Singh, PW14 Jagdish Prasad Gupta, PW15 Bal Kishan, PW16 Prem Luhani, PW20 Avtar Singh, PW21 Hari Kishan, PW25 Deepak Bhagat, PW26 Rameshwar Dayal Sharma, PW29 Mukesh Sundriyal, PW32 Mohan Swarup Dwivedi,PW33 Harmeet Singh, PW34 Sunil Kumar and PW41 Smt. Sushil Sethi are residents of Phase-I, Ashok Vihar, Delhi, who have been examined to narrate the manner in which the occurrence took place.
PW12 Constable Om Pal Singh, PW13 HC Pawan Kumar, PW18 Constable Satya Prakash and PW31 Constable Tehzib Haider are the prosecution witnesses who have deposed about the manner in which part of the occurrence took place and who used their service rifles at the time of occurrence under directions of DCP, after having got issued the firearm and the ammunition from the malkhana of PS Ashok Vihar.
PW17 Inspector Shiv Dayal, the then Addl. SHO of PS Ashok Vihar, PW23 SI Shiv Dev Singh, the then ASI posted at Police Post Wazirpur Industrial Area of PS Ashok -:27:- Vihar, PW27 ACP P.P. Singh, the then SHO, PS Ashok Vihar, PW28 HC Kuldeep, PW30 ASI Ram Phool, the then Head Constable posted at PS Ashok Vihar, PW36 SI Suresh Sharma, then posted as ASI at PP Wazirpur Industrial Area and PW42 Inspector Anil Dureja, then In-charge Police Post Wazirpur Industrial Area, have been examined to depose the manner in which the occurrence took place on 30.01.95.
PW35 Inspector Bishan Mohan is the investigating officer of the case who was serving in crime branch during those days.
PW24 ACP Prem Nath, then posted as ACP, Public Grievance Cell, North West District, PW37 Sh. Krishan Kumar, presently serving as Inspector General of Police and then posted as Additional DCP, North West District, PW39 Sh. Karnal Singh, presently serving as Joint Commissioner of Police (Special Cell), the then DCP(North-West) and PW40 Sh. T.S. Bhalla, the then ACP, have also been examined to depose about the manner in which occurrence took place on 30.01.95.
PW22 SI Nand Lal deposed that on 02.02.95 he was on duty to guard the dead body of Chander Bhan at -:28:- Hindu Rao Hospital and that after autopsy the dead body was handed over to its claimants.
FSL reports Ex. P35/A to Ex. 35/L have also been tendered into evidence to prove result of analysis of the contents of the incriminating material sent to the laboratory.
19. During trial, some of the witnesses were given up being unnecessary, a number of witnesses having already been examined on the same point. Prosecution could not secure presence of a number of witnesses cited in the list of witnesses, despite opportunity provided by the court by issuing process for their service. Ultimately, their names were scored off from the list of witnesses.
Defence Plea
20. When examined u/s. 313 CrPC, accused persons denied all the incriminating circumstances appearing in evidence against them. Most of them pleaded that they were present in their jhuggies where police forced their entry, picked up them from there, gave them beatings, removed them to a park in the area of Ashok Vihar and then to Police Station Saraswati Vihar or Ashok Vihar and ultimately falsely implicated them. Some of them pleaded that they were -:29:- picked up by the police, while they were passing by the side of the railway track or moving in that area, taken to Ashok Vihar and then to PS Saraswati Vihar and ultimately falsely implicated in this case.
Despite opportunity, accused persons opted not to lead any evidence in defence.
Contentions
21. It has been argued by learned Addl. PP that PW36 SI Suresh Sharma was the first who reached the spot in the company of Constable Abdul, who noticed crowd of 400/500 persons present there in the park of D-Block, Phase I, Ashok Vihar, Delhi, where one Dalip was lying in unconscious condition. Further, it has been submitted that SI Bhanwar Singh was the second police officer who reached the spot and thereafter Additional SHO, SHO, ACPs and DCPs reached there. It has also been submitted that police tried to remove the dead body of Dalip from the park, but the crowd did not allow them to remove Dalip Kumar and instead the crowd put forth unjustified demands, which led to warnings and then action by the police.
22. Learned Addl. PP has referred to the statement of -:30:- PW39 Sh. Karnal Singh, the then DCP, wherein he stated to have reached the spot at 9.30 a.m. in the company of ACP, Ashok Vihar, tried to negotiate with the crowd, but they were demanding that the wall, lying constructed between JJ cluster and the park be got demolished; a sum of Rs. Five Lac be paid to the family of the victim; the Constable be handed over to the public; and permission be given to use the park for defecation.
23. Learned Additional PP further referred to the statement of PW39-the DCP wherein he stated that some of the persons from amongst the crowd tried to help, but when police was going to lift Dalip, the crowd started pelting stones at the police, and as such, they were warned and crowd was declared unlawful with the help of loudhailers that in case they did not stop pelting stones, police would resort to teargas shelling.
24. Learned Addl. PP has contended that the crowd should have dispersed when the assembly was declared unlawful, but instead of dispersing, the crowd continued pelting stones as a result whereof police had to resort to teargas shelling. It was thereafter that crowd reached near D- -:31:- Block houses, while pelting stones, and since there was apprehension to the life and property of the residents, police warned the crowd that they would resort to firing in case the mob did not stop their activities. Then police resorted to firing in the air, but the crowd continued pelting stones and moved towards residential buildings of D-Block as a result whereof police had to resort to firing at the mob.
25. While referring to the evidence led by the prosecution, learned Addl. PP has contended that in view of the material on record it stands established all the accused persons, who were members of the unlawful assembly, made themselves liable for offences U/s. 147, 323 read with Section 149, 325 read with Section 149, 333 read with Section 149 IPC and 353 read with Section 149 IPC and 427 read with Section 149 IPC and 3 & 4 of Prevention of Damage to Public Property Act.
26. On the other hand, it has been argued on behalf of the accused that the only demand for taking legal action against Constable Vijender, who inflicted injuries on the person of Dalip Kumar, put forth by persons present there was not unjustified, and the persons who had gathered there -:32:- cannot be said to have formed any unlawful assembly, as a result of whereof none of them can be held liable for forming an unlawful assembly or indulging in rioting.
27. It has also been submitted on behalf of the accused that actually when police resorted to teargas shelling, crowd started dispersing but still police resorted to unprovoked firing resulting in death of four persons from the public.
28. It has also been contended on behalf of the accused that police could not properly control the situation, and having felt humiliated on being unable to control the situation, the police resorted to excessive police force resulting in death of four persons and injuries on the person of others.
29. Further, it has been argued that most of the accused persons present in court were dragged out of their jhuggies by the police, given beatings, then taken to the park in the area of Ashok Vihar, made to sit there and then removed to different police stations and ultimately falsely implicated in this case.
-:33:-Discussion
30. Occurrence is alleged to have taken place on 30.1.1995 in between 9.15-10.55 a.m. in the park of D block, Ashok Vihar, Phase I, Delhi. It has come in evidence that by the side of the park was railway track and across the track there was jhuggi cluster. It is admitted case that prior to the present incident, certain directions were issued by Hon'ble High Court to the police to keep watch over the said park so as not to allow anyone from the jhuggi cluster to ease himself in the park, though no copy of any such order has been placed on record either by the prosecution or the defence in this regard. For implementation of these directions, a police picket was held in or around the park. It is also not in dispute that even as on 30.1.1995 one police official was there to see implementation of the above directions. Aforesaid Dalip Kumar is said to have been given beatings in the said park by one of the members of the staff of police present there on 30.01.1995. There is no evidence either from the side of the prosecution or from the side of the defence as to what led to giving of beatings to said Dalip by the police official.. However, it has come in evidence that a case under Section 304 A IPC -:34:- was ultimately got registered against a Constable of Delhi Police for causing death of said Dalip by giving him beatings. The constable is facing trial in separate case and no evidence has been led in this case regarding that criminal case. Fact remains that it cannot be said as to what led to causing of beatings on the person of said Dalip and by whom when even prosecution has not examined said Constable to tell as to what actually led to injuries on the person of Dalip Kumar resulting in his death in the park.
31. It has come in evidence that the trouble started when Dalip was seen lying in the park. Persons started gathering in the park. Initially, some persons were attracted to the scene, but ultimately, as stated by the witnesses the crowd swelled to a number stated to be more than 5000. The crowd put forth demand for criminal action against the police official and payment of compensation on account of beatings to Dalip which resulted in his death.
32. To appreciate the aforesaid contentions, firstly this Court takes up statement of PW36 SI Suresh Sharma, the police officer who reached the spot first of all. According to PW36, on 30.01.1995 at 8.10 a.m., he received information -:35:- from duty officer about receipt of a call that a police official had been done to death/murdered by the side of railway track in the area of Ashok Vihar, whereupon he accompanied by Constable Barkat Ali reached DDA Park, D Block, Phase I, Ashok Vihar, Delhi, and found 400/500 persons, from the jhuggi cluster across the railway track, present there.
33. It is further in the statement of PW36 that a person, namely, Dalip Kumar was found lying on the ground, inside the park, in unconscious condition and the crowd was saying that Constable on duty in the park had killed Dalip Kumar. According to the witness, he requested the crowd that they should allow them to remove Dalip Kumar to hospital, but they did not accede to his request, and as such, he informed his senior police officers and also requested for force. It was thereupon that In-charge of Police Post accompanied by his staff reached the spot and tried to make the crowd understand. SHO and Additional SHO too reached the spot and tried to pacify the crowd, but in vain. Ultimately, DCP Sh. Karnal Singh also reached there . Other senior police officers who reached the spot also tried to pacify the crowd, but the crowd put forth demands. When the police -:36:- tried to remove the dead body from the aforesaid place, crowd pelted stones as a result whereof many police officials suffered injuries. This is the manner in which the crowd resorted to pelting of stones, as stated by PW36.
34. In his cross examination, the witness explained that the information received by the duty officer about death/murder of police official was found to be wrong. Not only PW36 other police officials-officers have also deposed the information about death/murder of police official was found to be wrong.
35. When it stands admitted by the prosecution witnesses that this information was found to be false, on behalf of the accused it has been contended that this goes to show that the police has not come forward with the truth from the very beginning, and as such, no reliance should be placed on the statements of the police officials.
36. It is true that the information received by the duty officer about death/murder of police official was found to be false, but there is nothing on record to suggest as to who had passed on this information to the police post of Wazirpur Industrial Area and as to what was its source. Even -:37:- otherwise, receipt of this false information does not adversely affect the case of prosecution because the present occurrence is alleged to have taken place in between 9.15 a.m. to 10.55 a.m. and police officials and officers started reaching the spot with effect from 8.15 onwards and this wrong information had no impact on the present occurrence. How many persons were initially present in the park?
37. As regards number of persons present in the park at the initial stage i.e. at about 8.15 a.m. is concerned, according to PW36 SI Suresh Sharma, there were about 400/500 persons present and all of them were from the jhuggi cluster across the railway track.
38. PW27 ACP P.P. Singh, the then SHO PS Ashok Vihar, received a call from ASI Suresh Chand that a huge mob had collected at the site and the mob was very much violent. According to PW27, he received this call at 8.25 a.m. and rushed to the spot, while requisitioning additional force from the police station. Further, according to the witness, on reaching the spot, he found one Dalip Kumar lying on the ground, and as such, he asked the staff accompanying him to remove Dalip Kumar to hospital for immediate relief and -:38:- medical aid, but the jhuggi dwellers did not permit him to remove Dalip Kumar and rather they insisted that Constable Virender Singh, who was on duty in the park, be handed over to them. According to the witness, there were about 700/800 persons present in the park, who did not permit him to remove Dalip Kumar.
As to at what time Dalip Kumar died in the park ?
39. In his cross examination, PW27 denied the suggestion put forth by learned defence counsel that Dalip Kumar had died by the time he (the witness) reached the spot. The witness explained that Dalip Kumar died in between 8.30-9.00 a.m.
40. PW25 Sh. Prem Nath, the ACP (PG Cell), has deposed about his visit to the spot at about 9 a.m, on receipt of message from control room at 8.30 a.m. about killing of a police personnel in the park. According to the witness, he found dead body of a person from the public lying in DDA Park, in the area of D-Block, Ashok Vihar. At that time, about 1000/1200 persons from the public were present inside the park.
41. PW24 has supported the case of prosecution as -:39:- narrated by PW27 Sh. P.P. Singh, the SHO, by stating that on reaching the spot, he found Inspector P.P. Singh and other staff present there. Further, according to the witness, after sometime, DCP Karnal Singh and Additional DCP Kishore Kumar and ACP T.S. Bhalla happened to reach there. There is nothing in the statement of PW24 to disbelieve the version narrated by him regarding his visit to the spot, his presence there, the fact that about 1000/1200 persons from the public were present in the park and also about presence of DCP Karnal Singh, Addl. DCP Kishore Kumar and ACP Sh. T.S. Bhalla. The version narrated by PW24 further lends support to the statement of PW27 Inspector P.P. Singh that Dalip Kumar died in between 8.30-9.30 a.m.
42. ACP T.S. Bhalla has appeared in court as PW40. He received information about murder of a Constable, at about 8.10 a.m. and although he was on leave, keeping in view the seriousness of the situation, joined his duty, instructed SHO PS Saraswati Vihar and SHO of PS Keshavpuram to reach the spot, alongwith force. According to the witness, he reached the spot i.e. in front of D-Block, Ashok Vihar, at about 9.30 a.m and found DCP(North-West), -:40:- Additional DCP (North-west) and ACP (PG Cell) besides other officials. He also found large number of people having gathered there who were raising slogans. It is in his cross examination that Dalip Kumar, person from the public, was lying dead in the park at the time he reached there. Nothing has been pointed out in the statement of PW40 to disbelieve his version regarding his arrival at the spot at about 9.30 a.m. Statement of PW40 lends corroboration to the version of prosecution regarding presence of DCP, Addl. DCP, ACP, other police officials and dead body of Dalip Kumar at the spot.
43. PW37 Sh. Krishan Kumar, the then Addl. DCP, has also been examined to prove his arrival at the spot on receipt of information that a dead body was lying and there was some problem in a park near railway track, in the area of Ashok Vihar. According to the witness, he instructed SHO of PS Ashok Vihar to reach the spot. After sometime, the witness got another call that crowd was swelling, whereupon he instructed ACP to reach the spot with staff, and also additional force to control the situation. Further, according to the witness, he also left for the spot. On reaching the spot, -:41:- according to the witness, he found that in addition to the SHO, DCP, ACP had also reached there. Dead body of a male person was also lying in the park. In his cross examination, the witness deposed to have received information at about 8 a.m. and reached the spot at about 9 a.m. Further, according to him, dead body was lying inside the park, by the side of the wall. This statement of PW37 establishes not only his presence at the spot but also of the above named prosecution witnesses whose evidence has been discussed above.
44. Then, there is statement of PW39 Sh. Karnal Singh, the then DCP(North-West), the senior most Police Officer who too reached the spot. According to the witness, on 30.01.95 at about 08.06 a.m., a PCR call was received to the effect that a Constable was being beaten by some public persons and that In-charge of police post Wazirpur Industrial Area had reached the spot. Further, according to the witness, subsequently, SHO, PS Ashok Vihar also reached the spot and intimated him (the witness) at 8.15 a.m. through control room that a large number of people had gathered at the spot. It is also in the statement of the witness that at 8.36 a.m., the SHO informed him that situation was getting out of control, -:42:- and as such, he directed the SHO of PS Saraswati Vihar and PS Keshavpuram to reach the spot with force and also directed company of reserved armed police to reach there. Further, according to the witness, he accompanied by ACP of Ashok Vihar reached the spot at 9.30 a.m. It is in his cross examination that on reaching the spot he found that there were about 5000 persons in the park and by the side of the railway track. He further deposed that dead body of a boy was lying towards the railway track, but inside the park. There is nothing in the statement of PW39 to disbelieve the version narrated by him regarding his visit to the spot, presence of crowd and that Dalip Kumar inside the park at the time he reached there. Statement of PW39 further supports the case of prosecution regarding presence of other police officers at the spot on the given date, time and place.
45. PW42 Inspector Anil Dureja, was the then In- charge Police Post Wazirpur Industrial Area of Police Station Ashok Vihar. He received information regarding quarrel/dispute in DDA Park in Ashok Vihar and about presence of number of persons there. According to the witness, he received information at about 9 a.m. and -:43:- accompanied by his staff reached the spot where he found DCP, Additional DCP, ACP Ashok Vihar, ACP (P.G. Cell), SHO Ashok Vihar, SHO Keshav Puram, SHO Saraswati Vihar. He further deposed that dead body of Dalip was also found lying inside the park. Nothing has been pointed by learned defence counsel in the statement of PW42 Inspector Anil Dureja to disbelieve his version regarding his visit to the spot. Statement of PW42 supports the case of prosecution regarding his presence at the spot at about 9 a.m. and also about presence of other senior police officers and the SHO and as well as presence of dead body inside the park.
46. PW12 Constable Om Pal Singh; PW13 Head Constable Pawan Kumar; PW18 Constable Satya Prakash; PW23 SI Shiv Dev Singh; PW28 Head Constable Kuldeep; PW30 ASI Ram Phool and PW31 Constable Tehzib Haider are the other police officials examined by the prosecution about presence of dead body of Dalip Kumar and crowd of people inside the park. The version narrated by these police officials also lends corroboration to the prosecution version regarding presence of a number of persons from the public, presence of police officials, police officers and dead body of -:44:- Dalip Kumar inside the park.
What were the demands put forth by the crowd ?
47. Learned defence counsel has contended that the crowd present in the park did not raise any unlawful demand by asking the police to take legal action against the constable Virender who was involved in killing of Dalip Kumar and that since they were making a peaceful representation to the police in this regard, in exercise of their fundamental right available under Article 19 of Constitution of India, it cannot be said that they formed an unlawful assembly.
48. It has been argued by learned defence counsel and learned Amicus Curiae that the DCP misused powers conferred upon him by the law in declaring the crowd an unlawful assembly, although the situation did not demand so, as the members of the crowd were exercising their fundamental right of speech and expression as provided under the Constitution of India.
49. As regards demands put forth by the crowd, according to PW36 SI Suresh Sharma who reached the spot first of all, the crowd was saying that constable on duty in the park who had killed Dalip Kumar be handed over to them; -:45:- payment of Rs.5,00,000/- be made to kith and kin of Dalip Kumar and samadhi of said Dalip Kumar be constructed. According to the witness, DCP told the crowd that demand regarding payment of compensation shall be put up before the government and that action shall be taken against the constable in accordance with law.
50. PW27 ACP P. P. Singh, the then SHO has deposed that at the time he reached the spot, 700/800 persons present there were insisting that constable Virender Singh, who was on duty in the park, be handed over to them. It is in his statement that all senior officers tried their best to pursuade jhuggi dwellers that necessary action shall be taken against the constable. PW27 nowhere deposed about any other demand was put forth by the crowd, but it does not adversely affect his testimony or the prosecution version when his presence at the spot on the given date and time stands established beyond doubt, and prosecution version regarding demands put forth by the crowd stands proved from the statements of other witnesses.
51. PW23 SI Shiv Dev Singh then posted as ASI at Wazirpur Industrial Area deposed that the crowd put forth -:46:- demands which were to the effect that police official who had given beatings to Dalip Kumar be handed over to them; a sum of Rs.5,00,000/- be paid for his death; that tomb of Dalip Kumar be raised. It is in his statement that senior police officers tried to make the crowd understand, but in vain. It is true that in his cross examination SI Shiv Dev Singh admitted that crowd was saying for initiating action against the police official, but it does not mean that the crowd put forth only this demand as is being submitted by learned defence counsel, when in his chief examination he deposed about other demands raised by the crowd.
52. PW42 Inspector Anil Dureja, the then Incharge Police Post Wazirpur Industrial Area, while narrating the incident deposed that crowd was alleging that Dalip Kumar had been done to death by constable and that the residents of the locality had obstructed their passage through the park after obtaining orders from the High Court. Further according to the witness, police tried to persuade the crowd to see that their demands are looked into and appropriate action shall be taken against the guilty constable.
53. PW39 Sh. Karnal Singh, the then DCP deposed -:47:- that on reaching the spot at about 09:30 a.m., he tried to negotiate with the crowd but they were demanding that the wall, lying constructed between the JJ cluster and the park be got demolished, rupees five lakhs to be paid to the family of victim, the constable be handed over to the public and the permission should be given to use the park for defecation.
54. PW40 Sh. T. S. Bhalla, the then ACP has also deposed that mob was insisting that constable involved in the incident be handed over to them. Further according to the witness, the crowd also shouted that boundary wall opposite C & D Block near railway line be demolished. According to the witness, DCP (North West) assured them that necessary legal action would be taken against the constable involved but the crowd became more violent.
55. As regards version of prosecution that the crowd demanded that constable Virender be handed over to them, it cannot be accepted, the reason being that it is not case of prosecution that Constable Virender was present nearby. As per prosecution story, the constable was arrested on the following day. When the constable was not present anywhere nearby, how could the crowd put forth demand of his being -:48:- handed over to the police. Had any member of the mob put forth such a demand, the police officers, named above, could easily tell as to who were those members. But their evidence would reveal that none of them has named any such member or identified any such person to prove raising of such demand.
56. As regards raising of tomb of Dalip Kumar, he did not sacrifice his life. Rather, he was allegedly given beatings resulting in his death. In the given situation, the version narrated by the prosecution about raising of such a demand is not believable.
57. From the aforesaid statements of the prosecution witnesses, it stands established that crowd present at the spot put forth demand not only to take action against constable Virender causing death of Dalip Kumar, payment of compensation to the kith and kin of Dalip Kumar, but also for unobstructed passage through the park to come towards Ashok Vihar side from the side of jhuggies situated across the railway track.
What led the police to use teargas shelling?
58. From the evidence led by the prosecution it -:49:- stands established that the crowd resorted to pelting of stones when the police tried to remove dead body of Dalip Kumar. In suchlike cases, removal of dead body of the victim is of much significance, the reason being that presence of dead body of a member of one group surcharges the atmosphere, adding fuel to the fire and crowd feels instigated to indulge in any wrong to the person and property of the opposite group or say the police.
59. In this case, it appears that the police thought it proper first to remove the dead body, but the crowd did not allow them to do so. It has come in evidence that some persons from the crowd at one stage even permitted removal of dead body, but when the police was going to remove it, some members from the mob resorted to pelting of stones.
60. It has so appeared in the statement of PW36 SI Suresh Sharma; PW37 Sh.Kishan Kumar, Inspector General; PW40 ACP T.S.Bhalla; PW42 Inspector Anil Dureja; and in the statement of PW39 Sh.Karnal Singh, the concerned DCP that stones hurled by members present amongst the crowd hit -:50:- police officials. At this stage, DCP warned the crowd to disperse or that otherwise police shall have to resort to teargas shelling.
61. It is further in the statement of PW39 Sh.Karnal Singh that the crowd was declared unlawful and warned while using loudhailers that in case they did not stop police was going to resort to teargas shelling.
62. According to PW39, as the crowd did not pay any heed to the warnings and continued their activities, teargas shells were fired. In this manner, police was able to remove the dead body. It is in the statement of PW36 that as soon as the dead body was removed, it was dispatched to mortuary.
63. Statement of PW39 finds support from the statements of other police officers- PW36 SI Suresh Sharma; PW37 Sh.Kishan Kumar, Inspector General; PW40 ACP T.S.Bhalla; PW42 Inspector Anil Dureja.
64. So far as demand of the mob about taking action -:51:- against Constable Virender allegedly involved in giving beatings to Dalip Kumar resulting in his death is concerned, PW 36 SI Suresh Sharma has stated that one person from the public made statement against Constable Virender as a result whereof he sent ruqqa to the police station which led to registration of case FIR no.42/95 at P.S.Ashok Vihar.
65. Learned defence counsel and learned Amicus Curiae have contended that had the police given assurance to the crowd that legal action was going to be taken against Constable Virender or had the case been timely got registered, there was no occasion with the crowd to press this demand any further, and that actually the case was registered by the police against Constable Virender lateron to save their skin, and as such the version narrated by the police officials to justify excesses has to be discarded.
66. It is significant to note that present case vide registered FIR No.43 of 1995 on 30.1.1995 at about 3 p.m. Case against Constable Virender was registered vide FIR No.42 of 1995 on the same date, which shows that it was -:52:- registered prior to registration of this case, and that too on the basis of ruqqa sent from the spot by PW36 SI Suresh Sharma. Although, prosecution has failed to examine complainant in case FIR No.42/95, factum of registration of case against Constable Virender is not in dispute. Presence of PW36 at the spot on the given date, time and place stands duly established.
Police did not promptly inform crowd that case was going to be registered against Constable Virender, whom the crowd was holding responsible for causing injuries to Dalip Kumar.
67. One of the demands being put forth by the crowd was that legal action be taken against Constable Virender, who inflicted injuries on the person of Dalip Kumar, resulting in his death in the park. It may be mentioned here that as per prosecution version case FIR No.42/95 was got registered at the police station on the basis of ruqqa sent from the spot at about 10.30 or 11 a.m.
68. Ruqqa of that case was appended to the statement of one Jawahar Mishra. Said Jawahar Mishra has -:53:- not been examined by the prosecution. He could tell as to whether his statement was recorded at the spot or somewhere else. In absence of his statement, the prosecution version about dispatch of ruqqa of that case from the spot does not find corroboration from independent source.
69. Present occurrence took place between 9.15 a.m to 10.55 a.m. In case statement of SI Suresh Sharma about dispatch of ruqqa of case FIR No.42/95 from the spot at about 10.30 or 11 a.m is believed to be correct, then the Sub Inspector and other senior police officials, including the DCP, present there should have immediately told the crowd that case was going to be registered againt the concerned constable within no time on the statement of one of them . But there is no evidence that crowd was apprised that statement of Jawahar Mishra was going to be recorded or that case was going to be registered on his statement. There is merit in the contention raised on behalf of the accused that prompt communication of information in this regard or expression of intention of the police to the crowd that case was going to be got registered against Constable Virender on the basis of statement of one of them, could avoid taking place of the -:54:- occurrence.
70. Picking up the thread, once the police declared the mob unlawful and used teargas shelling, the mob should have dispersed. However, evidence would reveal that the mob did not disperse. As a result, police had to resort to teargas shelling.
71. According to PW39-the concerned DCP, the teargas shelling proved ineffective as wind was not helping. It has so come even in the statements of other police officers and officials. There is nothing in their statements to doubt their testimony in this regard. Even in the course of arguments, factum of teargas shelling by the police at the spot on that date has not been disputed.
72. PW23 SI Shiv Dev Singh has deposed about seizure of 128 shells of teargas and covers of 23 hand grenades. He has also proved 128 teargas shells Ex. PW23/C1 to128 and 76 teargas shells Ex. PW23/B1 to 76 seized from the spot. It is in his statement that memos Ex. PW23/G and Ex. PW23/H were prepared in this regard. There is nothing in the statement of PW23 to disbelieve his testimony regarding seizure of the above referred to case -:55:- property and preparation of memos. Factum of use of teargas shells at the spot on the given date finds corroboration from the statement of PW23 SI Shiv Dev Singh, from the case property Ex. PW23/31 to 76, PW23/C1 to 128 and memos Ex. PW23/G and Ex. PW23/H. All this further lends corroboration to the version of prosecution about use of teargas shells by the police on the given date, time and place. What led to firing by the police at the mob after firing in the air?
73. PW39 Sh. Karnal Singh, the then DCP, deposed that as the person (Dalip Kumar) had been removed, police retreated, but the crowd did not deter and started moving towards the police. Ultimately, crowd reached near D-Block Houses, while pelting stones. Further, according to the witness, there was apprehension that life and property of the residents would be at stake, police extended warning about use of fire in case mob did not stop their activities, but the warning had no impact. The witness further stated that firing in the air did not give any positive result. People from D-Block were feeling panicky. The crowd continued pelting stones -:56:- and moving towards residential buildings of D-Block. PW39 deposed that the mob was warned of firing and accordingly controlled firing was done at the mob, as a result whereof the mob retreated and the situation could be brought under control.
74. It is in cross examination of this witness that police resorted to firing under his directions. Four police Constables fired rounds each under his direction.
75. To lend corroboration to statement of PW39, prosecution has examined PW37 Sh. Krishan Kumar, the then Additional DCP, PW40 Sh. T.S. Bhalla, the then ACP, PW42 Inspector Anil Dureja, the then In-charge of Police Post Wazirpur Industrial Area, PW23 SI Shiv Dev Singh, PW24 ACP Sh. Prem Nath, PW27 Sh. P.P. Singh (ACP), the then SHO, PS Ashok Vihar, PW12 Constable Ompal Singh, PW13 Constable Pawan Kumar, PW18 Constable Satya Prakash, PW30 ASI Ram Phool, the then HC, and PW31 Constable Tehzib Haider.
76. It may be mentioned here that PW12 Constable Ompal Singh, PW13 Constable Pawan Kumar, PW18 Constable Satya Prakash and PW31 Constable Tehzib Haider -:57:- are the police officials who fired at the mob under the directions of the DCP. According to PW12 Constable Ompal Singh, police resorted to teargas shelling, but it proved ineffective as the wind was blowing towards the police. Crowd went on swelling. The crowd started marching towards house of D-Block and also started pelting stones at those house. The DCP then constituted four teams and deployed them in different directions. Further, according to PW12, when crowd could not be controlled, the DCP issued directions to open fire at the crowd. Then the crowd dispersed.
77. It is in the statement of PW12 that he, PW13 Constable Pawan Kumar, PW18 Constable Satya Prakash and PW31 Constable Tehzib Haider were sent to the police station by the SHO whereupon they got issued four 303 bore rifles alongwith 20 rounds and returned to the spot with SI Y.S. Maan. The witness has proved recovery memo Ex. PW12/A regarding seizure of his rifle and six empty cartridges by the Investigating Officer.
78. Then, there is statement of PW13 HC Pawan Kumar. He too deposed about his visit and visit of PW12 -:58:- Constable Ompal Singh, PW18 Constable Satya Prakash and PW31 Constable Tehzib Haider from the spot to the police station under the directions of SHO and to have got issued one rifle and 20 rounds each, and also to have returned to the spot in the company of SI Y.S. Maan. According to PW13, public address system was used in addressing the crowd to disperse, but they did not disperse. Members of the crowd started marching towards CD-Block of Ashok Vihar and started pelting stones at the vehicles of the residents, parked nearby, resulting in damage. DCP issued directions once again that the crowd should disperse, but in vain. Teargas shells were again used, but even then the crowd did not disperse. Further, according to the witness, DCP issued directions to fire shot in air, whereupon the SHO and SI Anil Dureja also fired shots in the air, but the crowd was adamant. The witness further deposed that it was thereafter that he and his three companions opened fire from their service rifles from different positions under directions of the DCP as a result whereof the crowd started dispersing and running away. PW13 also deposed about seizure of six empties by SI Bhanwar Singh. The witness could not tell in his cross -:59:- examination whether the rifle, used by him, was also seized. It may be mentioned here that recovery memo Ex. PW12/A has been duly proved by PW12 Constable Ompal Singh. This recovery memo lends corroboration about use of force by way of firing at the mob and seizure of four rifles and empty rounds.
79. Learned defence counsel contended that presence of the witness on the given date, time and place is doubtful, as in his cross examination he deposed that crowd dispersed from the spot at about 4.00 p.m., whereas case of prosecution is that the crowd dispersed from the spot much earlier to it.
80. It is true that PW13 HC Pawan Kumar stated in his cross examination that crowd dispersed from the spot at about 4.00 p.m., but since PW13 stands corroborated from the statements of PW12, PW18 and PW31 about opening of fire at the mob, it appears that memory of PW13 did not help him in recollecting as to the time the crowd dispersed, as case of prosecution is that crowd dispersed soon after police resorted to firing at the mob and other witnesses have supported the prosecution version in this regard.. -:60:-
81. PW18 Constable Satya Prakash is the other Constable, who opened fire at the crowd under the directions of DCP. He has deposed in line with the statements of PW12 and PW13. According to him, under the directions of the SHO, he, PW12 Constable Ompal Singh, PW13 Constable Pawan Kumar and PW31 Constable Tehzib Haider left for the police station to bring weapons. On reaching the police station, they collected one rifle and 20 rounds each from the MHC(M) and then returned to the spot in the company of SI Y.S. Maan.
82. As regards opening of fire at the mob, the witness deposed that teargas shelling had no impact and the public started pelting stones more excessively due to which persons living in the residential area started crying. DCP warned the mob not to take law in their hands, but the crowd started pelting stones as a result whereof Additional DCP suffered injuries on his hands and the ACP suffered injury on his nose. Further, according to the witness, the DCP directed them to take kneeling positions and instructed them to fire in air. SI Anil Dureja opened fire in the air, but the mob did not stop there. Crowd started raising slogans "police ko maaro, kothi -:61:- walon ko maaro". They caused damage to the window panes of the residential buildings and the vehicles lying stationed there. Public started crying for help. The witness further deposed that DCP then decided to save life of public and directed them to open fire, whereupon they fired five rounds which resulted in dispersing of the mob. The witness also deposed about production of his rifle and six rounds before the Investigating Officer. It is in his cross examination that he and the three Constables returned to the spot at about 9.30 a.m. after having left the police station at 9 a.m. He further stated that they got issued weapons at about 9.40 a.m. and returned to the spot at about 10 a.m. At that time, he heard the DCP addressing the crowd not to take law in their own hands. It is also in his cross examination that window panes of nearby houses were lying damaged. He further explained in his cross examination to have initially fired 2/3 rounds, but 5/7 minutes thereafter they fired about 2/3 more rounds. There is nothing in the statement of PW18 to disbelieve the version narrated by him as to what led to firing by him and his colleagues at the mob.
83. Then there is statement of fourth constable - -:62:- PW31 Tehzib Haider who also opened fire at the mob under directions of the DCP. According to PW31, he, Constable Pawan, Constable Satya Prakash and Om Prakash went to the Police Station on the directions of the SHO and got issued from there one rifle and twenty rounds each and thereafter he and the three constable reached the spot. DCP Karnal Singh issued directions for opening of fire at the mob who were trying to enter the residential buildings in D Block. Further according to the witness, he fired six shots from the service rifle and the mob started dispersing. It is also in his statement that he produced his service rifle alongwith six empties before Inspector Bhanwar Singh who in turn prepared a parcel, sealed with seal bearing impression BS and then seized it vide recovery memo Ex.PW12/A. The witness identified rifle Ex.PW31/1 and six empties Ex.PW31/2 to 7. In his cross examination, PW31 deposed that on return to the police station he handed over 14 rounds with the MHC (M). It is also in the statement that his senior police officers present by the side also opened fire in the air. Nothing has been pointed out in the statement of PW31 so as to disbelieve the version narrated by him regarding the -:63:- circumstances which led to firing at the mob. It is evident from his testimony that after teargas shelling proved ineffective, DCP tried to pacify the mob but the mob did not scatter and resorted to pelting of stones whereupon DCP issued directions to open fire in the air.
84. It is in the statement of PW42 Inspector Anil Dureja, the then Incharge Police Post Wazirpur JJ Colony, that mob continued pelting of stones even after it was declared unlawful; that the mob started heading towards the residential building of B, C and D Block, whereupon DCP extended warning that police would resort to teargas shelling in case the crowd did not stop. The mob started pelting stones at the residential buildings, as a result whereof window panes of residential buildings and vehicles got smashed. The DCP again warned the mob, but it had no effect. Thereafter, police resorted to firing. According to the witness, he fired three rounds in the air from his service revolver. The crowd started entering residential buildings. There was lot of hue and cry by the residents of locality including children. It was thereafter, as further stated by the witness that police fired twenty rounds and the crowd started dispersing. Memo -:64:- Ex.PW12/A lends corroboration to the statement of PW42 only on the point that he produced before SI Bhanwar Singh his service revolver and three empty rounds which he used in firing in the air.
85. Prosecution has relied on recovery memo Ex.PW26/A, PW33/A, PW42/A to PW42/M vide which stones and pieces of window panes were seized after the same were picked up from front of and inside the residential buildings of the locality.
86. As regards recovery memo Ex.PW26/A, Learned defence counsel has referred to the statement of PW26 Sh. Rameshwar Dayal Sharma who did not lend corroboration to the version of prosecution and submitted that when the witness from the public has not supported the case of prosecution, no reliance should be placed on the statements of police officials/officers, who are highly interested in the success of the case, regarding seizure of stones and pieces of window panes vide the recovery memos relied on by the prosecution.
87. Recovery memo Ex.PW26 is regarding seizure of stones and pieces of window panes. Case of prosecution is -:65:- that this memo was attested by PW26 at the time of seizure of these items from near the buildings of the locality. But PW26 has not supported the case of prosecution. He is resident of Ashok Vihar, Phase-I. According to the witness, on 30/01/1995 at about 08:30 a.m., he left for his office in Parliament House. He denied to have witnessed any occurrence. He also denied to have made any statement before the police. Then he displayed ignorance about this case. He further denied to have signed any document before the police. The witness was put leading questions by learned Addl. PP but nothing useful to the prosecution could be elicited from him. The witness categorically denied to have signed any document. In his cross examination, the witness admitted that neither any stone nor pieces of broken window panes were seized by the police in his presence. As regards his signatures on recovery memo Ex.PW26/A regarding seizure of stones etc. the witness explained that police must have obtained his signatures on this document in the evening of 30.1.1995. PW26 was employed in Parliament House. According to the witness, he left for his office at 8.30 p.m.
88. PW3 Smt. Manorma Sharma is also resident of C- -:66:- 123, Ashok Vihar. She is wife of PW26 Rameshwar Dayal Sharma. According to her on 30/01/1995, she was present at DCM Girls Senior Secondary School, Kishan Ganj, Delhi, from 7 a.m. to 3 p.m. She displayed ignorance about any occurrence dated 30/01/1995. She denied that police enquired from her or recorded her statement or obtained her signatures on any document. Learned Addl. PP put leading questions to the witness but nothing useful to the prosecution could be elicited from her.
89. There is nothing on record to suggest that these witnesses (PW3 & 26) did not support the prosecution version for any ulterior motive or that they were interested in the accused persons or disinterested in the prosecution.
90. Therefore, statements of PW26 and his wife PW3 adversely affect the case of prosecution version regarding seizure of incriminating material i.e. stones and broken window panes from in front of the houses situated in that area, in presence of these witnesses.
91. PW20 Avtar Singh, resident of D-272, Ashok Vihar, Phase-I, Delhi, has also deposed about the manner in which the occurrence took place. He was present at his house -:67:- at about 9.30/10 a.m., when he witnessed the occurrence.
92. Learned defence counsel has referred to the cross examination of the witness by learned Addl. PP wherein he displayed ignorance if police took away broken glasses and stones from his house, and contended that this goes to show that PW20 has not supported the case of prosecution.
93. It is true that PW20 was declared hostile and put leading questions, and even then he displayed ignorance about seizure of broken glasses and stones from his house. The witness denied to have stated before the police that some of the members of the crowd had entered houses in his locality, but it stands so recorded in his previous statement before the police. Furthermore, the witness denied to have made statement before the police. In case of this witness, I find merit in the contention of learned defence counsel that the Investigating Officer appears to have recorded statement of this witness under Section 161 Cr.PC of his own without making any enquiries from him.
94. PW29 Mukesh Sundriyal, resident of C-122, Ashok Vihar, Delhi, has not supported the case of prosecution except by stating that on 30.01.95 at 9.30 a.m., when he -:68:- came out of the house, he found mob of 2000/3000 persons present in the park, in front of his house. He even denied to have made statement before the police. Leading questions were put to the witness, but he denied to have made any statement before the police. The fact remains that PW29 has not supported the case of prosecution regarding the manner in which the occurrence took place. Therefore, statement of PW29 does not come to the aid of prosecution.
95. PW33 Harmeet Singh, resident of C-125, Ashok Vihar, Phase I, Delhi, has also deposed about the manner in which the occurrence took place. He too was put leading questions by learned Addl. PP on a number of aspects, but he did not fully support the case of prosecution on all the aspects. It is in his statement that mob of about 2000 persons pelted stones at the kothies and that police resorted to firing, but jhuggi dwellers continued pelting stones. This version narrated by PW33 is not in consonance with the prosecution version, as the prosecution story is that as a result of firing by the police, the mob dispersed and that mob pelted stones at the kothies prior thereto.
96. The witness deposed about resorting to lathi -:69:- charge by the police, but it is not case of prosecution that police resorted to lathi charge. Therefore, prosecution cannot take any advantage from the statement of this witness.
97. PW21 Hari Kishan is resident of D-265, Phase-I, Ashok Vihar, Delhi. He has also narrated the manner in which the occurrence took place in which jhuggi dwellers resorted to stone pelting, police resorted to teargas shelling, jhuggi dwellers started proceeding towards kothies, while pelting stones, and also tried to enter into the kothies and that the police resorted to firing in the air. It is in his statement that had the police not taken any action against jhuggi dwellers, the residents of locality would have been robbed by the jhuggi dwellers.
98. PW25 Deepak Bhagat, resident of D-268, Ashok Vihar Phase I, Delhi, has also narrated the manner in which occurrence took place. It is also in his statement that due to pelting of stones by crowd, glasses of kothies got broken. He further deposed that police collected stones, pieces of broken glasses and seized the same. The witness also proved his signatures on recovery memo Ex. PW25/A. It is further in his statement that had the police not resorted to firing, the kothi -:70:- dwellers would have been the target as crowd could go to the extent of killing them, looting them and setting their kothies on fire. However, the witness displayed ignorance if he had stated before the police about raising of alarm by members of the crowd or that police apprehended persons from amongst the crowd who were going to enter their kothies.
99. PW32 Mohan Swarup Dwivedi is another resident of the locality i.e. D-Block, Ashok Vihar, Delhi. According to the witness, he came in front of his house and found thousands of jhuggi dwellers on the railway track, pelting stones at the police. He also deposed to have heard announcement being made by the police directing jhuggi dwellers to return to their houses, but the jhuggi dwellers did not retreat. Thereupon, he entered his house.
100. The witness was then put leading questions by learned Addl. P.P., but the witness did not support case of prosecution on a number of aspects. Therefore, statement of PW32 does not come to the aid of prosecution except on the aforesaid points i.e. regarding his having seen the crowd pelting stones at the police and despite warning the jhuggi dwellers having not returned to their houses. -:71:-
101. There is also statement of PW10 Smt. Sharanjeet. According to her, in the year 1995, at about 07:30 / 8 a.m., she was present at her house. She heard commotion and came out of the house. At that time, many jhuggi dwellers were present in DDA Park. Further, according to her, those jhuggi dwellers collected stones in the park and then started pelting at the houses situated around the park resulting in breakage of window panes and damage to the vehicles lying parked nearby. It is in her statement that police reached the spot, resorted to teargas shelling and ultimately to firing. As regards damage, the witness further deposed that one of the glasses of her house also got damaged because of pelting of stones. She also stated that police was making efforts to disperse the crowd and to stop the pelting of stones.
102. PW11 Atma Singh is resident of C-127, Ashok Vihar, Phase, I. On the day of occurrence, he was present at his house. According to the witness, 3000/4000 persons, armed with dandas and stones, were seen coming to the park, in front of his house, after crossing the railway track. Police reached there, advised him and his neighbourers to enter their houses, whereupon they entered their house. -:72:- Further, according to the witness, stones were pelted at his house, resulting in damage to the window panes of his house and the houses in neighbourhood. Police asked the crowd to go away, but none of them went away, and as such, police had to resort to teargas.
103. PW14 Jagdish Prasad Gupta is resident of C-206, Ashok Vihar, Phase- I. He also deposed about the manner in which occurrence took place. According to him, there were about 5000/8000 persons in the crowd, armed with stones, lathies and other weapons. Further, according to the witness, the crowd pelted stones in front of house in that block, as a result whereof, he, his son and his wife were hit and he suffered injuries. He also deposed about use of teargas shelling by the police. It is also in his statement that police picked up stones, pieces of stones from near the residential building and seized the same.
104. PW15 Bal Kishan is resident of D-265, Phase-I, Ashok Vihar, Delhi. He deposed about the manner in which the occurrence took place on 30.01.95 at about 8.30 a.m. He also deposed about use of teargas by the police, pelting of stones by the mob, his mother having been hit with a stone, -:73:- and police resorted to firing resulting in dispersing of the crowd.
105. Learned defence counsel submitted that PW11,14 and 15 were put leading questions by learned Addl. PP and it was only thereafter that they supported the case of prosecution on other facts, and as such, no reliance should be placed on their testimony.
106. It is true that the witnesses (PW11, PW14 and PW15) were put leading questions by Ld. Addl. PP on several other aspects, but it is well settled that statement of a witness cannot be thrown away in entirety simply because he is declared hostile on some of the aspects. Principle of Falsus in Uni Falsus in Omnibus is not applicable to criminal cases. In this case, PW11, 14 and 15 have supported the case of prosecution about taking place of occurrence, arrival of police, pelting of stones by the crowd resulting in damage and use of teargas by the police. It stands established from their statements that crowd was armed with stones and lathies.
107. PW16 Prem Lohani is another witness to the occurrence. He is resident of C-128, Ashok Vihar, Phase-I, Delhi. He has also deposed about the manner in which the -:74:- occurrence took place. According to him, members of the crowd pelted stones as a result whereof glasses of his car got smashed. He further deposed that pelting of stones resulted in damage to window panes and door glasses. Wife of the witness also suffered injuries as a result of stone pelting.
108. It is in his cross examination that his house is situated at a distance of 12 feet from the DDA park. The witness is stated to have witnessed the occurrence while standing in front of his house. It is true that he deposed that some members of the crowd were carrying pistols and none of the other witnesses from the public has deposed in line with the statement of this witness in this regard, but simply because of this fact, his version on the point that crowd pelted stones which is in corroboration with the prosecution story, cannot be thrown away.
109. PW34 Sunil Kumar, another witness from the locality, has deposed about the manner in which the occurrence took place. There is nothing in his statement to disbelieve the version narrated by him. It is in his statement that had the police not resorted to action against the crowd, residents of the locality would have lost their lives. It is also in -:75:- his statement that some residents of the kothies suffered injuries. Even window panes and glasses of the vehicles lying parked there also got smashed because of pelting of stones by the mob, as further stated by the witness.
110. PW41 Smt. Sushil Sethi, resident of D-269, has supported the case of prosecution only having witnessed persons from jhuggi cluster on the railway track and inside the park ,and also about arrival of the police there. She also deposed that persons from the jhuggi cluster pelted stones as a result whereof window panes of her house got smashed. She did not depose having witnessed any other fact. So, this witness has supported the prosecution to an extent. With which weapons members of the mob was armed ?
111. PW12, 13, 18, 31 are the constables who opened fire at the crowd under the directions of DCP.
112. PW12 Constable Om Pal Singh deposed that the crowd resorted to stone pelting by heading towards houses in D-Block; PW13 Head Constable Pawan Kumar also deposed in line with the statement of PW12; PW18 Constable Satya Prakash also deposed that the crowd was pelting stones at -:76:- the police and also at the residence of locality.
113. PW17 Inspector Shiv Dayal, the then Addl. SHO, deposed that the crowd pelted stones at the police party three/four times. It is also in his statement that the crowd was having weapons like lathies, stones, dandas etc. in their hands.
114. PW23 SI Shiv Dev Singh, then ASI, deposed that the crowd which started running towards kothies of the locality were armed with stones, iron rods and lathies which were used in smashing window panes and other glasses of the houses. It is also in his statement that stones were also pelted by the crowd which resulted in injuries on his person.
115. PW24 ACP Prem Nath deposed that the crowd pelted stones which hit the police officials. PW27 ACP P. P. Singh, the then SHO deposed about pelting of stones by the members of the crowd. It is also in his statement that persons present in the mob were armed with lathies and stones when they started marching towards houses of D-Block, Ashok Vihar, Phase-II.
116. PW28 Head constable Kuldeep deposed about pelting of stones at the police officials. So far as he -:77:- remembered, Mukhtiyar Singh, Shyam Sunder, Anil Kumar, Bablu and one Rajinder were armed with lathies and iron rods.
117. PW30 ASI Ram Phool Singh also deposed about pelting of stones by the crowd in smashing window panes of kothies. He also deposed that mob started heading towards kothies while mob was armed with lathies, iron rod and stones. PW31 Constable Tehzib Haider also deposed about pelting of stones.
118. PW36 SI Suresh Sharma stated about pelting of stones by the crowd resulting in injuries on the person of police officers.
119. PW37 Sh. Kishan Kumar, the then Addl. DCP, deposed about pelting of stones by the crowd and that the crowd started damaging vehicles lying parked on the road adjacent to the park and also that of the residential buildings.
120. PW40 Sh. T. S. Bhalla, then ACP deposed about pelting of stones by the members of unruly mob.
121. PW42 Inspector Anil Dureja the then Incharge, Police Post Wazirpur industrial Area, deposed about pelting of stones. He did not depose that anyone in the mob was -:78:- carrying any other weapon. He deposed about seizure of stones and window panes from the spot.
122. PW39 Sh. Karnal Singh, the DCP deposed that the crowd started pelting of stones at the police; that most of the members of the crowd were on railway track having access to stones; that stones being pelted by the mob were reaching the houses.
123. In his cross examination PW39 deposed that during the occurrence he heard sound of firing from the side of the crowd. It may be mentioned here that to this effect there is only statement of PW39. No other witness deposed about opening of fire by any member of the crowd. The witness denied the suggestion put to him by learned defence counsel that the sound of firing was as a result of firing by the police. But it is not case of the prosecution that any firearm was recovered from the spot or from any of the accused. It is not case of the prosecution that any police official or officers suffered firearm injury. So it has been rightly argued by learned defence counsel that there is no corroboration to the statement of PW39 DCP Karnal Singh that sound of firing was heard from the side of the crowd or that members of the -:79:- crowd opened fire. Consequently, this fact adversely affects the story put forth by the prosecution witness. Whether police resorted to lathi charge?
124. Case of prosecution is that first of all the mob was warned to disperse, then teargas shells were used, then shots were fired in the air and ultimately shots were fired aiming at the mob. It is not case of prosecution that police resorted to lathi charge to disperse the mob before resorting to firing at the mob. According to PW24 ACP Prem Nath, police resorted to firing because lathi charge was not possible.
125. PW31 Constable Tehzib Haider has contradicted the statement of PW24 and the version of the prosecution, by stating that police resorted to lathi charge at the spot. However, he could not tell if police resorted to lathi charge first and then to teargas shelling or vice-versa. PW40 ACP T. S. Bhalla stated in his cross examination that police resorted to lathi charge after teargas shelling. PW39 DCP Karnal Singh deposed that police did not resort to lathi charge as it was not possible.
126. From the above statements of the witnesses, it -:80:- would transpire that they have deposed in contradiction with each other about use of lathi charge. No other witness has deposed that police resorted to lathi charge.
DCP Karnal Singh admitted in his cross examination that police did not resort to rubber bullets during the occurrence. In the course of arguments it has been argued on behalf of the accused that police also did not use water canons or rubber bullets and rather they opted to open firing at the mob, and as such this a case where the DCP misused powers under the law. It is true that police did not use water canons or rubber bullets prior to opening fire at the mob. Police could use water cannons and rubber bullets prior to opening of fire at the mob. In the given circumstances, it remains unexplained as to why no such command was made while controlling the mob.
127. Not only police officials, witnesses from the locality have also deposed about pelting of stones. Some of witnesses from the locality have deposed that some members of the crowd were armed with lathies. One of them has no doubt deposed that some persons were armed with pistols, but this version of the witness does not find corroboration -:81:- from any other cogent and convincing evidence. There is no evidence that any firearm was recovered from any of the accused at any point of time.
Medical Evidence
128. A perusal of medical record available in the case file would reveal that following police officials were medicolegally examined on 30.1.1995:
Inspector H. S. Bhardwaj vide MLC Ex.PW6/A3; Raj Singh vide MLC Ex.PW6/A4; Ajay Kumar vide MLC Ex.PW6/D; Head Constable Ramesh vide MLC Ex.PW6/A6; ASI Kanwal Lal vide MLC Ex.PW6/A; Sanjay Kumar vide MLC Ex.PW6/A; constable Raj Singh vide MLC Ex.PW6/A; Head Constable Sushil vide MLC Ex.PW6/A12; Head Constable Jaswant vide MLC Ex.PW6/A13; SI Avtar Singh vide MLC Ex.PW6/A14; Head Constable Radhey Shyam vide MLC Ex.PW6/A15; Constable Prem Pal Singh vide MLC Ex.PW6/A17; constable Dharamveer vide MLC Ex.PW6/F; PW36 ASI Suresh Sharma vide MLC Ex.PW6/G; Constable Kiran Pal vide MLC Ex.PW6/H; ASI Ram Narain vide MLC Ex.PW6/J; PW12 Constable Om Pal Singh vide MLC -:82:- Ex.PW6/A18; SHO P. N. Malhotra vide MLC Ex.PW6/A19; Head Constable Bhagat Ram vide MLC Ex.PW6/A20; Head Constable Siman Kullu vide MLC Ex.PW6/A21; Head Constable Daryau Singh vide MLC Ex.PW6/A21; SI Bhawan Singh vide MLC Ex.PW6/A22; Head Constable Dharam Pal vide MLC Ex.PW6/A24; Constable Abdul Barkat vide MLC Ex.PW6/A25; Head Constable Muzaffar Hussain vide MLC Ex.PW6/AL; Head Constable Sawai Lal vide MLC Ex.PW6/M; SI Om Prakash vide MLC Ex.PW6/N; SI Ram Kishan Yadav vide MLC Ex.PW6/O and Constable Narender Singh vide MLC Ex.PW6/P.
129. None of the aforesaid police official has been examined. In absence of their examination, it cannot be said as to what kind of injuries did they suffer and at whose hands.
130. Prosecution has examined following police officials-officers who suffered injuries:
PW23 ASI Shiv Dev Singh vide MLC Ex.PW6/E; PW24 ACP Prem Nath vide MLC Ex.PW6/B;
PW27 P.P Singh vide MLC Ex.PW6/A5;
PW39 DCP Karnal Singh vide MLC Ex.PW6/A9; PW40 ACP T. S. Bhalla vide MLC Ex.PW6/C;-:83:-
PW42 Inspector Anil Dureja vide MLC
Ex.PW6/A10.
131. It has been argued on behalf of the accused that out of the aforesaid police officers-witnesses only two, namely, DCP Karnal Singh, Inspector P.P.Singh are said to have suffered grievous injuries, but prosecution has failed to establish by leading cogent and convincing evidence that they actually suffered any grievous injury, and as such it becomes doubtful if any of these police officers or any police official suffered any grievous injury during the occurrence.
Injuries suffered by DCP Karnal Singh-PW39
132. As per prosecution version, DCP Karnal Singh is said to have suffered grievous injury. In this regard, prosecution has relied on MLC Ex.PW6/A9 is in respect of this witness. PW7 Dr.Dilip Kumar of Sunder Lal Jain Hospital has been examined to prove this MLC prepared by Dr.Kishore Singh, the latter having left the hospital and his latest whereabouts being not within the knowledge of the hospital authorities. According to PW7, on medicolegal examination of -:84:- the patient, Dr.Kishore Singh observed multiple injuries. In the opinion of Dr.Kishore Singh, there was fracture on scaphoid right hand, which was observed to be grievous nature. In case of grievous injury, it is for the prosecution to lead cogent and convincing evidence to prove as to how the injury was opined to be grievous. In this regard, prosecution can produce and prove on record x-ray report and x-ray plates. However, in this case, as not disputed on behalf of the prosecution, no such x- ray plate or report has been placed or got proved on record. Surprisingly, even PW39 nowhere deposed to have suffered any injury.
133. Learned Addl. Public Prosecutor submitted that the witness deposed in general that 45 policemen were injuries and 3 persons from amongst the mob died while some more suffered injuries. But it is a fact that PW39 did not state that he also suffered injury or fracture.
134. Had PW39 suffered any fracture, he would not have omitted to state so in his statement in Court. If the witness could remember about number of policemen who were injured, he could not forget about the injury suffered by him. What to tell the court about any fracture, the witness did -:85:- not state to have suffered any injury. He also did not state that any injury on his person was subjected to any x-ray examination. Prosecution has not led any evidence to prove that Investigating Officer, at any point of time, collected any x- ray report or plates from any doctor of Sunder Lal Jain Hospital. There is nothing on record to suggest as to which weapon was used in inflicting injuries on the person of this witness.
135. When prosecution has not placed on record any x-ray report or x-ray plate in support of the opinion of the doctor about grievous nature of the injury, it can safely be said that prosecution has failed to prove as to how Dr.Kishore Singh came to the conclusion that one of the injuries on the person of PW39 was grievous nature.
Injuries suffered by Constable Arun Kumar
136. Case of prosecution that Arun Kumar son of Shiv Chander Bhan suffered fracture on nasal bone, clean lacerated wound on right ala (nose) and Dr.Kishore Singh opined that the injuries were grievous in nature. MLC is Ex.PW6/A7 which has been got proved by examining Dr.Dilip -:86:- Kumar PW6.
137. It is significant to note that prosecution has not examined Arun Kumar, the patient. He could come and depose as to at whose hands, with which weapon and on which part of the body he suffered injuries. In absence of his statement, there is only medical evidence in this regard. As noticed above, in case of grievous injury, it is for the prosecution to lead cogent and convincing evidence to prove as to how the injury was opined to be grievous. In this regard, prosecution could produce and prove on record x-ray report and x-ray plates. However, as not disputed on behalf of the prosecution, in this case, no such x-ray plate or report has been placed or got proved on record. No evidence has been led that Investigating Officer at any point of time collected any x-ray report or plate from Sunder Lal Jain Hospital. Injuries on the person of Inspector P.P.Singh
138. Case of prosecution that Inspector P.P. Singh son of late Sardar Balwan Singh, suffered fracture on nasal bone, with multiple injuries and Dr.Kishore Singh opined injury on the nasal bone and multiple injuries as grievous in nature. MLC is Ex.PW6/A5 which has been got proved by examining -:87:- Dr.Dilip Kumar PW6.
139. ACP P.P. Singh then SHO has stepped into the witness box as PW 27 and deposed that in the action, he sustained injuries on his neck, legs and hands because of pelting of stones by mob and that he was taken to Sunder Lal Jain Hospital at about noon time.
140. To prove grievous nature of the injuries, prosecution could produce and prove on record x-ray report and x-ray plates. However, as not disputed on behalf of the prosecution, in this case, no such x-ray plate or report has been placed or got proved on record. In absence of any x-ray plate or report, it cannot be said that ACP P.P.Singh suffered any grievous injury or that any injury observed on his person was grievous in nature. PW 27 did not depose that any injury on his person was subjected to x-ray examination. He also did not depose to have suffered fracture on any part of his body during the occurrence on 30.1.1995. Had he suffered any fracture, the fracture must have reminded him to state so in Court. Fact remains that he did not state to have suffered any fracture. There is not even an iota of evidence that at any point of time, Investigating Officer collected any x-ray plate or -:88:- report in respect of the injuries on the person of the Inspector. Injuries on the person of other police officials-officers- PW17, 23,24, 40 and 42
141. Injuries on the person of PW40 ACP T.S.Bhalla were simple in nature as per opinion of Dr.Vikram Singh available in MLC Ex.PW6/C proved by PW7 Dr.Dilip Kumar of Sunder Lal Jain Hospital.
142. Injuries on the person of PW23 ASI Shiv Dev Singh were opined to be simple in nature by Dr.Vikram Singh as per his opinion available in MLC Ex.PW6/E proved by PW7.
143. Injuries on the person of PW 17 Inspector Shiv Dayal were opined to be simple in nature as per opinion of Dr. Kishore Singh available in MLC Ex.PW6/A1 proved by PW7.
144. Injuries on the person of PW24 ACP Prem Nath were observed to be simple in nature in the opinion of Dr.Vikram Singh vide MLC Ex.PW6/B;
-:89:-
145. Injuries on the person of PW40 ACP T. S. Bhalla were declared to be simple in nature in the opinion of Dr.Vikram Singh vide MLC Ex.PW6/C;
146. Injuries on the person of PW42 Inspector Anil Dureja were declared simple in nature vide MLC Ex.PW6/A10.
147. As noticed above, prosecution has failed to examine a number of police officials-officers who were got medicolegally examined from different hospitals. They could help the prosecution in establishing identity of the assailants from amongst the mob. In absence of their statements, it cannot be said as to at whose hands they suffered injuries on their person.
148. From the evidence led by the prosecution, it stands established that stones lying on the railway track were picked and pelted at the police and kothies in the locality, but it does not stand established that any other weapon was used by any member of the crowd.
-:90:-Whether all the accused persons formed an unlawful assembly?
149. Question arises as to whether the accused persons facing trial were members of unlawful assembly?
As to who is said to be a member of an unlawful assembly, reference may be made to provisions of Section 142 IPC. Section 142 provides that whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly.
150. It has been submitted on behalf of defence that it appears that some of the persons from the public present in the park resorted to pelting of stones but in view of peaceful representation by large number of persons present there the police should have resorted to appropriate steps i.e. use of water cannons or rubber bullets to control the situation, but DCP failed to take appropriate steps and rather issued directions to open firing, as a result whereof four persons died.
151. Another contention challenging police firing is that police even failed to take precaution by firing at non-vital parts of the body or just to capture the stray persons who indulged -:91:- in only pelting of stones and none of whom was armed with a firearm . Reference has been made to decision in Nawab Ali Vs. The State of U. P. , AIR 1974 Supreme Court 1228.
152. Apex Court has held that the presence of a person in an assembly of that kind would not necessarily show that he was a member of an unlawful assembly. What has to be proved against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly and he entertained alongwith the other members of the assembly the common object as defined by Section 141 IPC.
153. But question arises as to whether the accused persons, facing trial before this Court, and the four persons who succumbed to injuries as a result of police firing, were members of unlawful assembly and whether they or anyone of them shared or entertained one or more of the common objects as specified by Section 141?
154. In a case where there are one or two accused, it may be easier to establish identity of the culprit, but in a case -:92:- where there are large number of persons involved in commission of crime, task of the prosecution to establish identity of culprits becomes difficult. Generally, testimony of one single witness, if wholly reliable, is sufficient to establish the identification of an accused. But when the size of the unlawful assembly is quite large and many persons are stated to have witnessed the incident, to vouchsafe the identification of an accused as a participant in the rioting, it is a prudent exercise to insist on at least two reliable witnesses. in this regard, reference may be made to Two-witness theory adopted by Apex court in the case of Binay Kumar Singh v. state of Bihar, reported in IV (1996) CCR 253=(1997) 1 SCC 283 and also to the decision in Masalti v. State of U.P., AIR 1965 SC 202.
155. Apex Court has held that when the size of the unlawful assembly is quite large and many persons would have witnessed the incident, it would be a prudent exercise to insist on at least two reliable witnesses to vouchsafe the identification of an accused as a participant in the rioting. Reference in this regard may also be made to decision in Baddi Venkata Narasayya & Ors. v. The State of Andhra -:93:- Pradesh, JT 1997 (9) S.C. 293.
156. In view of the well settled legal proposition, this Court proceeds to find out if prosecution has been able to establish identity of the accused persons and to prove that they were members of unlawful assembly on 30.1.1995 on the given time and place.
157. According to PW10 Smt.Sharanjeet, resident of C Block, Ashok Vihar, Phase I, none entered her house and she could not see any one pelting stones at her house.
158. PW11 Atma Singh, PW12 Constable Om Pal Singh, PW13 Head Constable Pawan Kumar, PW14 Jagdish Parshad Gupta, PW15 Bal Kishan, PW18 Constable Satya Parkash, did not depose about identification of any of the accused.
159. PW20 Avtar Singh, resident of same locality, stated in court that he could not identify any of the jhuggi dwellers from amongst the accused present in court. It is in his statement that he did not see anyone entering his house in his locality. He was put leading question in this regard by learned Addl. Public Prosecutor, but he denied to have stated -:94:- so before the police.
160. He specifically displayed ignorance when suggestion was put to him by learned Addl. Public Prosecutor that accused persons present in court were amongst the crowd of rioters.
161. PW17 Inspector Shiv Dayal-then Addl. SHO, simply deposed that some of the persons who were part of the crowd were present in court, but he did not point out them.
162. PW21 Hari Kishan, another resident of D Block, Ashok Vihar, Phase I, could not identify the jhuggi dwellers apprehended by the police, pleading lapse of sufficient time of 13 years.
163. Case of prosecution is that some persons amongst the crowd made speeches and instigated the crowd. According to PW23 SI Shivdev Singh, accused Satish Kumar, Bhupender Pandey and another (the witness without naming pointed towards Ram Iqbal Yadav accused No.31 accused present in court ) started giving speeches to the crowd instigating them that it was the occasion to teach a lesson to kothiwalas of D Block and the police officials by finishing them.
-:95:-
164. According to the witness, many other persons made speeches. He further stated that he could not pinpoint others from amongst accused present in court. However, thereafter the witness pointed out towards Kali Charan (accused No.127), Babu Lal (accused No.86) and Daya Shankar (accused No.53).
165. Although PW 23 has named some of the accused, as referred to above, and pointed out only some others as the persons who made speeches at the spot, yet his statement does not help the prosecution in establishing identity of these persons so as to connect them with the present occurrence.
166. PW23 firstly said that Bhupender Pandey had delivered speech, but in the subsequent part of his statement he turned volte face when he volunteered that he was not sure about his having made any speech.
167. A perusal of cross-examination of the witness would reveal that therein he stated that the persons named by him as the persons delivering speeches to the crowd were arrested from the spot and that personal search memos of all the accused were prepared at the spot. So according to PW23 the persons who made speeches were arrested at the -:96:- spot.
168. Seizure memos of 123 accused persons bear attestation of two witnesses namely SI Shiv Dev Singh and HC Kuldeep. Even otherwise PW28 HC Kuldeep has admitted in his cross-examination that the accused persons were apprehended during the period he was away to the police station with the ruqqa. It is in his statement he left the spot with the ruqqa at 3 p.m. and returned to the spot at about 04:15 p.m. This goes to show that none of the accused persons was apprehended by the police before 3 p.m. None of the police officials or officer has deposed to have personally arrested one or the other accused. No evidence has been led as to who were the police officials or officers who actually arrested or apprehended the accused. Simply because these personal search memos bear signatures of these two witnesses, it cannot be said that all these 123 accused were arrested in their presence.
169. The aforesaid version narrated by PW23 is in contradiction with the prosecution version, as case of prosecution is that Mukhtiar Singh (accused No.124) son of Ram Lal; Phool Chand (since deceased) son of Sajju; Rati -:97:- Ram (since proclaimed offender) son of Bal Kishan; Kali Charan (accused No.127) son of Baladeen; Anaar Kali (accused No.128) wife of Dharam Raj; Satish Chander (accused No.129) son of Kailash Prasad; Bhupender (accused No.130) son of Devi Prasad; Shyam Sunder Saxena (accused No.131) son of Govind Ram; Kishan Lal (accused No.132) son of Prasadi lal; Sohan Devi (accused No.133) wife of Laxman; Jugal Kishor (accused No.134) son of Baleshwar and Dev Pal (accused No. 135) son of Nathu Singh were arrested later on. Mukhtiar Singh, Bhupender Pandey were arrested on 10.4.95; Phool Chand on 24.3.95; Rati Ram, Kali Charan, Anarkali and Satish Chand on 16.5.95; Sohan Devi on 24.3.95; Sham Sunder and Kishan Lal on 11.3.95 and Jugal Kishore on 25.4.95.
170. Furthermore, it is significant to note that in this regard the witness-PW23 improved upon his statement made before the Investigating Officer, as therein it does not stand recorded that the persons who were delivering speeches were arrested at the spot. Making of improvement on this material point while deposing in Court discredits his trustworthiness. -:98:-
171. Keeping in view well settled legal proposition regarding evaluation of testimony of and competence and reliability of a witness, it can safely be said that prosecution has not been able to establish beyond doubt identity of the persons against whom only one witness namely PW23 has leveled allegation of making speeches instigating the mob.
172. PW28 HC Kuldip Singh deposed that so far as he remembered, Mukhtiar Singh, Shyam Sunder, Anil Kumar, Bablu and one Rajinder, all residents of jhuggies, were armed with lathies and iron rods. So far as the point of identification of these persons named by him is concerned, he could not point out any person, from amongst the accused present in Court, namely Mukhtiar Singh, Shyam Sunder, Anil Kumar, Bablu and Rajinder.
173. PW28 pointed out towards two persons without telling their names (Satish Chand and Ram Iqbal Yadav accused ) and stated that they were amongst the above named persons. However, as noticed above, he of his own the witness did not name Satish Chand and Ram Iqbal Yadav. It was only after the witness was put leading questions -:99:- by learned Addl. Public Prosecutor that the witness identified Mukhtiar Singh, Shyam Sunder Saxena, Anil Kumar as accused persons. It is significant to note that PW28 did not state as to what these persons were doing at the spot. In his cross-examination he could not tell as to who from amongst the crowd, pelted stones which resulted in injuries on his person. The witness having been put leading questions identification of Mukhtiar Singh, Shyam Sunder, Anil Kumar, Satish Chand and Ram Iqbal Yadav does not come to the aid of the prosecution.
Then he deposed about presence of persons who were arrested and whose personal search was conducted in his presence. However, at the same time he volunteered that he could not identify those persons by face or name because of lapse of 13 years.
174. In his cross-examination the witness deposed that about 100 accused persons were arrested in his presence. But ultimately, he admitted to have stated before the Investigating Officer that accused persons were apprehended during the period he was away to the police station for getting the case registered and his return to the spot. It is significant -:100:- to note that PW21 Hari Kishan stated in his cross-examination that 100/200 persons were arrested by the police from nearby jhuggies and he saw the police bringing them towards kothies.
175. This creates doubt in the version of prosecution about arrest of 123 accused from the spot or their having been subjected to personal search in the presence of the witness (PW28).
176. It is also in statement of PW28 that 123 persons were apprehended there. Personal search memos of all the arrested accused persons were prepared and he signed the same. Memos are Ex.PW23/1 to 123. Then he deposed that accused persons present in court were the person arrested by them at the spot. It is also in his statement that weapons left by the accused were seized from the spot after the accused had run away from the spot. In this way, when according to him members of the mob had run away from the spot, how can we believe his statement about arrest of accused persons at the spot?
177. There is nothing on record to suggest that any test identification parade of any of these accused was got conducted so as to establish their identity in accordance with -:101:- law. Consequently, statement of PW28 regarding identification or arrest of the accused persons does not help the prosecution or connect the persons named by him with the commission of the present crime. Reference in this regard may be made to decision in State of Maharashtra v Sukhdev Singh, AIR 1992 SC 2100: (1992) 3 SCC 700.
178. Keeping in view well settled legal proposition regarding evaluation of testimony of and competence and reliability of a witness, it can safely be said that prosecution has not been able to establish beyond doubt identity of the persons about whose presence and participation PW28 has been examined by the prosecution.
179. PW24 ACP Prem Nath deposed that 123 persons from the crowd were apprehended at the spot. Then he deposed that the persons present in Court as accused were from the persons apprehended at the spot. He denied that actually accused persons were brought from their respective jhuggi. At the same time, he tried to explain that police could not go towards the jhuggies in the given circumstances.
180. But as noticed above, PW23 deposed that weapons left by the accused were seized from the spot after -:102:- the accused had run away from the spot and from this an inference can safely be drawn that members of the crowd had run away from the spot. It is not case of prosecution that any of the accused was found in possession of any weapon at the time of arrest.
181. In this way, version narrated by PW 24 ACP Prem Nath regarding arrest of the accused stands contradicted from what has appeared in the cross-examination of PW23. Furthermore, PW21 Hari Kishan stated in his cross- examination that 100/200 persons were arrested by the police from nearby jhuggies and he saw the police bringing them towards kothies. All this further creates doubt in the version narrated by PW 24 regarding arrest of accused persons from the spot.
182. PW25 Deepak Bhagat PW, resident of D Block deposed in court that he could not identify any of the person present in court as accused, because of lapse of time.
183. PW26 Rameshwar Dayal Sharma has not supported the case of prosecution. He denied to have witnessed the occurrence or to have signed any document before the police thereby creating doubt in the version of -:103:- prosecution regarding seizure of stones and pieces of window panes in his presence. He nowhere deposed that any of the accused was present at the spot or was apprehended in his presence.
184. PW27 ACP P.P. Singh nowhere deposed about identification of the accused.
185. PW29 Mukesh Sundriyal, resident of C Block, Ashok Vihar denied to have made any statement before the police or to have witnessed anything except presence of mob of 2000/3000 persons. Had PW29, resident of same locality ever made any statement before the police, he would not have denied it. This creates doubt in the manner in which the case has been investigated. Furthermore, PW29 did not identify any of the accused present in court. Therefore, statement of PW29 instead of helping the prosecution goes against it.
186. PW30 ASI Ram Phool and PW31 Constable Tehzib Haider nowhere deposed about identification of any of the accused so as to connect them with the present occurrence.
187. PW 32 Mohan Swarup Dwivedi stated that crowd -:104:- was picking up stones from near the railway track; that out of the crowd present on the track, 50 to 150 persons came ahead while pelting stones and started heading towards kothies. However, as regards their identification, the witness did not identify any of the accused present in court. So, prosecution does not get any help from his testimony so for as identity of the accused is concerned.
188. PW33 Harmeet Singh, resident of C Block, Ashok Vihar, Phase I, also did not depose about identification of the accused. He was declared hostile on a number of points and put leading questions by learned Addl. Public Prosecutor. The fact remains that he did not identify any of the accused as the culprit and his statement does not connect any of the accused present in court with the commission of the crime.
189. PW35 Sunil Kumar, resident of D Block, Ashok Vihar, Phase I, did not name any of the accused or identify them while deposing in court. In his cross-examination he stated that 10/15 persons were taken away by the police from amongst the crowd in his presence. But the fact remains that he did not state or identify as to who were the persons so taken away by the police in his presence. Therefore, his -:105:- statement also does not come to the aid of prosecution on the point of identity of the accused.
190. PW36 SI Suresh Sharma, who was the first to reach the spot, could easily tell the Court as to who were the culprits. But he nowhere deposed about identity of the accused. He is stated to have left the spot at about 10.30/11 a.m. after dispatch of ruqqa of the other case FIR 42 of 1995.
191. PW37 SI Kishan Kumar, then Addl. DCP also did not state any fact about identity of the accused. According to him, three persons from the crowd were found lying dead and that several police officials and members of the mob suffered injuries.
192. PW38 HC Bijender Singh simply deposed above removal of two persons from the public, who were in injured condition, and Inspector Bhardwaj, SHO, to Sunder Lal Jain Hospital. He further deposed that the persons from the public were ultimately taken to Hindu Rao Hospital where they were declared brought dead. He did not depose about identity of any other person.
193. PW39 Sh.Karnal Singh, DCP, reached the spot at about 9.30 a.m. According to PW39, 123 persons taking part -:106:- in the mob activity were arrested. But the witness did not depose any fact about their identity. There is nothing in his statement made in Court that any of those persons taking part in the mob activity were present in court. The fact remains that PW39 has not identified any of the accused persons or stated that he saw any of the accused present in court at the spot during the occurrence.
194. The witness admitted about video recording of the occurrence but no such cassette has been produced in court. So, adverse inference has to be drawn against the prosecution for withholding of the cassette containing video recorded version of the occurrence.
195. PW40 ACP T.S.Bhalla deposed that some of the members of unruly mob reached near the residential buildings. In his cross-examination, the witness stated that some persons from amongst the crowd, were present near the dead body, whereas others were standing scattered. According to him, 123 persons were arrested at the spot from amongst the crowd. But PW40 did not state that he saw any of the accused present in court at the spot during the occurrence.
-:107:-
196. PW41 Smt.Sushil Sethi simply deposed that when she came out of her house, she found a number of persons from jhuggi cluster present there in the park in front of her house and that those persons pelted stones resulting in damage to the window panes. According to her, nothing happened in her presence. She denied to have made statement before the police. The fact remains that PW41 has not identified any of the accused present in court as the person involved in pelting of stones resulting in damage to property.
197. PW42 Inspector Anil Dureja, then Incharge police post, deposed about the manner in which occurrence took place, but he did not identify any of the accused present in court as the person involved in commission of the crime. He left the spot at about 10 a.m. So, prosecution has not been able to establish from his statement as to who were the assailants.
No cogent and convincing evidence as to who actually apprehended the accused persons
198. Prosecution has not led any evidence as to who were the police officials who actually apprehended 123 -:108:- accused. It is not case of prosecution that these accused persons were surrounded and then apprehended. After all, one or the other police official or officer must have apprehended one or two persons. Evidence of each of such police official or officer was of much significance as only they could tell the Court as to at which place each of the accused was apprehended. Their deposition could also help the Court in concluding if these accused persons were members of unlawful assembly or not. The fact remains that prosecution has failed to bring evidence on record as to which police official or officer arrested which of the accused and from which place. None of the police official or officer examined in Court deposed to have himself and personally arrested one or the other accused. Therefore, neither their statements about arrest of 123 persons nor preparation of seizure memos help the prosecution in establishing that all these accused were members of unlawful assembly.
Photographs of the scene of crime withheld
199. According to PW23, Photographs were taken by the photographer called to the spot. But no such photograph -:109:- has been produced on record. If any photograph was actually taken, those should have been seized during investigation and then produced before the Court to lend corroboration to the version put forth by the prosecution so as to connect the accused persons with the crime. There is no explanation coming from the prosecution for withholding the photographs. Fact remains that no such photograph has been produced or got proved on record. Therefore, adverse inference has to be drawn against the prosecution that had those photographs been produced those would have shown us pictures contrary to what the prosecution wants the Court to believe, so far as involvement of the accused is concerned.
Video recording of incident also withheld
200. PW 39 DCP Karnal Singh deposed that video recording of the incident was done. If that is so, cassette containing video recording should have been seized during investigation and then produced before the court. Production of this piece of evidence could tell us as to the manner in which the occurrence took place. Fact is that no such cassette containing video recording has been produced before the Court. There is no explanation as to why no video recording of -:110:- the occurrence has been produced on record. Therefore, adverse inference has to be drawn against the prosecution that had those photographs been produced those would have shown us pictures contrary to what the prosecution wants the Court to believe, so far as involvement of the accused is concerned.
Role and presence of four persons -who died as a result of police firing, and that of others.
201. Four persons namely Parmod Kamat, aged 16 years; Ram Bachan, aged 25 years; Babu Ram ,34 years, Chander Bhan, 21 years, died during the occurrence. After inquest proceedings were carried out their dead bodies were subjected to autopsy. PW1 Dr.C.B.Dabas observed multiple injuries on their dead bodies. Autopsy reports are Ex.PW1/A, B, M and N .
202. Learned Addl. Public Prosecutor has submitted that in view of the nature of the injuries suffered by them, it can safely be said that they were members of the unlawful assembly; that they did not disperse despite warning and other steps taken by the police and ultimately succumbed to -:111:- injuries because of firing by the police and that prosecution has been able to establish presence of four persons in the unlawful assembly and their participation on the given date, time and place stands duly established.
203. It has come in the statements of prosecution witnesses that only these four persons died as a result of fire arm injuries during the occurrence. This fact is not being disputed on behalf of the defence.
204. In this case, it has come in the statement of the concerned DCP that he declared the assembly unlawful and that despite warnings crowd did not disperse. Other witnesses have also deposed that mob did not disperse despite warnings.
205. Although it is not correct to say that before a person is held to be a member of an unlawful assembly, it must be shown that he had committed some illegal omission in pursuance of the common object of the assembly, yet it is to be seen whether the assembly included some persons who were merely passive witnesses, meaning thereby such persons who joined the assembly as a matter of idle curiosity without sharing or intending to entertain the common object of -:112:- the assembly, as is being argued by learned defence counsel and learned Amicus Curiae.
206. To see as to whether the assembly present in the park and near the railway track included some persons who were merely passive witnesses or that that they joined the assembly out of curiosity without intending to entertain common object of the assembly, I have gone through the material available on record.
Whether Parmod Kamat, aged 16 years, Ram Bachan, aged 25 years, Babu Ram, 34 years, Chander Bhan, 21 years, who died as a result of police firing, indulged in rioting ?
207. Case of prosecution is that police resorted to firing at the crowd when some of the members started heading towards residential buildings of the locality while pelting stones and life and property of the residents of the area were in danger.
208. It was for the prosecution to establish that Parmod Kamat and other three, named above, were indulging in such an act which compelled police to open fire at them, -:113:- whereupon he suffered firearm injuries. In this regard, prosecution was also to pin point the place where Parmod Kamat and three others were present at the time they suffered firearm injuries.
209. It has come in evidence that four persons died at the spot as a resulting of firing by the police. At the outset, it may be mentioned that none of the witness to occurrence has named any of these persons, who died during police firing. They are stated to have died at the spot. Had anyone of them been seen indulging in commission of any wrong act, the prosecution witnesses would not have omitted to state so specifically that they were fired at while they were heading towards residential buildings. Some of the police- officials/officers have deposed that some members of the mob even entered the residential buildings and resulted in damage to the property. When only some of the members are said to have so entered the residential buildings, it was not difficult to collect and lead evidence to specify as to who were these persons. It is significant to note that a number of witnesses from the public have categorically denied that any member of the crowd entered their residential building. None -:114:- of the prosecution witnesses deposed that these four persons, who succumbed to firearm injuries, were amongst the persons who had entered the building or were going to enter the building. There is also no evidence that these four persons were armed with such and such weapon. The four constables who fired aiming at the mob could tell the role being played by these four persons soon before they were attacked. But they nowhere specified role being played by these four persons who succumbed to firearm injuries at the hands of police.
210. As noticed above, generally rough site plan is prepared to point out presence of participants. After these four suffered firearm injuries, they must have fallen on the ground. Blood must have also fallen at that place. Police could easily pick up blood from that place.
211. However, no documentary evidence has been proved on record to suggest that any blood was lifted from the place where Parmod Kamat and other three had fallen down. The place where they had fallen was the best evidence to be collected by the Investigating Officer to establish his presence at the spot so as to lend corroboration to its version that -:115:- members of the crowd were heading towards residential houses of the locality and that Parmod Kamat and three others amongst them. In such a situation, their positions could be easily pointed in the rough site plan.
212. In this case, no site plan depicting the place of occurrence or presence of Parmod Kamat and three others has been placed on record or got proved. There is no explanation as to why no such rough site plan was prepared.
213. Had these four persons been heading towards residential buildings or at the forefront or indulging in commission of any offence of mischief or damage to property or causing injuries to residents of locality or police, prosecution witnesses would not have omitted to state so. The four constables who opened fire at the mob could better tell us about place of presence of these four persons and the role being played by them at the time they were aimed at. But record would reveal that none of the prosecution witnesses has deposed as to at which particular place(s) Parmod Kamat and three others were seen present at the time they were aimed at. All this goes to show that prosecution has failed to establish that Parmod Kamat, who was aged about 12 years -:116:- only, was member of the unlawful assembly or that he joined or continued in it or intended to share common object of any such assembly or that he entered residential buildings or thereafter caused damage to the buildings and other property. But he lost his life in police firing.
214. So far as other three who died in police firing are concerned, in view of the above discussion and for the aforesaid reasons, it cannot be said with certainty that they were members of unlawful assembly.
Presence of some of the accused who were got medically examined.
215. PW35 Inspector Bishan Mohan is lnspector from Crime Branch who took up investigation on 31.1.1995. It is in his statement that on1.2.1995 he submitted applications for medical examination of the persons named therein. These applications are Ex.PW35/G1 to 16. A perusal of these applications would reveal that all these pertain to medicolegal examination of accused persons No.7, 13,21,60,65, 66, 85, 86,110, 116.
216. Out of the above mentioned accused persons, -:117:- accused No.60 has died; accused No.65 and 110 are proclaimed offenders.
217. A perusal of medical record would reveal that application Ex. PW35/G11 was filed by the police on 01.02.95 for medico legal examination of Ram Prakash (accused No.
7),aged 17 years. The patient provided alleged history of lathi blow by the police. As per prosecution version, he was arrested from the spot on 30.01.1995. Had he been arrested on 30.01.1995 from the spot, he would have been got medico legally examined on the same day. It remains unexplained as to how Ram Prakash (accused No. 7) was got medico legally examined on 01.02.1995. As per prosecution version, firearm injuries were suffered by members of the mob because of police firing. There is nothing in the MLC to suggest that Ram Prakash (accused No. 7) suffered any gun shot injury. None of the prosecution witnesses has specifically named Ram Prakash (accused No. 7) or narrated any role played by him. All this creates doubt in the version of prosecution that he was member of the unlawful assembly.
-:118:-
218. MLC Ex. PW5/C would reveal that Mohd. Saleem (accused No. 21), aged 29 years, would reveal that he was brought to Civil Hospital, Delhi, on 01.02.1995. At that time he provided to the doctor alleged history of beatings by the police. As per prosecution version, he was arrested from the spot on 30.01.1995. The application Ex. PW35/G4 moved by Inspector Bishan Mohan is dated 01.02.1995. Had he been arrested on 30.01.1995 from the spot, he would have been got medico legally examined on the same day. It remains unexplained as to how Mohd. Saleem (accused No. 21) was got medico legally examined on 01.02.1995. As per prosecution version, firearm injuries were suffered by members of the mob because of police firing. There is nothing in the MLC to suggest that Mohd. Saleem (accused No. 21) suffered any gun shot injury. None of the prosecution witnesses has specifically named Mohd. Saleem or narrated any role played by him. All this creates doubt in the version of prosecution that he was member of the unlawful assembly.
219. A perusal of medical record would reveal that application Ex. PW35/G10 was filed by the police on 01.02.95 -:119:- for medico legal examination of Chiranjeev Jha (accused No.
65), aged 24 years. The patient provided alleged history of beatings by the police.
220. A perusal of medical record would reveal that application Ex. PW35/G15 was filed by the police on 01.02.95 for medico legal examination of Gabbu (accused No. 66), aged 35 years. The patient provided history of gun shot injury.
221. A perusal of medical record would reveal that application Ex. PW35/G16 was filed by the police on 01.02.95 for medico legal examination of Hari Lal (accused No.
85),aged 26 years. The patient provided alleged history of having been beaten by the police on 30.01.1995.
222. A perusal of medical record would reveal that application Ex. PW35/G9 was filed by the police on 01.02.95 for medico legal examination of Radhey Sham (accused No.
110), aged 30 years. The patient provided alleged history of hit during police action.
223. A perusal of medical record would reveal that application Ex. PW35/G8 was filed by the police on 01.02.95 -:120:- for medico legal examination of Babu Lal (accused No. 86), aged 35 years. The patient provided alleged history of lathi blow by the police. As per prosecution version, he was arrested from the spot on 30.01.1995.
Had the aforesaid four persons been been arrested on 30.01.1995 from the spot, they would have been got medico legally examined on the same day. It remains unexplained as to how they were got medico legally examined on 01.02.1995. None of the prosecution witnesses has specifically named the abovesaid four accused or narrated any role played by them. All this further creates doubt in the version of prosecution.
224. A perusal of medical record would reveal that application Ex. PW35/G7 was filed by the police on 01.02.95 for medico legal examination of Rakesh Madan (accused No.
116), aged 21 years. The patient provided alleged history of beatings by the police. As per prosecution version, he was arrested from the spot on 30.01.1995. Had he been arrested on 30.01.1995 from the spot, he would have been got medico legally examined on the same day. It remains unexplained as to how Rakesh Madan (accused No. 116) was got medico -:121:- legally examined on 01.02.1995. As per prosecution version, firearm injuries were suffered by members of the mob because of police firing. There is nothing in the MLC to suggest that Rakesh Madan (accused No. 116) suffered any gun shot injury. None of the prosecution witnesses has specifically named Rakesh Madan or narrated any role played by him. All this creates doubt in the version of prosecution that he was member of the unlawful assembly.
225. A perusal of material available on record would reveal that injured persons include an old lady of about 80 years. Question arises as to whether she was also member of unlawful assembly and indulged in rioting?
226. Sohan Devi is the old aged lady arrayed as accused No. 133. As per prosecution version, she was member of the unlawful assembly. Surprisingly, while appearing in Court, none of the police official or officer or witness from the locality, while appearing in Court, identified Sohan Devi as the person amongst the crowd or to have indulged in any wrong act at the time of occurrence. In the opinion of Dr. C.B. Dabas, injury No.4 on the person of Sohan Devi (accused No. 133)aged 55 years, could have been -:122:- caused by pellets.
227. She was arrested in this case on 24.3. 1995. There is no explanation on record as to what led to her arrest about 2 months after the occurrence and as to whose instance she was arrested in this case.
228. It is not case of prosecution that she was arrested from the spot. As per prosecution version itself, she was arrested lateron i.e. 24.3.1995. In the given circumstances, it was for the Investigating Officer to arrange for test identification parade so as to establish her identity. No such test identification parade was arranged. Even otherwise, while appearing in Court, no role has been attributed to her by any of the prosecution witness. Therefore, prosecution has failed to establish that Sohan Devi was member of the unlawful assembly or that she played any role at the time of occurrence.
229. Medical evidence would reveal that Sohan Devi suffered pellet injuries. It remains unexplained as to under what circumstances she suffered pellet injuries. It was for the prosecution to pin point the place where Sohan Devi was at the time she suffered firearm injuries. In this regard, generally -:123:- rough site plan is prepared. However, this is a case where no site plan has been prepared to establish that Sohan Devi was present at such and place at the time she suffered firearm injuries. There is no explanation as to why no such rough site plan was prepared. All this goes to show that prosecution has failed to establish that Sohan Devi was even member of the unlawful assembly or that she joined or continued in it or intended to share common object of any such assembly. Were accused persons No.13, 68, 128 and 132 members of unlawful assembly?
Accused No.13:
230. Accused No.13 Om Parkash was taken to hospital for his examination vide application Ex.PW 35/G3. This application is dated 1.2.1995. Accused is alleged to have been arrested from the spot on 30.1.1995. Had he been arrested from the spot, he should have been taken to hospital on the same day. However, he was taken to hospital on 1.2.1995. There is no explanation coming from the prosecution as to why he was taken to hospital on the third -:124:- day.
Accused No.68
231. Dr. C.B.Dabbas has given opinion in respect of injuries on the person of Kapil Dev (accused No. 68), aged 15 yeas. In the opinion of the doctor, these injuries were not the result of firearm missile. Had any of the prosecution witnesses named him or attributed him any specific role, it could be said that he was member of unlawful assembly. But the fact remains that none of the prosecution witnesses has named him or attributed him any specific role. Police is said to have opened firing at the crowd. It is not case of prosecution that the members of mob suffered injuries other than firearm injuries. So, it was for the prosecution to explain as to where and when said Kapil Dev suffered these injuries. But it remains unexplained as to how he suffered the injuries, which were opined by the doctor to be not the result of firearm injuries.
232. Furthermore, it is case of prosecution that he was arrested on 11.03.1995 and not on the day of the occurrence. No evidence has been led by the prosecution as to who led to -:125:- his arrest after one month and 11 days when she was not apprehended at the spot. In the given circumstances, to establish his identity as a member of the unlawful assembly, the Investigating Officer should have arranged for his test identification parade, but there is nothing on record to suggest that if any such step was taken. In the given circumstances, it becomes doubtful if he was member of unlawful assembly. Accused No.128
233. PW1 Dr. C.B. Dabbas has proved his opinion regarding nature of injuries on the person of Anar Kali, accused No.128, aged 24 years, as per MLC Ex.PW1/G. In the opinion of the doctor, injuries on her person were the result of pellets.
234. She was arrested in this case on 16.5.1995 and not on the day of occurrence. There is no explanation as to what led to her arrest about four and half months after the occurrence. None of the prosecution witnesses has named her or attributed her any specific role or deposed as to her position on the given date, time and place of occurrence. In the given circumstances, to establish his identity as a member of the unlawful assembly, the Investigating Officer should -:126:- have arranged for her test identification parade, but there is nothing on record to suggest that if any such step was taken. In the given circumstances, it becomes doubtful if she was member of unlawful assembly.
Accused No.132
235. A perusal of opinion by PW1 Dr. C.B. Dabas on MLC Ex. PW1/F i.e. of Kishan accused No.132, aged 22 years, would reveal that he suffered gun shot injuries. Kishan Lal was brought to hospital with alleged history of bullet injury. Vide MLC Ex.PW1/F, one lacerated wound measuring 1 cm x 1 cm over right arm was observed on his person.
236. Case of prosecution is that Kishan (accused No.
132) was apprehended on 11.03.1995. Had Kishan been arrested from the spot on the same day i.e. 30.1.1995, then Court could come to a different conclusion. In the given circumstances, it was for the prosecution to prove as to what led to arrest of Kishan accused on 11.3.1995 and at whose instance. But there is no evidence in this regard. At the same time, Investigating Officer should have arranged for his test identification parade so as to establish his identity to show -:127:- that he was member of unlawful assembly. But no test identification parade was arranged. None of the prosecution witnesses has named him or deposed particularly about his presence on the given date, time and place. Therefore, it becomes doubtful if Kishan accused was member of unlawful assembly on 30.1.1995 at the given time and place.
237. Consequently, as rightly argued on behalf of the accused, it becomes doubtful if police was justified in opening firing at these fours persons, resulting in their death, and at Sohan Devi and others named above and arrayed as accused resulting in injuries on their person. Injuries on the person- who are neither accused nor prosecution witnesses- namely, Nand Lal, Amarulla, Raj Kumar, Satender, Ram Sewak, Mohd. Yusuf and Sarta Pandey and gun shot injuries on the person of Narender Dass, Ram Tirath and Budhu not explained by prosecution
238. A perusal of material available on record would reveal that injured included boys ranging from the age of 12 -:128:- years, 15 years and 17 years.
239. Medical evidence would reveal that Nand Lal, Amarulla, Raj Kumar, Satender, Ram Sewak, Mohd. Yusuf, Sarta Pandey, Narender Dass, Ram Tirath and Budhu also suffered injuries but they have neither been arrayed as accused nor as witnesses. Their injuries have not been explained.
240. PW9 Sh. Anil Kumar, record clerk has deposed that Nand Lal son of Kanta Prasad, aged 19 years, was brought to ESI Hospital Basai Darapur with alleged history of bullet injury as a result of firing by police. MLC in this regard is Ex.PW9/A. But prosecution has failed to lead any evidence to justify as to how he suffered bullet injuries on his person. Possibility of his having suffered injuries while passing by that side cannot be ruled out.
241. According to PW8 Sh.K.V.Singh, one Amarula Ansari, aged 22 years, was brought to Hindu Rao Hospital with alleged history of bullet injury. MLC is Ex.PW8/F. But -:129:- prosecution has failed to lead any evidence to justify as to how he suffered bullet injuries on his person. Possibility of his having suffered injuries while passing by that side cannot be ruled out.
242. MLC Ex.PW1/D would reveal that Raj Kumar son of Kalhi, was brought to the hospital and on examination bullet injury, abrasion and lacerated wound were observed on his person. But prosecution has failed to lead any evidence to justify as to how he suffered bullet injuries on his person. Possibility of his having suffered injuries while passing by that side cannot be ruled out.
243. Vide MLC Ex.PW8/D Satender Kumar, aged 15 years, was brought to the hospital with alleged history of bullet injury. Local examination revealed a lacerated wound on right thigh measuring 1 x 1 cm. Post of the thigh was protruding out. But prosecution has failed to lead any evidence to justify as to how he suffered bullet injuries on his person. Possibility of his having suffered injuries while passing by that side cannot be ruled out.
244. Narender Das, aged 12 years, was also brought -:130:- with alleged history of bullet injury and medicolegally examined which revealed lacerated wound measuring 1 x 1 cm and 4 x 4 mm. over right knee . He was having gun shot injuries. But prosecution has failed to lead any evidence to justify as to how he suffered bullet injuries on his person. Possibility of his having suffered injuries while passing by that side cannot be ruled out.
245. Ram Tirath, aged 19 years, was brought with alleged history of bullet injury. He neither an accused nor a witness. Local examination revealed lacerated wound measuring 1 cm x 1 cm over inter aspect and 1 cm x 1 cm on anterior aspect on the mid forearm. He was having gun shot injuries on his person. But prosecution has failed to lead any evidence to justify as to how he suffered bullet injuries on his person. Possibility of Ram Tirath having suffered injuries while passing by that side cannot be ruled out.
246. A perusal of file would reveal that vide application dated 01.02.1995 Ex.PW35/G1 Smt. Sarta Pandey, aged 35 years was brought to hospital for medico legal examination. She was medico legally examined, but neither she has been -:131:- cited as a prosecution witness nor an accused. Even her medico legal certificate has not been got proved. It remains unexplained as to when, where and how she suffered the injuries observed on her person. Non-explanation in this regard, adversely affects the case of prosecution regarding the manner in which the case has been investigated. Possibility of her having suffered injuries while passing by that side cannot be ruled out.
247. Application Ex. PW35/G5 would reveal that Ram Sewak, aged 36 years, was brought to Civil Hospital on 01.02.1995 and got medico legally examined. But neither he has been cited as a prosecution witness nor an accused. Even his medico legal certificate has not been got proved. It remains unexplained as to when, where and how he suffered the injuries observed on his person. Non-explanation in this regard, adversely affects the case of prosecution regarding the manner in which the case has been investigated. Possibility of his having suffered injuries while passing by that side cannot be ruled out.
248. Application Ex. PW35/G6 would reveal that Ram Randhir Jha, aged 32 years, was brought to Civil Hospital on -:132:- 01.02.1995 and got medico legally examined. but neither he has been cited as a prosecution witness nor an accused. It remains unexplained as to when, where and how he suffered the injuries observed on his person. Non-explanation in this regard, adversely affects the case of prosecution regarding the manner in which the case has been investigated. Possibility of his having suffered injuries while passing by that side cannot be ruled out.
249. Application Ex. PW35/G12 would reveal that Ayodhya Prasad, aged 45 years, was brought to Civil Hospital on 01.02.1995 and got medico legally examined. But neither he has been cited as a prosecution witness nor an accused. It remains unexplained as to when, where and how he suffered the injuries observed on his person. Non- explanation in this regard, adversely affects the case of prosecution regarding the manner in which the case has been investigated. Possibility of Ayodhya Prasad having suffered injuries while passing by that side cannot be ruled out.
250. Application Ex. PW35/G13 would reveal that Nagender, aged 31 years, was brought to Civil Hospital on 01.02.1995 and got medico legally examined. Application Ex. -:133:- PW35/G14 would reveal that Keshav, aged 26 years, was brought to Civil Hospital on 01.02.1995. Both these persons provided alleged history of having suffered gun shot injuries on 30.01.1995. But neither they have been cited as a prosecution witness nor an accused. It remains unexplained as to when, where and how they suffered the injuries observed on thier person. Possibility of Nagender and Keshav having suffered injuries while passing by that side cannot be ruled out. Non-explanation in this regard, adversely affects the case of prosecution regarding the manner in which the case has been investigated. Possibility of his having suffered injuries while passing by that side cannot be ruled out.
251. A perusal of file would reveal that one Kashmiri Lal son of Bechan Lal, aged 18 years, was also brought to Civil Hospital 01.02.1995 with alleged history of beatings by the police with lathi a day before. MLC in this regard is Ex. PW5/D. But neither he has been cited as a prosecution witness nor an accused. It remains unexplained as to when, where and how he suffered the injuries observed on his person. Non-explanation in this regard, adversely affects -:134:- the case of prosecution regarding the manner in which the case has been investigated. Possibility of Kashmiri Lal having suffered injuries while passing by that side cannot be ruled out.
252. MLC Ex. PW1/K would reveal that Budhu son of Ratan, was examined at Hindu Rao Hospital on 30.01.1995. It has appeared in cross examination of PW1 Dr. C.B. Dabas that injury No. 1 on his person was firearm injury. But neither he has been cited as a prosecution witness nor an accused. It remains unexplained as to when, where and how he suffered the injuries observed on his person. Non-explanation in this regard, adversely affects the case of prosecution regarding the manner in which the case has been investigated. Possibility of Budhu having suffered injuries while passing by that side cannot be ruled out.
253. MLC Ex. PW5/N would reveal that Mohd. Yusuf son of Sher Mohd. aged 19 years, was brought to Civil Hospital on 02.02.1995 and got medico legally examined. but neither he has been cited as a prosecution witness nor an accused. It remains unexplained as to when, where and how he suffered -:135:- the injuries observed on his person. Non-explanation in this regard, adversely affects the case of prosecution regarding the manner in which the case has been investigated. Possibility of Mohd. Yusuf having suffered injuries while passing by that side cannot be ruled out.
254. From the above discussion, it comes to light that by neither arraying the aforesaid injured either as accused or as witnesses, "pick and choose" formula was adopted by the police in arresting persons and sending them to face trial. All this further creates doubt if any of the accused was actually involved in the crime.
Conclusion
255. In view of the above findings, this court comes to the conclusion that prosecution has miserably failed to establish that the accused persons facing trial before this court were members of unlawful assembly on 30/01/1995 at the given time and place of occurrence.
This court further comes to the conclusion that -:136:- prosecution has failed to prove on record that any of the accused, facing trial before this court, was liable for any of the other offences for which they were charged and tried. Charge for the offence U/s. 3 & 4 of Prevention of Damage to Public Property Act
256. In this case, accused persons have also been facing trial for the offence U/s. 3 & 4 of Prevention of Damage to Public Property Act. When enquired from learned Addl. PP as to whether any public property was damaged during the occurrence, learned Addl. PP candidly admits that there is nothing in the statements of the prosecution witnesses that any public property was damaged during the occurrence. A perusal of evidence led by the prosecution would reveal that there is not even an iota of evidence to suggest that any public property was damaged during the occurrence. Therefore, this court comes to the conclusion that prosecution has failed to bring home charge for the offence U/s. 3 & 4 of Prevention of Damage to Public Property Act against any of the accused.
-:137:-
257. In view of the findings, all the accused persons who have been facing trial in this case are acquitted of all the charges framed against them.
Since a number of accused have been declared proclaimed offenders, file is ordered to be consigned to record room u/s 299 Cr.P.C. with the directions that it shall be taken up as and when those accused appear or are produced before this court.
Announced in Open Court on dated 16th of July, 2008 ( Narinder Kumar ) Additional Sessions Judge Fast Track Court Rohini : Delhi 16-07-2008