Delhi District Court
State vs . Dilshad & Ors. on 14 August, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-02,
NORTH EAST DISTRICT, KARKARDOOMA COURTS,
DELHI
PRESIDED BY: SH. VIPUL SANDWAR
JUDGMENT
FIR NO. 748/1999
U/s 147/186/353/332 r/w 149 IPC and section 3 Damage to Public Property Act, 1984 r/w 149 IPC PS : SEELAMPUR A. CIS No. of the Case : 460562/2015 B. FIR No. : 748/1999 C. Date of Institution : 10.03.2000 D. Date of Commission of Offence : 27.12.1999 E. Name of the complainant : SI Aditya Ranjan F. Name of the Accused, his : (1) Mohd. Iftikar S/o Mohd.
Parentage & Addresses Izhar, R/o D-71, Main Road, Brahampuri, Delhi, (2) Sajid Hussain S/o Majid Hussain, R/o D-585, Gali no.19, Chauhan Bangar, Delhi (abated), (3) Izazul Hassan S/o Sagir Hussain, R/o A-366, Gali no.3, Inshaalla Masjid ke pass, Chauhan Bangar, Delhi (abated), (4) Dilshad S/o Samsad, R/o K Block Jhuggi, Seelampur, Delhi (PO), (5) Rakesh @ Guddey S/o Surender Mohan, R/o E-10/B-
200, New Seelampur, Delhi, (6) Salim @ Sharif S/o FIR No.748/99 State vs. Dilshad & Ors. PS Seelampur Page No.1 of 29 Chhote Khan, R/o K-346 Jhuggi, New Seelampur, Delhi (abated), (7) Furkan @ Banti S/o Akbar Khan, R/o K-
40 Jhuggi, New Seelampur, Delhi, (8) Naseem S/o Yasin, R/o J-26, New Seelampur, Delhi (PO), (9) Ajeet Sain S/o Mange Ram, R/o C-356, Gali no.10, 1st pushta, New Usmanpur, Delhi (PO), (10) Kuldeep S/o Kartar Singh, R/o F-78, New Seelampur, Delhi (abated) G. Representation on behalf of : Ms. Shivani Joshi, Ld. APP State for the State H. Offence complained of : Section 147/ 148/ 149/ 353/ 186/ 332 IPC and section 3 Damage to Public Property Act I. Plea of the Accused : Pleaded not guilty and claimed trial.
J. Order reserved on : 04.08.2023 K. Date of Order : 14.08.2023 L. Final Order : ACQUITTED
Brief Statement of Reasons for Decision of the Case
1. The present FIR is based on the complaint of SI Aditya Ranjan wherein he has stated that he alongwith Ct. Rajesh Pal was returning after attending DD No.7A regarding a fire in the Lantern factory at Gali no.6, Chauhan Bangar on 27.12.1999 and fire tenders were coming and going there. At about 4/5:00 pm they were informed by one public person that an accident has taken place in front of Gali no.4, Brahampuri road by fire tender no.DEG-2944 and girl has died in the accident. They reached the spot and found a huge gathering there. ACP, SHO and Addl. SHO FIR No.748/99 State vs. Dilshad & Ors. PS Seelampur Page No.2 of 29 alongwith staff reached at the spot after receiving call. The crowd had blocked the road and was not letting the dead body of the deceased lady to be removed. SHO tried to clam down the agitated crowd but to no avail. The crowd started pelting stones and damaged the Government vehicles bearing no.DDN-6458, PCR van no.DL1A-0801 and fire tender number DEG-2944. SHO made an announcement to stopped the pelting of stones and warned the public of legal action, however, the public did not stop. They deflated the tyres of fire tender no. DEG-2944 and tried to set it on fire. SHO fire tear gas shells and the mob dispersed. Dead body was sent to GTB hospital in PCR van no.DL1A-0801. People standing on the terrace on the nearby building pelted stones on the PCR van. Police officials Ct. Nanhe Lal, Ct. Rajesh Bal, Ct. Rajesh Kumar, Ct. Rajbir, Ct. Sanjeev and the SHO sustained injuries and were treated at GTB hospital. The accused persons were chargesheeted for the offences under section 147/148/353/186/332 r/w 149 IPC & section 3 Damage to Public Property Act.
2. FIR was registered and has been investigated by the officials of Police Station Seelampur and IO/SI Aditya Ranjan filed the charge sheet against the accused persons upon which cognizance was taken on 10.03.2000 by the learned Predecessor of this Court.
3. Accused persons appeared before the Court and copy of chargesheet along with other documents under Section 207 Cr.P.C. were supplied to them.
4. Charge was framed vide order dated 06.02.2012 for the FIR No.748/99 State vs. Dilshad & Ors. PS Seelampur Page No.3 of 29 offence punishable Under Section 147/186/353/332 r/w 149 IPC & section 3(2) Prevention of Damage of Public Property Act, 1984 r/w section 149 IPC against accused persons by the learned Predecessor of this Court, to which, the accused persons pleaded not guilty and claimed trial.
5. Thereafter, matter was listed for Prosecution Evidence. The Prosecution has examined 10 witnesses in support of its case. In nutshell, the testimony of the prosecution witnesses is as follows :-
(i) PW1 HC Nanhe Lal has deposed that on 27.12.1999 he received a call and he alongwith SI Ramji Pandey reached at main road Brahampuri. They saw fire brigade on the spot. There was a dead body near the fire brigade and several persons were gathered on the spot. SI Aditya Ranjan, SHO, ACP, Addl. SHO alongwith staff had also reached at the spot. Police wanted to take the dead body but crowd was opposing the same. Rioting had started and public persons were throwing stones at the police party. Public persons were asked to restrain for doing so from the amplifier of the vehicle of SHO. Even after the warning public persons did not stop. Several police persons including SHO sustained injuries, 2-3 police vehicles were also damaged. He sustained inner injury and was taken to GTB hospital. He has stated that he do not remember the faces of accused persons due to lapse of time. Since the witness was resiling from his previous statement, questions in the nature of cross-examination were put to him by Ld. APP for State after seeking permission of this Court. He conceded that personal search memo and disclosure FIR No.748/99 State vs. Dilshad & Ors. PS Seelampur Page No.4 of 29 statement of accused Naseem @Mobin and Ajeet bears his signatures. He also conceded that crowd tried to burn the fire brigade vehicle. Even after being pointed by Ld. APP for State the witness could not identify the accused Izazul Hassan, Furkan, Iftikar and Rajesh. The witness was not cross examined by Ld. counsel for accused despite being given an opportunity.
(ii) PW2 HC Sompal was on operator duty with the SHO on 27.12.1999. At about 04:05 pm SHO received information regarding an accident near Gali no.24, Brahampuri road. He alongwith SHO, Addl. SHO, driver HC Raj Singh, Ct. Rajvir and one more Constable whose name he did not remember, reached the spot. ACP also reached the spot. SI Aditya Ranjan, Ct.
Rajesh Pal were present at the spot. SI Ramji Pandey alongwith one constable reached there. One vehicle of fire brigade was standing there and it came to their notice that accident had occurred from said vehicle and one girl had died. He has deposed that thousands of persons gathered at the spot and they were not allowing to remove the dead body of the girl from the spot. SHO tried to make them understand by public announcement, however, they did not understand. Public persons started throwing stones at the police officials. Some public persons also threw stones from the roof tops of the houses. SHO ordered to fire tear gas on the crowd. After disbursing of crowd dead body of deceased girl was removed. Due to the stone pelting SHO, Ct. Rajesh Bal, Ct. Rohit, Ct. Nanhe Lal and one more constable were injured. Public persons damaged the government vehicle i.e. fire brigade, PCR van, vehicle of DCP reserve force. Public persons also tried to set fire the fire brigade van. Before removing the damaged vehicles, photographs were taken by the FIR No.748/99 State vs. Dilshad & Ors. PS Seelampur Page No.5 of 29 photographer on the instructions of IO.
On 23.01.2000, he was present as operator duty and at about 11:00 pm some noises were raised from the lockup. SHO sent him and HC Raj Singh for enquiring the same. Five persons were locked up in the lockup and he identified three persons from them who were present on 27.12.1999 and had committing rioting and caused damaged to government vehicles and had not allowed to remove the dead body. There names were revealed as Furkan, Salim and Rajesh @ Jode. IO arrested the above said three persons and conducted their personal search. IO also recorded their disclosure statement. He identified three accused persons present in the Court, however, did not disclose their names. He also identified the photographs of the PCR van which removed the dead body to GTB hospital and damaged by public persons. In his cross-examination by Ld. counsel for accused the witness has conceded that he did not made any departure entry. He remained at the spot 6-7 hours. He went to GTB hospital at around 04:20-04:25 pm and returned back from there at about 05:05 pm. Before preparing rukka, IO prepared site plan and recorded statements of witnesses. He has stated that he does not know as to for which offence the accused persons were locked up on 23.01.2000. He has conceded that no TIP proceedings were conducted by the IO. He denied the suggestion that accused Rajesh was lifted from his house and accused Furkan was lifted from the play ground while playing cricket.
(iii) PW3 HC Jagbir Singh he alongwith SHO on 27.12.1999 went to the spot i.e. Gali no.24, Chauhan Bangar, Delhi. They came to know that an accident had occurred from a fire brigade bearing no.DEG-2944. The deceased was attempted to be taken FIR No.748/99 State vs. Dilshad & Ors. PS Seelampur Page No.6 of 29 by the PCR but the public persons started pelting stones on the police officials and their vehicles. SHO made an announcement to the public to calm down but no effect. Tear gas was used to control the crowd. Injuries were received by Ct. Rajesh, Ct. Rajesh Bal, Ct. Nanhe Khan, Ct. Sanjeev, Ct. Rajvir and SHO. The DCP reserve force vehicle bearing no.DDL-6458 and PCR van bearing no.DL1A-0801 was damaged by public persons. IO prepared rukka and handed over the same to him for registration of FIR. Since the witness was not disclosing complete fact, questions in the nature of cross-examination were put to him by Ld. APP for State after seeking permission of this Court. He conceded that accused Ajeet and Naseem were arrested and personally searched in his presence. He also conceded that disclosure statement of accused Momin @ Naseem and Ajeet were recorded in his presence. The witness was not cross examined by accused persons despite being given an opportunity.
(iv) PW4 ACP Rajender Gautam on 27.12.1999 he was posted as Addl. SHO, PS Seelampur. At about 04:00 pm it was informed that an accident took place on Brahampuri road, near gali no.6 and thousands of people gathered there who were indulging in violence. IO/SI Aditya Ranjan alongwith staff reached at the spot and later he alongwith staff and SHO, PS Seelampur also reached at the spot. The persons were throwing stones on the police and the staff of fire tender. SHO made an announcement with the help of PA system and requested the people to disburse and stopped throwing stones but the public persons became more aggressive and continued throwing stones on the police and staff. They also put fire in the vehicle of fire tender. Meanwhile DCP reserve also reached at the spot, public persons continued to damage public FIR No.748/99 State vs. Dilshad & Ors. PS Seelampur Page No.7 of 29 property/vehicles. SHO used gases shell. Some police personnels and SHO received injuries. Police also apprehended some persons who were indulged in the crime. Crime team was called for inspecting the crime scene. In his cross-examination by Ld. counsel for accused he has stated that he did not make any departure entry due to emergent situation. Approximately thousands of people had gathered at the spot. The witness was confronted with the statement under section 161 Cr. PC where it is not recorded that police had apprehended some persons indulged in the crime.
(v) PW5 ASI Rajesh Bal on 27.12.1999 he was coming from PS alongwith Addl. SHO on investigation regarding DD no.7A when they reached Brahampuri road, a crowd were gathered. One person told them that an accident had occurred by a fire bridgehead vehicle no.DEG-2944 in which a girl had died. He alongwith Addl. SHO reached at the spot and met SI Ramji Pandey and Ct. Nanhe Lal. Number of public persons had gathered at the spot. The crowd gathered there were not letting the police officials remove the dead body from the spot. The crowd started pelting stones on the police officials and their vehicles. SHO through PA system warned the crowd, but to no avail. SHO fired tear gas capsules in the air. The crowd were dispersed and the dead body of the deceased was sent to GTB hospital through PCR van due to stone pelting government vehicles no.DEG-2944, vehicle of DCP reserve DDLG458 and PCR van DL1LA-0801 were damaged. He alongwith SHO, Ct. Rajesh, Ct. Nanhe Lal and Ct. Rajvir sustained injuries and were sent to GTB hospital for medical treatment. The witness correctly identified the damage PCR van and the fire brigade through FIR No.748/99 State vs. Dilshad & Ors. PS Seelampur Page No.8 of 29 photographs in Court. The witness was not cross examined by Ld. counsel for accused despite being given an opportunity.
(vi) PW6 Retd. ACP H. C. Rana on 23.12.1999 he was posted as SHO, Seelampur. At about 04:00 pm he received information that some persons had stopped the traffic and obstructed the public road at gali no.24, Brahampuri road, Delhi. He reached the spot and found that accident of one child had occurred by a fire tender vehicle DEG-2944. He requested for reserve force through DCP as the public had started pelting stones and were not ready to clear the road. In the stone pelting fire tender vehicles, DCP reserve vehicle and one PCR van was damaged. He alongwith Ct. Nanhe Lal, Ct. Rajesh Bal, HC Rajesh Kumar, Ct. Rajvir sustained injuries. He requested to a PA system to clear the road. Tear gas capsules were fired in the air after the warning. After splitting of the road, the damaged vehicles and the dead body of the child were removed. Investigation of the said incident was handed over to SI Aditya Ranjan and he alongwith the other injured were brought to GTB hospital for treatment. The witness identified the damaged vehicles through photographs in Court. In his cross-examination by Ld. counsel for accused he has stated that 700-800 persons were present at the spot. He remained at the spot for 30-40 minutes. The stone pelting had started in my presence. IO recorded his statement on 27.12.1999.
(vii) PW7 HC Sanjeev he was the driver of the vehicle of DDL-6458 on 27.12.1999. He brought the DCP reserve force in the said vehicle at the spot where he saw huge crowd of around 100 people gathered there and a dead body of girl was lying on the road. One fire brigade vehicle DEG-2944 was also standing there. Police personnels were trying to remove the dead body, FIR No.748/99 State vs. Dilshad & Ors. PS Seelampur Page No.9 of 29 however the crowd was not letting the same. SHO and Addl. SHO reached at the spot. Crowd became furious and started pelting stones on the police vehicles and police personnels. SHO made announcement through PA system. In the said stone pelting, government vehicles DEG-2944, DDL6458 and PCR van 0801 were damaged. He alongwith SHO, Ct. Rajesh, Ct. Nanhe Lal, Ct. Rajeev were injured. He has deposed that he cannot identify the persons who assaulted them or pelted stones on them due to lapse of time. As the witness refused to identified the accused persons, questions in the nature of cross-examination were put to him by Ld. APP for State after seeking permission of this Court despite that after being towards the accused the witness did not identify them. The said witness was not cross examined by accused despite being given an opportunity.
(viii) PW8 HC Ashok on 27.12.1999 he was posted as Constable at DCP office and was called to the spot. He took photographs of the spot, damaged vehicles on the directions of IO. After developing the same, he deposited it with concerned office from where it was collected by the IO. The said witness was not cross examined by accused despite being given an opportunity.
(ix) PW9 SI Omvir Singh was the Duty Officer on 27.12.1999 at PS Seelampur. At about 07:10 am he received a rukka from Ct. Jagbir for registration of FIR sent by SI Aditya Ranjan. On the basis of said rukka, he registered the present FIR, endorsed the said rukka and handed over the original rukka and copy of FIR for handing it over to SI Aditya Ranjan. The said witness was not cross examined by Ld. counsel for accused despite being given an opportunity.
FIR No.748/99 State vs. Dilshad & Ors. PS Seelampur Page No.10 of 29
(x) PW9' Retd. SI Raj Singh was posted as HC/Driver at Seelampur on 27.12.1999. He alongwith SHO, Ct. Rajesh, Ct. Rajvir, Ct. Sompal went to the spot in government vehicle 4:05 pm. ACP alongwith staff, SI Ramji Pandey and Ct. Nanhe Lal Pandey also came at the spot. Public persons had gathered and one dead body of a girl was also lying on the road. On enquiry, they came to know that the accident of the girl was caused by fire brigade which was also standing at the spot. Public persons were not allowing to take the dead body of the girl. SHO tried to convince the public persons but in vain. SHO made public announcement but the public persons did not stop pelting stones. Tear gas was fired to scattered the mob. Thereafter, the dead body of the girl was taken to GTB hospital in PCR van. Due to stone pelting by the mob, SHO, Ct. Rajesh, Ct. Sanjeev, Ct. Nanhe Lal Mishra, Ct. Rajvir sustained injuries. PCR van DL1A- 0801 and the fire brigade was also damaged. The witness has stated that the person involved in the stone pelting were accused Iftikar, Furkan and Rajesh.
On 23.01.2000, he was present at the PS on that day he heard the accused persons creating noise at the lockup and on hearing the same SHO directed him alongwith Ct. Sompal checked the lockup. When they went to check the lockup they saw five accused persons present in the loc kup out of which he identified the accused Salim @ Sharik, Furkan @ Banti and Rakesh who were involved in the stone pelting on 27.11.1999 and who were not letting the police officails to take away the dead body of the girl who had died in the accident and who had a also damaged the government vehicle. Accused Rakesh @ Goddey, Furkan @ Banti and Salim @ Sharif were arrested and FIR No.748/99 State vs. Dilshad & Ors. PS Seelampur Page No.11 of 29 their personal search was conducted in his presence. During his cross-examination by Ld. counsel for accused he has stated that he cannot remember as to which constable was on lockup duty on 23.01.2000. He has also stated that he cannot say as to in which case accused Rakesh, Furkan and Salim were in lockup. He could not tell as to when the accused were arrested and who was the arresting IO.
(x) PW10 IO/SI Aditya Ranjan on 27.12.1999 he was posted as SI at PS Seelampur. He alongwith Ct. Rajesh Bal was returning to PS after attending DD No.7A. They were informed by one public person regarding an accident in front of gali no.24, Brahampuri road. He alongwith aforesaid constable rushed to the spot and a heavy crowd had already gathered including concerned ACP, SHO, Addl. SHO. The crowd was not letting the dead body of deceased lady to be removed by the police officials. SHO tried to calm down the crowd but in vain. All of a sudden the crowd started pelting stones and damaged the fire tender present at the spot, they deflated its tyres and tried to set it on fire. The vehicle used by DCP reserve force and vehicle of SHO was also damaged. Tear gas was released at the spot. Dead body was transported to GTB with the help of PCR van. The site as well as damaged vehicles were photographed. Injured police personnel were sent to hospital for medical examination. He prepared rukka and sent the same through Ct. Jagbir for registration of FIR. He prepared site plan. Ct. Jagbir produced the FIR and original rukka. He recorded statements of witnesses and collected the MLCs of injured police personnel. He arrested the accused persons at the instance of police witnesses and conducted their personal search. He recorded the disclosure FIR No.748/99 State vs. Dilshad & Ors. PS Seelampur Page No.12 of 29 statement of all the accused persons. He obtained complaint under section 195 Cr. PC. After completion of investigation he handed over the case file to SHO, PS Seelampur for preparation of chargesheet and thereafter, he filed before the concerned Court. He correctly identified accused Iftikar, Furkan @ Banti and Rakesh @ Goddey in Court. In his cross-examination he stated that he cannot recall the time of receipt of call and the arrival at the place of occurrence. He had not asked the name or address of the person who informed him about the incident. On the day of arrest of accused persons at the PS they were already in the police lockup at that time and were identified by Ct. Raj Singh Tyagi, Ct. Sompal, Ct. Nanhe Lal and Ct. Jagbir. He sought permission from the SHO vide DD entry regarding the arrest of accused Rakesh @ Goddey and Furkan. He did not take any steps to gain the details of the matter with regard to the accused persons already lodged in the lockup. He did not record the statement of santri deployed at the police lockup. Nothing was mentioned in the disclosure statement of the accused persons regarding specific role whether all concerned accused were stated to be identified altogether. The site plan was prepared by him after making local enquiries. No TIP was conducted against the accused persons. He denied the suggestion that accused Iftikar was not involved in the present matter. He denied the suggestion that accused Rakesh @ Goddey and Furkan @ Banti were not arrested in the present case. He conceded that in the complaint under section 195 Cr. PC on 02.01.2000 accused Nasim and Ajeet were arrested who disclosed the names of culprits, on the basis of which rest of the accused were arrested. He also conceded that accused Iftikar, Sajid and Izazul were avoiding FIR No.748/99 State vs. Dilshad & Ors. PS Seelampur Page No.13 of 29 their arrest and had been kept in column no.2. He recorded statement of HC Raj Singh Tyagi and Ct. Sompal under section 161 Cr. PC. He also conceded that no accused was arrested on the day of incident from the spot.
6. PE was closed on 01.08.2023 and on same date statement of accused under Section 313 Cr. PC read with section 281 Cr. PC was recorded. Accused persons did not wish to lead DE and matter was fixed for final arguments.
7. Final arguments heard. Case record perused meticulously.
8. This Court has thoughtfully considered the material on record and arguments advanced with due circumspection.
9. In Mahadev Sharma v. State of Bihar, (1966) 1 SCR 18 : AIR 1966 SC 302 : 1966 Cri LJ 197 , Hon'ble Supreme Court has observed that:
"Section 141 defines an unlawful assembly as an assembly of five or more persons the common object of which is inter alia to commit an offence. There are five clauses which describe the many kinds of common objects which render an assembly unlawful. ..........
............Continuing again with the scheme of the Chapter, we next see that Section 142 says that a person is considered to be a member of an unlawful assembly, if, being aware of facts which render any assembly an unlawful assembly he intentionally joins that assembly or continues in it. A mere membership of an unlawful assembly is punishable under Section 143. Under the next section heavier punishment is awardable to a person who joins an unlawful assembly armed with a deadly weapon or with anything which used as a weapon of offence is likely to cause death. Section 145 next provides for a similar higher FIR No.748/99 State vs. Dilshad & Ors. PS Seelampur Page No.14 of 29 punishment for a person who joins or continues in an unlawful assembly knowing that it has been ordered to disperse. These sections make membership as such of an unlawful assembly punishable, though in varying degrees. Section 146 then defines the offence of rioting. This offence is said to be committed when the unlawful assembly or any member thereof in prosecution of the common object of such assembly uses force or violence. It may be noticed here that every member of the unlawful assembly is guilty of the offence of rioting even though he may not have himself used force or violence. There is thus vicarious responsibility when force or violence is used in prosecution of the common object of the unlawful assembly. The next two sections prescribe punishment for the offence of rioting. Section 147 punishes simple rioting. Section 148 punishes more severely a person who commits the offence of rioting armed with a deadly weapon but the section makes only a person who is so armed liable to higher punishment.
Section 149 occurs in Chapter VIII of the Indian Penal Code which deals with offences against the public tranquility. That Chapter consists of twenty- one sections and most of them are concerned with assemblies which are a danger to public peace. Such assemblies are designated unlawful assemblies and the punishment for membership varies in severity according as the assembly only menaces the public peace or actually disturbs it. The scheme of the Chapter may now be examined."
10. Section 149 then creates vicarious responsibility for other offences besides rioting. The section provides 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 offence."
FIR No.748/99 State vs. Dilshad & Ors. PS Seelampur Page No.15 of 29
11. For the application of the section there must be an unlawful assembly. Then if an offence is committed in prosecution of the common object of that assembly or is such as the members of the unlawful assembly know to be likely to be committed then whoever is member of that assembly at the time the offence is committed is guilty.
12. It was also observed in Mahadev (supra) that:
"Is it obligatory to charge a person under Section 147 or Section 148 before Section 149 can be utilized? Section 149 does not state this to be a condition precedent for its own application. No other section prescribes this procedure. Sections 146 and 149 represent conditions under which vicarious liability arises for the acts of others. If force or violence is used by a member in the prosecution of the common object of the unlawful assembly every member of the assembly is rendered guilty of the offence of rioting and is punishable for that offence under Section 147. The offence of rioting must, of course, occur when members are charged with murder as the common object of the unlawful assembly. Section 148 creates liability on persons armed with deadly weapons and it is a distinct offence. It need not detain us. If a person is not charged under Section 147 it does not mean that Section 149 cannot be used. When an offence (such as murder) is committed in prosecution of the common object of the unlawful assembly or the offence is one which the members of the assembly knew to be likely to be committed in prosecution of the common object, individual responsibility is replaced by vicarious responsibility and every person who is a member of the unlawful assembly at the time of the committing of the offence becomes guilty. It is not obligatory to charge a person under Section 143, or Section 144 when charging him with Section 147 or Section 148. Similarly, it is not obligatory to charge a person under Section 143 or Section 147 when charging him for an offence with the aid of Section 149. These sections are implied. It may be useful to add a charge under Section 147 and Section 148 with charges under other offences of FIR No.748/99 State vs. Dilshad & Ors. PS Seelampur Page No.16 of 29 the Penal Code read with Section 149, but it is not obligatory to do so. A person may join an unlawful assembly and be guilty under Section 143 or 147 or 148 but he may cease to be its member at the time when the offence under Section 302 or some other offence is committed. He would not in that event be liable for the other offence for Section 149 would not apply to him.
The fallacy in the cases which hold that a charge under Section 147 is compulsory arises because they overlook that the ingredients of Section 143 are implied in Section 147 and the ingredients of Section 147 are implied when a charge under Section 149 is included. An examination of Section 141 shows that the common object which renders an assembly unlawful may involve the use of criminal force or show of criminal force, the commission of mischief or criminal trespass or other offence, or resistance to the execution of any law or of any legal process. Offences under Sections 143 and 147 must always be present when the charge is laid for an offence like murder with the aid of Section 149, but the other two charges need not be framed separately unless it is sought to secure a conviction under them. It is thus that Section 143 is not used when the charge is under Section 147 or Section 148, and Section 147 is not used when the charge is under Section 148. Section 147 may be dispensed with when the charge is under Section 149 read with an offence under the Indian Penal Code."
13. In Ramachandran v. State of Kerala, (2011) 9 SCC 257 : (2011) 3 SCC (Cri) 677 : 2011 SCC OnLine SC 1203 at page 266, hon'ble Supreme Court has observed that:
"Section 149 IPC has essentially two ingredients viz. (i) offence committed by any member of an unlawful assembly consisting of five or more members, and (ii) such offence must be committed in prosecution of the common object (under Section 141 IPC) of the assembly or members of that assembly knew to be likely to be committed in prosecution of the common object.
For "common object", it is not necessary that there should be a prior concert in the sense of a meeting of the members of the unlawful assembly, the common object may form on the spur of the FIR No.748/99 State vs. Dilshad & Ors. PS Seelampur Page No.17 of 29 moment; it is enough if it is adopted by all the members and is shared by all of them.
In order that the case may fall under the first part, the offence committed must be connected immediately with the common object of the unlawful assembly of which the accused were members. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under the second part of Section 149 IPC if it can be held that the offence was such as the members knew was likely to be committed. The expression "know" does not mean a mere possibility, such as might or might not happen. For instance, it is a matter of common knowledge that if a body of persons go armed to take forcible possession of the land, it would be right to say that someone is likely to be killed and all the members of the unlawful assembly must be aware of that likelihood and would be guilty under the second part of Section 149 IPC. There may be cases which would come within the second part, but not within the first. The distinction between the two parts of Section 149 IPC cannot be ignored or obliterated.
However, once it is established that the unlawful assembly had common object, it is not necessary that all persons forming the unlawful assembly must be shown to have committed some overt act. For the purpose of incurring the vicarious liability under the provision, the liability of other members of the unlawful assembly for the offence committed during the continuance of the occurrence, rests upon the fact whether the other members knew before hand that the offence actually committed was likely to be committed in prosecution of the common object."
14. In Masalti v. State of U.P. [AIR 1965 SC 202 : (1965) 1 Cri LJ 226] , the Supreme Court has held that:
"The crucial question for determination in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects specified by Section 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were FIR No.748/99 State vs. Dilshad & Ors. PS Seelampur Page No.18 of 29 merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly."
15. In K.M. Ravi v. State of Karnataka [(2009) 16 SCC 337 : (2010) 3 SCC (Cri) 281] Supreme Court has observed that mere presence or association with other members alone does not per se become sufficient to hold every one of them criminally liable for the offences committed by the others unless there is sufficient evidence on record to show that each intended to or knew the likelihood of commission of such an offending act.
16. In State of U.P. v. Kishanpal [(2008) 16 SCC 73 :
(2010) 4 SCC (Cri) 182] Supreme Court has held that once a membership of an unlawful assembly is established it is not incumbent on the prosecution to establish whether any specific overt act has been assigned to any accused. Mere membership of the unlawful assembly is sufficient and every member of an unlawful assembly is vicariously liable for the acts done by others either in prosecution of the common object or such as the members of the assembly knew were likely to be committed.
17. In Amerika Rai v. State of Bihar [(2011) 4 SCC 677 :
(2011) 2 SCC (Cri) 429] Supreme Court has opined that for a member of an unlawful assembly having common object what is liable to be seen is as to whether there was any active participation and the presence of all the accused persons was with an active mind in furtherance of their common object. The law of vicarious liability under Section 149 IPC is crystal clear that even the mere presence in the unlawful assembly, but with an FIR No.748/99 State vs. Dilshad & Ors. PS Seelampur Page No.19 of 29 active mind, to achieve the common object makes such a person vicariously liable for the acts of the unlawful assembly.
18. In Charan Singh v. State of U.P. [(2004) 4 SCC 205 :
2004 SCC (Cri) 1041] the Supreme Court at pp. 209-10, para 13 has observed that:
"13. ... The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. ... The word 'object' means the purpose or design and, in order to make it 'common', it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression 'in prosecution of common object' as appearing in Section 149 has to be strictly construed as equivalent to 'in order to attain the common object'. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter."
19. In Bhanwar Singh v State of M.P. [(2008) 16 SCC 657 : (2010) 4 SCC (Cri) 378] hon'ble Supreme Court at p. 674, para 44 observed that:
"44. Hence, the common object of the unlawful assembly in question depends firstly on whether such object can be classified as one of those described in Section 141 IPC. Secondly, such common object need not be the product of prior concert but, as per established law, may form on the spur of the moment. Finally, the nature of this common object is a question of fact to be FIR No.748/99 State vs. Dilshad & Ors. PS Seelampur Page No.20 of 29 determined by considering nature of arms, nature of the assembly, behaviour of the members, etc."
20. Thus, the Apex Court has warned through a catena of judgments that where general allegations are made against a large number of persons the court would categorically scrutinise the evidence and hesitate to convict the large number of persons if the evidence available on record is vague. It is obligatory on the part of the court to examine that if the offence committed is not in direct prosecution of the common object, it yet may fall under the second part of Section 149 IPC, if the offence was such as the members knew was likely to be committed. Further inference has to be drawn as to what was the number of persons; how many of them were merely passive witnesses; what were their arms and weapons. The number and nature of injuries is also relevant to be considered. "Common object" may also be developed at the time of incident.
21. In the present case, accused persons have been charged with offence punishable under S. 147 r/w section 149 IPC. As discussed above, offence punishable under section 147 IPC is inclusive of section 143 IPC and it need not be read with section 149 IPC as the presence of unlawful assembly is implicit in section 147 IPC. For examining the offence under S. 147, the first determination is whether the accused persons formed an unlawful assembly as defined in S. 141 IPC. As a matter legislative policy, a minimum of five persons are required for forming an unlawful assembly. PW1 HC Nanhe Lal has deposed that when he alongwith SI Ramji Pandey reached at the spot i.e. main road Brahampuri, they saw fire brigade and dead body near FIR No.748/99 State vs. Dilshad & Ors. PS Seelampur Page No.21 of 29 the fire brigade. Public persons were gathered at the spot including police officials. Rioting had started and public persons were throwing stones on the police party. Several police personnel were injured and their vehicles were damaged. He did not identify any of the accused persons present in the Court due to lapse of time. Even after being cross examined by Ld. APP for State he could not identify or name the accused persons. PW2 HC Sompal has stated that on 23.01.2000 he was present at the lockup and at about 11:00 pm he heard noises from the lockup and on the instructions of SHO he and HC Raj Singh went to checkup and saw five persons locked up. He has stated in his cross examination that he did not know as to for which offence they were locked up. He identified the three persons who were present on 27.12.1999 and committing rioting. He has stated that there were thousands of public persons had gathered there. PW4 the then Addl. SHO, PS Seelampur has deposed that police also apprehended some persons who were indulged in the crime. He has further stated that the mob had put fire in the vehicle of the fire tender. He remained on his stance even during his cross- examination. PW6 the then SHO in his cross-examination has stated that there were 700-800 persons present at the spot. PW7 has stated that he cannot identify the accused persons due to long lapse of time. Even after being pointed towards the accused he failed to identify the accused persons. PW9' has stated in his examination in chief that on 23.01.2000 at about 11:00 pm the accused in the lockup were creating noise. On the instructions of SHO he alongwith Ct. Sompal went and saw five persons out of which he identified three as Salim @ Sharif, Furkan @ Banti and Rakesh as the persons involved in the stone pelting incident on FIR No.748/99 State vs. Dilshad & Ors. PS Seelampur Page No.22 of 29 27.12.1999. In his cross-examination he has stated that he cannot say as to for which offence the accused persons were in lockup. PW10/IO has stated that he alongwith Ct. Rajesh Bal was returning after performing duty with regard to DD No.7A on 27.12.1999. Contrary to this PW5 ASI Rajesh Bal has stated that on 27.12.1999 he was coming to PS after attending DD No.7A with Addl. SHO Sh. Rajender Singh Gautam. IO in his deposition has stated that he arrested the accused persons at the instance of police officials and conducted their personal search, recorded their disclosure statement. Contrary to this, in his cross- examination dated 01.08.2023 he conceded that no accused was arrested on the day of incident from the spot.
22. The primary requirement for an unlawful assembly as defined in section 141 IPC is that there should be five or more persons. During trial, accused proceedings against Sajid, Izazul, Salim and Kuldeep had abated and accused Dilshad, Naseem and Ajeet were declared PO. Charge was formally framed against accused Izazul, Iftikar, Mohd. Furkan, Ajeet and Rajesh. The identity of the three accused persons present before this Court have not been established by any of the prosecution witnesses. PW1 and PW7 have failed to identify the accused persons due to lapse of time. Even being pointed towards the accused persons the said witness failed to identify them. PW4 has stated that accused persons were arrested at the spot. PW10/IO in his examination in chief has stated that accused persons were arrested at the spot, however, in his cross-examination he denied having arrested any accused persons at the spot. IO has stated that at the time of incident he was returning after attending DD FIR No.748/99 State vs. Dilshad & Ors. PS Seelampur Page No.23 of 29 No.7A on 27.12.1999 alongwith Ct. Rajesh Bal, however, PW5 ASI Rajesh Bal has deposed that on 27.12.1999 he was with Addl. SHO Sh. Rajender Gautam (PW4) regarding DD No.7A. In the complaint under section 195 Cr. PC it was mentioned that on 02.01.2000 accused Naseem and Ajeet were arrested and on the basis of their disclosure the remaining accused were arrested excluding Iftikar, Sajid and Izazul who avoiding their arrest and had been kept in column no.2. The testimonies of the prosecution witnesses is shaky and does not corroborate each other and are often contradictory. None of the prosecution witnesses have been able to establish that these were the ten accused who were forming the unlawful assembly. Since the prosecution has failed to prove the formation of an unlawful assembly, an examination of an offence punishable under section 147 IPC is not required.
23. The accused persons have also been charged with offence punishable under S. 186/332/353 IPC and section 3(2) Prevention of Damage to Public Property Act, 1984 r/w section 149 IPC. They read as under:
"186. Obstructing public servant in discharge of public functions.--Whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both."
332. Voluntarily causing hurt to deter public servant from his duty.--Whoever voluntarily causes hurt to any person being a public servant in the discharge of his duty as such public servant, or with intent to prevent or deter that person or any other public servant from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by that person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either FIR No.748/99 State vs. Dilshad & Ors. PS Seelampur Page No.24 of 29 description for a term which may extend to three years, or with fine, or with both.
353. Assault or criminal force to deter public servant from discharge of his duty.--Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both".
Section 3(2) Prevention of Damage to Property Act, 1984 reads as:
(2) Whoever commits mischief by doing any act in respect of any public property being--
(a) any building, installation or other property used in connection with the production, distribution or supply of water, light, power or energy;
(b) any oil installations;
(c) any sewage works;(d) any mine or factory;
(e) any means of public transportation or of tele-
communications, or any building, installation or other property used in connection therewith, shall be punished with rigorous imprisonment for a term which shall not be less than six months, but which may extend to five years and with fine: Provided that the court may, for reasons to be recorded in its judgment, award a sentence of imprisonment for a term of less than six months. that the court may, for reasons to be recorded in its judgment, award a sentence of imprisonment for a term of less than six months"
24. In Durgacharan Naik v. State of Orissa , (1966) 3 SCR 636 : AIR 1966 SC 1775 : 1966 Cri LJ 1491, hon´ble Supreme Court has observed that:
"We have expressed the view that Section 195 of the Criminal Procedure Code does not bar the trial of an accused person for a distinct offence disclosed by the same or slightly different set of facts and which is not included within the ambit of the section, but we must point out that the provisions of Section 195 cannot be evaded by FIR No.748/99 State vs. Dilshad & Ors. PS Seelampur Page No.25 of 29 resorting to devices or camouflage. For instance, the provisions of the section cannot be evaded by the device of charging a person with an offence to which that section does not apply and then convicting him of an offence to which it does, on the ground that the latter offence is a minor one of the same character, or by describing the offence as one punishable under some other section of the Indian Penal Code, though in truth and substance the offence falls in the category of sections mentioned in Section 195 of the Criminal Procedure Code. Merely by changing the garb or label of an offence which is essentially an offence covered by the provisions of Section 195 prosecution for such an offence cannot be taken cognizance of by mis describing it or by putting a wrong label on it."
25. In the present case the prosecution has relied under section 149 IPC to vicariously impute the responsibility of the members of the unlawful assembly for committing offence punishable under section 186/353/332 IPC and section 3(2) Prevention of Damage to Public Property Act, 1984. As discussed above the prosecution has failed to prove the existence of unlawful assembly per se. accordingly, the aid of section 149 IPC is not available to the prosecution. No individual role has been assigned to any particular accused. The only incriminating evidence against the accused is their disclosure statement. None of the accused have been arrested at the spot. The arrest memos of the accused persons available on record shows the arrest as 01.01.2000. No other prosecution witnesses have identified the accused persons. Accordingly no offense punishable under section 186/332/353 IPC and section 3(2) of Prevention of Damage to Public Property Act is made out.
FIR No.748/99 State vs. Dilshad & Ors. PS Seelampur Page No.26 of 29
26. In a criminal trial, the burden on the prosecution is beyond reasonable doubt. The reasonable doubt is a rule of caution laid down by the Courts of Law in respect of assessing the evidence in criminal cases. In Awadhi Yadav v. State of Bihar , (1971) 3 SCC 116 at page 117, Hon'ble Supreme Court has observed that:
"Before a person can be convicted on the strength of circumstantial evidence, the circumstances in question must be satisfactorily established and the proved circumstances must bring home the offence to the accused beyond reasonable doubt. If those circumstances or some of them can be explained by any other reasonable hypothesis then the accused must have the benefit of that hy- pothesis. But in assessing the evidence imaginary possibilities have no place. What is to be consid- ered are ordinary human probabilities."
27. In State of Haryana v. Bhagirath, (1999) 5 SCC 96 :
1999 SCC (Cri) 658 : 1999 SCC OnLine SC 577 at page 99 Hon'ble Supreme Court has observed that:
"But the principle of benefit of doubt belongs ex- clusively to criminal jurisprudence. The pristine doctrine of benefit of doubt can be invoked when there is reasonable doubt regarding the guilt of the accused. It is the reasonable doubt which a consci- entious judicial mind entertains on a conspectus of the entire evidence that the accused might not have committed the offence, which affords the benefit to the accused at the end of the criminal trial. Ben- efit of doubt is not a legal dosage to be adminis- tered at every segment of the evidence, but an ad- vantage to be afforded to the accused at the final end after consideration of the entire evidence, if the Judge conscientiously and reasonably enter- tains doubt regarding the guilt of the accused. It is nearly impossible in any criminal trial to prove all the elements with a scientific precision. A criminal court could be convinced of the guilt only beyond the range of a reasonable doubt. Of course, the ex- pression "reasonable doubt" is incapable of defini- tion. Modern thinking is in favour of the view that FIR No.748/99 State vs. Dilshad & Ors. PS Seelampur Page No.27 of 29 proof beyond a reasonable doubt is the same as proof which affords moral certainty to the Judge."
28. Francis Wharton, a celebrated writer on criminal law in the United States has quoted from judicial pronouncements in his book Wharton's Criminal Evidence (at p. 31, Vol. 1 of the 12th Edn.) as follows:
"It is difficult to define the phrase 'reasonable doubt'. However, in all criminal cases a careful explanation of the term ought to be given. A definition often quoted or followed is that given by Chief Justice Shaw in the Webster case. He says:
'It is not mere possible doubt, because everything relating to human affairs and depending upon moral evidence is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that consideration that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge."
29. In the treatise The Law of Criminal Evidence authored by H.C. Underhill it is stated (at p. 34, Vol. 1 of the 5th Edn.) thus:
"The doubt to be reasonable must be such a one as an honest, sensible and fair-minded man might, with reason, entertain consistent with a conscientious desire to ascertain the truth. An honestly entertained doubt of guilt is a reasonable doubt. A vague conjecture or an inference of the possibility of the innocence of the accused is not a reasonable doubt. A reasonable doubt is one which arises from a consideration of all the evidence in a fair and reasonable way. There must be a candid consideration of all the evidence and if, after this candid consideration is had by the jurors, there remains in the minds a conviction of the guilt of the accused, then there is no room for a reasonable doubt."
30. The evidence brought on record by the prosecution, is not sufficient to link the accused to the commission of the crime. As FIR No.748/99 State vs. Dilshad & Ors. PS Seelampur Page No.28 of 29 discussed above, the prosecution has failed to prove the existence of an unlawful assembly as defined in section 141 IPC which is a sine qua non for proving the offense punishable under section 147 IPC or for making the accused persons vicariously liable as per section 149 IPC. No offense under section 186/332/353 IPC and section 3(2) of Prevention of Damage to Public Property Act has been proved as the prosecution has failed to establish the presence of accused persons at the spot.
31. Thus, in view of the above discussion, the Prosecution has not been able to establish beyond reasonable doubt that accused persons have committed offences under S. 147, 186/332/353 r/w section 149 IPC and section 3(2) of Prevention of Damage to Public Property Act r/w section 149 IPC. Therefore, accused persons Iftikar, Rakesh and Furkan are found not guilty in the present case and resultantly, they stand acquitted in the present case.
32. Accused persons are directed to furnish bonds in the sum of ₹10,000/- each with a surety of like amount u/s 437A Cr.P.C and are directed to be present before the Ld. Appellate Court as and when directed. Digitally signed by VIPUL SANDWAR VIPUL Date:
SANDWAR 2023.08.14
04:48:02
+0530
Announced in the open (VIPUL SANDWAR)
Court on 14 th August, 2023 MM-02/NE/KKD COURTS
FIR No.748/99 State vs. Dilshad & Ors. PS Seelampur Page No.29 of 29