Delhi District Court
State vs Amar Singh Etc. on 30 January, 2012
:-1:- IN THE COURT OF SH. PURSHOTAM PATHAK : CENTRAL:MM-07: DELHI State Vs Amar Singh etc. F.I.R. No: 445/91 U/s 147/148/149/186/332/ 353/427/435 IPC & Section 3 of Damage of Public property Act P.S. Patel Nagar JUDGMENT:
(a) The serial no. of the case : 170/2
(b) The date of commission of offence : 19.08.1991
(c) The name of complainant : SI Sukhbir Singh
(d)The name, parentage, of accused : (1) Ravi Gaba
S/o Sh.Sunder Dass
R/o T-259 ,
Baljeet Nagar, Delhi.
(2) Ramesh
S/o Parithee
R/o T-321,
Baljeet Nagar, Delhi.
(3) Sunil Sethi
S/o Sh.Roshan Lal
R/o D-203, West Patel Nagar,
Delhi.
(4) Subhash Sharma @ Fauzi
S/o Durga Dass,
R/o 56-B, LIG Flats, Parshad
Nagar, Delhi.
(Expired)
(e) The offence complained of :U/s 147/148/149/186/332/353/
427/435 IPC & Section 3 of Damage
of Public property Act
(f) The plea of accused : Pleaded not guilty
(g) The final order : Convicted
State Vs Amar Singh Etc. Page No.1 of 19
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Date of Institution of Case : 12.03.1992
Judgment Reserved for : 30.01.2012
Date of Judgment : 30.01.2012
Brief statement of the reasons for the decision:
1. In brief the case of the prosecution is that on 19.08.1991 one person namely Jai Ram of Punjabi Basti died in police custody . In protest of his death people gathered outside the police station and started raising slogans against the police. Thereafter, senior police officers alongwith police personals reached at the police station Patel Nagar to control the mob. The mob started pelting stones on the police then they were warned not to indulge in such an unlawful act . But the stone pelting continued and ACP Vijay Malik and Inspector Rajinder Singh received injuries. Despite warning the mob broken the glasses of DTC buses and damaged one Maruti Car. They also burned a DTC bus and a cold drink truck. The accused persons who were known to police officials as local leader of area were leading the unlawful assembly and inciting the mob. Thus, accused persons committed offence U/S 147/148/149/186/332/353/427/ 435 IPC & Section 3 of Damage of Public Property Act.
2. Charge sheet was filed in the court and in compliance of Section 207 of Criminal Procedure Code accused persons were supplied with documents. Thereafter, charges Under Section 147/148/149/186/332/353 /427/435 IPC & Section 3 of Damage of Public property Act was framed against the accused persons to which they pleaded not guilty and claimed trial.
3. In order to prove the charges against the accused persons, prosecution so far examined following witnesses. A brief scrutiny of the evidence recorded in the matter is as under :
4. PW 1 Mahipal, Driver (DTC) deposed that on 19.08.1999 he was driver at Bus No. DHP-1494, Route No. 618, from R.K. Puram to Shadipur. When he reached near Patel Nagar at red light towards Pusa Road, there was huge traffic jam. The crowd coming from behind, broken State Vs Amar Singh Etc. Page No.2 of 19 :-3:-
the glasses of his bus by pelting stones and they also pelted stones on other buses. He left the vehicle there and reported the matter to the PS.
5. PW 2 Mahinder, Driver (DTC) deposed that in the year 1991 his duty was on Vehicle No. DLP-1605 and while driving the said vehicle when he reached Patel Nagar there was traffic jam and crowd was pelting stones. He stated they were breaking the glasses of vehicles and after breaking his vehicle and tearing the seats they burnt his bus. He informed this to his depot. He stated crowd comprised of 100/200 people.
6. PW 3 Bhim Singh, Retd. Driver (DTC) deposed that in the year 1991 public persons surrounded the PS Patel Nagar and broken the glasses of many buses of DTC and he told about the damage to Shadi Pur Depot.
7. PW 4 Budh Ram, Driver (DTC) deposed that about 5-6 years ago his bus used to run on route no. 990, from Rithala to Shivaji Stadium. He stated his bus was going via Patel Nagar and when it reached near Shadi Pur Depot, in front of DTC Colony, 100-200 persons who were gathered there started pelting stones and the glasses of vehicles were broken. He stated they had broken the glasses of 10-12 other buses of his depot which were of Rohini Depot.
8. PW 5 Banwari Lal, Driver (DTC) deposed that about 4-5 years ago he was driving the bus of DTC. He stated huge crowd was present near Patel Nagar, Shadipur Depot who had broken the glasses of many of the DTC buses. He stated they had broken the glasses of his bus also and burnt the Coca Cola Truck.
9. PW 6 Inspector S.S. Rana deposed that on 19.08.1991 he was present in the PS in the morning at 6.00 AM. He stated one Manoj Kumar was apprehended by SI Satbir Singh in a case and his father Daya Ram was also called in the PS for investigation. He stated Daya Ram told that he was feeling pain in stomach and he was admitted in Khera Hospital where he died. His relatives collected at PS and started raising slogans against the police. He stated at about 12.00 P.M., 1000-1500 persons State Vs Amar Singh Etc. Page No.3 of 19 :-4:-
collected outside the PS and they started pelting stones. He stated the public persons were warned to get disbursed from there but they did not disbursed and kept on pelting stones. He stated ACP Vijay Malik and Inspector Rajender Singh, SHO PS Rajouri Garden, sustained injuries.
Thereafter on the order of ACP Patel Nagar Sh. Udai Sahay, three rounds of tear gas shells were fired. He stated the mob moved towards Aggarwal Sweets and in the way the public persons by pelting stones broken the glasses of DTC buses. Thereafter from a vehicle which was loaded with cold drink bottles, public persons removed bottles and pelted them on police personnels. He stated seven rounds of tear gas shells were fired and the public persons disbursed from there. He stated vehicle of SHO, Rajouri Garden and one motorcar were damaged in the process. He stated all the accused present in the court were seen by him in public gathering and their names have been mentioned by him in the rukka. He also prepared site plan and collected the MLC of Vijay Malik and Rajender Singh.
In his cross-examination he deposed that he had seen the accused persons outside the PS and thereafter at Aggarwal Sweets shop. He stated they all were standing at one place and none of them were armed. He further stated that they used to visit the PS in connection with the complaints of the public persons and, therefore, he knew them. He stated these accused persons had only incited the public persons. He stated no damage was done to the PS when the mob had pelted stones.
10. PW 7 ASI Lal Chand deposed that on 19.08.1991 in connection with the death of Sh. Jai Ram, people gathered outside the PS and they stopped the traffic. At about 1.00 P.M. 1000-1500 people gathered there. He stated at about 2.00 PM they pelted stones on police and also broken the glasses of buses and put a DTC bus on fire. He further stated ACP Vijay Malik sustained injuries in his head and SHO PS Rajouri Garden in his hand. He stated the crowd also pelted stones on one Maruti Car. He State Vs Amar Singh Etc. Page No.4 of 19 :-5:-
stated he was knowing some people Sunil Sethi, Ravi, Subhash and Ramesh who were present in the the crowd .
In his cross-examination he deposed that he remained at the spot for about two hours and during this period no proceedings were done. He stated he remember the names of accused persons but do not remember their father's names and their addresses. He stated in the crowd of 1500 people, he was able to identify only four persons and IO prepared the site plan before him.
11. PW 8 ACP (Crime Branch) Vijay Malik deposed that on 19.08.1991 he was posted as ACP Rajouri Garden and by orders of DCP West, he reached at PS Patel Nagar in connection with the arrangements regarding the death of one Jai Ram of Punjabi Basti, Baljeet Nagar. He stated people had gathered outside the PS and were raising slogans against the police and suddenly some people from gathering started pelting stones on the police. They were warned not to indulge in this unlawful manner but the stone pelting continued and he was hit by one stone on his head and SHO/Inspector Rajender Singh, Rajouri Garden also received injury on his left arm. He stated that despite the warning the mob burnt a DTC bus near Aggarwal Sweets and started pelting stones on the buses. He stated the mob stopped a cold drink truck and started throwing cold drink bottles on the police. He stated after disbursal of the mob, he got himself medically examined at DDU Hospital. He stated the persons who were leading the mob were namely Ravi, Ramesh, Subhash and Sushil. Witness was not cross examined.
12. PW 9 Inspector Rajender Singh deposed that on 19.08.1991 he was posted as SHO Rajouri Garden and by orders of DCP West, he alongwith staff reached at PS Patel Nagar in connection with the arrangements regarding the death of one Jai Ram of Punjabi Basti, Baljeet Nagar. He stated people had gathered outside the PS and were raising slogans against the police and suddenly some people started pelting stones on the State Vs Amar Singh Etc. Page No.5 of 19 :-6:-
police. They were warned but the stone pelting continued and he was hit by one stone on his left arm and ACP Rajouri Garden was also hit by stone on his head. Despite the warning the mob burnt a DTC bus near Aggarwal Sweets. The mob stopped a cold drink truck and started throwing cold drink bottles on the police. He got himself medically examined. Witness was not cross examined.
13. PW 10 DCP (Central) Uday Sahay deposed that on 19.08.1991 he was posted as ACP, Patel Nagar and on that day one Jai Ram of Punjabi Basti had allegedly died in police custody. In protest of his death, many people had gathered outside the PS and were raising slogans against the police. He stated at about 12.00 Noon, all the officers including him, DCP (West), Addl. DCP (West), ACP Tilak Nagar, ACP Rajouri Garden, SHO Rajouri Garden and other junior staff were present within the complex of PS. Suddenly some people from gathering started pelting stones on the police, out of which one stone hit against ACP Vijay Malik and another hit SHO Rajouri Garden due to which they received injuries. He stated crowd put a DTC Bus on fire and also pelted stones on some other buses. He stated a truck carrying cold drinks was immobilized by the said crowd and they started taking out cold drink bottles and started hurraying at the police force. He stated the adamant crowd was led by some local small time leaders namely Ramesh, Ravi Gauba, Sushil Sethi, Subhash Sharma and other persons. They had to resort to mild lathi charge on them. Some passersby vehicles including a maruti car and also the official gypsy of SHO Rajouri Garden were also damaged by the stones. He stated he made a complaint U/s 195 Cr.P.C against Amar Singh, Smt. Brahma, Dilip, Dineshwar Jha, Ravi Gaba, Ramesh, Sushil and Subhash as they obstructed the police officials in discharge of their official duties and also damaged public property including DTC buses. Witness was not cross examined.
14. PW 11 SI Ram Chander deposed that on 19.08.1991 one Jai Ram of State Vs Amar Singh Etc. Page No.6 of 19 :-7:-
Punjabi Basti, Baljeet Nagar was brought to PS Patel Nagar for interrogation. He was admitted at Khera Hospital as he was feeling acute pain in his stomach. After sometime Jai Ram expired in the hospital. The relatives of the Jai Ram gathered at PS to protest his death. Approximately 1000-1500 people gathered outside the PS and started shouting and pelting stones. Due to stone pelting by the gathering there was huge damage of Govt. Vehicle and Public Property. During this period many people including police officials received injuries. The vehicle of SHO was also damaged by the public. In the crowd they had identified Subhash @ Fauzi, Ravi Gauba, Sushil Sethi and Ramesh. In his cross-examination, he stated that he do not know any of the accused prior to this incident.
15. PW 12 Ct. Jitender Mohan deposed that on 19.08.1991 he was on emergency duty. He stated public persons gathered at the PS to protest the death of the Jai Ram who had expired due to acute stomach pain. The crowd was raising slogans and pelting stones on the PS and the public property. Thereafter DCP (West), ACP Patel Nagar and ACP Rajouri Garden tried to disburse the gathering. He stated from the crowd one person namely Subhash and several other persons were arrested. He stated the crowd alongwith accused persons voluntarily damaged the vehicles and DTC Buses and public property. They also obstructed the police officials from discharging their official duties. In his cross-examination, he stated that his statement was recorded by IO in the PS and by that time accused persons had not been arrested. He stated he was not knowing the accused prior to this incident. He stated he had seen the accused in the area but he was not knowing their names.
16. PW 13 HC Birender Singh deposed that on 19.08.1991 he was posted as Photographer and at about 12.00 PM SI Sukhbir Singh on the direction of SHO Patel Nagar called him. He stated on road in front of PS near Bus Depot , glasses etc. of 3-4 DTC buses were found broken. He stated he State Vs Amar Singh Etc. Page No.7 of 19 :-8:-
took the photographs of glasses in broken condition of that buses. He stated including Bus No. DL-IPB-1083 and DL-IPB-3110 these two buses, other buses were also present. He stated he do not remember the number of those buses. He further stated glasses of that buses were broken.
17. PW 14 ASI Bharat Singh proved the order no. X-5/PO/ 12/91/17803-18000/X-1 dated 17.08.1991 passed by Sh. Arun Bhagat, Commissioner of Police.
In his cross-examination he deposed that he had joined the Commissioner's Office about one month back and therefore, he do not have any personal knowledge about the situation prevailing on the date of incident.
18. PW 15 Retd. SI Kali Ram deposed that on 08.11.1991 investigation of this case was marked to him. He recorded the statement of remaining witnesses and obtained the complaint U/s 195 Cr.P.C.
In his cross-examination he deposed that he was not knowing any of the accused persons prior to the incident. Again said he knew the three accused present in the court prior to the occurrence as they were known figures. He stated it to be correct that the case was lodged against the activists of a particular party. He stated it to be correct that no accused was arrested from the spot. He stated it to be correct that accused Ramesh, Ravi and Sushil Sethi used to visit PS in connection with the complaints of the residents of the area. He stated he knew the three accused present in court prior to the occurrence since they had political affiliation.
19. Thereafter, prosecution evidence was closed and statement of accused persons were recorded. In their statement under Section 313 Cr.P.C. the accused persons denied all the incriminating evidence submitting that they have been falsely implicated. The accused persons opted to lead Defence Evidence .
State Vs Amar Singh Etc. Page No.8 of 19:-9:-
20. DW 1 Dalip Kumar deposed that on the night of 18.08.1991 his father Jai Ram died in the custody of PS Patel Nagar and the police officials were convicted.
In his cross-examination, he stated it to be correct that he do not know anything about the present case.
21. I have heard Ld APP for the state as well as accused persons and have also gone through the file.
22. It is argued by the Ld.APP for State that the case has been proved against the accused and there are no contradictions and dents in the testimony of witnesses and in view of the same there is no impediment in convicting the accused.
23. Ld.Counsel for accused argued that TIP of accused persons was not conducted. He further argued, the father of the person who died in police custody was also not examined by the prosecution. He argued that despite presence of public persons no public witness was examined but only police officials and bus driver were examined. He further argued that PW 8,9 and 10 were recalled for cross examination but they were not summoned and therefore their evidence may not be read against the accused persons . He further argued that MLC of two injured persons is not proved. He also argued that complaint U/S 195 Cr.P.C made by DCP is not to be read as he himself was present at the spot at the time of incident. He argued that the mob was not armed and the accused persons were only inciting.
24. Heard.
25. Ld.Counsel for accused has argued that statement of PW 8,9 & 10 should not be read in evidence against accused persons as an application U/S 311 Cr.P.C. was allowed on 16.05.2007, but the witnesses were not summoned and PE was closed without giving any opportunity to accused persons for cross examination of PW 8, 9 and 10.
State Vs Amar Singh Etc. Page No.9 of 19:-10:-
26. From perusal of order dated 16.05.2007 it is clear that applicants were negligent in protection of their interest and they were not able to explain the long delay in moving the application. But however their application was allowed subject to conditions that accused persons should deposit Rs.2500/- each as cost and witnesses be re-called for their cross examination subject to their availability. Further if witnesses happen to be non traceable/not available for any reason no benefit whatsoever shall be claimed by accused on account of his application U/S 311 Cr.P.C and in that eventuality deposition of PW 8,9 and 10 will be read as it is on judicial file. Matter was fixed for 28.09.2007 but accused did not appeared . On 26.11.2007 PWs were absent . On 15.02.2008 PW6 , 14 and 15 examined and discharged. On 11.04.08 PWs were not present. On 09.05.08 PWs were absent and PE was closed.
27. It is clearly mentioned in the order dated 16.05.2007 that in case witnesses are not available for any reason no benefit whatsoever shall be claimed by accused persons and deposition of witnesses will be read as it is on judicial file. Beside this it was the duty of accused persons to bring into the notice of court that application U/S 311 Cr.P.C was allowed but witnesses have not been summoned. Further, on asking they were not able to show any record on file to show that they have paid the cost. Therefore, accused cannot take the benefit of their negligence and instead of arguing at the stage of Final arguments they should have brought this fact into the knowledge of court at the stage of PE. Thus deposition of PW 8, 9 & 10 is to be read in evidence .
28. Before proceeding further it will be pertinent to highlight at this stage a statement by PW 6 which was an answer put to him by Ld.Defence Counsel . Same is reproduced hereunder :-
" These accused persons had only incited the public persons'. This question unambiguously establishes the presence of the accused persons at the place, time and the spot of the incident.State Vs Amar Singh Etc. Page No.10 of 19
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29. Now I come on offences for which accused persons are charged .
To record a conviction U/S 147/148 & 149 IPC, it must be proved that five or more persons form an unlawful assembly with the common object of (firstly) to overawe by criminal force the public servant in the exercise of lawful power of such public servant or (secondly) to resist the execution of any law or any legal process.
30. PW6 Insp. S.S Rana stated that on 19-08-1991, 1000to 1500 people collected outside the P.S. and started pelting stones, All the accused present in the court were seen by him in public gathering and even he mentioned their names in Rukka. In his cross examination he stated he saw the accused persons outside the Police station and thereafter at Aggarwal sweet Shop. PW7 ASI Lal Chand also stated that he was knowing some people, Sunil Sethi, Ravi, Subash and Ramesh, who were present in the crowd. He identified the accused persons present in the court. PW8 ACP Vijay Malik stated that people gathered outside the P.S. and started pelting stones, they were warned not to indulge in this unlawful act but stone pelting continued and the persons who were leading the mob were namely, Ravi, Ramesh, Subash and Sunil.
31. PW10 DCP Uday Sahay stated that the adamant crowd was lead by some local small type leader namely Ramesh, Ravi, Sunil and Subash Sharma. He identified the accused present in the court, he stated he also made a complaint under Section 195 Cr.P.C against these accused person as they obstructed the the police officials in discharge of their official duties and also damaged public properties. PW10 DCP Uday Sahay proved the complaint under Sec 195 Cr.P.C. according to which police persons were performing their legal duties which were obstructed by the unlawful assembly led by the accused persons.
32. The activities committed by accused persons were prohibited by an order U/S 144 Cr.P.C of the then Commissioner of police Sh.Arun Bhagat State Vs Amar Singh Etc. Page No.11 of 19 :-12:-
which is Ex.PW14/A and proved by PW 14. This order was for period between 18.08.1991 to 01.09.1991 and this incident happened on 19.08.1991 during this period.
33. All the four witnesses mentioned above stated that accused persons were part of unlawful assembly and they were inciting the mob. It is also proved that the object of that unlawful assembly was to obstruct a legal process. Criminal force was also used by that unlawful assembly. In these circumstances, prosecution has established all the ingredients of Section 147 IPC.
34. To bring home guilt U/S 148 IPC, it must be shown that the unlawful assembly was armed with deadly weapon. The evidence however is insufficient to prove the possession of deadly weapon by the accused or any other member of the assembly. In these circumstances, charge U/S 148 IPC could not be proved against the accused.
35. I come to the offence u/s 186 Indian Penal Code . Section 186 Indian Penal Code read as under:
Whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.
36. At this stage, a reference to section 195 Cr.P.C is also essential as section 195 Cr.P.C laid down that no court shall take cognizance of any offence punishable u/s. 172 to 188 (both inclusive) of the IPC except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate.
37. In the present case, prosecution has produced and examined PW10 i.e. Sh. Uday Sahay( DCP Central) to prove the complaint u/s. 195 Cr.P.C. The complaint u/s. 195 Cr.P.C. is Ex. PW10/ A. Perusal of Ex.PW10/A clearly shows that the said complaint was made to the court and infact the State Vs Amar Singh Etc. Page No.12 of 19 :-13:-
subject of Ex. PW10/A, reads permission U/S 195 Cr.P.C. Even in the last paragraph of Ex. PW10/A, it is mentioned that permission Under Section 195 Cr.P.C. is granted to take the cognizance of the case by the court. The alleged permission Under Section 195 Cr.P.C. is infact complaint u/s. 195 cr.p.c. as envisaged by the said legal provision. Thus Ex. PW10A falls within four corners of a complaint as postulated by under section 195 Cr.P.C., Ex. PW10/A is a complaint Under Section 195 Cr.P.C. in the eyes of law. In these circumstances, prosecution has established all the ingredients of offence U/s 186 of Indian Penal Code.
38. Regarding the offence u/s 332 Indian Penal Code, it says that;
Voluntarily causing hurt to deter public servant from his duty-Whoever voluntarily causes hurt to any person being a public servant in the discharge of his duty as such public servant, or with intent to prevent or deter that person or any other public servant from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by that person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
39. PW 6 Insp. S.S.Rana stated that on 19.08.1991, he was present in Police Station Patel Nagar and at about 12:00 P.M., 1000 to 1500 people gathered outside the Police station and started pelting stones, they were warned to get disbursed but they did not stop and ACP Vijay Malik and Insp.Rajender Singh, SHO P.S. Rajori Garden sustained injuries. He further stated that he collected the MLC of Rajinder Singh and Vijay Malik. PW7 ASI Lalchand stated that people gathered outside the P.S. and and started pelting stones in which ACP Vijay Malik sustained injuries in his head and SHO P.S. Rajori Garden in his hand.
40. PW8 ACP Vijay Malik stated that people gathered outside the police station and started pelting stones on the Police. They were warned not to State Vs Amar Singh Etc. Page No.13 of 19 :-14:-
indulge in unlawful act but the stone pelting continued and he was hit by one stone on his head. and SHO Insp. Rajinder Singh also received injuries in his left hand. PW9 Insp.Rajinder Singh stated that people gathered outside the P.S. and started pelting stones, in which he was hit by one stone on his left arm and ACP, Rajori Garden was also hit by stone on his head.
41. Ld.Counsel argued that MLC is not proved. Here both the injured were medically examined and abovegiven prosecution witnesses has stated that ACP Vijay Malik and Inspector Rajender Singh received injuries by the stones which mob led by accused persons were pelting. Even if MLC is not proved , it is proved that both the victims were hit by stones which must have caused them hurt and for Section 332 IPC no visible injury is required. Thus the guilt of accused persons is established by testimony of witnesses that the accused persons as part of unlawful assembly, voluntarily caused hurt to deter the injured public servants from their duty. In these circumstances, prosecution has established all the ingredients of offence U/s 332 of Indian Penal Code.
42. Section 353 Indian Penal Code read as under :
Assault or criminal force to deter public servant from discharge of his duty- Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both.
43. All the witnesses in their testimony has supported the case of prosecution. PW6 Inspector S.S.Rana , PW7 ASI Lal Chand , PW8 ACP Vijay Malik and PW9 Inspector Rajender Singh has corroborated each State Vs Amar Singh Etc. Page No.14 of 19 :-15:-
others deposition. Thus, while police officials were performing their official duties the accused persons as part of unlawful assembly assaulted and used criminal force against the public servants in execution of their duties as public servant. In these circumstances, prosecution has established all the ingredients of offence U/s 353 of Indian Penal Code.
44. Section 427 Indian Penal Code read as under : Whoever commits mischief and thereby causes loss or damage to amount of fifty rupees or upwards shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both.
The definition of mischief is given in Section 425 IPC :
Whoever, with intent to cause or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits " mischief".
45. As far as Section 427 IPC is concerned it has come into evidence that on the spot one Maruti Car and coca cola truck were damaged . But in site plan the place of Coca Cola Truck is not mentioned. Maruti car is marked as 'H', but the place shown in the site plan is not in between Police station and Aggarwal sweet shop. According to testimony of witnesses, accused persons were seen at police station and near Aggarwal Sweet Shop and thereafter the mob disbursed that means it was damaged after the disbursal of mob from Aggarwal sweet shop. Accused cannot be held guilty of offence which they are not part and may be possibly not aware. Even the photographer examined as PW 13 has stated in his evidence regarding the public vehicles only. In these circumstances, prosecution has not established all the ingredients of offence U/s 427 of Indian State Vs Amar Singh Etc. Page No.15 of 19 :-16:-
Penal Code.
46. Now I come to Section 3 Damage of Public Property Act :
Mischief causing damage to public property - (1) Whoever commits mischief by doing any act in respect of any public property, other than public property of the nature referred to in sub-section (2), shall be punished with imprisonment for a term which may extend to five years and with fine. (2) Whoever commits mischief by doing any act in respect of any public property being -
(a) any building, installation or other property used in connection with the production, distribution or supply of water, light, power or energy;
(b) any oil installations;
(c) any sewage works;
(d) any mine or factory;
(e) any means of public transportation or of tele-communications, or any building, installation or other property used in connection therewith, shall be punished with rigorous imprisonment for a term which shall not be less than six months, but which may extend to five years and with fine:
Provided that the court may, for reasons to be recorded in its judgment, award a sentence of imprisonment for a term of less than six months.
47. In the present case at about 12:00 PM 1000/1500 people collected outside the Police station and started pelting stones . Thereafter they moved towards Aggarwal Sweets and in the way the public persons pelted stones and broke the glasses of DTC buses. This fact has been proved by mark 'B', 'F' and 'E' mentioned in site plan which is Ex.PW6/B and proved by PW6. Mark 'B', 'F' and 'E' are showing the bus no. DLP-1582, DLP-1584 and DLP-1083 respectively, which were damaged by the mob before reaching Aggarwal Sweet Shop. Tear gas shells were fired and the public persons disbursed at Aggarwal sweets. All the accused present in court were seen in Police Station and at Aggarwal Sweet Shop in public State Vs Amar Singh Etc. Page No.16 of 19 :-17:-
gathering, that means before disbursal of gathering damage to public property was caused by pelting stones and breaking the glasses of buses of which accused were a part. In these circumstances, prosecution has established all the ingredients of offence Section 3 Damage of Public Property Act.
48. Section 435 IPC read as under : Mischief by fire or explosive substance with intent to cause damage to amount of one hundred or (in case or agricultural produce) ten rupees- Whoever commits mischief by fire or any explosive substance intending to cause, or knowing it to be likely that he will thereby cause, damage to any property to the amount of one hundred rupees or upwards [or ( where the property is agricultural produce) ten rupees or upwards], shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
49. PW2 Mahender stated that when his vehicle No-1605 was burnt there was gathtering of 100 to 200 persons, PW4 stated that when his vehicle reached near Shadipur Depot in front of DTC colony, 100 to 200 persons were gathered there, PW5 stated that huge crowd was present near Shadipur Depot and they broke the glass of his bus and burnt a Coca Cola truck. PW2 states when Bus No 1605 was burnt there were 100 to 200 people gathered. PW5 states Coca Cola truck was burnt near Shadipur Depot but according to PW4 Budh Ram at Shadipur Depot also 100 to 200 persons were gathered. It means when mischief by fire was committed there was a gathering 100 to 200 people and not of 1000 to 1500. This shows act of burning was caused after the disbursal of crowd.
50. The mob got disbursed in different directions and when Bus No
-1605 was burned, there were only 100 to 200 people and no one of the prosecution witnesses has specifically mentioned that at that time any of the accused persons were present there. Even the driver or the owner of State Vs Amar Singh Etc. Page No.17 of 19 :-18:-
the Coca cola truck were not listed as witness. According to PW6, accused were seen at Police Station and Aggarwal Sweet Shop, and public person disbrused from Aggarwal Sweet Shop, from the above statements it clear that the burning of the bus took place after the disbursal of crowd from Aggarwal Sweet Shop. When once the crowd disbursed and any part of the crowd committed any offence it will not be proper to implicate the persons who were not the part of that particular crowd.
51. The evidence of identification in order to carry conviction should ordinarily clarify as to how and under what circumstances the identifying witness came to pick out the particular accused persons and details of the part which accused played in crime, in question with reasonable particularity. Here, may be they have dropped themselves out before reaching such destination where vehicles were burned. In these circumstances, prosecution has not established all the ingredients of offence U/s 435 of Indian Penal Code.
52. Ld.Counsel for accused argued that no TIP was conducted. Once the accused are well known to the witnesses there is no necessity for a TIP. Keeping in mind the settled proposition of law in this regard in case like this the substantive evidence as regard identification would only be identification of an accused made by witness in court. A test identification parade is necessary where offenders would not be known to witness before the incident . Here accused have been identified by the witnesses as they were known to them previously.
53. During the course of the arguments, Ld. Defence counsel contended that despite presence of public persons no public witness was examined but only police officials and DTC Bus driver were examined. However, I do not agree with this contention raised by the Ld.Defence counsel. As there State Vs Amar Singh Etc. Page No.18 of 19 :-19:-
is no rule of law that police official/official witnesses since ought need to be believed /relied upon and they cannot presumed to be less or more reliable then any other normal public witness.
54. Further more it is argued by Ld.Defence Counsel that father of the person who died in police custody was not examined by the prosecution. It is to be observed that he was not cited as a witness by the prosecution and it is the sole prerogative of the prosecution/ investigating agency to examine a particular witness, to drop some other witness, tend not to support the prosecution case or they turn hostile /resile and hence IO does not array them as a witness, but that itself is not fatal for the prosecution case.
55. Although the charge Under Section 149 of Indian Penal Code has been framed but Section 149 of Indian Penal Code is not a substantive offence in itself.
56. In view of my above discussion, I am of the opinion that the prosecution has been able to prove the guilt against the accused persons beyond the shadow of doubt and accordingly the accused persons namely Ravi Gaba, Ramesh, Sunil Sethi and Subhash Sharma @Fauzi are convicted for the offence punishable Under Section 147/186/332/353 of Indian Penal code & Section 3 Damage of Public Property Act and the accused persons are acquitted for the offences punishable Under Section 148 /427 /435 of Indian Penal Code.
Announced in the Open Court ( Purshotam Pathak)
today on 30th January, 2012 MM-07, Central, Delhi
State Vs Amar Singh Etc. Page No.19 of 19