Delhi District Court
Shri Balram Jha vs State Nct Of Delhi on 3 July, 2023
IN THE COURT OF MS. GEETANJLI GOEL,
ASJ/SPL. JUDGE (PC ACT) (CBI)-24,
ROUSE AVENUE DISTRICT COURT, NEW DELHI
CNR Number: DLCT11-000133-2023
Criminal Appeal No.06/2023
CIS No. CA 7/2023
IN THE MATTER OF:
SHRI NIRRAJ PATHAK
S/o SHRI MUNINDER PATHAK
R/o HOUSE NO. 11, TOP FLOOR
KHASRA NO. 816, BABA COLONY
BEHIND SYNDICATE BANK, BURARI
DELHI- 110084.
SHRI BALRAM JHA
S/o SHRI RAM KARAN JHA
R/o E-73, TOMAR COLONY
KAMALPUR, BURARI
DELHI- 110084.
....Appellants
VERSUS
STATE NCT OF DELHI
THROUGH DIRECTORATE OF PROSECUTION
NEW DELHI .....Respondent
CNR Number: DLCT11-000130-2023
Criminal Appeal No.03/2023
CIS No. CA 4/2023
IN THE MATTER OF:
SHRI AKHILESH PATI TRIPATHI
S/o SHRI ABHAYANAND TRIPATHI
R/o N-9C/129, LALBAGH
AZADPUR
NEW DELHI.
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3. Sanjeev Jha
....Appellant
VERSUS
THE STATE NCT OF DELHI
THROUGH DIRECTORATE OF PROSECUTION
NEW DELHI .....Respondent
CNR Number: DLCT11-000134-2023
Criminal Appeal No.07/2023
CIS No. CA 8/2023
IN THE MATTER OF:
SHRI SANJEEV JHA
S/o LATE SHRI SUSHIL JHA
R/o KH No.23/15/1 BLOCK A-1
SANT NAGAR EXT., BURARI
DELHI- 110084.
....Appellant
VERSUS
STATE NCT OF DELHI
THROUGH DIRECTORATE OF PROSECUTION
NEW DELHI .....Respondent
DATE OF INSTITUTION : 03.02.2023
DATE OF ARGUMENTS : 01.06.2023
DATE OF ORDER : 03.07.2023
JUDGMENT
1. Vide this judgment, I shall dispose of three appeals filed under Section 374 Cr.P.C. against the judgment dated 07.09.2022 and order on sentence dated 05.01.2023 passed by the Ld. ACMM-03, Rouse Avenue District Courts in FIR No.236/15 under Sections 147/186/332/149 of IPC PS Burari in CR Case
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3. Sanjeev Jha No.33/2019 whereby the appellants Nirraj Pathak and Balram Jha were convicted and sentenced for the offences under Sections 147/149/186/332 of IPC and acquitted for offences under Section 506 IPC and Section 3 of PDPP Act and sentenced to undergo simple imprisonment for a period of one year and fine of Rs.20,000/- for the offence under Section 332 IPC read with Section 149 IPC and further admonished for the offences under Sections 147 and 186 of the IPC read with Section 149 of the IPC; appellant Akhilesh Pati Tripathi was convicted and sentenced for the offences under Sections 147/149/186/332 of IPC and acquitted for offences under Section 506 IPC and Section 3 of PDPP Act and sentenced to undergo simple imprisonment for a period of 6 months and fine of Rs.10,000/- for the offence under Section 332 IPC read with Section 149 IPC and further admonished for the offences under Sections 147 and 186 of the IPC read with Section 149 of the IPC; and appellant Sanjeev Jha was convicted and sentenced for the offences under Sections 147/149/186/332 of IPC and acquitted for offences under Section 506 IPC and Section 3 of PDPP Act and sentenced to undergo simple imprisonment for a period of 3 months and fine of Rs.10,000/- for the offence under Section 332 IPC read with Section 149 IPC and further admonished for the offences under Sections 147 and 186 of the IPC read with Section 149 of the IPC.
2. The brief facts of the case of prosecution are that on 20.02.2015, an FIR No.231/2015 was registered at PS Burari relating to kidnapping of two minor children and it was alleged that SI Ajay Kumar the IO of FIR No.231/2015 who is the
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3. Sanjeev Jha complainant (PW10) of the present FIR No.236/2015 released the accused of FIR No.231/2015 after taking bribe. The family members of the kidnapped boy were not satisfied by the action of the police so they were demanding to take action against SI Ajay Kumar (PW- 10). It has been further alleged that the accused Prem Shankar complainant of FIR No.231/2015 along with 30-40 persons came to PS Burari to inquire about the investigation in relation to FIR No.231/2015. The victim family and their relatives aggrieved with the inaction of police were requesting to suspend SI Ajay Kumar (PW-10). Many persons who were passers-by or as per the prosecution, accused persons were members of unlawful assembly and few members of the said unlawful assembly had assaulted Ct. Vikas, SI Ajay Kumar and other police staff with the common object of committing the offence of assault and also committed the offence of rioting and further committed the offence of breaking the property and vehicles lying in PS. It is further the case of the prosecution that the accused persons being members of this unlawful assembly caused criminal intimidation to Ct. Vikas and SI Ajay Kumar and therefore were guilty of offences punishable under Sections 147/148/149/186/353/332/ 427/506 IPC and Section 3 of the Prevention of Damage to Public Property Act (hereinafter referred to as the PDPP Act).
3. After completion of investigation, charge-sheet was filed on which cognizance was taken. After hearing arguments, charge was framed against the accused persons for offences under Sections 147/149/186/332/506 IPC and under Section 3 of PDPP Act on 10.01.2019 to which the accused persons pleaded not
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3. Sanjeev Jha guilty and claimed trial. Proceedings against accused Ravi Kumar got abated vide order dated 02.04.2018. Accused Anil Kaushik was discharged vide order dated 08.01.2019.
4. During the course of evidence, the accused persons had admitted the FSL report which is Ex.P-1.
5. The prosecution in support of its case had examined 23 witnesses. Their testimony as reproduced in the impugned judgment is as under:
"6. PW-1 Ct. Vikas deposed that on 20.02.2015, at about 8.30 pm, two persons came to the PS Burari and met with SI Ajay Kumar and after some time, 30-40 public persons also came to PS and asked the handing over of two accused persons of FIR No. 231/2015 of P.S Burari as they had to beat the abovesaid accused persons. PW1 further stated that SI Ajay Kumar tried to convince the public persons, but they were shouting and were saying that they will call the MLA of the area and after 15-20 minutes, one Santro car came to PS in which 4-5 persons were sitting. PW1 further stated that he tried to stop the abovesaid Santro car but it did not stop and all persons came out from the Santro car and MLA Sanjeev Jha said that "tu janta nahi mai kon hoon, main iss area ka MLA hoon, aur teri vardi utarwa doonga". PW1 also stated that MLA Sanjeev Jha pushed him due to which he fell down and received injuries on his chest and back and in the meanwhile, SHO Burari came at PS and tried to pacify the MLA, but to no avail after which MLA Sanjeev Jha and other persons (who came with him) called around 300-350 people at PS. PW-1 deposed that thereafter, Akhileshpati Tripathi i.e. MLA of Model Town also came to PS and his senior officers also came to PS and tried to pacify the mob, but all in vain and both the MLAs and their supporters were saying that "policewalo ko sabak sikhane ka samay aa gaya hai", and started pelting stones on PS building and the government vehicles and also tried to set fire to the police station
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3. Sanjeev Jha building and also tried to damage the gate of PS. PW1 also stated that the policemen who were trying to control the crowd also sustained injuries in the said incident and the public were warned with the loud hailer not to indulge in violence and to disperse after which some supporters had left the police station and crime team also came to PS and took photographs of the scene of the incident after which IO recorded his statement at PS.
7. PW-2 ASI Bharat Rattan deposed that on 20.02.2015 he was posted at police post Jharoda when at 8.30 pm, duty officer informed him that public persons were gathered in PS Burari and thereafter, he came to PS and saw that there were around 200 people present there and were shouting against the police persons and SHO of PS Burari and other police officers were trying to pacify the crowd.
PW2 further deposed that at around 10.00 pm, Ahileshpati Tripathi i.e. MLA of Model Town also came to PS along with 50-60 supporters and also raised slogans against the police. PW2 also stated that SHO PS Burari tried to convince the mob through loud speaker, but the public persons present there got agitated and started damaging the public property of PS Burari and he also got injured due to stone pelting by the public and was shifted to Aruna Asaf Ali Hospital by PCR van and got medically examined and his statement was recorded on the next day by the IO.
8. PW-3 HC Puran Chand proved the FIR as Ex.
PW-3/A and also proved the endorsement on rukka as Ex. PW-3/B.
9. PW-4 Ct. Rakesh deposed that on 20.02.2015, at around 5.00-6.00 pm, around 30 to 40 persons came to PS and met with SI Ajay Kumar and they were also asking about the case bearing FIR No. 231/15, but after sometime, the above said people started raising slogans to hand over the two persons who were arrested by SI Ajay Kumar and SI Ajay Kumar tried to pacify them and after 20-25 minutes, MLA Sanjeev Kumar Jha came to PS by private Santro car along with 4-5 persons. PW4 further deposed that Santri/ Ct. Vikas stopped MLA Sanjeev Jha and the person who came along with him after which
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3. Sanjeev Jha MLA Sanjeev Jha told the Santri/ Ct. Vikas that how he stopped his car as he was MLA of the area. PW4 further stated that thereafter, MLA Sanjeev Jha and his supporters entered into the chamber of SHO and MLA Sanjeev Jha told SHO to take action against Santri/ Ct. Vikas as he stopped his car and in the meanwhile, around 400-500 people gathered there and were shouting "Delhi Police haai haai".
PW4 also stated that SHO tried to convince the mob, but the mob did not listen and at around 7.00 to 8.00 pm, MLA Akhilesh Tripathi of Model Town came to PS and the mob became uncontrolled and the mob started pelting stones in the police station and due to pelting of stones government vehicle parked in the police station and also gamla got damaged and police persons and public persons received injuries due to pelting of stone by mob. PW4 further stated that mob was dispersed by the police and he also made video from his mobile phone and further on 14.05.2015, his mobile phone was seized by the IO vide seizure memo Ex. PW-4/A and one Samsung mobile phone was also seized by the IO which was given to the IO by Ct. Jagat Pal vide seizure memo Ex. PW-4/B.
10. PW-5 Ct. Ram Kishan deposed that on 20.02.2015, at around 10.30 pm he was present in the police station when about 200-300 people came to PS and started raising slogans "Delhi Police Haai Haai" and MLA Sanjeev Kumar Jha and MLA Akhilesh Tripathi were also present there and were standing outside SHO's room and some of the persons present in the mob were giving threats to set fire to the police station. PW5 also stated that when the police tried to remove the mob from the police station by using slight force, they started pelting stones, due to which many government vehicles were damaged and some policemen got injured. PW5 identified the accused persons namely Kishore Kumar, Jagdish and Lalit Kumar as the persons who were abusing police personnels and also identified accused Sanjeev Jha.
11. PW-6 Dr. Shashi Kant Kumar stated that on 21.02.2015, he examined certain patients namely Bharat Lal, Pradeep, Vijay Kumar, Satish Kumar, Balram Jha, Lalit Mishra, Yashpal Singh, Manoj, Ismail Islam, Ashok Kumar, Vijay Pratap Singh and
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3. Sanjeev Jha Ravi Kumar and prepared their MLCs and proved the same as Ex. PW-6/A to Ex. PW-6/K respectively.
12. PW-7 Ct. Satish deposed that on 21.02.2015, he was part of the Reserve Force when at about 9.00 p.m., he received instructions to reach PS Burari and when he reached there, he saw that there were 400-500 public persons gathered there and also saw that accused Sanjeev Jha (MLA) was also present near room of SHO and some public persons were pressurizing the SHO to suspend SI Ajay and one constable. PW7 also stated that later on public persons resorted to stone pelting and thereafter ACP also came there who ordered them to remove the protesters from the police station. PW7 further stated that he also sustained injuries as a result of stone pelting on his chest and was taken for medical treatment to the hospital by PCR and IO recorded his statement on 30.03.2015.
13. PW-8 Ct. Dinesh Kumar deposed that at about 8.30 pm, on the day of the incident, 30-40 persons gathered at the police station and raised the demand of arrest of the accused persons in the case FIR No. 231/15 of PS Burari under Section 363 IPC and SI Ajay assured the mob that he would take proper course of action against the accused, but the mob did not pay any heed. PW8 further deposed that accused Sanjeev Jha also reached at PS and argued with and threatened Ct. Vikas, when he asked for his identity and further the persons who came alongwith co-accused Sanjeev Jha as well as the mob present there became violent and started pelting stones and broke the 'gamla', vehicles and case property which was kept in police station and the senior officials tried to convince the mob with the help of loudspeaker, but the mob as well as MLA Sanjeev Jha did not pay any heed. PW8 further stated that IO arrested the accused persons namely Manoj, Ismail and Vijay Pratap vide arrest memos Ex. PW- 8/A, Ex. PW-8/B and Ex. PW-8/C and IO also conducted their personal search vide memos Ex. PW-8/D, Ex. PW-8/E and Ex. PW-8/F.
14. PW-9 Dr. Sankalp Pandey deposed that on 28.04.2015, he was posted as Senior Resident at LNJP Hospital and he gave opinion regarding the nature of injuries based on Orthopedic examinations of the patients namely Vinod Singh vide MLC No.
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3. Sanjeev Jha 5947 proved as Ex. PW-9/A, Babloo Yadav vide MLC No. 5945 proved as Ex. PW-9/B, Gora Chand vide MLC No. 5946 proved as Ex, PW-9/C, Rahul vide MLC No. 5949 proved as Ex. PW-9/D. PW9 also stated that he also gave opinion regarding the injuries to HC Bharat Rattan vide MLC No. 5950 proved as Ex. PW-9/E, HC Mohan Lal vide MLC No. 5951 proved as Ex. PW-9/F, Raju Malik vide MLC No. 5953 proved as Ex. PW-9/G, Kishore Kumar vide MLC No. 5954 proved as Ex. PW-9/H, Sujeet Kumar vide MLC No. 5955 proved as Ex.
PW-9/I, Atma Santosh vide MLC No. 5956 proved as Ex. PW-9/J, Shashi Mohan vide MLC No. 5960 proved as Ex. PW-9/K, Babu Lal vide MLC No. 5948 proved as Ex. PW-9/L, Shyam Gopal Gupta vide MLC No. 5961 proved as Ex. PW-9/M, Ravi Prakash Jha vide MLC No. 5962 proved as Ex. PW- 9/N, Narender Singh vide MLC No. 5958 proved as Ex. PW-9/O. PW9 also stated that the nature of injuries of all the aforesaid people was simple in nature except Babu Lal whose injury was grievous.
15. PW-10 SI Ajay Kumar is the complainant who stated that on 20.02.2015, the accused Prem Shankar alongwith accused Heera Devi and around 15-20 people came to the PS and they asked him why he had released the accused persons, who were arrested in another case FIR No. 231/15 and those 15-20 persons started raising slogans "Delhi Police Hai Hai". Thereafter, accused Sanjeev Jha and after some time, another co-accused Akhilesh Tripathi also reached the police station and the mob that had gathered at the PS including Heera Devi, Balram Jha and Shyam Gopal Gupta were raising slogans that "thane ko aag lada denge" and both MLAs also joined them and some of the persons in the mob started stone pelting due to which public property was damaged including government vehicles and some police men were also injured. PW10 further stated that at the time of the incident, they were able to apprehend and arrest six accused persons in his presence including accused Ravi Prakash, Ravi Kumar, Manoj and Vijay Pratap. PW10 proved his statement as Ex. PW-10/A and he further proved the arrest memos of accused Ravi Prakash, Ravi Kumar and Vijay Pratap as Ex. PW10/B, PW10/C and PW10/D and also proved their personal search memos as Ex. PW-10/E, Ex. PW-10/F and Ex. PW- 10/G and IO also prepared site plan at his instance
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3. Sanjeev Jha as Ex. PW-10/H and further proved the seizure memo of the case property i.e. the broken glasses and bricks seized by the IO as Ex. PW-10/I and of the damaged vehicles as Ex. PW-10/J.
16. PW-11 HC Hari Narayan brought the Register No. 19 pertaining to case FIR No. 236/15 and photocopies of duty roster of police officials of P.S Burari dated 20.02.2015 and proved the same as Ex. PW-11/A.
17. PW-12 ASI Jagat Pal deposed that he had videographed the incident from his mobile phone Samsung Grand 2 White colour and on 14.05.2015, he had handed over the said mobile phone to SI Sunil Kumar, DIU vide seizure memo already Ex. PW4/B.
18. PW-13 HC Jai Prakash deposed that on 20.02.2015, at 8.00 pm, accused Prem Shankar and other 20-30 persons gathered at the police station and called the local MLA Sanjeev Jha and his supporters after which the accused Sanjeev Jha intimidated Ct. Vikas saying that "mai area ka MLA hoon aur mein tumahri vardi utrawa dunga" and accused Sanjeev Jha and his supporters had a scuffle with Ct. Vikas and despite objection by Ct. Vikas, accused Sanjeev Jha and his supporters entered into the police station. PW13 further deposed that accused Sanjeev Jha and Akhilesh Tripathi instigated the supporters and also provoked them for pelting stones and mob started pelting stones and damaged the case property lying in the PS as a result of which some police official present at the PS also sustained injuries. PW13 stated that thereafter accused persons namely Ashok, Ravi Prakash Jha and Ravi Kumar were apprehended by him at the spot and arrested and personally searched in his presence. PW13 identified the case property i.e. Motorcyle, Maruti Car, Gramin Sewa Van, TSR and other case property in the photographs and identified the case property i.e. 14 photographs a Ex. PW-13/1-14.
19. PW-14 HC Satish, MHC (M) proved entry no. 1757 in register no. 19 of the present case and entry no. 1758 regarding deposition of case property as PW14/A and PW14/B respectively. PW14 also proved photocopy of the Road Certificate regarding
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3. Sanjeev Jha sending of mobile phone to FSL for examination dated 10.06.2015 as Ex. PW-14/C and the acknowledgment of case acceptance mentioned in the abovesaid register was proved as Ex. PW-14/D.
20. PW-15 HC Irsad Ahmed stated that on the day of the incident, he got clicked 27 photographs of the scene of crime at the direction of IO and handed over all the negatives to the IO.
21. PW-15 ASI Gurdeep Singh (Technical) (wrongly mentioned as PW15) stated that on 23.02.2015, he reached PS Burari and as per directions of IO, he conducted mechanical inspection of ten vehicles vide mechanical inspection reports as Ex. PW15/1 to Ex. PW15/10.
22. PW-16 ASI Diwan Singh stated that on 20.02.2015 at about 5:35 pm, he received a PCR call regarding forcefully taking of two persons away on a motorcycle and marked the said PCR call to SI Ajay thereafter, SI Ajay alongwith Ct. Ram Kishan left the Police Station for the spot in order to verify the above said PCR call. PW16 further stated that at about 07.00 pm, Ct. Ram Kishan returned to PS and handed over to him a rukka prepared by SI Ajay for registration of FIR and on the basis of rukka, he registered FIR No. 231/15 under section 363/34 IPC and handed over the copy of FIR and original rukka to Ct. Ram Kishan to hand over the same to SI Ajay. PW16 further deposed that at about 08.00 pm, SI Ajay alongwith some public persons returned to PS and they were arguing with SI Ajay and after sometime, Sanjeev Jha, MLA of Burari came to the police station in a santro car and santry / Ct. Vikas tried to stop Sanjeev Jha (MLA) at the gate of the police station, however he did not pay any heed and entered the PS. PW16 further stated that SHO was also present there and Sanjeev Jha (MLA) started misbehaving with the police staff of PS Burari and one lady namely Heera was accompanying Sanjeev Jha was saying in PS "Police ki yahee pitay karengay". PW16 further stated that one Balram, a lady namely Yash Bhatia, Akhileshpatti Tripathi MLA of Model Town alongwith some public persons also reached at PS after which SHO intimated the said fact to Assistant Commissioner of Police, who also reached
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3. Sanjeev Jha at the PS and at about 10:30 pm, SHO warned the public persons through loudspeaker to leave the PS, but they did not leave the police station despite warning and continued raising slogans against Delhi Police and after sometime, extra police force was deployed and thereafter, the public persons started pelting stones on the police staff due to which mild force was used by the police to disperse the gathering of the people and due to pelting of stones, some police officials received injuries and some vehicles parked in the police station were damaged and thereafter Sanjeev Jha and Akhileshpatti Tripathi alongwith public persons left PS.
23. PW-17 Ct. Babu Lal deposed that on 20.02.2015, accused persons namely Shyam Gopal Gupta, Anil Kaushik and Basant Goswami alongwith around 30 persons came to the police station and demanded handing over of two accused persons in a kidnapping case and upon refusal, those three above said accused persons started provoking the other persons and called the local MLA and at around 8:30 pm, accused persons Sanjeev Jha, Arun Jha, Neeraj Pathak and driver came to the police station in his Santro car and accused Sanjeev Jha misbehaved and abused Ct. Vikas and accused persons Neeraj Pathak, Shyam Gopal Gupta, and other persons started misbehaving with the police officials and accused Sanjeev Jha then called more of his other supporters and many more persons including accused persons namely Balram Jha, Narender Singh Rawat, Yash Bhatia, Heera Devi reached the police station.
PW17 deposed that at about 10 pm, accused Akhilesh Pati Tripathi also reached the police station alongwith 70-80 supporters after which SHO requested accused Sanjeev Jha and accused Akhileshpatti Tripathi to remove the crowd from the police station and also asked the crowd to leave but to no avail and then the accused persons namely Shyam Gopal Gupta, Balram Jha, Heera Devi and Yash Bhatia started assaulting SI Ajay and accused Neeraj Pathak and Balram Jha forcibly put him on the ground and assaulted him with fists and leg blows after which he sustained injury on his shoulder and thereafter the mob started pelting stones on the police station.
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3. Sanjeev Jha
24. PW-18 SI Sombir, Incharge Crime Team deposed that on 21.02.2015, at about 12.35 a.m., he received a message from Control Room to reach police station Burari after which he alongwith his team including photographer Irsad and finger print expert ASI Jai Singh reached at police station Burari where they met IO SI Sanjay Kumar Gupta and after which he observed the crime scene and observed that some stone pelting was done there in which many vehicles were damaged and some flower pots were also found damaged and scattered and some motorcycles were lying down and PW18 also stated that the photographer Irsad took the photographs of the place of incident and he prepared the inspection report of the spot as Ex. PW-18/A.
25. PW-19 Inspector Sher Singh proved DD entry No. 49A as Ex.PW19/A and also proved the CD Ex.P1. In his statement u/s 161 Cr.PC, the then SHO Insp. Sher Singh has stated that on 20.02.2015, a large crowd had assembled at PS Burari who were demanding handing over of the accused persons involved in kidnapping case i.e. FIR NO. 231/15 of PS Burari and some persons in the crowd were raising slogans and provoking the crowd and at around 08.30 pm, the MLA of Burari Sanjeev Jha alongwith Neeraj Pathak, Arun Jha and his driver came to the PS and when Ct. Vikas tried to stop the vehicle at the gate, MLA Sanjeev Jha got angry and abused Ct. Vikas. It is further stated in the statement that thereafter accused Neeraj Pathak, Arun Jha, Shyam Gopal Gupta and others used force against SI Ajay and other police staff and in the meanwhile accused Balram Jha, Heera Devi and Yaswant @ Yash Bhatia came to the PS and were raising slogans and were instigating the crowd and at about 09.45 PM - 10.00 PM, MLA Model Town Sh.
Akhileshpatti Tripathi came with his supporters and was making provokating statement and at around 10.30 PM, he being the SHO tried to pacify the crowd using loudspeaker but to no avail after which ACP Civil Lines also came to the PS. PW Insp. Sher Singh has further stated that the crowd got violent after which mild force was used to control the crowd and thereafter both the MLAs left the PS with their supporters.
26. PW-20 Ct. Rahul deposed that on 20.02.2015, at
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3. Sanjeev Jha PS Burari, he saw that the mob was creating a lot of ruckus after which the public became violent and started stone pelting and he sustained injuries on his right shoulder due to stone pelting.
27. PW-21 SI Sanjay Kumar Gupta deposed that on 20.02.2015, he was present in PS and he recorded the statement of SI Ajay already proved as Ex. PW10/A and prepared tehrir and made the endorsement already Ex. PW3/B. PW21 further deposed that he registered the FIR and at the instance of SI Ajay, he prepared the site plan already Ex. PW10/H and also prepared the seizure memo w.r.t. broken glass, stones etc., vide seizure memo already Ex. PW10/1. Thereafter, PW21 also deposed that SI Ajay handed over 6 persons which were detained by him namely Ismail, Ashok, Manoj. Vijay, Ravi Kumar and Ravi Prakash vide arrest memos already Ex. PW8/B, Ex. PW10/B, Ex. PW8/A, PW8/C, PW10/C and PW10/D and he also seized 10 damaged vehicles lying in malkhana vide seizure memo already Ex. PW10/J. PW21 further deposed that on 23.02.2015, he got the vehicles mechanically inspected vide memo already Ex. PW15/1 to Ex. PW15/10 respectively.
28. PW-22 Satish Sharma, the then ACP deposed that on 20.02.2015, he reached at PS Burari after receiving a call that MLA Sanjeev Jha is creating disturbance in PS and on reaching PS he saw a large crowd gathered at PS and the people wanted suspension of SI Ajay and Ct. Vikas. PW-22 further stated that he tried to pacify MLA Sanjeev Jha and MLA Akhileshpatti Tripathi but they insisted for suspension of police officials and called more people. PW-22 further stated that the accused Sanjeev Jha and accused Akhileshpatti Tripathi started provoking the crowd for beating the police staff and for damaging the public property and also provoked the crowd for setting the vehicles on fire which were parked outside the PS. Thereafter, the crowd started manhandling the police officials on the provocation of MLAs mentioned above after which he ordered use of mild force to disperse the crowd. PW-22 further stated that some police officials were injured in the scuffle and were sent to hospital. PW-22 stated that after investigation, he made a request to the concerned Magistrate under Section 195 Cr.PC for obtaining the sanction proved
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3. Sanjeev Jha as Ex.PW22/A.
29. PW-23 SI Sunil Kumar, 2nd IO of the case deposed that on 26.02.2015 investigation of the present case was handed over to him by ACP, DIU and stated that five accused persons namely Ravi Prakash. Ismail Islam, Manoj. Ashok and Ravi were in JC when investigation was marked to him and the other 20 accused persons who were named in FIR were served notice under Section 41 Cr. P.C. to join the investigation. PW23 further deposed that two mobile phones were seized by him vide seizure memo already Ex.PW4/B and Ex.PW4/A after which he sent the seized mobile phones to the FSL and prepared the charge-sheet against twenty five accused persons and same was submitted to the Court. PW23 further deposed that after almost one year, he received FSL result, accordingly and he prepared supplementary charge-sheet and named four more accused persons in the supplementary charge-sheet and recorded the statements of witnesses SI Ajay, SI Sanjay Gupta and others and filed the FSL result already Ex. XI alongwith the supplementary charge-sheet in the Court."
6. PE was closed on 19.12.2020 and thereafter the statement of the accused persons was recorded under Section 313 Cr.P.C., wherein all the incriminating evidence on record including exhibited documents were put to the accused persons, which they denied and stated that this was a false and a frivolous case against them and they were not involved in any rioting/sloganeering. The accused persons examined 14 witnesses in defence. The testimony of the defence witnesses as reproduced in the impugned judgment is as under:
"33. DW-1 Sh. Kumar Ankit deposed that on 20.02.2015 (exact date he did not remember) in the evening time, he was having tea at tea stall situated in front of police station Burari and at that time MLA of Burari Sh. Sanjeev Jha reaching at PS and after some time, MLA of Model Town, Sh. Akhileshpatti Tripathi also reached to the PS and
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2. Nirraj Pathak & Anr.
3. Sanjeev Jha after about half an hour, both MLAs came out from PS and left from there whereas more and more crowd started gathering there outside the police station to know what was going on there.
34. DW-2 Sh. Ratnakar Pandey, DW-3 Sh. Dinesh Pratap Singh, DW-5 Sh. Gyander Kumar, DW-6 Sh. Rahul Singh DW-8 Sh. Radha Kishan Sharma, DW-10 Sh. Dharamveer Upadhya, DW-11 Sh. Sachin Yadav, DW-12 Sh. Subhash Kumar Pathak and DW-13 Sh. Nirbhay Kumar Singh deposed on the same lines as DW1.
35. DW-4 Sh. Shailesh Kumar Sharma deposed that on 20.02.2015, some of his journalist friends informed him that there was a protest going on at police station Burari and he also reached there at about 7.00-8.00 p.m., when he saw that there was peaceful protest going on inside and outside police station, Burari. DW4 also stated that after some time, the newly elected MLA of the area Mr. Sanjeev Jha also came there and went inside the SHO's room PS Burari and after some time, Mr. Akhileshpatti Tripathi, MLA of Model Town also came there and went inside the SHO room of police station Burari and after about 20-30 minutes, both the aforesaid MLAs namely Sanjeev Jha and Akhileshpatti Tripathi came out from the SHO room and requested public persons gathered there not to take law in their hands, behave peacefully and leave from there and thereafter, both the MLAs left from there.
36. DW-7 Sh. Prem Singh stated that he was working at Petrol Pump, Burari and the petrol pump was near about 100 metres from Burari police station. DW7 further stated that on 20.02.2015 at about 8.00-9.00 p.m., MLA from Burari constituency Sh. Sanjeev Jha came in a car at his petrol pump and got filled the fuel in the car and left from the petrol pump.
37. DW-9 Sh. Jagjeet stated that on the day of the incident there was a peaceful protest going on at P.S Burari in relation to a kidnapping case as police was not taking any action and then at about 5 P.M- 5:30 P.M., Sh. Sanjeev Jha, local MLA of the area also came there and the police official present at the gate of PS Burari stopped the car in which MLA Sanjeev Jha was sitting and started abusing him and
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2. Nirraj Pathak & Anr.
3. Sanjeev Jha told him "Vidhayak hoga to apne ghar ka hoga" and also pointed his riffle towards the MLA Sanjeev Jha after which MLA Sanjeev Jha asked the SHO PS Burari to remove the said police official who had misbehaved with him. DW-9 also stated that MLA Sanjeev Jha came out from the SHO room and asked the people present there to maintain peace and not to indulge in any violence, otherwise, he would leave from there and in the meantime, DCP also reached there.
38. DW-14 Sh. Anit Kumar Jha deposed on the same lines as DW1 and stated that local MLA Sanjeev Jha came there in a car and he went inside the SHO room PS Burari by walking through the gate of PS Burari and when MLA Sanjeev Jha was going inside the SHO room, some protesters also accompanied him to the SHO room and after some time one another MLA Akhileshpatti Tripathi also came in the SHO room and SHO Burari police station agreed to take appropriate action against the erring officers after which MLA Sanjeev Jha and MLA Akhileshpatti Tripathi came out of the SHO room and requested the crowd gathered there to leave the premises as SHO had agreed to take appropriate action in the kidnapping case."
7. DE was closed on 07.04.2022. After hearing arguments by the Ld. APP and the Ld. Counsels for the accused persons, the impugned judgment was passed and thereafter the convicts were sentenced. Against the said judgment and the order on sentence, the present appeals have been preferred.
APPEAL FILED BY APPELLANT AKHILESH PATI TRIPATHI.
8. It is averred that the impugned judgment passed by the Ld. Trial Court is bad in law and has resulted in grave miscarriage of justice as the appellant is an innocent person and has been falsely implicated in the case. It is submitted that the Ld. Trial Court had convicted the appellant without considering and failing to
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2. Nirraj Pathak & Anr.
3. Sanjeev Jha appreciate that the entire case of the prosecution was based on unreliable and uncorroborating evidence and on the circumstances which could not be relied upon as being trustworthy. It is averred that the Ld. Trial Court had failed to appreciate that there are vital links of the chain missing in the present case in order to attribute any guilt to the appellant and as the prosecution could not complete the chain of events, no conviction could be passed against the appellant. It is submitted that the learned Trial Court convicted the appellant without considering and failing to appreciate that there was serious lapse on the part of the prosecution and the prosecution had miserably failed to bring home the guilt of the appellant. It is also submitted that the Ld. Trial Court had failed to appreciate that most of the accused persons were mere bystanders and onlookers and some were merely on their way home and police station was on route to their home. Further, some accused persons were peacefully protesting and it was the police officials of PS Burari who had started lathi charge on the peaceful protesters and the appellant was not provoking/ instigating the mob but had gone to police station to defuse the situation and pacify the crowd.
9. It is submitted that the Ld. Trial Court had failed to appreciate that the prosecution had not placed on record the CCTV footage from the cameras installed in the police station and therefore, the best evidence available had not been brought by the prosecution which would adversely affect the prosecution's case; that the statements of the prosecution witnesses were recorded under Section 161 Cr.P.C. after a gap of almost three months and the said delay had not been explained by
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2. Nirraj Pathak & Anr.
3. Sanjeev Jha the prosecution; that the prosecution had not obtained sanction under Section 195 Cr.P.C. qua four accused persons namely Prem Shankar, Heera Devi, Arun Jha and Yash Bhatia who were added as an accused in the supplementary chargesheet; that the appellant was not present at the relevant time when the alleged incident took place; that the appellant could not be held responsible for the crowd allegedly turning violent and the factum of the appellant not being there could also be ascertained from the various deposition of the witnesses and DD entries placed on record by the prosecution; that the prosecution had examined only police witnesses, no independent witnesses had been examined or attached to the investigation which clearly showed the malafide of the investigation agency; that the alleged incident took place at PS Burari and complaint was also lodged at PS Burari and the complainant was also stated to be an official of PS Burari, and the investigation of the present case was also carried out by the police officials of PS Burari, the said facts cast a serious doubt about the manner in which the investigation was conducted in the present case as the complainant and the investigation agency were hand in glove and they had every chance for tampering and fabrication with the evidence as they were in their hand and control of the evidence was also with them so the possibility of manipulating or tampering with the evidence and the record could not be ruled out.
10. It is also submitted that the Ld. Trial Court had convicted the appellant without considering and failing to appreciate that it was evident on the face of the record that the prosecution falsely implicated the appellant in the present case. On a bare perusal of
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2. Nirraj Pathak & Anr.
3. Sanjeev Jha the record, the innocence of the appellant was clearly apparently made out. It was clear that the appellant had been made a scapegoat. It is averred that the Ld. Trial Court did not appreciate the said facts and wrongly convicted the appellant. It is averred that the Ld. Trial Court convicted the appellant without considering and failing to appreciate that there were material contradictions and deliberate improvements in the statements of the prosecution witnesses who were examined before the Ld. Trial Court and the Ld. Trial Court did not appreciate the facts that the contradictions and improvements in the statements of the witnesses are such, which go to the root of the case of the prosecution and no reliance could be placed on the testimonies of such witnesses. Moreso, the contradictions and the improvements were not minor ones but they vitiated the entire veracity of the prosecution case and no reliance could be given to the prosecution story and thus also the appellant was entitled to his acquittal. It is also submitted that the Ld. Trial Court convicted the appellant without considering and failing to appreciate that the entire case of the prosecution was based on conjectures and there is no legal evidence against the appellant and the Ld. Trial Court convicted the appellant without considering and failing to appreciate that the prosecution had miserably failed to bring home its case and failed to bring on record anything, which could even remotely infer that the appellant was liable for any act which could squarely come under the provisions of sections for which the appellant had been convicted and sentenced.
11. It is submitted that the Ld. Trial Court convicted the appellant without considering and failing to appreciate that the
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2. Nirraj Pathak & Anr.
3. Sanjeev Jha judgment passed by the Ld. Trial Court was against the norms of law and was against the judgments of the Hon'ble Apex Court and the Ld. Trial Court did not apply its mind to the facts and circumstances involved in the present case and wrongly convicted the appellant without considering and failing to appreciate that even if the allegations of the prosecution were taken on the face of it, no offence under any provisions of IPC had been made out against the appellant. It is thus prayed that the impugned judgment be set aside and the appellant be acquitted.
APPEAL FILED BY APPELLANTS NIRRAJ PATHAK AND BALRAM JHA
12. Reference was made to the facts of the case and that on 20.02.2015, FIR No.231/2015 was registered at PS Burari related to kidnapping of two minor children. SI Ajay Kumar, the IO of FIR No.231/2015 who is complainant of the present FIR No.236/2015 released the accused of FIR No.231/2015 after taking bribe. The family members of the kidnapped boy were not satisfied with the action of the police so they were demanding to take action against SI Ajay Kumar (PW10). It had further been alleged that the accused Prem Shankar, complainant of FIR No.231/2015 along with 30-40 persons came to PS Burari to inquire about the investigation in relation to FIR No.231/2015. The victim family and their relatives aggrieved with the inaction of police had been requesting to suspend SI Ajay Kumar. Suddenly the police started lathi charge upon the public gathered in the PS. Many persons who were passersby or as per the prosecution, accused persons were members of unlawful
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2. Nirraj Pathak & Anr.
3. Sanjeev Jha assembly and few members of the said unlawful assembly had assaulted Ct. Vikas, SI Ajay Kumar and other police staff with the common object of committing assault and also committed the offence of rioting and further committed the offence of breaking the property and vehicles lying in the PS. It is further the case of the prosecution that the accused persons being members of the unlawful assembly caused criminal intimidation.
13. It is averred that accordingly on 21.02.2015 FIR No.236/2015 was registered at PS Burari on the basis of the complaint submitted by SI Ajay Kumar. It is averred that due to the lathi charge by police, various by-standers and passersby innocent persons who were on their way home after routine work/ job and police station was on route to their home were also injured and they were taken for medical treatment to the hospitals and after treatment 6 injured persons were arrested in the present FIR No.236/2015 to safeguard the erring police officials including SI Ajay Kumar who to the contrary, became the complainant in the present case. After investigation, charge sheet was filed against 25 accused persons including the appellants and on 16.01.2018, a supplementary charge sheet was filed against four accused persons. It is submitted that most of the injured persons were named after three months of the alleged incident. No identification parade was conducted. Surprisingly, approximately after three months of the alleged incident, the persons who were injured in the lathi charge of the police apart from six arrested injured persons were named in the FIR. It is submitted that most of the accused were not named in the FIR and suddenly after three months, all injured persons and some
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2. Nirraj Pathak & Anr.
3. Sanjeev Jha other persons were named in the FIR based on the statement of police claimed to be recorded after 3 months.
14. It is submitted that a perusal of the statement and cross- examination of the witnesses examined by the prosecution would show that the appellants had been falsely implicated and there were a lot of contradictions in the statement of prosecution witnesses related to the alleged incident and there were lot of improvements during cross-examination, which proved that the FIR No.236/2015 had been lodged to safeguard SI Ajay Kumar (PW10) the complainant in the present FIR who had been the Investigating Officer of FIR No.231/2015 and who had released the accused persons after taking bribe. It is submitted that most of the prosecution witnesses were unreliable as they had been examined under Section 161 Cr.P.C. after approximately 3 months of the alleged incident and the IO had not given any reason to record the statement of prosecution witnesses belatedly and the prosecution failed to prove the allegations against the appellants beyond reasonable doubt.
15. It is averred that the statement of appellant Nirraj Pathak was recorded under Section 313 Cr.P.C. in which the appellant categorically stated that he had been falsely implicated in the present case and the present case had been lodged to cover up the police atrocity against the general and innocent people on that day. The appellants had never been part of any unlawful protest. It is averred that the appellant Nirraj Pathak was then President of Purvanchal Committee of Aam Aadmi Party. The appellant Balram Jha was returning home from Azadpur Mandi and the
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2. Nirraj Pathak & Anr.
3. Sanjeev Jha police created the story belatedly to safeguard the other police officers as he was beaten up by certain police officers merely because he was walking past towards his house on the Burari main road. It is submitted that the Ld. ACMM had acquitted 10 accused persons and convicted 17 accused persons including the appellants.
16. It is submitted that the Ld. Trial Court had wrongly relied on the contents of the charge sheet and seemed to believe that its contents were the gospel truth and accordingly had wrongly appreciated the evidences in favour of the prosecution whereas in a Criminal Justice System it was the settled law that inconsistencies and contradictions of the prosecution shall be treated against the prosecution case. It is submitted that the Ld. Judge while convicting the appellants had wrongly relied upon the prosecution witnesses whose statements were recorded under Section 161 of Cr.P.C. after three months of the alleged incident and even were not consistent with the statement recorded under Section 164 of Cr.P.C. and there were a lot of contradictions and improvements in the cross-examination. Further, the Ld. Judge ought to have appreciated the fact in the favour of the accused that the statement under Section 161 Cr.P.C. was recorded lately after a gap of three months and also the prosecution failed to state any reason for such delay wherein all the witnesses were interested police witnesses and the prosecution had not examined or had even put any effort to examine any independent witness in support of their case. A chart in respect of delay in recording the statements under Section 161 Cr.P.C. was also given. It is submitted that most of the statements of the witnesses were
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2. Nirraj Pathak & Anr.
3. Sanjeev Jha recorded under Section 161 Cr.P.C. after an inordinate delay of three months which must not have been appreciated by the Ld. ACMM, as such all the statements prima facie seemed to be tutored and parrot like and they were interested police witnesses planted to safeguard the erring police officials related to FIR No. 231/2015 and falsely implicated innocent persons including the appellants.
17. It is averred that the Ld. ACMM vide the impugned judgment @ page 56 had himself observed that the evidentiary value of two videos was questionable and even after watching the said videos, it showed that no offense/ illegal act was being shown as being committed by any of the accused persons. It is averred that the Ld. ACMM failed to appreciate that the prosecution witnesses admitted to have CCTV in police station but they had not placed on record the CCTV footage from the cameras installed in the police station and therefore, the best evidence available had not been brought by the prosecution which would adversely affect the prosecution's case. It is also submitted that the Ld. Trial Court had wrongly appreciated the statement of PW1 Ct. Vikas in as much as there were huge contradictions in his statement given under Section 161 Cr.P.C. and evidence under Section 164 Cr.P.C. that there was cogent embellishment in his statements to the extent that in his evidence he stated that the accused persons tried to fire the building whereas in his statement under Section 161 Cr.P.C. he did not state so.
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2. Nirraj Pathak & Anr.
3. Sanjeev Jha
18. It is also submitted that the Ld. Trial Court had wrongly appreciated the evidence of PW2 HC Bharat Rattan in as much as there were huge contradictions in his statement given under Section 161 Cr.P.C. and in his evidence under Section 164 Cr.P.C and there was cogent embellishment in his statements to the extent that in his evidence he stated that he was injured during the offence but it was not mentioned in his statement under Section 161 Cr.P.C. and also his statement under Section 161 Cr.P.C. was recorded after a gap of 3 months. Further PW2 ASI Bharat Rattan stated before the Court that he also got injured but when confronted with the statement under Section 161 Cr.P.C. it was not stated so. It is averred that the Ld. ACMM ought to have appreciated its findings while acquitting accused Vinod Singh, Atma Santosh and observed that the prosecution had not been able to prove the guilt of the accused persons and even PW2 failed to identify the accused Vinod Singh.
19. It is averred that the Ld. Trial Court had wrongly relied on the statement of PW17 Ct. Babu Lal, in as much as there were huge contradictions in his statement given under Section 161 Cr.P.C. and evidence under Section 164 Cr.P.C. and there was cogent embellishment in his statements to the extent that he stated that PW10 SI Ajay was being assaulted by other co- convicts whereas PW10 SI Ajay himself had not stated so, either in his statement under Section 161 Cr.P.C. or in his evidence before the Court under Section 164 Cr.P.C. The statement of PW17 under Section 161 Cr.P.C. was recorded after a gap of three months on 11.05.2015 and 12.05.2015 and there was embellishment and concoction in his statement given to the
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2. Nirraj Pathak & Anr.
3. Sanjeev Jha police and evidence before the Court. It is also averred that the Ld. Trial Court had taken a contradictory consideration and appreciation of the evidence of PW17 Babu Lal in as much as while acquitting another accused Basant Goswami, the Ld. Trial Court had not relied on the evidence of PW17 and found his evidence to be questionable whereas, the Ld. Trial Court had wrongly appreciated the evidence of PW17 in respect of the appellants.
20. It is submitted that the Ld. Trial Court had wrongly relied on the evidence of PW10 SI Ajay Kumar as he was the person against whom warranted grievances were there in the public in relation to FIR No.231/15, wherein SI Ajay was accused of taking bribe from the accused arrested in relation to the said FIR. Further, he was personally interested in the outcome of the instant case and to safeguard him, the instant FIR had been malafidely registered. It is averred that the Ld. ACMM ought to have appreciated his own finding while acquitting accused Narender Kumar, Narayan Yadav, Basant Goswami, Prem Shankar and Arun Jha observing that there were contradictions and non-supportive testimony of PW10 SI Ajay Kumar, therefore it could not be relied upon. It is averred that the Ld. Trial Court had not appreciated the inconsistencies and contradictions in the evidence of the prosecution with regards to the timing of the incident of stone pelting and a chart was given as to what was deposed by the different witnesses in this regard.
21. It is averred that the first DD entry regarding any incident of stone pelting by the mob at PS Burari was DD No.88B
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2. Nirraj Pathak & Anr.
3. Sanjeev Jha Ex.PW16/DX2 in which it was stated that at 23.52 hrs 1000-1200 persons had gathered, who were members of the Aam Aadmi Party and who were pelting stones at the PS. A subsequent DD Entry No.84B Ex.PW16/DX3 stated that at 23.53 hrs 500-600 persons were pelting stones at PS Burari. Thus, the evidence of prosecution witnesses was falsified by contemporaneous DD entries which placed the time of stone pelting at around midnight on 20.02.2015. It is averred that the DD entries also make reference to violence carried out by the police. Ex.PW10/DA [DD.No.5B] is a DD Entry that talks of a lathi charge at 12:07 a.m. on 21.02.2015. Reference may be made to the evidence of PW10 dated 26.09.2019. Ex.PW 10/DC [DD No.8B] recorded on 21.02.2015 stated that the police was beating up the mob in front of the PS. It is submitted that the charge placed the incident at 10:30 p.m. however, the documents clearly showed the incident occurring post 11:00 p.m. However, there was not a single prosecution witness or a single document that recorded the presence of the accused at the PS after 10:30 p.m. Therefore, the charge against the appellants had been wrongly appreciated by the Ld. Trial Court.
22. It is averred that the Ld. Trial Court had failed to appreciate the inconsistencies and contradictions with respect to the presence of CCTV cameras in the Police Station premises which could have been the best piece of evidence which was deliberately withheld by the prosecution. Reference was made to the testimony of the witnesses in this regard. It is submitted that the Ld. Trial Court had failed to appreciate that none of the prosecution witnesses had stated regarding an overt act of the
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2. Nirraj Pathak & Anr.
3. Sanjeev Jha appellants in furtherance of the common object. It is submitted that the Ld. Trial Court had adopted an erroneous and fallacious approach wherein it had failed to appreciate, inter alia, that the circumstances leading to the registration of instant FIR was the peaceful protest against the erring police officials who committed illegality during the investigation in relation to FIR No.231/15 PS Burari which was registered for the offence of kidnapping of children, there was lack of supportive evidence to substantiate the levelled charges against the appellants and the appellants in their testimony had categorically stated the circumstances leading to their arrest and why they were arraigned as accused, there was possibility of embellishment in the prosecution version of the case.
23. It is submitted that the Ld. Trial Court had wrongly appreciated the gap in the chain of evidence produced and the circumstances stated by the prosecution in as much as there was complete dearth of cogent, conclusive and inculpatory evidence against the appellants and the Ld. Trial Court had ignored the importance of evidence. It is submitted that the Ld. Trial Court had not appreciated the fact that the witnesses had stated parrot like statements which dampened the case of the prosecution. Further, PW23 SI Sunil Kumar (IO of the case) in his cross examination admitted that there were some street hawkers (Rehri Patri Wale) but he failed to examine any among them and also did not put any effort to make them public witness qua the incident. It is averred that the Ld. Trial Court had not appreciated the fact that the prosecution had not produced any independent witness or any independent material on record to corroborate and
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2. Nirraj Pathak & Anr.
3. Sanjeev Jha establish the guilt of the appellants. It is averred that the Ld. Trial Court had wrongly appreciated the non-supportive testimonies and evidences against the appellants despite no material on record being produced by the prosecution to corroborate the evidences or pointing to the involvement in the said alleged offence.
24. It is submitted that the impugned judgment suffers from non- application of mind and had been passed against the settled principles of law and suffers from patent illegality, incorrectness and impropriety. It is submitted that the Ld. Trial Court had gravely erred in basing the impugned judgment on erroneous inference drawn without the perusal of the material on record and also without considering the totality of the circumstances and the broad probabilities of the case, the total effect of the evidence and the documents produced before it. It is averred that the Ld. Trial Court had committed an error apparent on the face of record by wrongly accepting the version set up by the prosecution including documents on record as well as statements given by the witnesses. It is averred that the Ld. Trial Court had failed to consider that there was no case made out against the appellants by simply juxtaposing and considering the entire sequence of events and prime facie making out insufficient ground for the conviction of the accused. It is also averred that the Ld. Trial Court had selectively relied on the evidence produced by the prosecution whereas the criminal justice delivery system warranted a conclusive nature of the evidence before fastening a guilt on the appellants. It is submitted that the Ld. Trial Court had not appreciated the fact that the prosecution had failed to
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2. Nirraj Pathak & Anr.
3. Sanjeev Jha establish the guilt of the accused beyond reasonable doubt but instead had relied on the version of the prosecution. It is thus prayed that the impugned judgment dated 07.09.2022 and order on sentence dated 05.01.2023 be set aside and the appellants be acquitted.
APPEAL FILED BY APPELLANT SANJEEV JHA
25. Similar averments were made in the appeal filed by the appellant Sanjeev Jha. In addition, it was submitted that the appellant and the other accused persons examined 14 defence witnesses to prove their cases which proved that the appellant had left the police station much prior to the alleged incident. The appellant reached the police station and met the SHO and requested them to take action against erring police officials including SI Ajay (PW10) who was IO of the kidnapping case. The appellant had in fact pacified the crowd gathered in the police station and requested them to leave the police station as the police had assured to take action against the erring police officials and thereafter, the appellant left the police station much prior to the alleged incident. It is averred that PW1 Ct. Vikas had not attributed any role qua the appellant Sanjeev Jha. It is submitted that the Ld. Trial Court had wrongly appreciated the evidence of PW4 Ct. Rakesh in as much as he had stated in his evidence before the Court that he could identify the appellant whereas he was unable to identify the appellant who was present in the Court during evidence. Further, the statement of PW4 under Section 161 Cr.P.C. was recorded by the police twice, that is on 21.02.2015 and 14.05.2015 after 3 months of the alleged
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2. Nirraj Pathak & Anr.
3. Sanjeev Jha incident and also he recorded the video of the alleged offence whereas no violence was shown in the video footage placed on record. There were improvements and embellishment in the testimonies of the witnesses. It is submitted that the Ld. Trial Court had wrongly relied on the evidence of PW8 Ct. Dinesh in as much as he was cross examined by the prosecution as he was alleged to have turned hostile. Further, PW8 Ct Dinesh was unable to verify his own deposition as such he was unable to identify any of the accused present. It is submitted that the Ld. ACMM ought to have appreciated the fact that there was an- inordinate delay of three months in recording of the statements under Section 161 Cr.P.C. and there were lots of contradictions and improvements and the same should not have been relied on by the Ld. ACMM.
26. It is submitted that the Ld. Trial Court had wrongly relied on the evidence of PW12 ASI Jagat Pal in as much as he had stated in his evidence that around 9.30-10 p.m. the appellant along with another convict Akhilesh Pati Tripathi along with 300- 350 people came to the police station which was contradictory to all other PWs Evidence. None of the PWs had stated that the appellant along with Akhilesh Pati Tripathi came to the police station along with 300-350 people. Further, PW12 ASI Jagat Pal was cross examined by the prosecution as he was claimed to have turned hostile. It is submitted that the Ld. Trial Court had wrongly relied on the statement of PW13 HC Jai Prakash, who in his evidence dated 14.03.2019 had stated that PW8 Ct. Dinesh had apprehended the other accused persons on the night of the incident however, PW 8 Ct. Dinesh in his own evidence recorded
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2. Nirraj Pathak & Anr.
3. Sanjeev Jha on 12.03.2019 had made no mention of the said apprehension or arrest. Further, the statement of PW13 HC Jai Prakash given under Section 161 Cr.P.C was contradictory to his evidence under Section 164 Cr.P.C. It is averred that there were a lot of contradictions and improvements in the evidence of the said witness which the Ld. ACMM ought to have appreciated. It is averred that the Ld. ACMM ought to have appreciated his own findings whereby PW13 HC Jai Prakash had not been relied upon while acquitting accused Shashi Mohan.
27. It is submitted that the Ld. Trial Court had wrongly relied on the evidence of PW16 ASI Diwan Singh in as much as his statement under Section 161 Cr.P.C. was recorded after a gap of three months approximately on 11.05.2015, his statement and evidence before the Court were embellished and the Ld. Trial Court had taken a contradictory consideration and appreciation of the evidence of PW17 Ct. Babu Lal in as much as while acquitting another accused Basant Goswami, the Ld. Trial Court had not relied on the evidence of PW17 and found his evidence to be questionable whereas, the Ld. Trial Court had wrongly appreciated the evidence of PW17 in respect of the appellant. It is further submitted that the Ld. Trial Court had wrongly relied on the evidence of PW19 Inspector Sher Singh as other co-accused Gora Chand Das and Shashi Mohan were acquitted who were identified by PW19 and the Ld. Trial Court had wrongly convicted the appellant basing on the evidence of PW19 and it was a fact that PW19 had been examined after 3 months of the alleged incident.
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2. Nirraj Pathak & Anr.
3. Sanjeev Jha
28. It is averred that there were also various inconsistencies and contradictions in the case of the prosecution regarding the time of arrival of the appellant while the testimony of the independent defence witnesses was consistent. It is also stated that the prosecution had not given the time at which the appellant emerged from the room of the SHO and then departed from the Police Station and only PW16 stated in his evidence recorded on 24.05.2019 that after the stone pelting Sanjeev Jha along with others left the Police Station but the defence witnesses had uniformly stated that before lathi charge the appellant had left PS Burari. The charge placed the incident at 10:30 p.m. but, the documents clearly showed the incident occurring post 11:00 p.m. and there was not a single prosecution witness or a single document that recorded the presence of the appellant at the PS after 10:30 p.m. and the charge against the appellant had been wrongly appreciated by the Ld. Trial Court.
29. It is submitted that the Ld. Trial Court ought to have appreciated the discrepancies and contradictions in the testimonies of the prosecution witnesses against the prosecution case, instead the Ld. Trial Court had wrongly appreciated the minor discrepancies in the deposition of DW9 Shri Jagjeet that the appellant stated in his statement under Section 313 Cr.P.C. that he was not stopped by PW1 Ct. Vikas and DW9 stated that the appellant was stopped by Ct Vikas. It is submitted that the Ld. Trial Court had not appreciated the fact that the prosecution had not produced any independent witness or any independent material on record to corroborate and establish the guilt of the appellant/accused. It is thus prayed that the impugned judgment
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3. Sanjeev Jha dated 07.09.2022 and order on sentence dated 05.01.2023 be set aside and the appellants be acquitted.
30. Notice of the appeals was issued to the State but no reply was filed and it was submitted that arguments would be advanced.
ARGUMENTS
31. I have heard the arguments of Ms. Rebecca John, Ld. Sr. Advocate along with Shri Rahul Ranjan, Shri Murari Kumar and Shri Achint Kumar, Ms. Praavita Kashyap and Ms. Adya R. Luthra, Ld. Counsels for the appellants and Shri Gyan Prakash Ray, Ld. Additional PP for the State/respondent. Trial record was also received and has been perused.
ARGUMENTS ON BEHALF OF APPELLANT SANJEEV JHA
32. The Ld. Senior Advocate Ms. Rebecca John appearing for the appellant Sanjeev Jha had argued that the present appeal had been filed against the judgment dated 07.09.2022, convicting the appellant and others and the consequent order on sentence. The appeal emanated from the incident of 20.02.2015 at PS Burari and FIR No.236/2015 was registered on the complaint of SI Ajay Kumar. A brief background as to how the incident had taken place was given and it was submitted that certain young people were found to have been kidnapped and the case under Section 363 IPC was registered. Subsequently, it was the plea of the local people that the police was dragging its feet and not arresting
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3. Sanjeev Jha under more stringent provisions of law and the allegation was that SI Ajay Kumar had taken bribe and let off the accused persons, as a consequence, there was much agitation and the local people were protesting against the police inaction. Appellant Sanjeev Jha being the MLA of the area went to the Police Station when the facts were brought to his notice.
33. It was submitted that the charge that was framed by the Ld. Trial Court set a time frame for the commission of the offence when unlawful assembly was formed and act of stone pelting took place and the said time frame became important as according to the charge the incident took place at about 10:00 to 10:30 p.m. It was submitted that the Ld. Trial Court having acquitted the appellant for the offence under Section 3 of the PDPP Act, the foundation of the case got disturbed as Section 3 of the PDPP Act was intrinsically connected with the charge of rioting under Section 147 IPC. As per the allegations, stone pelting resulted in damage to public property, so if the appellant had been acquitted for the offence under Section 3 PDPP Act, the conviction under Section 147 read with Section 149 IPC may not be sustainable. Section 332 IPC related to causing hurt to a public servant. It was submitted that the prosecution had failed to establish qua the appellant that he was part of an unlawful assembly or when he became part of it or he exited it and if he exited it, if the culpable acts were post his exit and who was the public servant? Who was injured? It was submitted that if the appellant had already exited the unlawful assembly even if he was a part of it, then the conviction would not lie. The arguments were based on timings as it was not disputed that the appellant
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3. Sanjeev Jha was present at the spot. It was contended that no cogent timing had been given by the prosecution witnesses, which had been glossed over by the Ld. Trial Court by saying that the police was not required to know the timings and cogent timing had been given by the defence witnesses. It was submitted that it was for the Court to see if the timings were consistent in the testimony of the prosecution witnesses but there were contradictions as to when the appellant entered into the police station and none stated when he exited the police station. The case of the appellant was that he exited the police station long before the act of violence took place.
34. The Ld. Senior Counsel had further argued that PW1 was stated to be at the gate and he made a big show that he had tried to stop the appellant at the gate but he moved on, however, the appellant had been acquitted under Section 506 IPC so part of the story came to an end. He had also stated that the appellant had pushed him due to which he fell down but he had not got his MLC done and there was nothing to corroborate that he sustained any injury. PW1 stated that the appellant had come around 08:45 p.m. and in cross-examination he had stated that he had come around 08:30 p.m. PW2 had stated that the appellant had come at 10:30 p.m., PW4 stated that the time was 06:30 p.m. PW5 had stated that it was 10:30 p.m. when the appellant came but PW8 stated the time to be between 9 to 10 p.m. PW12 stated it to be between 09:30 to 10:00 p.m. and PW13 stated that it was after 08:00 p.m. as also PW16 and PW17 gave the time as 08:30 p.m. while PW19 gave the time as 07:30 p.m. It was submitted that the police was expected to keep their timings and based on the
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3. Sanjeev Jha timing as to when the appellant reached the spot, some witnesses had said that it was between 10:00 to 10:30 p.m. but it was uncorroborated by the witnesses elsewhere.
35. It was submitted that the appellant/ accused persons had produced 14 defence witnesses and DW7 had stated that he had seen the appellant at petrol pump between 8:00 to 9:00 p.m. The DWs had seen the appellant in the police station only upto 8:00 p.m. No PW had stated the time of departure when the appellant left the police station. Even if the appellant was there during rioting, it would have been stated by the witnesses when he left the police station. Some persons were arrested from the spot and had been convicted but the appellant was not one of them and none of the PWs had spoken about the departure of the appellant. DW4 had stated that the incident took place between 10:00 to 10:30 p.m. DW5 stated that the appellant was outside the SHO room at 10:30 p.m. DW8 had stated that the incident took place at 11:30 p.m. which was outside the charge and DW10 also stated that it was at 11:50 p.m. while PW16 stated the time to be 10:30 p.m. The same was also corroborated by the DD entries and reference was made to DD numbers 88B Ex.PW16/DX2 as per which at 11:52 p.m. stone pelting was going on; Ex.PW16/DX3 as per which at 11:53 p.m. stone pelting was going on and DD No.91B Ex.PW16/DX4 as per which at 23:55 hrs, the incident was going on. Reference was also made to DD No.5B Ex.PW10/A, DD No.6B Ex.PW10/B, DD No.8B Ex.PW10/DC. So, there was a disconnect between the prosecution documents and the charge that was framed. DD No.48A did not talk of any violence and was not even exhibited.
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3. Sanjeev Jha
36. It was further contended that the complaint had been given on the day of the alleged incident that action be taken against SI Ajay as he had taken bribe and he was not doing his work. There was discussion in the room of the SHO which was corroborated by witnesses and the plea of the appellant was that he left thereafter but the police tried to drag him into the stone pelting, which caused injuries and destroyed public property in the police station. PWs did not state specifically that the appellant had stayed in the PS at the time of stone pelting and if the appellant had exited and the incident or violence had taken place afterwards and the appellant was not there at the time of violence, it was outside the purview of charge and Section 149 IPC would not be attracted. It was pointed out that the Ld. Trial Court had failed to give credence to the DWs and had summarily dismissed the defence witnesses. As per PW13 and PW22 CCTVs were there. PW13 HC Jai Prakash had stated that the appellant had not manhandled Ct. Vikas, who is PW1 contrary to what PW1 had stated and he had stated about CCTV being installed there. PW22 was the ACP of the area and he had stated that the CCTVs were installed, but it was the case of the SHO that the CCTVs were not working. In the two video recordings which were recorded by police officials, there was nothing incriminating - one was of inside the SHO room and the other was of outside where the appellant was not seen. So, the same did not prove or disprove the case of the prosecution.
37. The Ld. Senior Counsel had further submitted that all the witnesses who were examined were police witnesses and there was no independent witness and even if there were police
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3. Sanjeev Jha witnesses, there should have been consistency in timing as to when the appellant exited, but there was no consistency whatsoever in the range of time of the appellant entering the PS and the time ranged from 6:30 p.m. to 11:30 p.m. The DWs, on the other hand, had very clearly stated when the appellant entered the police station and when he left. The appellant had been acquitted under Section 506 IPC which took away the story of Ct. Vikas that the appellant had intimidated him and he had also not been medically examined and there was no MLC. He was also not corroborated by PW13. It was submitted that the appellant had not disputed that he had gone to the SHO room and raised the concern but doing so was not an offence. The case of the prosecution was that the appellant was part of the mob which started stone pelting, which was contradicted by the judgment itself and the appellant was acquitted under PDPP Act. It was argued that as the incident of people being injured and damage to property were simultaneous acts, there should have been a finding that the appellant was not present when the mob turned violent. It was submitted that the Ld. Trial Court in the impugned judgment, could not have taken a mathematical average of the time when the appellant entered the police station and should have said that there was no consistency. It was contended that police officials are expected to know the timings and they are not general public. There was also difference in the way in which the prosecution and defence witnesses had been assessed and it was held that there was no consensus on the time stated by the DWs. There was also a finding of the Ld. Trial Court that the witnesses had not mentioned the time of departure of the appellant. The
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3. Sanjeev Jha Court had relied on DD No.48A which had not been proved, whereas DD No.41A meant nothing and had no bearing on offences under Section 147, 148 and 149 IPC. Not a single entry showed the presence of the appellant and the stone pelting and the violence took place later.
38. It was submitted that the appellant was not arrested at the spot and if he was present at the time of the incident, he would have been arrested, which was not so. It was submitted that under no circumstances, the appellant could have been convicted especially after he was acquitted for the offences under Section 506 IPC and under PDPP Act. Reliance was placed on several judgments: Anand Ramchandra Chougule v. Sidarai Laxman Chougala (2019) 8 SCC 50; Dudh Nath Pandey v. State of U.P. (1981) 2 SCC 166; Tomaso Bruno & Anr. v. State Of U.P. (2015) 7 SCC 178; Jaytee Exports v. Natvar Parikh Industries Ltd. & Ors. 2018 SCC OnLine Cal 1160; Roshan v. State of Maharashtra (1976) 4 SCC 65; Sachin v. State of Maharashtra 2019 SCC OnLine Bom 1080; Balaka Singh and Ors. v. The State of Punjab (1975) 4 SCC 511; Pandurang, Tukia and Bhillia v. State of Hyderabad (1955) 1 SCR 1083; Nawab Ali v. The State of Uttar Pradesh (1974) 4 SCC 600; and Sita Ram v. State of Rajasthan (1975) 2 SCC 227.
39. The Ld. Senior Counsel had also submitted that even if the appellant was a part of unlawful assembly, there was only circumstantial evidence. The common object could have changed as the incident progressed and violence took place. But there was no evidence to show that the appellant was present when the
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3. Sanjeev Jha violence took place and even if he was present, there was nothing to show that he participated in the offence. The presence of the appellant at the time of violence was not established and misbehavior or being rude was not an offence in law. It was submitted that there was failure to attribute coherent time of arrival of the appellant at the police station and there was no time of his departure and the DD entries were speaking of violence around midnight, which showed that the appellant was not present when the incident of stone pelting took place. The SHO sitting in his room could not have seen what happened at the gate and there was no material which led to any prosecutable offence. It was also submitted that considering the nature of the offence, the Ld. ACMM had not given higher punishment but had given less punishment, which showed that there was no incriminating material which would justify the finding that an offence had taken place.
ARGUMENTS ON BEHALF OF APPELLANTS NIRRAJ PATHAK AND BALRAM JHA
40. The Ld. Counsel for the appellants Nirraj Pathak and Balram Jha had argued that the appellants had been acquitted under Section 506 IPC and under PDPP Act. It was argued that the name of Nirraj was not mentioned in the FIR though the name of Balram Jha was mentioned in the FIR and there was only a general allegation that he was a part of the crowd. The name of Nirraj was only given by PW17 Ct. Babu Lal, who had allegedly been assaulted by Nirraj and Balram. PW17 was examined after 3 months of the alleged incident on 11.05.2015.
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3. Sanjeev Jha The Ld. Counsel had further submitted that vide the impugned judgment 10 persons were acquitted. It was submitted that the impugned judgment showed that the witnesses who were relied upon while convicting the appellants were discarded while acquitting the others. The only allegation against Nirraj and Balram was that they assaulted Ct. Babu Lal but Balram had himself been injured in the lathi charge and the MLCs of Balram and also Shyam were placed on record to show that they were present at the spot. Nirraj Pathak claimed that he was not present and his name had been taken for the first time after three months. No other witness had supported PW1. PW17 had stated that PW10 Ajay had been assaulted but PW10 SI Ajay himself had not supported the said fact. So belatedly a story had been concocted and the appellants had been implicated and in fact Balram himself was assaulted.
41. It was contended that PW1 had not stated anything against Nirraj Pathak and Balram in his statement under Section 161 Cr.P.C. and PW10 had stated against Nirraj Pathak and Balram only in the second supplementary statement. PW16 had also been examined belatedly and in his evidence, he had not stated anything against the appellants. PW2 was examined on 11.05.2015 after more than three months of the alleged incident and he had not made any allegation against the appellants. PW13 and PW16 had also been examined after three months and in the same judgment the Ld. Trial Court had observed that some of the witnesses had been examined belatedly, so, they could not be relied upon whereas the said witnesses had been relied upon to convict the appellants. It was submitted that Ct. Babu Lal was
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3. Sanjeev Jha discharged on the same day and did not require any treatment and he had not produced anything to show that he had suffered a shoulder dislocation. Reference was made to the observations of the Ld. Trial Court qua PW13 and that there were contradictions in the statements and the IO had not given reasons for delay in recording of his statement so the Ld. Trial Court had discarded the said witness and he could not be relied upon to convict the appellants. PW10 had not identified the appellants in the Court and the Ld. Trial Court itself had held that PW10 could not be relied upon and it was the admitted position that there was a complaint of bribery against PW10.
42. The Ld. Counsel had further argued that the IO himself had written the FIR. After three months PW10 and PW17 had named some of the accused persons and most of them had been acquitted. The person namely Prem Shanker, whose relative had been kidnapped was named in the FIR and the supplementary charge-sheet but still he had been acquitted. Prem Shankar and Arun Jha had been acquitted on the basis of testimony of PW10 and PW17. They were not trustworthy but on the same set of allegations, the appellants were convicted. Further, PW1 had not identified the appellants in his statement under Section 161 Cr.P.C. and had not stated anything against the appellants. The appellants had in the statements under Section 313 Cr.P.C. categorically stated that they were not arrested at the spot, but after three months, the name of Nirraj Pathak was taken belatedly in the charge-sheet. No TIP was got conducted in respect of Nirraj Pathak. There were also contradictions in that some witnesses had said that Sanjeev Jha was accompanied by his
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3. Sanjeev Jha brother Arun Jha but Arun Jha had been acquitted and Sanjeev Jha had also been acquitted for the offence under Section 506 IPC as some witnesses had stated that nothing had happened at the gate. ASI Bharat was examined after three months of the incident of February, 2015. It was significant that he used to come to the PS but he had not met the SHO nor met the IO till May, 2015 and the witnesses were not examined for three months. PW3 had not named the appellants in the statement under Section 161 Cr.P.C. and PW10 had not stated anything against the appellants and PW17 could not be relied upon. Anil Kaushik had been discharged and Basant had been acquitted as also Arun Jha. It was submitted that there were material contradictions and there were improvements in the statements of the witnesses. Balraj had been acquitted. PW13 had not stated anything about identifying the appellants. PW16 had identified the appellant Balram in the Court but he was examined after three months. The two video recordings also did not support the case of the prosecution. It was submitted that the appellants were named after three months by Ct. Babu Lal whose credibility was questioned by the Court. The ACP had stated that public witnesses were available but none were examined. It was submitted that Sanjeev Jha, Nirraj and Balram had clean antecedents.
ARGUMENTS ON BEHALF OF APPELLANT AKHILESH PATI TRIPATHI
43. The Ld. Counsel for the appellant Akhilesh Pati Tripathi had argued that the occurrence had taken place on 20.02.2015
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3. Sanjeev Jha from 05:30 p.m. to midnight in the intervening night of 20/21.02.2015. It was submitted that no overt act was attributed to the appellant and statement of some of the witnesses was recorded after 3 months and there were improvements in the statements of other witnesses with which they were confronted so no witness could be relied upon and rift between the Delhi Police and AAP was well known. The complainant was SI Ajay Kumar and initially the charge sheet was against 29 persons. On 10.01.2019, the charge was framed and proceedings stood abated against accused at serial No.21 and accused at serial No.16 Anil Kaushik was discharged. Charges were framed against 27 persons out of whom 10 were acquitted including Gora Chand Dass and Prem Shankar, the other 17 accused were acquitted for the offences under Section 506 (1) IPC and Section 3 of the PDPP Act and all the accused persons were admonished for the offences under Section 186/147 IPC. All the accused persons were convicted for the offences under Section 332 IPC and they had been given different sentences and disproportionate sentence had been given by the Ld. ACMM.
44. It was submitted that the present was a case where public witnesses were easily available even though it was a police station. As per the case of prosecution, around thousand persons had collected but the prosecution had not been able to associate any independent witness. Reference was made to the testimony of PW22 and that he was the senior most officer posted there as ACP and during cross-examination he had stated about shops being open at the time of the incident, which showed availability of public at the time of the incident and the police station was
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3. Sanjeev Jha located on the main road. It was submitted that non-joining of public witnesses where the aggrieved party was the investigating agency or persons associated with it was material and it cast a serious doubt on the credibility of the prosecution witnesses as well. Public witnesses were available but the IO failed to associate any independent witness and as such the testimony of police witnesses had to be scrutinized with great care and caution. The standard required was more than where an independent witness corroborated the testimony of the witnesses. In the present case, the aggrieved persons being the police officers were experts in making the deposition. So they were able to inspire confidence from their testimony. 23 witnesses were examined as prosecution witnesses against which 14 defence witnesses were examined. Around 15 prosecution witnesses were alleged to have been eyewitnesses and they were projected as persons who were present throughout and it had to be seen how much credence could be given to their testimony.
45. It was pointed out that the genesis of the case related to minors who were kidnapped and SI Ajay Kumar was given investigation of the case. There was difference in timing when he came back with the accused of that case and Prem Shanker and Heera Devi had come to the PS. Heera Devi had claimed herself to be a worker of AAP and she was shouting and calling other persons from the public. There was an allegation of causing damage to public property and vehicles and charge under PDPP Act was framed against the accused persons but they were all acquitted for the same. As such one of the main allegations relied upon by the prosecution was not found to be substantiated,
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3. Sanjeev Jha resulting in acquittal of all as also under Section 506 (1) IPC which showed that there was no criminal intimidation or threat. As regards the question of there being an unlawful assembly, there was evidence on record that there was no bar to anyone coming to the police station. The persons who had gathered at the police station were feeling aggrieved by the inaction of SI Ajay Kumar, who left the two accused persons against whom there were serious allegations of kidnapping minors after taking bribe.
46. It was contended that it was for the prosecution to show when and by what time the gathering of the said persons turned into an unlawful assembly. It was at 05:30 p.m. when SI Ajay came with Prem Shanker and Heera Devi with 30-40 persons. It had to be shown when Sanjeev Jha came or when the appellant came or when the announcement was made. It was contended that the onus was on the prosecution to show when the assembly became an unlawful assembly and to connect the appellant to it. The onus was on the prosecution to show if a person could be held responsible under Section 149 IPC for all acts which were done or committed before the appellant reached the spot and to show where the responsibility of the appellant was fixed and he became a member of the unlawful assembly. If the stone pelting was already going on when the appellant reached the spot, could he be held liable? As such, it was necessary for the prosecution to specify when the appellant came to the PS and it could not be immediately that he became the member of the unlawful assembly. It had to be shown because of what overt act did the appellant become the member of the unlawful assembly.
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47. It was argued that the appellant could not be held responsible for the acts before he came and after he left and the prosecution had to show an overt act by virtue of which the appellant became a member of the unlawful assembly. The consistency of the witnesses had to be seen. It was argued that the appellant had been roped in and convicted on the basis of timing which could not be ignored. He was an elected representative of the public and his job was to serve the society due to the responsibilities which he was owing to the society. It was necessary to find out if someone had been ignored and the police persons were sheltering those against whom there were serious allegations. The appellant was not a criminal and the role played by the appellant had to be seen and there was no evidence that the appellant had caused injury to anyone by pelting stones nor even an allegation that he provoked anyone to pelt stones or to pelt stones and hit police officers.
48. The Ld. Counsel had further argued that the manner in which the investigation had been carried out had also to be seen and the record was not favouring the investigating agency. So, it had withheld the CCTV footage which was available in the police station. The SHO had denied that there was any CCTV footage and no CCTV footage was placed on record and the footage could not be collected. There was no purpose of CCTVs and it was incumbent on the investigating agency to have taken the CCTV footage and failing to put the same on record and making contradictory statements created a doubt. There was mobile recording by a public person and a police person but in both the mobile recordings which were not even proved, the
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3. Sanjeev Jha appellant was not there, which proved his innocence. It could not be believed that no one captured anything but that was also because it was not favouring the investigating agency. It was argued that in fact the police had carried out a lathi charge and a lot of public persons had been injured so to cover up the same that they had used 3rd degree methods, an attempt was made to shift the attention and the FIR was registered. It was submitted that the 14 DWs examined by the defence were not considered by the Ld. Trial Court whereas it was incumbent upon the Ld. Trial Judge to consider the said 14 independent witnesses who were natural witnesses. The testimony of a journalist was also there.
49. It was submitted that the witnesses could be classified as those who were reliable, partially reliable or unreliable. The witnesses in the present case were not ordinary persons but police officials and it had to be seen whether they were able to give a specific description of the incident and the role of the appellant. It was submitted that out of 23 witnesses, there was no witness whose testimony was specific and concession could not be given to the said witnesses as they were not public persons but police persons. Several persons had been convicted who were responsible persons of the society. The second set of witnesses to appreciate was whether there was spontaneity in making the statement or their statement was recorded after considerable delay and they had made the statement in May, 2015 so there was inordinate delay rendering the statements unreliable and unworthy of credence and even no explanation had been offered for inordinate delay in recording the statements of such witnesses. The third category of witnesses was of those who had
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3. Sanjeev Jha stated a number of things which were not part of the original statement and they had made deliberate improvements and were confronted with the same.
50. The Ld. Counsel had then referred to Section 332 IPC and its ingredients and submitted that the Section used the word voluntarily so intention was important but the prosecution was not able to prove that whatever act was done, the intention was there. Reference was also made to Section 39 IPC, which defines voluntarily and it was submitted that it assumed importance as the word 'intention' was used and if the government servant was not discharging duty, Section 186 or Section 332 IPC could not come into play. Section 332 IPC referred to causing injury to deter the public servant from discharging duty and it had to be seen if in the present case, the intention was to deter the public servant from performing duty, which onus was on the prosecution to show that the person, who had sustained the injury was a public servant discharging duty and the intention was to deter him which was missing. Ct. Babu Lal had sustained grievous injuries but in the absence of X-ray report, charge for Section 325 IPC was not made out and the others had sustained simple injuries. It was submitted that out of the 10 accused who had been acquitted, the allegations were identical, their identity was established yet they had been acquitted but on the same set of allegations some had been given probation whereas the appellant had been sentenced to six months and it was in the mind of the Ld. Trial Court that the appellant had been convicted earlier. But the Ld. Trial Court failed to appreciate that the earlier case was of 2013 and the present case was of 2015 and from 2015 to 2023,
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3. Sanjeev Jha there was no involvement of the appellant in a similar case.
51. The Ld. Counsel then referred to the testimony of different witnesses and PW1 had stated during cross-examination that he was not aware when the appellant came and left. Many of the witnesses had stated that after the announcement was made on loud hailer, stone pelting had started and it was not on anyone's saying. Reference was made to the rukka which stated the time of incident from 08:00 p.m. to 11:45 p.m. that is almost quarter to four hours and place was compound of PS Burari. Rawangi of tehrir was of 21.02.2015 at 02:10 a.m. It was submitted that the incident had taken place in front of the room of the duty officer but the rukka was sent after 2 hours 35 minutes and everyone was in the PS till 02:10 a.m. Reference was also made to the different DDs which showed that the incident had started at 11:52 p.m. ending at 12:16 p.m. It was pointed out that the DDs were of the time after that mentioned in the rukka and the documents suggested that the incident happened thereafter. It was submitted that the rukka could be fabricated and the same had been prepared implicating all and the DDs were after the rukka.
52. Reference was made to the testimony of PW2 and that the identity of Gora Chand Das was not disputed but he was acquitted. He had stated about stone pelting starting after the announcement was made. During cross-examination he had stated that his statement was recorded in 2015, May, so it was liable to be discarded as there was no explanation for delay though he was posted under the same police station. PW4 had stated the time as 05:00 to 6:00 p.m. and it could be assumed that
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3. Sanjeev Jha Sanjeev Jha had come around 06:30 p.m. and time of arrival of the appellant was 07:00 to 08:00 p.m. but he had not uttered anything against the appellant except that he arrived and no overt act was attributed to the appellant. During cross-examination by the Ld. APP, he was confronted with a number of things and the said witness could not be believed as he had stated that by 10:00 p.m. the incident was over. He had not only made deliberate improvements but he had also demolished the case of the prosecution. The mobile video made by him was not taken into possession and even otherwise the appellant was not seen in the same and everything created doubt. PW5 had stated that everyone dispersed by 10:30 p.m. It was submitted that the testimony of no witness stood against each other and the witnesses had stated that the provocation was not by words but when the announcement was made by the police which triggered the incident. He had also stated only about the presence of the appellant but not about any overt act by him so Section 149 IPC could not be invoked. Statement of PW7 had been recorded on 30.03.2015, he had stated the time of incident of about 09:00 p.m. and about presence of 400-500 persons. There was no explanation for delay in recording the statement and he had not attributed any role to the appellant. PW8 had stated about the violence starting at 11:30 p.m. and he also stated about the appellant only coming to the PS but he did not attribute any role to him. PW10 had stated the timing as 05:30 p.m. when he came, he had referred to Heera Devi and Prem Shanker, who were the affected persons but Heera Devi had been released on probation and Gora Chand had been acquitted as also Prem Shanker. All the
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3. Sanjeev Jha DDs were put to him and he had not stated when the appellant came and left. PW12 stated about the appellant coming between 09:30 and 10:00 p.m. and about raising slogans but there were only general allegations and nothing to attract Section 332 IPC, no overt act was attributed to the appellant. He had stated about video recording but the mobile was seized after three months and the appellant was not there in the video and he had not given the video to the police.
53. It was submitted that PW13 had not stated the time of the appellant coming and going and he had stated about Prem Shanker, who had been acquitted. There were improvements in his testimony and he was confronted with the same. He had stated about CCTV being there but no CCTV footage was seized. He had stated that the appellant came between 10:00 to 11:30 p.m. As per PW16, the story started around 05:30 p.m. and he had also not attributed anything to the appellant. PW17 had in fact stated that the appellant had asked the crowd to disperse even otherwise, the statement was recorded by the police on 11.05.2015 after considerable delay and he had also stated about CCTVs cameras being there. Statement of PW19 was recorded on 14.05.2015 and he had admitted about the allegations of bribery being there, which SI Ajay PW10 had also admitted. He was confronted with a number of things. He had stated that the persons were present in the room of SHO for one and a half hour and if that was so, it was not clear when the incident took place. He had stated that there was no CCTV and thereby had contradicted the other witnesses. The appellant was not there in the video and no stone pelting could be seen. PW20 had stated
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3. Sanjeev Jha that at 12:00 a.m. ACP directed the mob to disperse, which corroborated the DDs as per which stone pelting took place at 12:00 a.m. and he had not stated anything about the appellant. It was submitted that the appellant had left the PS before PW20 had reached and was not there when the incident took place. PW21 was the first IO and he had stated that there were no CCTVs, he was on duty at 08:00 p.m. but he did not say about the presence of the appellant. Statement of PW22 was recorded on 14.05.2015, he had also stated about CCTV.
54. Reference was also made to the testimony of DWs. It was submitted that the Ld. ACMM had analysed while sentencing that five persons were arrested at the spot and they had been given three months. Narender etc. were raising slogans and had sustained injuries and had been left on probation, Shyam Gopal Gupta who was pelting stones had been given 3 months; against Heera, there was evidence of raising slogans and physically assaulting SI Ajay and Ct. Babu but she was released on probation and Gora Chand Dass and Prem Shanker had been acquitted. Sanjeev was given 3 months whereas the appellant was given 6 months. It was submitted that the prosecution witnesses had not attributed any overt act to the appellant; the statements of the witnesses were recorded after 3 months and there were improvements in their statements with which they were confronted so no witness could be relied upon.
ARGUMENTS OF THE LD. ADDL. PUBLIC PROSECUTOR
55. The Ld. Additional PP had argued that the arguments
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3. Sanjeev Jha advanced on behalf of the appellant Sanjeev Jha that he had been acquitted for the offence under Section 3 of the PDPP Act and so he was liable to be acquitted for the other offences as well as they were part of same transaction were misplaced as the offences were different. The Ld. Trial Court had seen the deposition of the witnesses and as their deposition regarding damage to property was not proved so the accused persons were acquitted for the offence under Section 3 of the PDPP Act. The Ld. Trial Court had convicted the appellants after finding the corroboration from 2-3 witnesses and medical evidence was also there and where only 1 or 2 witnesses had deposed against an accused, he was acquitted. It was submitted that testimony of several witnesses was considered for convicting an accused. As regards Nirraj Pathak, the arguments of the Ld. Counsel for the appellants were that the others had been acquitted on the basis of the same testimony but that was so as there was no other evidence against the said persons who were acquitted but there were 3-4 witnesses who had stated about the act of the convicted persons and the incident had been proved. The witnesses had identified the appellants so it was not the duty of the prosecution to show when the appellants had left the Police Station. It was contended that the incident had taken place in the premises of the Police Station so, it was natural that all the witnesses were police witnesses. There was a gathering of 300 persons or so and it was not possible that all the public persons should identify all the accused and those whose identity had been established and was clear and was corroborated by 3-4 persons had been made as accused and thereafter convicted. It was also submitted that the ACP had
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3. Sanjeev Jha stated about CCTV being there but his office was not there and only the SHO could state precisely whether the CCTVs were available and his testimony was reliable and no CCTV was there.
ARGUMENTS IN REBUTTAL
56. The Ld. Counsel for the appellant Sanjeev Jha in rebuttal had submitted that Section 148 IPC pertained to rioting and it dealt with deadly weapon but it was not the case that there was any deadly weapon which was used. So, the conviction under Section 148 IPC was bad. It was submitted that the contradictions were inherent in the judgment in that the appellant was acquitted under PDPP Act. The defence rested on the fact that the appellant Sanjeev Jha was not present at the time of the alleged incident and the witnesses were not able to state about his presence.
57. The Ld. Counsel for the appellants Nirraj Pathak and Balram Jha in rebuttal had submitted that the 2nd IO had taken over from 26.02.2015 and he had stated that he had recorded the testimony of witnesses after 14.05.2015 and 17 prosecution witnesses were examined for the first time after 3 months of the incident. A detailed chart has been given in appeal as to when the witnesses were examined. The IO and the ACP, who were PW22 and PW23 had stated that there were public witnesses but they had not recorded the statement of any public witnesses to corroborate that the incident had taken place, which showed that it was a faulty investigation. The IO had written the complaint. There was no corroboration and no public witness was examined. The appellants were not arrested from the spot and the appellant Balram was also injured. There was no incriminating evidence
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3. Sanjeev Jha against the appellants except the testimony of Ct. Babu Lal, who was examined after three months and the Ld. Trial Court itself had held that delay in recording the statements of the witnesses had not been explained. It was submitted that onus to prove the guilt was always on the prosecution but the prosecution had not been able to prove the guilt of the appellants beyond reasonable doubt and belated allegations were levelled against them.
58. The Ld. Counsel for the appellants had also relied upon the judgments on the point that much reliance could not be placed on the evidence of a witness whose statement under Section 161 Cr.P.C. had been recorded belatedly namely Balakrushna Swain v. State of Orissa (1971) 3 SCC 192; Harbeer Singh v. Sheeshpal & Ors. (2016) 16 SCC 418; Sachin v. State of Maharashtra 2019 SCC ONLINE BOM 1080; Shahid Khan v. State of Rajasthan (2016) 4 SCC 96. It was also submitted that testimonies of witnesses who had given a parrot-like version were not to be accepted and in this regard reliance was placed on the judgments in Balaka Singh and Ors. v. The State of Punjab (1975) 4 SCC 511 and Pandurang Tukia and Bhillia v. State of Hyderabad (1955) 1 SCR 1083. It was further argued that the burden only lay on the prosecution to prove the allegations beyond reasonable doubt and reliance in this regard was placed on the judgments in State v. Jeronio Fernandes & Ors. 2005 SCC ONLINE BOM 1545 and Anand Ramachandra Chougule v. Sidarai Laxman Chougala (2019) 8 SCC 50.
59. It was also submitted that defence witnesses had to be given equal treatment and reliance in this regard was placed on
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3. Sanjeev Jha the judgment in Dudh Nath Pandey v. State of U.P. (1981) 2 SCC 166. Further, it was submitted that no weightage had been given to CCTV footage and reliance was placed on the judgments in Tomaso Bruno & Anr. v. State of U.P. (2015) 7 SCC 178; Jaytee Exports v. Natvar Parikh Industries Ltd. and Ors. 2018 SCC ONLINE CAL 1160. The Ld. Counsel had also submitted that the credibility of a witness and applicability of Section 149 IPC merely because a criminal act was committed by members of the assembly would not necessarily make every other member thereof liable and reliance in this regard was placed on the judgment in Kuldip Yadav v. State of Bihar (2011) 5 SCC 324 and reliance was also placed on the judgments in State of Punjab v. Sanjiv Kumar & Ors. (2007) 9 SCC 791 and Dharnidhar v. State of U.P. (2010) 7 SCC 759.
DISCUSSION
60. At the outset, it may be pointed out that the Ld. Counsel for the appellants Balram and Nirraj had argued that the burden always lies on the prosecution to prove the allegations beyond reasonable doubt and in this regard the Ld. Counsel had referred to the judgment of the Hon'ble Supreme Court in Anand Ramachandra Chougule v. Sidarai Laxman Chougala (supra) (which was also relied upon on behalf of the appellant Sanjeev Jha) and the judgment in State v. Jeronio Fernandes & Ors. (supra). In Anand Ramachandra Chougule v. Sidarai Laxman Chougala (supra) it was observed as under:
"10. The fact that a defence may not have been taken by an accused under Section 313, Cr.P.C. again cannot absolve the prosecution from proving
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3. Sanjeev Jha its case beyond all reasonable doubt. If there are materials which the prosecution is unable to answer, the weakness in the defence taken cannot become the strength of the prosecution to claim that in the circumstances it was not required to prove anything. In Sunil Kundu v. State of Jharkhand this Court observed:
"28 ... When the prosecution is not able to prove its case beyond reasonable doubt it cannot take advantage of the fact that the accused have not been able to probabilise their defence. It is well settled that the prosecution must stand or fall on its own feet. It cannot draw support from the weakness of the case of the accused, if it has not proved its case beyond reasonable doubt."
The law in this regard is well-settled.
61. The case of the prosecution is that on 20.02.2015 the appellants along with others were members of unlawful assembly and some members of the unlawful assembly had assaulted Ct. Vikas, SI Ajay Kumar and other police staff with the common object of the commission of offence of assault and also committed offence of rioting and further committed the offence of breaking public property and vehicles lying in the PS and they also caused criminal intimidation to Ct. Vikas and SI Ajay Kumar. A perusal of the impugned judgment shows that the Ld. ACMM had referred at length to the testimony of the witnesses including the defence witnesses and also the legal provisions for which the appellants had been charged and discussed the law regarding the same. The Ld. ACMM had also referred to certain issues, the first being whether the accused persons were members of unlawful assembly, if yes what was the common object? And further, whether the accused persons were involved in the offence of rioting as defined in Section 146 IPC and whether the accused
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3. Sanjeev Jha persons were involved in the offence of obstructing public servant and had caused hurt to them and would be liable for the offences under Sections 186/332 IPC; whether the accused persons were involved in the offence of criminal intimidation as defined in Section 503 IPC and whether the accused persons were involved in the offence under Section 3 of the PDPP Act and had committed mischief. After going through the material on record, the Ld. Trial Court had held that none of the witnesses had stated that the accused persons had caused alarm to them or that they were alarmed by the statements made by the accused persons which caused them to do any act which they were not legally bound to do and after taking into account the judgment of the Hon'ble High Court of Delhi in Kanshi Ram v. State, it was held that the offence under Section 506 IPC was not made out against any of the accused persons and the said finding has not been challenged anywhere.
62. Further, the Ld. ACMM had considered that the prosecution had alleged that all the accused persons as part of the unlawful assembly committed the offence of breaking the public property including vehicles lying inside the police station and referred to the testimony of the witnesses in this regard and after going through the material on record observed that there were some infirmities in the case of the prosecution as far as the accused persons damaging the public property and the vehicles lying in the PS was concerned. It was held that the prosecution had not been able to prove the guilt of the accused persons beyond doubt and had not been able to explain the defects in the charge sheet so the Court giving the accused persons benefit of
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3. Sanjeev Jha doubt held that none of the accused persons were guilty for the offence under Section 3 of the PDPP Act. The said finding of the Ld. Trial Court has also not been challenged and in fact the Ld. Sr. Advocate appearing for the appellant Sanjeev Jha had argued that once the appellant had been acquitted for the offence under Section 3 of the PDPP Act, he could not be convicted for the other offences as the act of rioting, stone pelting and damage to public property were simultaneous acts. Even the Ld. Counsel for the appellant Akhilesh Pati Tripathi had argued that one of the main grounds of the prosecution had not been substantiated in as much as all the accused persons were acquitted for the offence under Section 3 of the PDPP Act. However, merely on the basis that the appellants had been acquitted for the offence under Section 3 of the PDPP Act, no presumption can be drawn that they could not be liable for any other offence and liability for each offence has to be seen separately. It is also pertinent that the Ld. ACMM had acquitted the accused persons for the offence under Section 3 of the PDPP Act giving benefit of doubt to the accused persons as the prosecution had not been able to explain the defects in the charge-sheet and to prove the guilt of the accused beyond doubt in respect of the said offence.
63. It may be mentioned that in the appeal filed on behalf of the appellant Akhilesh Pati Tripathi, one of the grounds taken was that the prosecution had not obtained sanction under Section 195 Cr.P.C. qua four accused persons namely Prem Shankar, Heera Devi, Arun Jha and Yash Bhatia who were added as an accused in the supplementary charge sheet. It is pertinent that none of the said four persons are before this Court by way of
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3. Sanjeev Jha appeal. Even otherwise, a perusal of the impugned judgment shows that the Ld. Trial Court had duly dealt with the question of sanction and observed that sanction under Section 195 Cr.P.C. was sought by the IO and written request was given for the same and the same is Ex.PW22/A. It was further observed that the Court was of the view that the sanction sought under Section 195 Cr.P.C. is qua the offence and not the offender and once the sanction had been obtained and filed along with the main charge sheet, there was no requirement of obtaining fresh sanction for newly added accused persons in the supplementary charge sheet and so the argument that fresh sanction should have been taken qua four accused persons namely Prem Shankar, Heera Devi, Arun Jha and Yash Bhatia does not hold good. The said finding of the Ld. Trial Court is as per the settled law and no infirmity can be found in the same. As such, there is no merit in this contention raised on behalf of the appellant Akhilesh Pati Tripathi.
64. At this stage, another argument taken by the Ld. Counsels for the appellants may be adverted to i.e. the investigating agency had deliberately not collected the CCTV footage as it did not suit them, which casts doubt on the case of the prosecution. The Ld. ACMM had also adverted to the fact that the prosecution had placed on record two video footages taken from the mobile phone but the same were not accompanied with any certificate under Section 65B of Indian Evidence Act. So, the evidentiary value of the said video footage was questionable. It was further observed that in one of the video footages (1.1 minute video), there was no identifiable face that could be seen and the other footage (4.56
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3. Sanjeev Jha minutes) pertained to the recording in the SHO room, where the MLA Sanjeev Jha was seen sitting and talking to the SHO and no offence/ illegal act was being shown as being committed by any of the accused persons. The Ld. Trial Court was then of the view that the said video footages would not be of assistance either to the prosecution or to the accused persons and the same were disregarded and not taken into consideration while pronouncing the judgment. No fault can be found with the said finding of the Ld. ACMM. It was argued on behalf of the appellants that it was surprising that no recording of the incident could be found and in fact no such recording had been placed on record as it was contrary to the case of the prosecution. However, the said arguments is neither here nor there and if there was indeed no recording available, no such recording could have been created for bolstering the case of the prosecution. Further, if there was any video footage which favoured the case of the appellants, it was open to them to have produced the same but no such video footage was produced by any of the appellants/ accused persons.
65. It had further been argued before the Ld. Trial Court that the prosecution had not placed on record CCTV footage from the cameras installed in the police station and therefore, the best evidence available had not been brought on record by the prosecution which would adversely affect the prosecution's case and similar arguments had been advanced by Ld. Counsels for the appellants before this Court and in fact, reference was also made to the testimony of witnesses in this regard. PW13 had stated about CCTVs being installed outside the room of the duty officer and also in the corridor/ outside IO rooms. PW22 (ACP
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3. Sanjeev Jha Satish Sharma) had stated that CCTV cameras were installed in all 4 PS (including PS Burari) at that time, however he did not know whether they were working or not. PW17 had stated that he did not remember if there was any CCTV camera installed in the police station at that time. There was CCTV camera at the entrance of the building. At the time of the incident there was no CCTV near the seat of the duty officer. He did not remember if any CCTV camera was installed in the premises of the police station at that time or not.
66. PW18 on the other hand, had stated that he did not notice any CCTV camera inside or outside the police station while PW19 stated that there was no CCTV camera in the police station; the thana was having tents as well as pukka structures; he did not know when Delhi police installed CCTV camera near the seat of duty officer; till his tenure no CCTV was installed in the police station and PW21 had stated that there was no CCTV camera installed at PS Burari at that time. Further, the IO PW23 had admitted that he did not attempt to procure the footage of CCTV cameras installed at the place of incident. It is thus seen that the IO had not even attempted to procure the footage of CCTV cameras installed at the place of incident but there are also discrepancies in the statements of the witnesses regarding CCTV cameras being installed at PS or not. The Ld. Counsel for the appellants Nirraj Pathak and Balram Jha and Sanjeev Jha had also relied on the judgments of the Hon'ble Supreme Court and Hon'ble High Court of Calcutta to argue that the importance of the best evidence i.e. CCTV footage could not be ignored and in this regard reliance was placed on the judgments in Tomaso
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3. Sanjeev Jha Bruno & Anr. v. State of U.P. (supra) and Jaytee Exports v. Natvar Parikh Industries Ltd. and Ors. (supra). No doubt, the CCTV footage is the best evidence which could be available but in the instant case there are discrepancies in the testimony of the witnesses regarding CCTV cameras being installed and the Ld. ACMM in this regard had observed as under:
"(D) ...Perusal of record reveals that various prosecution witnesses were questioned by Ld. defence counsel on the point of availability of CCTV cameras and PW22 ACP Satish Sharma had stated in his cross examination that he does not know whether the CCTV cameras were working or not and infact PW17 Ct. Babu Lal, PW18 SI Sombir and PW21 SI Sanjay have stated in their cross examinations that there was no CCTV camera installed at PS Burari at the relevant time. This question was put to the SHO of PS Burari during his deposition and PW19 Insp. Sher Singh (SHO of PS Burari on the day of incident) has stated that there was no CCTV camera in the PS on the day of incident and further stated that till his tenure in PS Burari, no CCTV cameras were installed in the PS and that is why footage from the same was not placed on record by the prosecution."
Thus, some witnesses may have stated that there were CCTV cameras installed in the PS but there are other witnesses including the SHO who have stated that there were no CCTVs. No doubt, the CCTV footage would have been the best evidence to show what had happened but when it is not even certain that there were CCTV cameras installed in the PS on the day of the incident and even the appellants had not produced any definite evidence to show that there were indeed CCTV cameras installed at the spot of the incident, the non-collection of CCTV footage cannot be regarded as fatal to the case of the prosecution and merely on that basis, the case of the prosecution cannot be
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3. Sanjeev Jha discarded and it is to be seen, if there is other material to prove the guilt of the accused persons/ appellants.
67. It may also at this stage be mentioned that the Ld. Counsels for the appellants had argued that no independent witness had been joined though as per the testimony of witnesses, independent witnesses were present at the spot. It was submitted that the present was a case where public witnesses were easily available even though it was a police station. As per the case of prosecution, around thousand persons had collected but the prosecution had not been able to associate any independent witness. Reference was made to the testimony of PW22 and that he was the senior most officer posted there as ACP and during cross-examination he had stated about shops being open at the time of the incident, which showed availability of public at the time of the incident and the police station was located on the main road. It was submitted that non-joining of public witnesses where the aggrieved party was the investigating agency or persons associated with it was material and it cast a serious doubt on the credibility of the prosecution witnesses as well. Public witnesses were available but the IO failed to associate any independent witness and as such the testimony of police witnesses had to be scrutinized with great care and caution. The standard required was more than where an independent witness corroborated the testimony of the witnesses. It cannot be disputed that given the fact that such a large number of persons had gathered at the spot, independent witnesses would have been available but no independent witness has been joined.
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68. PW22 had stated during cross-examination that since there was always crowd outside the PS Burari, so he did not notice whether people had gathered outside the PS or not at the time when he reached the PS. He stated that there was always crowd outside the PS because it was on main road of Burari and there were shops around there. He had no idea about the timings of opening and closing of the said shops. Some of the shops were open at the time when he reached PS Burari. The shops on both sides of gate of PS Burari were open at the time when he reached PS. PW23 had also stated about presence of street hawkers, rehris. Thus, independent witnesses would have been available but all the witnesses who were examined in the instant case are police witnesses and while the testimony of police witnesses cannot be discarded merely because they are police witnesses and in the present case, some of them were also injured so they were natural witnesses, it is also material that the testimony of police witnesses requires greater scrutiny when the aggrieved party was the police, the incident happened in the police station and no independent witness whatsoever has been joined. At the same time, it cannot also be lost sight of that some of the accused persons were arrested at the spot and several police persons and even some accused persons were injured so it cannot be disputed that some incident had taken place.
69. The Ld. Counsels for the appellants had argued at length that there was delay in recording the statements of most of the witnesses and the statements of the witnesses under Section 161 Cr.P.C. were recorded after nearly 3 months of the incident though some of the witnesses were available in the PS and that
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3. Sanjeev Jha no explanation had been furnished by the investigating agency or the prosecution to explain the delay in recording the statements of the witnesses. In fact, it was also argued on behalf of the appellants that the Ld. ACMM, while passing the impugned judgment had discarded the testimony of some of the witnesses due to the delay in recording their testimony and there being no explanation for the same and on that basis had acquitted several accused persons whereas the statements of the very same witnesses were used to convict the appellants. The latter argument would be adverted to when dealing with the specific appeals filed by the appellants. However, at present, it is being considered as to the statements of which of the witnesses were recorded after considerable delay and what the law says regarding that. A chart regarding this was produced in the appeal filed on behalf of appellants Nirraj Pathak and Balram Jha and even the record shows that the statement of PW2 ASI Bharat Rattan under Section 161 Cr.P.C. was recorded on 11.05.2015 i.e. after nearly 3 months of the incident; similarly the statement of PW3 HC Puran Chand was recorded on 12.05.2015; statement of PW4 Ct. Rakesh was recorded on 14.05.2015 though his statement was also recorded on 21.02.2015; likewise statement of PW5 Ct. Ram Kishan was recorded on 11.05.2015 though his statement was also recorded on 21.02.2015; statement of PW7 Ct. Satish was recorded on 30.03.2015; statement of PW10 SI Ajay Kumar who is also the complainant was recorded on 12.05.2015 though his statement was also recorded on 21.02.2015; statement of PW16 ASI Diwan Singh was recorded on 11.05.2015; statement of PW17 Ct. Babu Lal was recorded on
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3. Sanjeev Jha 11.05.2015; statement of PW19 Inspector Sher Singh was recorded on 14.05.2015; statement of PW20 Ct. Rahul was recorded on 30.03.2015 and of PW22 ACP Satish Sharma was recorded on 14.05.2015. No specific explanation has been put forth for the delay in recording the statements of the said witnesses and though the witnesses were cross-examined regarding the delay in recording their statements, no cogent reason had been put forth.
70. The Ld. Counsels for the appellants had submitted that the delay in recording of statements of the witnesses under Section 161 Cr.P.C. affected the credibility of the said witnesses and in this regard, the Ld. Counsels for Balram Jha and Nirraj Pathak and Sanjeev Jha had placed reliance on the judgments in Balakrushna Swain v. State of Orissa (supra); Harbeer Singh v. Sheeshpal & Ors. (supra); Sachin v. State Of Maharashtra (supra) and Shahid Khan v. State of Rajasthan (supra). In Harbeer Singh v. Sheeshpal & Ors. (supra) it was observed as under:
"11. It is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubt. The burden of proving its case beyond all reasonable doubt lies on the prosecution and it never shifts. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. [Vide Kali Ram v. State of Himachal Pradesh; State of Rajasthan v. Raja Ram; Chandrappa & Ors. v. State of Karnataka; Upendra Pradhan v. State of Orissa and Golbar Hussain & Ors. v. State of Assam].
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16. ... it is well-settled law that delay in recording the statement of the witnesses does not necessarily discredit their testimony. The Court may rely on such testimony if they are cogent and credible and the delay is explained to the satisfaction of the Court. [See Ganeshlal v. State of Mahrashtra; Mohd. Khalid v. State of W.B; Prithvi v. Mam Raj and Manu Sharma v. State (NCT of Delhi).
17. However, Ganesh Bhavan Patel v. State of Maharashtra, is an authority for the proposition that delay in recording of statements of the prosecution witnesses under Section 161 Cr.P.C., although those witnesses were or could be available for examination when the Investigating Officer visited the scene of occurrence or soon thereafter, would cast a doubt upon the prosecution case. (See also Balakrushna Swain v. State of Orissa; Maruti Rama Naik v. State of Maharashtra and Jagjit Singh v. State of Punjab)."
Thus, it was held that the delay in recording the statements of the witnesses under Section 161 Cr.P.C. would cast a doubt on the case of the prosecution. Further, in Sachin v. State of Maharashtra (supra), it was observed as under:
"14. In the light of above discussed evidence of two eye witnesses, we thus, find it useful to refer to the decision in the case of State of Himachal Pradesh v. Gian Chand ((2001) 6 SCC 71 : AIR 2001 SC 2075) wherein the Hon'ble Apex Court while considering the effect of delay in recording statements of witnesses under Section 161 of Code of Criminal Procedure has observed as under:
"If the prosecution fails to satisfactorily explain the delay and there is a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the Court, the delay cannot by itself be a ground for disbelieving and discarding entire prosecution case."
15. The effect of delay was also considered by the
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3. Sanjeev Jha Supreme Court in the matter of Dilawar Singh v. State of Delhi, reported at (2007) 12 SCC 641 : AIR 2007 SC 3234 (2007 ALL SCR 2430) and it was observed:
"In criminal trial, one of the cardinal principles for the Court is to look for plausible explanation for the delay in lodging the report. Delay sometimes affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications. Delay defeats the chance of the unsoiled and untarnished version of the case to be presented before the Court at the earliest instance. That is why if there is delay in either coming before the Police or before the Court, the Courts always view the allegations with suspicion and look for satisfactory explanation. If no such satisfaction is formed, the delay is treated as fatal to the prosecution case.
16. Admittedly delay is nowhere explained in the case in hand."
In the instant case as well, there is no plausible explanation forthcoming for the delay in recording the statements of several witnesses under Section 161 Cr.P.C. which could cast a doubt on the case of the prosecution but it is pertinent that there is also testimony of other witnesses which was recorded without delay. The Ld. ACMM had considered the said aspect and observed as under:
"(E) Furthermore, the Ld. defence counsel has also argued that the statements of the prosecution witnesses was recorded u/s 161 Cr.PC after a gap of almost three months and this delay has not been explained by the prosecution. This court has considered the statements of all the prosecution witnesses and has observed that the statement of ASI Bharat Rattan, HC Puran Chand, ASI Diwan Singh, Ct. Babu Lal, Insp. Sher Singh and ACP Satish Sharma was recorded almost three months after the date of the incident. However, this court has also noticed that statement of PW4 Ct. Rakesh, PW5 Ct.
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3. Sanjeev Jha Ram Kishan and PW10 SI Ajay Kumar was first recorded on 21.02.2015 and statement of PW7 Ct. Satish, PW20 Ct. Rahul was first recorded on 30.03.2015. The prosecution in some cases has explained the delay in recording of the statement and in some cases they have not and statement of some of the witnesses has been recorded immediately after the alleged incident. This court has gone through the statements of all the prosecution witnesses individually and also as a whole and has compared them with the initial complaint and rukka prepared on the day of the incident to see what part and how much of the statements of these witnesses are believable/ trustworthy and can be relied upon."
Thus, the Ld. ACMM had observed that in some cases, the prosecution had explained the delay while in some cases they had not and the statement of some of the witnesses had been recorded immediately after the alleged incident and in these circumstances, the statements of the witnesses have to be appreciated individually as well as a whole. As such, it cannot be said that the case of the prosecution is liable to be thrown out due to delay in recording the statements of some of the witnesses under Section 161 Cr.P.C. especially when statements of some witnesses were recorded immediately after the incident.
71. It was then submitted that where witnesses speak in a parrot-like manner, such testimony should not be accepted and reliance was placed in this regard on the judgment in Balaka Singh and Ors. v. The State of Punjab (supra) and Pandurang Tukia and Bhillia v. State of Hyderabad (supra). The law in this regard is well-established but it has to be examined whether the witnesses have spoken in a parrot-like manner by looking to their testimonies.
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72. A perusal of the impugned judgment shows that the Ld. ACMM had clubbed the accused persons into three categories i.e. of those accused persons who were not active participants and were alleged to be present at the spot and were alleged to be members of the unlawful assembly, which included Gora Chand Dass, Vinod Singh, Atma Santosh, Roshan Kumar Mishra, Narender Kumar S/o Shri Soni, Narayan Yadav @ Thekedaar, Shashi Mohan, Basant Goswami, Prem Shanker and Arun Jha and had given benefit of doubt to the said persons and acquitted them for all the offences for which they were charged. The second category was of those accused persons who were active participants and were alleged to be present at the spot and were alleged to be members of the unlawful assembly namely Ismile Islam, Ashok Kumar, Manoj Kumar, Vijay Pratap Singh and Ravi Prakash Jha and the Ld. Trial Court found them guilty for the offences under Sections 143, 147, 149, 186 and 332 IPC; Lalit Mishra, Kishore Kumar and Jagdish Chand were also found guilty as also Raju Malik, Narender Singh Rawat, Heera Devi and Yash Bhatia.
73. The Ld. Trial Court had considered the third category to be of the accused persons who were active participants and were alleged to be present at the spot and were in fact leading and provoking the crowd and the four appellants before this Court fall in this category though the case of Shyam Gopal Gupta, Balram and Nirraj Pathak was considered together and of Sanjeev Jha and Akhilesh Pati Tripathi together. The Ld. Trial Court had held that the appellants Balram Jha and Nirraj Pathak were part of the unlawful assembly as defined in Section 141 IPC and were part
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3. Sanjeev Jha of the mob and Balram Jha and Shyam Gopal Gupta had indulged in sloganeering and Balram Jha and Nirraj Pathak had as members of the unlawful assembly assaulted Ct. Babu Lal and inflicted injuries on his person in prosecution of the common object of the assembly to teach the police a lesson and to overawe the police by show of force/ use of force and that the appellants Nirraj Pathak and Balram Jha would be responsible for all the acts/ offences committed by them in prosecution of the common object and would also be responsible for the acts/ offences committed by any other member of the unlawful assembly in prosecution of the common object and had convicted them for the offences under Sections 147, 186, 332 and 149 IPC and sentenced them vide order dated 05.01.2023.
74. As regards the appellants Sanjeev Jha and Akhilesh Pati Tripathi as well, the Ld. Trial Court had held that the prosecution had been able to prove beyond doubt that they were part of the unlawful assembly as defined in Section 141 IPC and were part of the mob and they had indulged in sloganeering and had provoked the crowd which encouraged them to get violent as a result of which they resorted to stone pelting thereby causing injuries on the persons of PW HC Bharat Rattan, HC Mohan Lal and Ct. Babu Lal and so were part of the unlawful assembly which had obstructed the police officials from doing their duties; some members of the said unlawful assembly had assaulted Ct. Babu Lal and had inflicted injuries on HC Bharat Rattan and HC Mohan Lal due to their act of stone pelting and had indulged in rioting and the common object of the said unlawful assembly was to teach the police a lesson and to overawe the police by show of
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3. Sanjeev Jha force/ use of force and the appellants were held to be responsible for all the acts/ offences committed by them in prosecution of the common object and also for the acts/ offences committed by any other member of the unlawful assembly in prosecution of the common object and had convicted them for the offences under Sections 147, 186, 332 and 149 IPC and sentenced them vide order dated 05.01.2023. Against the said findings and order on sentence, the appeals had been filed by the appellants.
APPEAL BY APPELLANTS NIRRAJ PATHAK AND BALRAM JHA
75. The Ld. Trial Court had referred to the allegations against appellants Balram Jha and Nirraj Pathak in the charge sheet as under:
"(xxiii) Shyam Gopal Gupta, (xxiv) Balram Jha and (xxv) Neeraj Pathak-: As per the charge-sheet, the aforementioned three accused persons were present in the police station and were saying that they will teach police a lesson and were threatening to set the police station on fire and were also instigating the crowd. It is further alleged in the charge-sheet that the accused Shyam Gopal Gupta alongwith other accused persons had called MLA Sanjeev Jha to the police station after which MLA Sanjeev Jha came with his associates and followers including accused Neeraj Pathak. All the three aforementioned accused persons were not arrested during investigation. It is further alleged in the charge-sheet that accused Shyam Gopal Gupta alongwith MLA Akhileshpatti Tripathi were instigating the crowd to carry out stone pelting and accused Balram Jha was saying and instigating the crowd to beat up the SHO. In the charge-sheet, it is mentioned that accused Balram Jha alongwith Shyam Gopal Gupta, Yash Bhatia and Heera Devi had used force against SI Ajay Kumar and accused Balram Jha and Neeraj Pathak assaulted Ct. Babu Lal. The MLC of the accused Shyam Gopal Gupta
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3. Sanjeev Jha and accused Balram Jha has been placed on record by the prosecution to show that they were present at the spot on the day of incident."
76. The Ld. Trial court had also considered the defence taken by the appellants namely that the appellant Nirraj Pathak had taken the defence that he was not present at the police station on the day of the incident and the appellant Balram Jha had taken the defence that he was returning home and was crossing the police station when he was lathi charged by the police and was not involved in any protest. The Ld. ACMM had then considered the fact that during investigation, appellant Balram Jha was identified by Ct. Babu Lal, SI Jitender Rana, ASI Diwan Singh and SI Sanjay Gupta while appellant Nirraj was identified by Ct. Babu Lal and SI Ajay Kumar. The Ld. ACMM had then referred to the testimony of the witnesses qua the said appellants. As regards, appellant Nirraj Pathak, it was observed that PW1 Ct. Vikas had identified him by face and stated that he came in Santro car to the Police Station along with MLA Sanjeev Jha on the date of the incident. But other than that, it is seen that PW1 had not stated anything specifically qua the appellant Nirraj Pathak. During cross-examination, PW1 had stated that at around 08:30 p.m. MLA Sanjeev Jha along with four other persons came to PS by Santro car, he could not tell the registration and colour of the Santro car. He denied the suggestion that he could not tell the registration and colour of the Santro car as the car had not come to the PS. He had also stated that he was not taken for medical treatment and he also denied the suggestion that he had identified the accused Nirraj Pathak as he was the President of Purvanchal Prakosht of Delhi State and his hoardings and posters
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3. Sanjeev Jha were visible in the area. Thus, even during cross-examination PW1 had not stated anything specifically qua the appellant Nirraj Pathak except for referring to his coming to the spot.
77. The Ld. Counsel for the appellant Nirraj Pathak had argued that the Ld. ACMM had wrongly relied on the statement of PW1 in as much as there were huge contradictions in his statement given under Section 161 Cr.P.C. and his evidence. However, PW1 in his statement before the Court had only identified the appellant Nirraj Pathak as the person who had come with MLA Sanjeev Jha in his Santro car. At the same time, it is pertinent that in his statement under Section 161 Cr.P.C. PW1 had not stated anything about Nirraj Pathak specifically and it is not the case that any TIP of Nirraj Pathak was got conducted and it is only in the Court that PW1 had identified Nirraj Pathak for the first time.
78. Apart from that, it is seen that PW2 and PW17 had stated about Nirraj Pathak and PW2 had identified Nirraj Pathak. PW2 had deposed that there were around 200 people present at PS Burari and amongst the mob he identified the appellant Nirraj Pathak who was shouting against the police. However, he had not attributed any specific act to Nirraj Pathak except that he was amongst the mob and was shouting against the police. He had denied the suggestion that he was deposing falsely at the behest of the complainant being his fellow police official or that he had identified the accused Nirraj Pathak as he was the President of Purvanchal Prakosht of Delhi State and his hoarding and posters were visible in that area. He had stated that the appellant Nirraj Pathak was standing in front of the room of the SHO. It is
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3. Sanjeev Jha however, pertinent that he had stated that he knew the appellant Nirraj Pathak prior to the incident as he was regular visitor to PS Burari.
79. The Ld. Counsel for the appellant Nirraj Pathak had argued that the Ld. Trial Court had wrongly relied on the statement of PW2 HC Bharat Rattan in as much as there were huge contradictions in his statement given under Section 161 Cr.P.C. and his evidence and there was cogent embellishment in his statements to the extent that in his evidence he stated that he was injured during the incident but that was not mentioned in his statement under Section 161 Cr.P.C. However, it is seen that in his statement under Section 161 Cr.P.C. PW2 had stated that he was beaten and he had sustained injuries. It was also argued that the statement of PW2 under Section 161 Cr.P.C. was recorded after a gap of 3 months. It was also submitted that the Ld. ACMM ought to have appreciated his findings while acquitting the accused Vinod Singh, Atma Santosh observing that the prosecution had not been able to prove the guilt of the accused persons and PW2 had failed to identify the accused Vinod Singh. It is pertinent that in his statement under Section 161 Cr.P.C. which was recorded after a gap of nearly 3 months on 11.5.2015 and is Ex.PW2/DA, he had stated about some persons standing outside the SHO room beating SI Ajay Kumar and Ct. Babu Lal and the police and in that crowd he could only identify Atma Santosh and Vinod Singh. As per the testimony of PW17 (which would be referred to later) appellant Nirraj Pathak was one of the persons who had beaten him but it is surprising that PW2 had not been able to identify him on that day but identified him in the
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3. Sanjeev Jha Court as one of the persons who was shouting against the police, while PW2 did not identify in Court the persons whose names he had stated in his statement under Section 161 Cr.P.C. There is also merit in the submission of the Ld. Counsel for the appellant Nirraj Pathak that the Ld. Trial Court ought to have appreciated that while acquitting accused Vinod Singh, it had held that PW2 had not identified him in the Court and deposed nothing against him whereas while considering the testimony of PW2 against the appellant Nirraj Pathak, the Ld. Trial Court overlooked the fact that PW2 had not named him in his statement under Section 161 Cr.P.C. nor stated that he was amongst the mob and shouting against the police nor identified him earlier. In these circumstances, the identification by PW2 of the appellant Nirraj Pathak in the Court for the first time did not hold much value, moreso as he had stated during cross-examination that he knew the appellant Nirraj Pathak prior to the incident as he was regular visitor to PS Burari.
80. Further, PW10 had identified the appellant Nirraj Pathak during investigation but he did not depose about him during his testimony in Court. Coming to the testimony of PW17, he had deposed that around 08:30 p.m. on 20.02.2015, the local MLA Sanjeev Jha along with his brother Arun Jha and Nirraj Pathak and driver came to the police station in Santro car and he had stated about the incident with the sentry at the gate though, no allegation was made against appellant Nirraj Pathak qua the incident with PW1 and PW1 had also not deposed that appellant Nirraj Pathak had any role in the same. He had further stated that Nirraj Pathak, Shyam Gopal Gupta and other persons started
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3. Sanjeev Jha mishandling them. He had stated that Balram Jha and Nirraj Pathak forcibly put him on the ground and assaulted him with fists and leg blows and he received injury on his shoulder and thereafter the mob started pelting stones on the police station. Identity of the appellant Nirraj Pathak was not disputed. The MLC of Ct. Babu Lal is on record, which shows the injuries sustained by him as grievous in nature and mentions tenderness over right shoulder though charge for the offence under Section 325 or 333 IPC was not framed in the absence of X-ray report. During cross-examination PW17 had denied the suggestion that he was under the influence of liquor. He stated that he was on duty on that day and the doctor had wrongly mentioned in the MLC that he was drunk at that time. He denied the suggestion that he received the injury as he fell in the police station as he was under the influence of liquor or that he was not assaulted by anyone or that he was not on duty on that day and he had not seen any incident as stated by him. However, there is nothing specific in the MLC of PW17 to suggest that he was under the influence of liquor at the time of the incident and there was also a Court observation at the time of recording evidence that the smell of alcohol in the MLC was written as negative.
81. The Ld. Trial Court, in the impugned judgment, had observed that the MLC of Ct. Babu Lal further corroborated with his testimony that he was beaten up by the accused persons Balram Jha and Nirraj Pathak as a result of which he received injuries on his shoulder but merely the fact that the MLC showed that PW17 had sustained grievous injuries did not corroborate that he was beaten up by Balram Jha and Nirraj Pathak as a result
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3. Sanjeev Jha of which he received injuries on his shoulder and at the most it only showed that he had sustained grievous injuries. The Ld. ACMM had further observed as under:
"It is the case of the prosecution that the accused persons namely Shyam Gopal Gupta, Balram Jha and Neeraj Pathak threatened to set the police station on fire, however, no one other than PW10 SI Ajay has stated anything in this regard and not even a single witness has stated in their deposition that they were alarmed by the threatening slogans raised by the accused persons, therefore, this court is of the view that the offence of criminal intimidation is not made out against the accused persons Shyam Gopal Gupta, Balram Jha and Neeraj Pathak."
Thus, the Ld. Trial Court had held that the offence of criminal intimidation was not made out against the appellant Nirraj Pathak. However, looking to the testimony of the witnesses, the Ld. ACMM had held that the testimony was consistent on the point of presence of the appellant Nirraj Pathak at the spot and that he along with others shared the common object of the unlawful assembly which was to teach the police officials a lesson and to overawe the police by force/ show of force and that the unequivocal testimony of PW17 Ct. Babu Lal duly corroborated by the MLC placed on record showed that the appellant along with Balram Jha had assaulted Ct. Babu Lal and inflicted injuries on his person and the Ld. Trial Court had thereafter convicted the appellant Nirraj Pathak.
82. The Ld. Counsel for the appellant had argued that the Ld. Trial Court had taken a contradictory consideration and appreciation of the evidence of PW17 in as much as while acquitting the accused Basant Goswami, it had not relied on the
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3. Sanjeev Jha evidence of PW17 and found his evidence to be questionable whereas it had wrongly appreciated the evidence of PW17 in respect of the appellants. A perusal of the impugned judgment shows that the Ld. ACMM in respect of the testimony of PW17 qua Basant Goswami had observed as under:
"PW17 Ct. Babu Lal, in his deposition has stated that Basant Goswami alongwith other accused persons came to the PS and demanded handing over the accused persons in the kidnapping case and when SI Ajay refused his demand, Basant Goswami alongwith others started provoking the crowd and started to call the local MLA. However, PW17 Ct. Babu Lal failed to identify the accused Basant Goswami in the court and also noting that SI Ajay has not mentioned anything regarding this conversation between him and accused Basant Goswami, the testimony of PW17 Ct. Babu Lal does not find any corroboration and so it is questionable whether the accused Basant Goswami was a member of unlawful assembly. It is pertinent to mention that statement u/s 161 Cr.PC of Ct. Babu Lal was recorded on 11.05.2015 almost three months after the incident and the prosecution has not been able to explain this delay in recorded of his statement....Therefore, this court in view of the various contradictions in the depositions of the prosecution witnesses especially PW SI Ajay and PW Ct. Babu Lal has come to the conclusion that the prosecution has not been able to prove the guilt of the accused Basant Goswami beyond doubt..."
While the first part relates to PW17 failing to identify Basant Goswami in the Court, it is the second part which is material wherein the Ld. Trial Court had held that the statement under Section 161 Cr.P.C. of PW17 was recorded on 11.05.2015 almost three months after the incident and the prosecution had not been able to explain the delay in recording of his statement. Thus, it cannot be that in respect of one accused, the statement under Section 161 Cr.P.C. was held to be recorded belatedly whereas in
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3. Sanjeev Jha respect of another accused, the testimony of the same witness was relied upon to convict the accused. It may be mentioned that in his statement under Section 161 Cr.P.C. PW17 had stated about the appellants Nirraj Pathak and Balram Jha assaulting him but clearly the said statement was recorded belatedly and no plausible explanation had been brought on record to explain the delay and as such the same could not be relied upon. It is also surprising that no other witness has corroborated the statement of PW17 about appellants Nirraj Pathak and Balram Jha assaulting him. Further, appellant Nirraj Pathak was not named in the FIR nor was he arrested at the spot. In these circumstances, considering the material which has come on record wherein PW1 and PW2 had merely identified Nirraj Pathak but had not stated anything specifically about his role and even their testimony could not be taken to establish the presence of appellant Nirraj Pathak at the spot and the testimony of PW17 wherein he had stated about Nirraj Pathak along with Balram Jha forcefully putting him on the ground and assaulting him with fists and leg blows as a result of which he received injuries on his shoulder cannot be relied on, the appellant Nirraj Pathak is given benefit of doubt and is entitled to be acquitted.
83. As regards the appellant Balram Jha, there is no reason to dispute his presence at the spot, once it is not disputed that he was also injured and his MLC is also on record. The defence put forth by the appellant Balram Jha in his statement under Section 313 Cr.P.C. is that he was returning home and was crossing the police station when he was lathi charged by the police and was not involved in any protest. However, no defence witness has
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3. Sanjeev Jha been examined on his behalf and even nothing has been brought on record to substantiate the said defence. As per the case of the prosecution, it was mentioned in the charge sheet that the appellant Balram Jha along with others had used force against SI Ajay Kumar and Balram Jha along with appellant Nirraj Pathak had assaulted Ct. Babu Lal. As regards the assault on Ct. Babu Lal, it has already been held above that the testimony of PW17 Ct. Babu Lal could not be relied upon in this regard and in absence of any other corroborative evidence, appellant Balram Jha is given benefit of doubt in respect of the assault on Ct. Babu Lal. Further, as regards the use of force against SI Ajay Kumar, it is seen that the Ld. Trial Court had observed that "PW10 SI Ajay Kumar has not stated anything regarding the accused persons Shyam Gopal Gupta and Balram Jha beating him and looking at the inconsistencies in the deposition of the prosecution witnesses especially SI Ajay in regard to the abovesaid accused persons beating the police officials, this court is of the view that the prosecution has not been able to show that the accused persons namely Shyam Gopal Gupta and Balram Jha assaulted SI Ajay." The said findings of the Ld. Trial Court have not been challenged by the prosecution and there is no reason to differ with the said findings. Accordingly, it cannot be held that the appellant Balram Jha is guilty of assaulting SI Ajay.
84. As regards the liability of the appellant Balram Jha for the other offences, as noticed in the impugned judgment, the appellant Balram Jha was identified during investigation by Ct. Babu Lal (though it has already been held that his testimony in this regard cannot be relied upon), SI Jitender Rana (who was not
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3. Sanjeev Jha examined in Court as a witness), ASI Diwan Singh (PW16) and SI Sanjay Gupta (PW21). Further, it is seen that PW2, PW10, PW16 and PW19 had stated about the presence and role of Balram Jha. It is seen that PW2 had identified Balram Jha, though he had not stated anything about his role. It is also pertinent that he had stated that he knew Balram Jha prior to the incident and he was a regular visitor of PS Burari. PW2 had deposed that there were around 200 people present at PS Burari and amongst the mob he identified the appellant Balram Jha who was shouting against the police. However, he had not attributed any specific act to Balram Jha except that he was amongst the mob and was shouting against the police. He had stated that the appellant Balram Jha was standing in front of the room of the SHO. It is however, significant that he had stated that he knew the appellant Balram Jha prior to the incident as he was regular visitor to PS Burari. The observations made above in respect of testimony of PW2 qua the appellant Nirraj Pathak hold true in respect of the appellant Balram Jha as well and his identification of the appellant Balram Jha in the Court for the first time does not hold much value, moreso as he had stated during cross- examination that he knew the appellant Balram Jha prior to the incident as he was regular visitor to PS Burari.
85. PW10 SI Ajay stated that on the day of incident a large crowd had gathered at the police station and the accused persons including accused Heera Devi, Shyam Gopal Gupta and Balram Jha were part of the mob and were raising the slogans: "thane ko aag laga denge aur sara thana tod kar police walo ki pitai kar denge". During the examination of PW10, he had stated that he
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3. Sanjeev Jha could identify the accused Balram Jha but the identity of the accused Balram Jha was not disputed as he was exempted through his counsel. Thus, PW10 had stated about the mob including Balram Jha raising slogans and the identity of appellant Balram Jha was not disputed. During cross-examination, no specific suggestion was put to him qua Balram Jha, not even that appellant Balram Jha was only a passerby and during the lathi charge he sustained injuries. The Ld. Counsel for the appellant Balram Jha had argued that the Ld. Trial Court had wrongly relied on the evidence of PW10 SI Ajay Kumar as he was the person against whom a warranted grievance was there in the public in relation to FIR No.231/15 wherein SI Ajay was accused of taking bribe from the accused arrested in relation to the said FIR and he was personally interested in the outcome of the present case and to safeguard him, the instant FIR had been malafidely registered. It is true that during cross-examination PW10 had admitted about the complaint being there against him but merely on that basis, his testimony cannot be thrown out moreso as the MLC of Balram Jha corroborates his presence at the spot and during cross-examination, no suggestion whatsoever was put to him that what he had stated qua the appellant Balram Jha was incorrect.
86. The Ld. Counsel for the appellant Balram Jha had further argued that the Ld. ACMM ought to have appreciated his own findings while acquitting the accused Narender Kumar, Narayan Yadav, Basant Goswami, Prem Shankar and Arun Jha observing that there were contradictions and non-supportive testimony of PW10 SI Ajay Kumar, therefore, it could not be relied upon. A
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3. Sanjeev Jha perusal of the impugned judgment shows that the Ld. ACMM had observed qua the accused Narender Kumar in relation to PW10 as under:
"Not even a single prosecution witnesses has deposed anything against the accused Narender Kumar and allegations against the accused that he alongwith others instigated the mob and caused rioting could not be substantiated as SI Ajay who identified him during investigation failed to identify him during trial and did not say anything against the accused. This is contrary to the statement of SI Ajay u/s 161 recorded on 12.05.2015 wherein he has stated that accused Narender Kumar alongwith other accused persons was provoking the crowd and accused Narender Kumar alongwith Basant Kumar Goswami threatened to kill him...Therefore, this court looking to the contradictory and non- supportive testimony given by the prosecution witnesses especially SI Ajay during trial gives the accused Narender Kumar the benefit of the doubt..."
It is pertinent that as regards the appellant Balram Jha, PW10 had deposed about him during his examination in chief and also stated that he could identify him but his identity was not disputed. Further, PW10 in his complaint on the basis of which FIR was registered had made allegations against the appellant Balram Jha. Similarly, in respect of Narayan Yadav @ Thekedar, it was observed in the impugned judgment as under:
"After going through the material on record including the testimony of the prosecution witnesses, this court has observed that the accused Narender Yadav @ Thekedar was not named in the FIR and was not arrested during investigation. Also it has been observed that SI Ajay identified the accused Narayan Yadav @ Thekedar during investigation and PW10 during his deposition stated that he had identified the accused Narayan Yadav @ Thekedar on 12.05.2015 i.e. almost three months after the
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3. Sanjeev Jha incident. However, PW10 SI Ajay Kumar failed to identify the accused Narayan Yadav @ Thekedar in the court. Also it is pertinent to mention that SI Ajay Kumar did not mention the name of the accused Narayan Yadav @ Thekedar in his first statement recorded u/s 161 Cr.P.C. on 21.02.2015 and only named the accused Narayan Yadav @ Thekedar in his supplementary statement recorded u/s 161 Cr.PC on 12.05.2015...There are various contradictions in the deposition of the prosecution witnesses as far as the role and conduct of the accused Narayan Yadav @ Thekedar is concerned and so it is questionable whether the accused was present at the police station in the day of the incident...So, this Court in view of the various contradictions in the depositions of the prosecution witnesses especially PW SI Ajay has come to the conclusion that the prosecution has not been able to prove the guilt of the accused Narayan Yadav @ Thekedar beyond doubt..."
However, none of the observations hold true in respect of the appellant Balram Jha and he was duly named in the FIR, his MLC is on record and his identity was not disputed during testimony of PW10. Qua accused Basant Goswami, it was observed as under:
"SI Ajay Kumar identified the accused Basant Goswami during investigation, however, during trial PW10 SI Ajay Kumar did not identify the accused in the court and deposed nothing against him and only stated that he identified accused Basant Goswami about 2-3 months after the incident. However, PW10 SI Ajay Kumar failed to identify the accused Basant Goswami in the court. Also it is pertinent to mention that SI Ajay Kumar did not mention the name of the accused Basant Goswami in his first statement recorded u/s 161 Cr.PC on 21.02.2015 and only named the accused Basant Goswami in his second statement u/s 161 Cr.PC recorded on 12.05.2015... PW10 SI Ajay has not mentioned any of the above facts against the accused Basant Goswami in his deposition and has only stated that he identified accused Basant Goswami on 12.05.2015. There are various contradictions in the deposition of the prosecution witnesses as far as the role and conduct
1. Akhilesh Pati Tripathi v. State NCT of Delhi Page No. 89 of 134
2. Nirraj Pathak & Anr.
3. Sanjeev Jha of the accused Basant Goswami is concerned..."
Again none of these observations are applicable in case of the appellant Balram Jha and while there may be contradictions in the testimonies of the witnesses, PW10 had named the appellant Balram Jha in the initial complaint as well as in the Court. Same holds true of the argument qua the accused Prem Shankar who was identified by PW10 during investigation but not during trial and PW10 had not stated anything against him; and the accused Arun Jha as it was observed that PW10 in his deposition had not stated anything against accused Arun Jha and had not even identified him in the Court. As such, qua the appellant Balram Jha, this argument is bereft of any merits. The identity of the appellant was not disputed during the testimony of PW10 and the appellant Balram Jha was named both in the complaint and before the Court and no suggestion to the contrary was put to PW10. The only aspect on which the testimony of PW10 helps the case of the appellant Balram Jha is that it was silent regarding the allegation of assaulting PW10.
87. Further, the Ld. Trial Court had relied on the testimony of PW16 ASI Diwan Singh who had stated about the appellant Balram Jha along with others reaching the police station and he had also identified accused Balram Jha as part of the crowd, who was raising slogans against the Delhi Police on the day of the incident. During cross-examination, he had stated that the appellant Balram Jha along with others was present in front of room of SHO. PW16 admitted that the appellant Balram Jha was active in politics, used to come to PS and he recognized him even prior to the incident. It is true that the statement of this witness
1. Akhilesh Pati Tripathi v. State NCT of Delhi Page No. 90 of 134
2. Nirraj Pathak & Anr.
3. Sanjeev Jha was recorded belatedly after almost three months but it is also seen that no specific suggestion was put to him that Balram Jha was not present at the PS on the day of the incident or that he was a passer-by as was sought to be contended on his behalf. As such, there is no reason to dispute the testimony of PW16 in respect of the appellant Balram Jha only on the ground that it was recorded belatedly, more so as the conviction of the appellant Balram Jha was not based on the sole testimony of PW16.
88. Though, it was not mentioned in impugned judgment, it is seen that PW19 who was the SHO and had also deposed about the incident had identified the appellant Balram Jha on seeing him and also told his name and no specific suggestion was put to him during cross-examination regarding the basis on which he had identified the appellant Balram Jha or to the effect that he was not present at the spot at the time of the incident or was only a passer by. He had also stated that apart from accused Sanjeev Jha the DD entry reflected the name of Akhilesh Pati Tripathi, Balram Jha and supporters. It is further significant that the appellant Balram Jha was named in the FIR itself and witnesses had stated about his presence at the spot and his MLC is also on record establishing his presence at the spot.
89. The Ld. Counsel for the appellant had then argued that the Ld. Trial Court had not appreciated the inconsistencies and contradictions in the evidence of the prosecution with regards to the timing of the incident of stone pelting and a chart was also given showing what PW4, PW5, PW8, PW10, PW16, PW17 and PW20 had stated in that respect. Reliance was also placed on
1. Akhilesh Pati Tripathi v. State NCT of Delhi Page No. 91 of 134
2. Nirraj Pathak & Anr.
3. Sanjeev Jha various DD entries in this regard and that the charge placed the incident at 10.30 p.m., however the documents clearly showed the incident occurring post 11.00 p.m. It was also argued that there was not a single prosecution witness or a single document recording the presence of the appellant at the PS after 10.30 p.m. and as such the charge against the appellant had been wrongly appreciated by the Ld. Trial Court. However, there is no merit in this contention qua the appellant Balram Jha as his MLC is on record which establishes his presence at the spot. There is also nothing to dispute that several police persons had sustained injuries though the appellant had also sustained injuries.
90. It was then argued by the Ld. Counsel for the appellant that the appellant could not be held liable for the acts of the other members of the unlawful assembly in absence of any overt act being attributed to him. Reliance in this regard was placed on the judgments in Kuldip Yadav v. State of Bihar (supra); State of Punjab v. Sanjiv Kumar & Ors. (supra) and Dharnidhar v. State of U.P. (supra). In Kuldip Yadav v. State of Bihar (supra) it was observed as under:
"36. In order to understand the rival claim, it is useful to refer to Section 149 which reads as follows:
"149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.--If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that
1. Akhilesh Pati Tripathi v. State NCT of Delhi Page No. 92 of 134
2. Nirraj Pathak & Anr.
3. Sanjeev Jha offence."
The above provision makes it clear that before convicting accused with the aid of Section 149 IPC, the Court must give clear finding regarding nature of common object and that the object was unlawful. In the absence of such finding as also any overt act on the part of the accused persons, mere fact that they were armed would not be sufficient to prove common object. Section 149 creates a specific offence and deals with punishment of that offence. Whenever the court convicts any person or persons of an offence with the aid of Section 149, a clear finding regarding the common object of the assembly must be given and the evidence discussed must show not only the nature of the common object but also that the object was unlawful. Before recording a conviction under Section 149 IPC, essential ingredients of Section 141 IPC must be established. The above principles have been reiterated in Bhudeo Mandal and Others vs. State of Bihar.
37) In Ranbir Yadav v. State of Bihar (1995), this Court highlighted that where there are party factions, there is a tendency to include the innocent with the guilty and it is extremely difficult for the court to guard against such a danger. It was pointed out that the only real safeguard against the risk of condemning the innocent with the guilty lies in insisting on acceptable evidence which in some measure implicates such accused and satisfies the conscience of the court.
38. In Allauddin Mian v. State of Bihar (1989) 3 SCC 5, this Court held: (SCC pp.16-17, para 8) "8. ...Therefore, in order to fasten vicarious responsibility on any member of an unlawful assembly the prosecution must prove that the act constituting an offence was done in prosecution of the common object of that assembly or the act done is such as the members of that assembly knew to be likely to be committed in prosecution of the common object of that assembly. Under this section, therefore, every member of an unlawful assembly renders himself liable for the criminal act or acts of any other member or members of that assembly provided the same is/
1. Akhilesh Pati Tripathi v. State NCT of Delhi Page No. 93 of 134
2. Nirraj Pathak & Anr.
3. Sanjeev Jha are done in prosecution of the common object or is/ are such as every member of that assembly knew to be likely to be committed. This section creates a specific offence and makes every member of the unlawful assembly liable for the offence or offences committed in the course of the occurrence provided the same was/were committed in prosecution of the common object or was/were such as the members of that assembly knew to be likely to be committed. Since this section imposes a constructive penal liability, it must be strictly construed as it seeks to punish members of an unlawful assembly for the offence or offences committed by their associate or associates in carrying out the common object of the assembly. What is important in each case is to find out if the offence was committed to accomplish the common object of the assembly or was one which the members knew to be likely to be committed. There must be a nexus between the common object and the offence committed and if it is found that the same was committed to accomplish the common object every member of the assembly will become liable for the same. Therefore, any offence committed by a member of an unlawful assembly in prosecution of any one or more of the five objects mentioned in Section 141 will render his companions constituting the unlawful assembly liable for that offence with the aid of Section 149 IPC."
39. It is not the intention of the legislature in enacting Section 149 to render every member of unlawful assembly liable to punishment for every offence committed by one or more of its members. In order to attract Section 149, it must be shown that the incriminating act was done to accomplish the common object of unlawful assembly and it must be within the knowledge of other members as one likely to be committed in prosecution of the common object. If the members of the assembly knew or were aware of the likelihood of a particular offence being committed in prosecution of the common object, they would be liable for the same under Section 149 IPC.
40) In Rajendra Shantaram Todankar v. State of Maharashtra this Court has once again explained Section 149 and held as under: (SCC pp.263-64, para 14)
1. Akhilesh Pati Tripathi v. State NCT of Delhi Page No. 94 of 134
2. Nirraj Pathak & Anr.
3. Sanjeev Jha "14. Section 149 of the Penal Code provides that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who at the time of the committing of that offence, is a member of the same assembly is guilty of that offence. The two clauses of Section 149 vary in degree of certainty. The first clause contemplates the commission of an offence by any member of an unlawful assembly which can be held to have been committed in prosecution of the common object of the assembly. The second clause embraces within its fold the commission of an act which may not necessarily be the common object of the assembly, nevertheless, the members of the assembly had knowledge of likelihood of the commission of that offence in prosecution of the common object. The common object may be commission of one offence while there may be likelihood of the commission of yet another offence, the knowledge whereof is capable of being safely attributable to the members of the unlawful assembly. In either case, every member of the assembly would be vicariously liable for the offence actually committed by any other member of the assembly. A mere possibility of the commission of the offence would not necessarily enable the court to draw an inference that the likelihood of commission of such offence was within the knowledge of every member of the unlawful assembly. It is difficult indeed, though not impossible, to collect direct evidence of such knowledge. An inference may be drawn from circumstances such as the background of the incident, the motive, the nature of the assembly, the nature of the arms carried by the members of the assembly, their common object and the behaviour of the members soon before, at or after the actual commission of the crime. Unless the applicability of Section 149 -- either clause -- is attracted and the court is convinced, on facts and in law, both, of liability capable of being fastened vicariously by reference to either clause of Section 149 IPC, merely because a criminal act was committed by a member of the assembly every other member thereof would not necessarily become liable for such criminal act.
1. Akhilesh Pati Tripathi v. State NCT of Delhi Page No. 95 of 134
2. Nirraj Pathak & Anr.
3. Sanjeev Jha The inference as to likelihood of the commission of the given criminal act must be capable of being held to be within the knowledge of another member of the assembly who is sought to be held vicariously liable for the said criminal act...."
The same principles have been reiterated in State of Punjab v. Sanjiv Kumar."
The law in this regard is well-settled. However, in the present case, in light of what the witnesses have deposed, more specifically about the role of the appellant Balram Jha, there is no reason to find fault with the finding of the Ld. ACMM that the appellant "shared the common object of the unlawful assembly which was to teach the police officials a lesson and to overawe the police by force/ show of force. The unlawful assembly by means of criminal force or show of criminal force wanted to compel the police to hand over the accused persons in FIR NO. 231/15 of PS Burari and when the IO of that FIR, SI Ajay refused to do so then that unlawful assembly by way of show of force decided to teach the police a lesson and did not disperse when specifically directed by the SHO and other senior police officers of the police station. The moment the crowd failed to disperse despite repeated warning by ACP, SHO and other senior police officials and decided to overawe the police by force / show of force, the crowd became an unlawful assembly and all the members of the unlawful assembly were collectively responsible for all the actions done by its members in prosecution of the common object. Moreover, no evidence has been placed on record by the defence to show that the accused persons did not have the knowledge of the unlawful object of the assembly or that having gained knowledge of the same, they attempted to either
1. Akhilesh Pati Tripathi v. State NCT of Delhi Page No. 96 of 134
2. Nirraj Pathak & Anr.
3. Sanjeev Jha prevent it or disassociate themselves from the assembly and so the mere participation of the accused persons would be deemed to be inculpatory" and the finding of the Ld. Trial Court that the appellant Balram Jha was part of the unlawful assembly as defined in Section 141 IPC and was part of the mob and had indulged in sloganeering and that he would be responsible for all the acts/ offences committed by them in prosecution of common object and would also be responsible for the acts/ offences committed by any other member of the unlawful assembly in prosecution of the common object. However, as regards the incident of assault on Ct. Babu Lal, the appellant Balram Jha is entitled to benefit of doubt.
APPEALS FILED BY APPELLANTS SANJEEV JHA AND AKHILESH PATI TRIPATHI
91. The said two appeals have been taken up together as the allegations qua the appellants Sanjeev Jha and Akhilesh Pati Tripathi were taken up by the Ld. Trial Court together. The Ld. Trial Court had referred at length to the allegations made against the appellants Sanjeev Jha and Akhilesh Pati Tripathi in the charge-sheet and that as per the charge-sheet, the accused persons namely Sanjeev Jha and Akhilesh Pati Tripathi "were part of the unlawful assembly and were in fact leading the mob and were instigating and provoking the mob. In the charge-sheet, it is alleged by the prosecution that the accused Sanjeev Jha was called to the police station Burari by some persons aggrieved by the alleged inaction of the police in a kidnapping case in FIR No.231/15 and the accused Sanjeev Jha went along with his
1. Akhilesh Pati Tripathi v. State NCT of Delhi Page No. 97 of 134
2. Nirraj Pathak & Anr.
3. Sanjeev Jha supporters to the police station and had an altercation with the Ct. Vikas at gate and thereafter, went to the SHO's room and demanded action against SI Ajay and Ct. Vikas after which the accused Akhileshpatti Tripathi came to the police station along with his supporters and the abovesaid accused persons alongwith others started raising slogans against Delhi Police. It is the case of the prosecution that abovesaid accused persons were instigating and provoking the crowd after which the crowd turned violent and started pelting stones as a result of which some police officials got injured." The Ld. ACMM had also observed that the appellants were not arrested during investigation, however, their presence at the spot was not disputed and that they had taken the defence that they had gone to the police station to pacify the crowd and on the assurance given by the SHO of PS Burari, they left the PS before the crowd turned violent. It was also observed that during investigation, Ct. Babu Lal, SI Jitender and SI Sanjay Gupta identified the accused Sanjeev Jha and accused Akhileshpatti Tripathi was identified by SI Jitender.
92. The Ld. Sr. Advocate for the appellant Sanjeev Jha had argued that the Ld. Trial Court had already acquitted the appellant Sanjeev Jha for the offence under Section 506 IPC in regard to the incident which had taken place at the gate of police station with Ct. Vikas and it is seen that several of the witnesses including Ct. Vikas who was PW1, PW4, PW8, PW10, PW13, PW17 and PW19 had stated about the alleged incident with Ct. Vikas at the gate. In this regard, the Ld. ACMM had observed as under:
1. Akhilesh Pati Tripathi v. State NCT of Delhi Page No. 98 of 134
2. Nirraj Pathak & Anr.
3. Sanjeev Jha "(H) This court has gone through the testimonies of all prosecution witnesses and has noticed that some prosecution witnesses have stated that accused persons were threatening them and were saying "thane ko aag laga dengye" and PW1 Ct. Vikas has stated that accused Sanjeev Jha had threatened him by saying "tumhari vardi uttarva dunga", however, none of these witnesses have stated that the accused persons caused alarm to them or that they were alarmed by the statements made by the accused persons caused them to do any act which they were not legally bound to do and so after taking into account the judgment of Hon'ble Delhi High Court in Kanshi Ram vs State, this court is of the view that offence u/s 506 IPC is not made out against any of the accused persons."
Thus, the Ld. Trial Court had acquitted all the accused persons including the appellants of the offence under Section 506 IPC.
93. The Ld. Senior Counsel for the appellant Sanjeev Jha had argued that there were variations in the timings stated by the different witnesses as to when Sanjeev Jha came to police station and when he exited the police station and the Ld. ACMM had wrongly drawn an average of the timing. It was submitted that the Ld. ACMM had further, disbelieved the defence witnesses as to the time when Sanjeev Jha left the police station, though they had been consistent in their statements and by failing to show the time of exit of the appellant Sanjeev Jha, the prosecution and the investigating agency had failed to establish the offence against the appellant Sanjeev Jha as it was his case that he was not present at the time of the alleged offence. A chart was submitted regarding the timings stated by the different witnesses at which the appellant Sanjeev Jha had come to the PS and the same was also reproduced on page 67 and page 138 of the impugned judgment, though the Ld. Sr. Advocate for the appellant Sanjeev
1. Akhilesh Pati Tripathi v. State NCT of Delhi Page No. 99 of 134
2. Nirraj Pathak & Anr.
3. Sanjeev Jha Jha had also made reference to the timings stated by some other witnesses and another chart was also submitted before this Court.
Sr. No. Name of witness Entry time of accused Sanjeev Jha in PS 1 PW1 Ct. Vikas After 08.30 pm. 2 PW8 Ct. Dinesh Between 09.00 pm to 10.00 pm 3 PW12 ASI Jagat Pal After 09.30 pm 4 PW13 HC Jai Prakash After 08.00 pm 5 PW16 ASI Diwan Singh After 08.00 pm 6 PW17 Ct. Babu Lal After 08.30 pm 7 PW19 Insp. Sher Singh After 07.30 pm. Further PW2 had stated the time of arrival of the appellant Sanjeev Jha as 10:30 p.m. and PW4 had stated the time to be 06:20 p.m., while PW5 stated the time to be 10:30 p.m. while mostly the other witnesses had stated the time to be after 08:00 p.m.
94. A perusal of the impugned judgment shows that the Ld. ACMM had come to the conclusion that the general consensus as per the prosecution witnesses was that the appellant Sanjeev Jha came to the police station around 08:00 p.m. to 08:30 p.m. While it would not be proper to draw an average as contended by the Ld. Sr. Counsel for the appellant Sanjeev Jha, it is seen that the timings as stated by most of the witnesses who were referred to in the impugned judgment as also on behalf of the appellant Sanjeev Jha do lead to the conclusion that the appellant Sanjeev Jha came to the police station between 08:00 p.m. to 08:30 p.m. No doubt there is merit in the contention of the Ld. Sr. Advocate for the appellant that the finding of the Ld. Trial Court that police
1. Akhilesh Pati Tripathi v. State NCT of Delhi Page No. 100 of 134
2. Nirraj Pathak & Anr.
3. Sanjeev Jha officials could not be expected to note the exact time of the arrival of the MLAs keeping in view the fact that such a large gathering was stationed at the police station raising slogans and protesting as per the prosecution's case also pelting stones and that the Court was of the view that some leeway in time difference should be given to the prosecution witnesses and the police officials are expected to be able to state the timings but it is also pertinent that in a situation such as in the present case, the police officials could not be expected to speak in a parrot like manner as to the exact time at which the appellant Sanjeev Jha came to the police station and there are bound to be some variations. Even otherwise, it is seen that it is not the case of the appellant Sanjeev Jha that he had not gone to the police station and his case is only that when the incident took place he was not present at the spot and he had left prior to that. Considering the totality of the testimonies of the witnesses and the fact that the appellant Sanjeev Jha himself has not disputed that he was present at the spot not much turns on the said argument.
95. Similar argument was taken in respect of the appellant Akhilesh Pati Tripathi and on page 138 of the impugned judgment, one chart was also produced referring to the testimony of PW2 and PW17 as to when the appellant Akhilesh Pati Tripathi came to the police station. However, again on behalf of the appellant Akhilesh Pati Tripathi, it was not disputed that he had gone to the police station and it is also not the case put forth that he had gone to the police station after the incident had taken place. In fact all the witnesses had consistently stated that the appellant Akhilesh Pati Tripathi had come to the police station
1. Akhilesh Pati Tripathi v. State NCT of Delhi Page No. 101 of 134
2. Nirraj Pathak & Anr.
3. Sanjeev Jha some time after the appellant Sanjeev Jha had reached there and even the Ld. Trial Court had noted that most of the prosecution witnesses had stated that the accused Akhileshpatti Tripathi came after some time of the arrival of the accused Sanjeev Jha and two prosecution witnesses had stated that the accused Akhileshpatti Tripathi came to the police station around 10.00 p.m. As such nothing much turns on this argument.
96. It was then argued on behalf of the appellants that the prosecution had not proved when the appellants Sanjeev Jha and Akhilesh Pati Tripathi had exited the police station and it is the case of the appellants that they were not present at the time of the incident of stone pelting. It is not in dispute that the appellants Sanjeev Jha and Akhilesh Pati Tripathi were not arrested at the spot. PW16 had stated that the appellants had left the spot after the incident and PW17 had stated that the appellant Sanjeev Jha had left after the stone pelting incident, though, no time was stated. However, it is seen that all the other witnesses had deposed about the role of the appellants Sanjeev Jha and Akhilesh Pati Tripathi and that they were instigating the mob and the Ld. ACMM in the impugned judgment had also adverted to the same as under:
"After going through the testimony of prosecution witnesses, the court has observed that most of the prosecution witnesses have not mentioned the time of departure of accused Sanjeev Jha and Akhileshpatti Tripathi. PW1 Ct. Vikas has also stated that both the MLAs were present at the spot when their supporters were pelting stones on the police station building. PW8 Ct. Dinesh has stated in his deposition that around 11.30 PM, the persons who accompanied the MLA and the others became
1. Akhilesh Pati Tripathi v. State NCT of Delhi Page No. 102 of 134
2. Nirraj Pathak & Anr.
3. Sanjeev Jha violent after which senior officials tried to convince the mob as well as accused Sanjeev Jha, but they did not pay any heed and continued pelting the stones. From the testimony of PW8 Ct. Dinesh, accused Sanjeev Jha was present in the police station well after 11.30 pm. PW10 SI Ajay Kumar has stated that the mob gathered in the police station and were raising slogans "thane ko aag laga denge aur sara thana thod kar police walo ki pitai kar dengey"
after which the MLA joined them and some persons in the mob started stone pelting as a result of which some policemen got injured. PW10 has further stated that the stone pelting was done around 11.30 pm. From the testimony of PW10 SI Ajay, accused Sanjeev Jha was present in the police station well after 11.30 pm. PW16 has stated that around 10.30 PM, SHO warned the public persons to disperse and when the crowd did not leave, extra police force was summoned after sometime after which the public persons started pelting stones as a result of which the police officials got injured and thereafter, accused persons Sanjeev Jha and Akhileshpatti Tripathi left the police station. So from the testimony of PW16, the accused persons were present in the police station well after 11.00 pm after the crowd had started stone pelting at the police officials.
PW17 Ct. Babu Lal has stated that the mob started pelting stones on the police station after which the police had to resort to mild force to disperse the crowd and after this accused persons namely Sanjeev Jha and Akhileshpatti Tripathi left the police station alongwith their supporters. So from the testimony of PW17, both the abovesaid accused persons were present at the time of pelting of stones by the crowd.
PW22 Sh. Satish Sharma the then ACP, Civil Lines has in his deposition stated that both the MLAs (accused Sanjeev Jha and Akhileshpatti Tripathi) were provoking the crowd for beating the police staff and damaging the property and he was making request to the mob to disperse but the mob did not pay any heed to his request and the crowd then starting manhandling the police officials on provocation of the aforesaid MLAs after which he ordered use of mild force for dispersal of the crowd.
1. Akhilesh Pati Tripathi v. State NCT of Delhi Page No. 103 of 134
2. Nirraj Pathak & Anr.
3. Sanjeev Jha So as per testimony of PW22, both the aforesaid accused persons were present in the PS at the time when the crowd had turned violence and was manhandling the police officials."
Thus, the Ld. ACMM had referred to the testimony of several witnesses to come to the conclusion that both the appellants were present at the time of the incident. It is seen that the Ld. ACMM had also referred to the testimony of some other witnesses who had stated about the role of the appellants namely PW2, PW4, PW12, PW13 and PW19.
97. The Ld. Sr. Counsel and the Ld. Counsel for the appellants had argued that the testimony of the witnesses could not be relied upon as they were recorded belatedly. The said aspect has already been adverted to above though it may be mentioned that as per the record statement of PW2 ASI Bharat Rattan under Section 161 Cr.P.C. was recorded on 11.05.2015 i.e. after nearly 3 months of the incident; statement of PW4 Ct. Rakesh was recorded on 14.05.2015 though his statement was also recorded on 21.02.2015; statement of PW10 SI Ajay Kumar who is also the complainant was recorded on 12.05.2015 though his statement was also recorded on 21.02.2015; statement of PW16 ASI Diwan Singh was recorded on 11.05.2015; statement of PW17 Ct. Babu Lal was recorded on 11.05.2015; statement of PW19 Inspector Sher Singh was recorded on 14.05.2015; statement of PW20 Ct. Rahul was recorded on 30.03.2015 and of PW22 ACP Satish Sharma was recorded on 14.05.2015. Thus, the statements of some of the witnesses were recorded belatedly but the statements of the some of the witnesses were also recorded without any delay.
1. Akhilesh Pati Tripathi v. State NCT of Delhi Page No. 104 of 134
2. Nirraj Pathak & Anr.
3. Sanjeev Jha
98. A perusal of the testimony of the witnesses who had deposed qua the appellants would show that during cross- examination, PW1 had stated that some of the persons left the spot after the incident of stone pelting. It was argued on behalf of the appellants that the Ld. ACMM had wrongly relied on the statement of PW1 in as much as there were huge contradictions in his statement given under Section 161 Cr.P.C. and his evidence. However, on that basis the testimony of the said witness cannot be thrown out completely and no suggestion whatsoever was put to the witness that the appellants were not present when the incident of stone pelting took place or to the effect that the appellants had left before the incident of stone pelting took place. During cross-examination, PW2 stated that his statement was recorded by the IO in the month of May, 2015. It is true that the statement of PW2 was recorded belatedly but even no suggestion was put to him that the appellants were not present at the time of the incident of stone pelting. It was argued that the Ld. Trial Court had wrongly appreciated the evidence of PW4 as he was unable to identify the appellant Sanjeev Jha in Court and no violence could be seen in the video recorded by him. It is true that PW4 was unable to identify the appellant Sanjeev Jha though during cross-examination by the Ld. APP for State, he stated that MLA Sanjeev Jha also misbehaved with SI Ajay Kumar; MLA Akhileshpati Tripathi instigated public persons against police; and loudspeaker was also used to convince the mob. Though he was confronted on a number of things deposed by him but no suggestion whatsoever was put to him that the appellants were not present at the time of the incident and his testimony is not
1. Akhilesh Pati Tripathi v. State NCT of Delhi Page No. 105 of 134
2. Nirraj Pathak & Anr.
3. Sanjeev Jha liable to be discarded on the ground that no violence could be seen in the video recorded by him. It may also be mentioned that though his statement was recorded on 14.05.2015 but it was also recorded on 21.02.2015 i.e. soon after the incident.
99. PW5 had also stated about the presence of the appellants at the spot and again no suggestion was put to him that the appellants were not present at the spot or had already left when the incident of stone pelting took place. PW7 had only stated about the appellant Sanjeev Jha and he also identified him in Court though he also stated that his statement was recorded by the IO only on 30.3.2015.
100. During cross-examination PW8 had stated that the mob became violent and started pelting stones at around 11.30 p.m. He could not tell the duration of stone pelting again said the period of stone pelting was about 1 - 1 ½ hours. It was argued on behalf of the appellants that the Ld. Trial Court had wrongly relied on the evidence of PW8 as he was alleged to have turned hostile and he was unable to verify his own deposition and he was unable to identify any of the accused present. However, PW8 was cross-examined by the Ld. APP only on certain points and otherwise he had stated about the incident. It is also the settled law that even the testimony of a hostile witness cannot be discarded in entirety whereas in the instant case, PW8 was cross- examined by the Ld. APP only in some respects.
101. PW10 was cross-examined regarding FIR No.231/2015 and a suggestion was put to him that he deliberately did not register the case under Sections 365/367 IPC to make the offence
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3. Sanjeev Jha bailable for giving benefit to the accused persons which he denied though he stated that in that case, there were verbal allegations against him for receiving money from the accused persons and not properly investigating the said case. He also admitted that the complainant and local people had a grievance that he had taken bribe from the accused persons to release them on police bail. He also admitted that the complainant of FIR No.231/15 along with other persons came to the police station to protest against releasing the accused of that case on bail and MLA Sanjeev Jha who came later to the police station was also demanding action against him for releasing the accused after taking bribe. He had no idea that MLA Sanjeev Jha being member of the Thana Committee was entitled to look into the matter. He also denied the suggestion that the accused Sanjeev Jha had made a complaint against him that is why he made a false complaint Ex.PW10/A for registration of the present case. He admitted that the complaint of Sanjeev Jha dated 20.02.2015 is Ex.PW10/D-E. Thus, it had come out during cross- examination that the appellant Sanjeev Jha had made a complaint against PW10 of taking bribe and the said argument was also taken by the Ld. Counsel for the appellant Balram Jha to contend that the testimony of PW10 could not be relied upon which argument was dispelled and even in respect of the present appellants, considering that several persons were injured in the incident and that a number of persons were made accused and had also been convicted by the Ld. Trial Court, it cannot be said that the present case was merely a counter blast to the complaint made by the appellant Sanjeev Jha against PW10 or had been
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3. Sanjeev Jha lodged only to safeguard police officials to cover up injuries suffered by some persons in the lathi charge. Despite lengthy cross-examination, it is also seen that no suggestion was put to PW10 that the appellants herein were not present at the time of the actual incident or had left the police station prior to that.
102. It had also been argued that the Ld. ACMM ought to have appreciated his own findings while acquitting the accused Narender Kumar, Narayan Yadav, Basant Goswami, Prem Shankar and Arun Jha observing that there were contradictions and non-supportive testimony of PW10 SI Ajay Kumar, therefore, it could not be relied upon which argument has already been negated qua the appellant Balram Jha. It is seen that PW10 in his complaint on the basis of which the FIR was registered had made specific allegations against the appellants Sanjeev Jha and Akhilesh Pati Tripathi. PW10 had named the appellants in the initial complaint as well as in the Court. The identity of the appellant Akhilesh Pati Tripathi was not disputed during the testimony of PW10 and the appellant Sanjeev Jha was identified by PW10 in the Court and no suggestion to the contrary was put to PW10.
103. PW12 had also stated about the appellants coming to the police station and raising slogans against Delhi Police in general and particularly for police station Burari but no suggestion to the contrary was put to him. It was argued that the Ld. Trial Court had wrongly relied on the evidence of PW12 ASI Jagat Pal in as much as he had stated in his evidence that around 9.30-10 p.m. the appellant Sanjeev Jha along with another convict Akhilesh
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3. Sanjeev Jha Pati Tripathi along with 300-350 people came to the police station which was contradictory to all other PWs evidence. It was submitted that none of the PWs had stated that the appellant Sanjeev Jha along with Akhilesh Pati Tripathi came to the police station along with 300-350 people. Further, PW12 ASI Jagat Pal was cross examined by the prosecution as he was claimed to have turned hostile. However, it is seen that PW12 was cross- examined by the Ld. APP only with respect to the identification of the accused persons and otherwise he had stated about the incident and also identified some of the accused persons. It is true that none of the witnesses had stated that the appellants had come together but it is also pertinent that the entirety of the evidence is to be seen and it is not the case that the appellants were convicted based on the testimony of only one or two witnesses.
104. PW13 had deposed about the MLAs instigating the supporters and also for pelting stones. During cross-examination he stated that he did not remember for how much time MLA Sanjeev Jha remained in the police station. He stated that he knew MLA Akhilesh Pati Tripathi prior to the incident being a leader. He denied the suggestion that the police falsely implicated all the accused persons including two MLAs as they were belonging to Aam Aadmi Party and Delhi police was having a discriminating attitude against them. It was submitted on behalf of the appellants that the Ld. Trial Court had wrongly relied on the statement of PW13 HC Jai Prakash, who in his evidence dated 14.03.2019 had stated that PW8 Ct. Dinesh had apprehended the other accused persons on the night of the incident however, PW 8 Ct. Dinesh in his own evidence recorded
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3. Sanjeev Jha on 12.03.2019 had made no mention of the said apprehension or arrest. Further, the statement of PW13 HC Jai Prakash given under Section 161 Cr.P.C was contradictory to his evidence under Section 164 Cr.P.C. and there were a lot of contradictions and improvements in the evidence of the said witness which the Ld. ACMM ought to have appreciated. It was also argued on behalf of the appellants that the testimony of the said witness was discarded by the Ld. Trial Court while acquitting the accused Shashi Mohan and it is seen that in respect of the accused Shashi Mohan, the Ld. Trial Court had observed as under in respect of the testimony of PW13:
"It is pertinent to mention that PW13 HC Jai Prakash has not mentioned the name of the accused Shashi Mohan in his statement u/s 161 Cr.PC recorded on 12.05.2015 and has only named accused Ashok Kumar, Ravi Kumar and Ravi Prakash Jha. The prosecution has not been able to explain the contradiction in the statement given by PW13 HC Jai Prakash in the court to his statement recorded u/s 161 Cr.PC. Also the prosecution has failed to explain the delay in recording of the statement of the witness as statement was recorded almost after three months of the incident."
Thus, it was noted that there was delay in recording the statement of the said witness and the prosecution had also failed to explain the delay. However, it may be mentioned that PW13 had also named the appellants in his statement under Section 161 Cr.P.C. which was not so in the case of the accused Shashi Mohan. Further, even no suggestion was put to him that the appellants had left the police station before the incident took place. Moreover, it is not the case that the conviction of the appellants is based on the testimony of only one witness.
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3. Sanjeev Jha
105. PW16 had deposed that after the incident of stone pelting, the public persons along with Shri Sanjeev Jha and Shri Akhilesh Pati Tripathi left the police station. During cross-examination he had stated that his statement was recorded in the month of May, 2015. He had stated that he had seen Akhilesh Tripathi pelting stones but he was confronted with the statement Ex.PW16/DX5 wherein it was not so recorded. Though the statement of the said witness was recorded belatedly in May, 2015, there is no reason to dispute that he was the Duty Officer on the day of the incident and no suggestion was put to him that the appellants were not present at the time of the incident, more so as the appellants themselves have not denied going to the PS on the day of the incident.
106. PW17 Ct. Babu Lal had deposed that the SHO requested both the MLAs to remove the crowd from the police station; SHO also asked the crowd to leave the police station by a loud hailer but the crowd did not pay any heed; both the MLAs did not cooperate and asked the crowd to disperse. During cross- examination he had stated that his statement was recorded on 11.05.2015. It would be argued on behalf of the appellants that the Ld. Trial Court had taken a contradictory consideration and appreciation of the evidence of PW17 in as much as while acquitting the accused Basant Goswami, it had not relied on the evidence of PW17 and found his evidence to be questionable whereas it had wrongly appreciated the evidence of PW17 in respect of the appellants. As noted above, the Ld. Trial Court had held that the statement under Section 161 Cr.P.C. of PW17 was recorded on 11.05.2015 almost three months after the incident
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3. Sanjeev Jha and the prosecution had not been able to explain the delay in recording of his statement. Thus, it cannot be that in respect of one accused, the statement under Section 161 Cr.P.C. was held to be recorded belatedly whereas in respect of another accused, the testimony of the same witness was relied upon to convict the accused when even no plausible explanation had been brought on record to explain the delay and as such the same could not be relied upon though even to this witness, no suggestion was put that the appellants were not present at the spot at the time of the incident or had left prior to the incident of stone pelting.
107. During cross-examination PW19 had stated that his statement was recorded on 14.05.2015. He admitted that a complaint was received from Sanjeev Jha against SI Ajay. He admitted that ACP of PG Cell had initiated an enquiry against SI Ajay and in that enquiry statements of public witnesses were recorded. He sent the complaint of Sanjeev Jha to ACP for consideration. He had stated that there were 10-15 persons at the time when the discussion was going on with accused Sanjeev Jha; they stayed in his room for about one and half hours. He stated that accused Sanjeev Jha was in the premises of the police station among the crowd when the stone pelting took place. He admitted that he had discussion with accused Sanjeev Jha smoothly and that he had offered water and tea to accused Sanjeev Jha. He had stated that he had prepared DD entry No.49A at 10.45 p.m. mentioning the name and number of public persons to whom he persuaded from not taking law into their hands and tried to pacify them; apart from accused Sanjeev Jha, the DD entry reflected the name of Akhilesh Pati Tripathi,
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3. Sanjeev Jha Balram Jha and their supporters without name. He admitted that the MLA Sanjeev Jha had made a complaint in writing stating that SI Ajay Kumar IO of FIR No.231 had taken money from the accused persons and they had been released on bail without verification of the serious allegation i.e. child lifting. Thus, PW19 had stated about the complaint made by appellant Sanjeev Jha against PW10 who is the complainant of the present case but on that basis, the entire case of the prosecution cannot be thrown out. His statement was also recorded after quite some gap from the day of the incident but again no suggestion was put to him that the appellants were not present at the time of the incident and in fact he had specifically stated that the appellant Sanjeev Jha was present in the premises of the police station among the crowd when the stone pelting took place and DD No.49A prepared by him also reflected the names of the appellants.
108. PW20 had stated that at around 12 when the mob was creating a lot of ruckus, ACP present there directed the mob to be dispersed out of the police station; when the police including him was forcing out the public from the police station, they became violent and started stone pelting. He had also stated that the accused Sanjeev Jha was present near the room of the SHO and was demanding action against Ct. Vikas and SI Ajay. During cross-examination, he had stated that his statement was recorded after more than one month of the incident. He also stated that the accused Sanjeev Jha was not known to him prior to the incident. He did not take part in any TIP during the course of investigation. Thus, his statement was also recorded belatedly as noted above though even no suggestion was put to him that the appellant
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3. Sanjeev Jha Sanjeev Jha had already left when the stone pelting started or that he was not present at the time of the incident.
109. PW22 had stated that the MLAs started provoking the crowd for beating the police staff and damaging the property and also provoked for putting the vehicles on fire which were standing outside the PS. Hand held loud-speakers were used to make announcements by SHO and by him; they were making requests to the mob to disperse and were making announcements that unlawful assembly be disintegrated and they should leave the police station but they did not heed to their requests; the crowd then started manhandling the police officials on the provocation of MLAs. During cross-examination he admitted that one written complaint was given qua allegations of taking bribe by SI Ajay and releasing of culprits without interrogation. Again said, one complaint was given that too after much persuasion and he did not know whether there were allegations of bribe and releasing of culprits in the same or not. His statement was recorded on 14.05.2015. Thus, PW22 had also stated about the complaint of taking bribe by SI Ajay and that his statement was recorded only on 14.05.2015.
110. It is thus seen that most of the prosecution witnesses had not stated the time of departure of the appellants though some of the witnesses had stated that they had left after stone pelting or about the presence of the appellants at the time of the incident of stone pelting. It is pertinent that no witness was specifically cross-examined on the time at which the appellants had left the police station and even no suggestion was put to any of the
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3. Sanjeev Jha witnesses that the appellants were not present at the time of the incident of stone pelting or that they had left the police station before the said incident. Further, even if the statements of some of the witnesses were recorded belatedly, statements of some other witnesses were recorded soon after the incident and the evidence brought on record has to be seen in totality. Once the witnesses had stated about the presence of the appellants at the time of the incident of stone pelting, there is no gain saying that it was incumbent on the prosecution to establish the time of exit of the appellants from the police station and what the prosecution was required to establish was the presence of the appellants at the time of the incident. It was then argued on behalf of the appellants that the defence witnesses had categorically stated that the appellants had left the police station before the incident of stone pelting but the Ld. ACMM had not considered the testimony of the defence witnesses. A perusal of the testimony of DWs shows that DW1 did not even remember the exact date though he stated the date of incident correctly as 20.02.2015. It is pertinent that DW1 had not stated any specific time and had merely stated that it was evening time and though he had stated about both the MLAs leaving the police station after about half an hour of MLA Akhilesh Pati Tripathi reaching the police station and that thereafter the crowd started gathering there and more police force also started gathering, his testimony is at the most vague about the time when the appellants left the police station. Again DW2 had only stated that it was evening time and had not stated any specific time either when the appellants came to the PS or when they left from there and he had only stated about the
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3. Sanjeev Jha appellants trying to pacify the crowd and requesting the crowd to leave the premises. During cross examination, he had stated that it was approximately after 7:00 p.m. but his testimony is also at the most vague as it cannot be that the appellants had left the PS around 7.30 p.m. and the incident of stone pelting took place nearly 3 hours after that at 10.30 p.m. or thereafter.
111. DW3 had also referred only to evening time and had deposed to the same effect as DW1 and DW2 and during cross- examination he stated that the incident was of around 7:00 to 8:00 p.m. but it is not the case of anyone that the incident had actually taken place between 7:00 to 8:00 p.m. Moreover he had stated during cross-examination that he knew Akhilesh Pati Tripathi and Sanjeev Jha being MLAs of Model Town and Burri respectively. DW4 had stated that he is a journalist by profession. He also deposed on the same lines and as per him, he reached the police station at about 7.00 - 8.00 p.m. He had stated that after about 20 to 30 minutes of appellant Akhilesh Pati Tripathi coming to the PS, the appellants addressed the public who were protesting there and left and after 20 to 30 minutes police force had come in large number and got vacated the police station. But it is again not the case that incident had come to an end by 9:00 p.m. and the timelines stated by him do not tally with those stated by the other witnesses. DW5 had also not stated any specific time when he saw the appellant Sanjeev Jha coming to the PS and he had stated that after 20 to 25 minutes, the appellant Sanjeev Jha had left the police station. He did not depose anything about the appellant Akhilesh Pati Tripathi. During cross-examination, he had stated that the incident was of around 6:30 to 08:00 p.m. But
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3. Sanjeev Jha during cross-examination, he could not state any other fact. DW6 had stated that on 20.02.2015 in the evening at around 7:00 p.m. he had seen that the crowd was gathered inside and outside PS. After some time, MLA Sanjeev Jha had come to the PS and after some time appellant Akhilesh Pati Tripathi had also come there in a car and after sometime both had addressed the crowd and had thereafter left from there. During cross examination, he had stated that he was present at his home and standing in his balcony in the evening and his house was on the same side of PS Burari around 50 to 60 meters away and not in front of PS Burari. It is pertinent that he had stated that the crowd did not listen to the appellants but he did not state what happened after the MLAs left according to him except that the police force continued to gather there in large number and asked the crowd to leave. His testimony also does not lay down the timelines when the appellants left the PS according to him.
112. Much reliance was placed on the testimony of DW7 who had stated about the appellant Sanjeev Jha coming at 8:00 to 9:00 p.m. on 20.02.2015 to the petrol pump, Burari to get fuel in the car. But during cross-examination, he could not tell any of the other facts that were asked of him. DW8 had deposed to the same effect as the other witnesses. He had not stated about the appellant Akhilesh Pati Tripathi also coming to the PS and had stated that after 15-20 minutes of the appellant Sanjeev Jha coming to the PS, he came outside but that is not even as per the admitted case as it is not in dispute that the appellant Akhilesh Pati Tripathi had come to the PS after sometime of the appellant Sanjeev Jha reaching there and then there were discussions in the
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3. Sanjeev Jha room of SHO. He had stated that the MLA Sanjeev Jha asked the crowd to leave from there and go to their home and thereafter, the crowd started dispersing from there and he also went from there but that is not as per what was deposed by the other witnesses. Further, during cross-examination, he could not depose about any other fact. DW9 had stated about the appellant Sanjeev Jha coming at 5:00 to 5:30 p.m. but this is contrary to what has been stated by the prosecution and the other defence witnesses. He had also not stated anything about the appellant Akhilesh Pati Tripathi coming to the PS. Further, during cross-examination, he stated that it may be around 10 p.m. to 10.30 p.m., he could not tell at what time, MLA Sanjeev Jha left PS Burari. As such, his testimony is of no help to the case of the appellant Sanjeev Jha.
113. DW10 had also not stated any specific time and had stated about being injured in the lathi charge by the police officials. The MLC shows his presence at the spot but he had not stated anything about the appellant Akhilesh Pati Tripathi and also did not state any specific time. DW11 had also not stated any specific time though, during cross examination, he had stated about the appellant Sanjeev Jha coming to the PS between 8:00 to 8:30 p.m. which is contrary to what was stated by other defence witnesses and rather was in line with what most of the prosecution witnesses had stated. DW12 had also not stated any specific time and it is pertinent that he stated that after sometime of the appellant Sanjeev Jha leaving from the PS, the appellant Akhilesh Pati Tripathi came outside the SHO room and left from there which is contrary to what was stated by the prosecution as well as defence witnesses. DW13 had stated that at about 7:30
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3. Sanjeev Jha p.m., he heard some noise coming from PS Burari and after some time he saw the appellant Sanjeev Jha coming to the police station and after 10-15 minutes he came outside the SHO room and addressed the crowd and left from there. Clearly it is not anybody's case that the appellant Sanjeev Jha had come out of SHO room after 10-15 minutes and in fact the admitted case is that the appellant Akhilesh Pati Tripathi had also come there after some time. During cross-examination he had stated that the accused Sanjeev Jha came at the police station, Burari between 7.30 p.m. to 8.00 p.m. DW14 had not stated any specific time and he had stated about the appellants leaving the PS and that the people gathered there also started leaving but that is not as per what was deposed by some other defence witnesses. Though his presence could be seen in the video, it is only during cross examination that he had stated that the appellant Sanjeev Jha came after 7:00 p.m. As such, it is seen that even in the testimony of the DWs there is a wide range of the timing at which the appellant Sanjeev Jha is stated to have come to the police station and there is no specific timing stated at which the appellants left the police station. Further, some of the witnesses have not stated anything about the appellant Akhilesh Pati Tripathi and there are inconsistencies in the testimony of the defence witnesses.
114. As regard the defence witnesses, the Ld. ACMM had observed as under:
"The Ld. Defence Counsel has produced 14 defence witnesses during DE, however, this court has noticed that the defence witnesses have given their depositions qua accused persons namely MLA Sanjeev Jha and MLA Akhileshpatti Tripathi only so
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3. Sanjeev Jha as to show that the abovesaid accused persons had left the police station before any offence was committed on the day of the incident.
This court has noted that there are some discrepancies in the testimonies of the defence witnesses which is contradictory to the statement of MLA Sanjeev Jha given by him u/s 313 Cr.PC and the testimonies of defence witnesses do not mention major facts relating to accused Sanjeev Jha and have given different entry times of accused Sanjeev Jha as explained earlier in the judgment. The accused Sanjeev Jha in his statement u/s 313 Cr.PC has stated that he did not have any altercation or argument with Ct. Vikas and he was not stopped at the gate and he directly went to the room of SHO. This statement is contradictory to the deposition of DW9 Sh. Jagjeet who had stated that the accused Sanjeev Jha stopped at the gate and was threatened by the police officials.
There are many inconsistencies in the depositions of defence witnesses as elucidated earlier. Also the factum of one police official stopping the car of accused Sanjeev Jha has been stated by only one defence witness and parts of his testimony also is inconsistent with the statement given by accused Sanjeev Jha which compels this court to doubt the trustworthiness of the defence witnesses. The document Ex.PW10/DE i.e. the complaint given by the accused Sanjeev Jha is on the record and in the complaint it is mentioned that the moment accused Sanjeev Jha entered the PS, SI Ajay Kumar, Ct. Anil and Ct. Rakesh started misbehaving with him and his colleagues and Ct. Anil said; "MLA hoga apne ghar ka" and Ct. Rakesh said: "Mein abhi tumko tamiz sikhata hun". In the complaint given by accused Sanjeev Jha, it is mentioned that SI Ajay threatened to kill him and Ct. Rakesh pointed a riffle towards him and his colleagues Vikas Goswami and Pankaj were slapped repeatedly. None of the defence witnesses have mentioned anything regarding the abovesaid incident which happened at the entrance of the police station and so this court is of the view that the non mention of the abovesaid incident compels this court to doubt the credibility of the defence witnesses. Also noticing that the defence witnesses have given different times of entry of accused Sanjeev Jha, this court is of the view that
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3. Sanjeev Jha the defence witnesses have not given consistent deposition and have not even mentioned the incident which led to the filing of the complaint by accused Sanjeev Jha and therefore, their testimonies cannot be believed at face value."
115. Regarding the defence witnesses, it was also observed at another point in the impugned judgment as under:
"DW2 Rattankar Pandey is a hearsay witness as he has himself stated that he was standing outside the police station whole time and so could not have known personally what the MLAs Sanjeev Jha and Akhileshpatti Tripathi had said in the SHO's room and whether they were provoking the crowd or pacifying it. The defence witnesses have given different entry times of accused Sanjeev Jha and accused Akhileshpatti Tripathi. DW1 Kumar Ankit and DW10 Dharamveer have not mentioned any time. DW2 and DW3 have mentioned the time as around 07.00 pm to 08.00 pm in their cross examination. DW4 Sh. Sailesh Kumar has stated that he reached the police station around 07.00 pm to 08.00 pm and thereafter, accused Sanjeev Jha came to the police station and some time later, accused Akhileshpatti Tripathi came there. DW5 Gyanender Kumar has mentioned the time of incident around 06.30 pm to 08.00 pm whereas DW6 Rahul Singh has mentioned that MLA Sanjeev Jha came after 07.00 pm to the police station. DW8 has stated that accused Sanjeev Jha came to police station after about 08.00 pm whereas DW9 Jagjeet has stated that accused Sanjeev Jha came to the police station around 05.00 pm to 05.30 pm. There are many inconsistencies in the depositions of defence witnesses. Some defence witnesses have stated that accused Sanjeev Jha parked his car outside the PS and walked to the police station while others have stated that accused Sanjeev Jha went straight to the police station in his car. Only DW9 Jagjeet has stated that one police official stopped the car of accused Sanjeev Jha and his fact has not been stated by any other defence witness..."
The said findings of the Ld. Trial Court are clearly as per the record and in fact there are such vast discrepancies in the
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3. Sanjeev Jha testimony of defence witnesses that it renders them unbelievable. It was argued on behalf of the appellants that defence witnesses are entitled to equal weightage as prosecution witnesses and reliance in this regard was placed on the judgment in Dudh Nath Pandey v. State of U.P. (supra) wherein it was observed as under:
"19. ... We do not want to attribute motives to them merely because they were examined by the defence. Defence witnesses are entitled to equal treatment with those of the prosecution. And, Courts ought to overcome their traditional, instinctive disbelief in defence witnesses. Quite often, they tell lies but so do the prosecution witnesses.
No doubt defence witnesses have to be given equal weightage as the prosecution witnesses but for that there should be some consistency in their statements and something to corroborate what they had stated. In the present case, it cannot be said that the testimony of the defence witnesses had established that the appellants had left prior to the incident of stone pelting.
116. The Ld. Sr. Advocate for the appellant Sanjeev Jha and the Ld. Counsel for the appellant Akhilesh Pati Tripathi had then argued that the charge was material and in the charge the incident was stated to be of 10/10:30 p.m. As such it was necessary to refer to the time at which the incident of stone pelting had allegedly taken place. In this regard as well a chart was given. However, from a perusal of the testimony of witnesses both prosecution and defence witnesses, there is nothing to show that the appellants were not present at the police station at the time of the incident. The Ld. Counsels had then referred to the DDs to argue that the same showed that the incident of stone pelting had
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3. Sanjeev Jha taken place much later. A perusal of the impugned judgment shows that the Ld. ACMM had also referred to the DD entries and observed as under:
"Ld. counsel for the accused persons namely Akhileshpatti Tripathi and Sanjeev Jha have argued that both these accused persons were not present at the PS when the crowd had turned violent and the said fact can be ascertained from the deposition of the witnesses and DD numbers placed on record by the prosecution.
DD No. 32A dated 20.02.2015 lodged at 05.35 pm mentions the forceful apprehension of two boys on motorcycle.
DD No. 45A dated 20.02.2015 lodged at 08.50 pm mentions the arrest of two accused persons w.r.t kidnapping case in case FIR NO. 231/15 u/s 363/34 IPC and also mentions that relatives of victim including Smt. Heera Devi had come to the police station and had threatened him that she is volunteer for the Aam Aadmi Party and will get him dismissed from service and later Smt. Heera Devi alongwith others demanded handing over of two accused persons so that they can beat them up.
DD No. 48A dated 20.02.2015 lodged at 10.30 pm mentions that MLA Sanjeev Jha alongwith his supporters came to the PS and are sloganeering against Delhi Police after which the SHO and other senior officers were informed accordingly.
DD No. 49A dated 20.02.2015 lodged at 10.45 pm by SHO PS Burari mentions that some persons claiming to be AAP workers have come to PS and had misbehaved with SI Ajay and they have started raising slogans and were making calls to gather more people at PS and local MLA Sanjeev Jha was also misbehaving and threatening Santri /Ct. Vikas and MLA started threatening the staff as well as him and he continued instigating his supporters after which the matter was referred to Senior Officers and ACP also came to the PS. The SHO Insp. Sher Singh in this DD No. 49A has also mentioned that MLA Sanjeev Jha and his supporters were requested repeatedly not to take law in their hands and to maintain peace and harmony, but they did not listen and but were adamant to create law and order
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3. Sanjeev Jha problem and later MLA Akhileshpatti Tripathi and Balram Jha and others including some lady workers were creating law and order problem and damaging public property and were also manhandling the police officials and were also saying: "In police walo ko abhi sudhar lo, fir paanch saal koi dikkat nahi aayegi".
DD No. 88B dated 20.02.2015 lodged at 11.52 pm mentions that a large crowd (supporters of Aam Aadmi Party) was gathered at the PS and was pelting stones at PS as a result of which HC Kailash has got injured and is going to hospital.
DD No. 5B dated 21.02.2015 lodged at 12.07 am mentions lathi charge by the police on the uncontrollable crowd.
DD No. 10B dated 21.02.2015 lodged at 12.16 am mentions a quarrel at PS Burari.
This court has gone through the testimonies of all prosecution witnesses and also gone through their statements recorded u/s 161 Cr.PC and this court is of the view that the prosecution witnesses have given consistent testimonies which is supported by the MLCs of the injured police officials and also by the various DD entries placed on record by the prosecution. The abovementioned DD entries in no way exonerate the accused persons namely Sanjeev Jha and Akhileshpatti Tripathi but infact corroborate the testimony of the prosecution witnesses. DD Nos. 48A and 49A clearly specify the role of the accused Sanjeev Jha and Akhileshpatti Tripathi and mentions how they were provoking the crowd and creating law and order problem and DD No. 88B mentions the violent nature of the crowd.
From the abovesaid DD entries placed on record by the prosecution and the testimonies of PW1 Ct. Vikas, PW8 Ct. Dinesh Kumar, PW10 SI Ajay Kumar, PW16 ASI Diwan Singh, PW17 Ct.
Babu Lal and PW22 Sh. Satish Sharma the then ACP, this court is of the view that the prosecution has been able to establish that both the accused persons namely Sanjeev Jha and Akhileshpatti Tripathi were present at the spot when the crowd turned violent and infact had played a major role in provoking and instigating the crowd."
Thus, the Ld. ACMM had come to a finding after going through the material on record i.e. the statements of witnesses under
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3. Sanjeev Jha Section 161 Cr.P.C., MLCs of injured police officials and the DD entries and the testimony of the witnesses that the presence of the appellants was proved at the spot and they had played an active role in provoking and instigating the crowd.
117. The Ld. Counsels for the appellants had argued that the DDs showed that the incident of stone pelting was going on at 11.52 p.m. which was beyond the charge which placed the incident at 10.30 p.m. DD Entry No.84B Ex.PW16/DX3 stated that at 23.53 hrs 500-600 persons were pelting stones at PS Burari and as such the evidence of the prosecution witnesses was falsified by contemporaneous DD entries which placed the time of stone pelting at around midnight on 20.02.2015. A perusal of the record shows that even PW16 during cross-examination had stated that the stone pelting began after he came out of DO room after 00.00 hours. The police used force to disperse the mob and it was cleared by 00.15 hours. However, it is also seen that DD No.49A lodged at 10.45 p.m. mentions that the persons were damaging public property while DD No.48A lodged at 10.30 p.m. mentions that the appellant Sanjeev Jha along with his supporters had come to the PS and was sloganeering against Delhi Police. It was argued that DD No.48A had not been proved or exhibited but still the Ld. ACMM had relied upon it. However, even without referring to DD No.48A, there are other DD entries which speak of the incident and DD No.49A clearly shows that the incident was going on at 10.45 p.m. In fact PW19 was cross- examined at length on DD No.49A which is Ex.PW19/A but nothing material came out in the cross-examination. It may be mentioned that even if the stone pelting was going on at 11.52
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3. Sanjeev Jha p.m. as shown by DD No.88B Ex.PW16/DX2, the incident had started much earlier. Further, reference may be made to Section 215 of Cr.P.C. which reads as under:
"Effect of errors,- No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice."
In the instant case, even if the charge placed the time of the incident at 10-10.30 p.m. whereas it took place later, though as per the record, the incident was going on at that time, it cannot be said that the error can be regarded as material, moreso as it is not the case that the accused persons were misled by such error or it has occasioned a failure of justice. In this regard, reference may be made to the following illustration to Section 215 Cr.P.C.:
"Illustrations xxxx
(d) A is charged with the murder of Khoda Baksh on the 21st January, 1882. In fact, the murdered person's name was Haidar Baksh, and the date of the murder was the 20th January, 1882. A was never charged with any murder but one, and had heard the inquiry before the Magistrate, which referred exclusively to the case of Haidar Baksh. The Court may infer from these facts that A was not misled, and that the error in the charge was immaterial."
Similar is the situation in the present case as it has not been pleaded by any of the accused persons that they were misled by any error in the charge or that it had resulted in a failure of justice. Thus, this argument that the charge placed the offence
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3. Sanjeev Jha between 10 to 10.30 p.m. whereas the DD entries showed it to be of later is bereft of any merits and even if the incident went on thereafter, it would not take away the liability of the appellants.
118. It was argued that the presence of the appellant Sanjeev Jha at the time of violence was not established, however, in view of what has been observed above, there is no merit in this argument. The Ld. Counsel for the appellant Akhilesh Pati Tripathi had also argued that no overt act had been shown on part of the appellant or when he became a member of the unlawful assembly and he could not be held liable for acts done prior to his reaching the police station or after he exited the police station but it is not the case that the appellant Akhilesh Pati Tripathi had been charged with or convicted for any offence that took place prior to his coming to the police station. From the deposition of the witnesses, it is clear that the appellants were provoking and instigating the crowd and their presence at the spot at the time of the incident also stands established.
119. It was also argued on behalf of the appellant Akhilesh Pati Tripathi that there was nothing to show that the incident of stone pelting had taken place due to any provocation or instigation by the appellant and in fact stone pelting started after the announcement on loud hailer. In this regard, it is seen that PW1 had stated during cross-examination that the stone pelting started after the warning given on loud hailer. He did not remember the name or designation of the police official who gave warning on the loud hailer. PW2 had deposed that SHO Burari tried to convince the mob through loud speaker but the public persons
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3. Sanjeev Jha present there got agitated and they started damaging the public property of PS Burari. PW13 had deposed that the appellants were instigating the supporters and after sometime, some senior officers also came at the police station and the senior police officers warned/ cautioned the mob by loudspeakers not to instigate the mob and tried to pacify them; the mob started pelting stones at the police station building. PW16 had deposed that at about 10.30 pm, SHO warned the public persons through loudspeaker to leave the police station but they did not leave the police station despite warning and continued raising slogans against Delhi Police. After sometime, extra police force was summoned to the police station. The public persons started pelting stones on the police staff due to which mild force was used by the police to disperse the gathering of the people. PW19 had deposed that both the MLAs and their supporters were pacified by ACP Civil Lines and him but they were adamant and not listening to their request; when they were not considering their request, an announcement was made by him through the announcement system; thereafter some supporters manhandled some police personnel and started stone pelting due to which some police persons as well as some protesters were injured. Thus, from the aforesaid testimony, it would appear that the stone pelting started after the announcement on loud hailer but it is also seen that the witnesses had stated about the appellants instigating the crowd and that the witnesses had tried to pacify the crowd and the appellants through loud hailer but the crowd started stone pelting and that several police persons were injured.
120. The Ld. Counsel for the appellant Akhilesh Pati Tripathi
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3. Sanjeev Jha had also argued that Section 332 IPC used the word 'voluntarily' so the intention had to be established and reference was also made to Section 39 IPC. However, the totality of the material which has come on record shows that the object of the unlawful assembly was to overawe the police force by use/ show of force and the mob indulged in stone pelting and in these circumstances, the intention to cause injury would be apparent. It was also argued that the fact that police officials were acting in discharge of their public duty when they were obstructed or injured had also to be proved. However, most of the witnesses had stated about their presence at the PS in discharge of their duty or having come from other PS in view of the situation at PS Burari which clearly shows that they were discharging their duties when they were obstructed or received injuries due to stone pelting and there is no merit in this argument.
121. The Ld. Counsel for the appellant Sanjeev Jha had submitted that Section 148 IPC pertained to rioting and it dealt with deadly weapon but it was not the case that there was any deadly weapon which was used. So, the conviction under Section 148 IPC was bad. However, it is seen that the appellant Sanjeev Jha was not convicted for the offence under Section 148 IPC.
122. It was then argued on behalf of the appellants that the appellants could not be held liable for the acts of the other members of the unlawful assembly in absence of any overt act being attributed to them. Reliance in this regard was placed by the Ld. Sr. Counsel for the appellant Sanjeev Jha on the judgment in Kuldip Yadav v. State of Bihar (supra) which has been
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3. Sanjeev Jha referred to above and the judgments in Roshan v. State of Maharashtra (supra); Nawab Ali v. The State of Uttar Pradesh (supra); Sita Ram v. State of Rajasthan (supra). The law in this regard is well settled. However, in light of what has been observed above, there is no infirmity in the findings of the Ld. Trial Court that the appellants were not only active participants but in fact leading the crowd and were in fact provoking them and they shared the common object of the unlawful assembly which was to teach police officials a lesson and to overawe the police by force/ show of force and that the prosecution had been able to prove beyond doubt that the appellants were part of the unlawful assembly as defined in Section 141 IPC and were part of the mob and they had indulged in sloganeering and had provoked the crowd which encouraged them to get violent as a result of which they resorted to stone pelting thereby causing injuries on the persons of HC Bharat Rattan, HC Mohan Lal and Ct. Babu Lal and that some members of the unlawful assembly had obstructed police officials from doing their duties. The Ld. Trial Court had rightly convicted the appellants for the offences under Sections 147, 186, 332 read with Section 149 IPC and acquitted them for the offences under Section 506 IPC and 3 of PDPP Act.
CONCLUSION APPEAL FILED BY NIRRAJ PATHAK AND BALRAM JHA
123. In view of what has been observed above, the impugned judgment dated 07.09.2022 is set aside in so far as it convicted
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3. Sanjeev Jha the appellant Nirraj Pathak for the offences under Sections 147/186/332/149 IPC and he is given benefit of doubt and acquitted for all the offences for which he was charged. The consequential order on sentence dated 05.01.2023 sentencing the appellant Nirraj Pathak is also set aside. He is directed to furnish bond under Section 437A Cr.P.C.
124. As regards the appellant Balram Jha, the impugned judgment dated 07.09.2022 convicting him for the offences under Sections 147/186/332/149 IPC and acquitting him for the offences under Sections 506 IPC and Section 3 PDPP Act is upheld as there is no illegality or infirmity in the same, though as noted, he is entitled to benefit of doubt as far as the assault on Ct. Babu Lal is concerned. The order on sentence dated 05.01.2023 is upheld to the extent that the appellant Balram Jha was admonished for the offences under Sections 147/186 IPC read with Section 149 IPC. It is seen that the appellant was further sentenced to undergo simple imprisonment for a period of one year for the offence under Section 332 IPC read with Section 149 IPC and to pay fine of Rs.20,000/- to be given as compensation to Ct. Babu Lal and in default of fine, he was to undergo further simple imprisonment for a period of 3 months. However, the said sentence was on the premise that the appellant Balram Jha was found to have assaulted Ct. Babu Lal. Considering that the appellant Balram Jha has been given benefit of doubt qua the assault on Ct. Babu Lal but is still convicted for the offence under Section 332 IPC read with Section 149 IPC and that he has clean antecedents and has not been involved in any offence earlier and also has a family to support, and that he had also been
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3. Sanjeev Jha injured in the incident, it would be appropriate that he is sentenced to imprisonment till the rising of the Court. He is further sentenced to pay a fine of Rs.10,000/- to be deposited in the Ld. Trial Court for the said offence. In default of deposition of fine, the appellant Balram Jha shall undergo simple imprisonment for a period of one month. The order on sentence dated 05.01.2023 qua the appellant Balram Jha is modified accordingly.
APPEAL FILED BY APPELLANT SANJEEV JHA
125. The impugned judgment dated 07.09.2022 is upheld in so far as the appellant Sanjeev Jha was convicted for the offences under Sections 147/186/332 IPC read with Section 149 IPC as no infirmity, irregularity or illegality is found in the same. The appellant was admonished for the offences under Sections 147/186 IPC read with Section 149 IPC and the order on sentence dated 05.01.2023 qua the appellant is upheld to that extent. The appellant was further sentenced to undergo simple imprisonment for a period of 3 months for the offence under Section 332 IPC read with Section 149 IPC. Considering the fact that the appellant Sanjeev Jha has clean antecedents and is a first time offender and has a family to support and the totality of the facts, it would be appropriate that he is sentenced to imprisonment till the rising of the Court for the offence under Section 332 IPC read with Section 149 IPC. He is further sentenced to pay a fine of Rs.10,000/- to be deposited in the Ld. Trial Court for the said offence. In default of deposition of fine, the appellant Sanjeev Jha shall undergo simple imprisonment for
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3. Sanjeev Jha a period of one month. The order on sentence dated 05.01.2023 qua the appellant Sanjeev Jha is modified accordingly.
APPEAL FILED BY APPELLANT AKHILESH PATI TRIPATHI
126. The impugned judgment dated 07.09.2022 is upheld in so far as the appellant Akhilesh Pati Tripathi was convicted for the offences under Sections 147/186/332 IPC read with Section 149 IPC as no illegality, impropriety or irregularity is found in the same. A perusal of the order on sentence dated 05.01.2023 shows that the appellant was admonished for the offences under Sections 147/186 IPC read with Section 149 IPC and the order on sentence dated 05.01.2023 qua the appellant is upheld to that extent. The appellant was further sentenced to undergo simple imprisonment for a period of 6 months for the offence under Section 332 IPC read with Section 149 IPC. The Ld. Counsel for the appellant had argued that the appellant had been denied the benefit of Probation of Offenders Act as he had earlier been convicted in FIR No.260/13 of PS Model Town but a perusal of the order on sentence shows that the reason for denying the benefit of Probation of Offenders Act to the appellant was the role played by the appellant in the incident and then it was noted that the appellant had earlier also been convicted in FIR No.260/13 of PS Model Town. Considering the facts and circumstances of the case and the totality of the facts, it would be appropriate that the appellant is sentenced to imprisonment till the rising of the Court for the offence under Section 332 IPC read with Section 149 IPC. He is further sentenced to pay a fine of
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3. Sanjeev Jha Rs.10,000/- to be deposited in the Ld. Trial Court for the said offence. In default of deposition of fine, the appellant Akhilesh Pati Tripathi shall undergo simple imprisonment for a period of one month. The order on sentence dated 05.01.2023 qua the appellant Akhilesh Pati Tripathi is modified accordingly.
The appeals are disposed of accordingly. Copies of the judgment be placed in all the 3 appeal files.
ANNOUNCED IN THE OPEN COURT (GEETANJLI GOEL) On This 3rd Day Of July, 2023 ASJ/SPL. JUDGE (PC ACT) (CBI)-24, (MPs/MLAs Cases), ROUSE AVENUE DISTRICT COURT, NEW DELHI
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