Choegyal & Ors. vs State
2011 Latest Caselaw 3161 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   Crl. Appeal No. 95/2000

%                                                Decided on:     7th July, 2011

CHOEGYAL & ORS.                                              ..... Appellants
                            Through:    Mr. Anil Aggarwal and Mr. S.N.
                                        Pandey, Advocates

                   versus

STATE                                                        ..... Respondents
                            Through:    Mr. Manoj Ohri, APP for the State.

Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA

1. Whether the Reporters of local papers may        Not Necessary
   be allowed to see the judgment?

2. To be referred to Reporter or not?               Yes

3. Whether the judgment should be reported          Yes
   in the Digest?

MUKTA GUPTA, J.

1. On 11th March, 1992 the Chinese President visited this country. The

Appellants who were Tibetan nationals living in this country, reached outside

the Chinese Embassy and raised slogans against China. An information was

sent to P.S. Chanakyapuri. On receipt of DD No. 55-B SI Ram Sunder along

with Constable Ranbir, Constable Rohtas, Constable Raj Bir, Constable Aas

Mohd and DHG Ram Kumar reached outside the Chinese Embassy where the

Appellants were raising the slogans against China and quarrelling with the

Special Task Force. Stones were lying on the main gate of Chinese Embassy

and window panes of the guardroom were lying broken outside the

guardroom. The main gate of the Chinese Embassy was broken and broken

bottles and its caps were lying near the main gate. Statement of PW2 Ram

Shresth Mandal, Guard at the Chinese Embassy was recorded who stated that

at about 12:45 P.M. he was in the guardroom inside the Chinese Embassy. At

that time, 3-4 taxies came in which some persons were sitting. One of the

persons was having Tibetan Flag in his hands and others were having bottles

filled with petrol. All of them while raising slogans against China, started

pelting stones and also threw fire bottles at the gate of the Embassy due to

which the main gate got burnt. They tried to stop them but they threw a glass

after lighting it with fire on him due to which his right hand got burnt. He

then locked the main gate of the Embassy and in the meantime the police

arrived. On the basis of this statement, a case FIR No. 62/1992 under

Sections 307/436/427/147/148/149/186/353 IPC was registered. The medical

examination of PW2 Ram Shresth Mandal was done. Constable Manoj

Kumar alleged that the Appellants gave him fist blows on his chest. On

completion of investigation, charge-sheet was filed. Co-accused Tashi

absented during trial, thus he was declared a proclaimed offender. After

recording statement of 11 prosecution witnesses and the accused, the

Appellants were convicted for offences punishable under Sections 324/149

IPC and sentenced to Rigorous Imprisonment for a period of one year and a

fine of `500/- each and in default of payment of fine to further undergo

Simple Imprisonment for 15 days. They were further convicted for offences

punishable under Section 435/149 IPC and sentenced to Rigorous

Imprisonment for a period of three years and a fine of `1000/- each and in

default of payment of fine to further undergo Simple Imprisonment for one

month. They were also convicted for offence punishable under Sections

186/149 IPC and sentenced to Rigorous Imprisonment for a period of one

month and a fine of `100/- each and in default of payment of fine to further

undergo Simple Imprisonment for one day. They were also convicted for

offence punishable under Sections 353/149 IPC and sentenced to Rigorous

Imprisonment for one year and a fine of `500/- each and in default of payment

of fine to further undergo Simple Imprisonment for 15 days. They were

convicted for offence punishable under Sections 148/149 IPC and awarded a

sentence of Rigorous Imprisonment for one year and a fine of `500/- each and

in default of payment of fine to further undergo Simple Imprisonment for 15

days. This judgment of conviction and order on sentence in Sessions Case No.

72/1993 is impugned in the present appeal.

2. Learned counsel for the Appellants contends that PW 2 Ram Shresth

Mandal the maker of the FIR who is also injured alongwith PW1 Om Prakash

who were the guard and supervisor at the Chinese Embassy and thus natural

witnesses have turned hostile and have not identified the Appellants as the

accused. PW11 Constable Manoj Kumar is also an injured witness who has

alleged that he was given fist blow by the Appellants however he has not

identified the Appellant who gave him the fist blows. Moreover, his MLC

was got conducted after six hours of the incident. There was no apparent

injury on his body. No role has been ascribed to the Appellants by PW11.

The case of the prosecution is contrary as PW1 and PW2 state that the rioters

came in 2-3 taxies whereas PW11 has stated that taxies were stopped at Shanti

Path because of the heavy 'bandobast' in view of the arrival of the Chinese

President. The presence of the Appellant has been proved because of two

suggestions given by the Appellants in cross-examination. Reliance is placed

on Vikas & Ors vs. State of Karnataka, II 2008 CCR 280 (SC) and Narain

Singh & Another vs. State, 1997 (2) Crimes 464 to contend that the

prosecution has to prove its case beyond reasonable doubt and for the same it

has to stand on its own legs and cannot to take advantage of the weaknesses of

the defence.

3. It is further contended that DD No. 55/B which was the information

received by the police has been suppressed and not placed on record. Thus an

adverse inference has to be drawn against the prosecution in this regard. As

per the investigating officer, PW7 he went to the spot on receipt of DD No.

55/B. Thus that being the FIR, the statement of PW2 on which the FIR is

registered is non-est. Since PW2 in his statement has stated that he made the

statement in the evening, the FIR is clearly ante-timed. No stones or glass

pieces were seized. All the seizure memos bear the signatures of PW1 and

PW2 who have clearly stated that they did not see the Appellants on that date.

It is further stated that the offence under Section 149 is not made out as no

sharp injury has been proved by the prosecution. Even an offence under

Sections 323/149 is not made out because the complaint of chest pain by

PW11 was reported after six hours and not soon after the incident. Neither

PW4 nor PW11 have named the Appellants. Furthermore, the provisions of

Sections 439/149 IPC are not attracted as no mischief of fire explosive was

proved. There is no fire report nor was fire tender called. There is no damage

proved to the iron-gate and sofa as the same have not been seized and

produced in the Court. Value of the property destroyed in fire being more that

`100/- is presumptive as no report of the loss has been got prepared and no

offence in this regards has been led. Moreover, the claim of the prosecution is

that the Appellants were arrested from the spot. However from their personal

search neither any match box nor lighter nor match stick has been recovered.

The offences punishable under Sections 353/186 IPC are also not made out as

no hindrance has been caused to any public servant in discharge of his official

duty. Moreover, the essential requirement that the officers was deterred in

performing of their duty has also not been stated by PW4 and PW11, thereby

not attracting Section 353 IPC. Even in the complaint under Section 195

Cr.P.C. Ex. PW8/A there is no allegation of obstruction or any injuries which

were caused to deter them from duty. Even if assuming that an injury was

caused, the same was simple which would not attract the provision of Section

353 IPC. Reliance is placed on P. Rama Rao vs. State of Andhra Pradesh,

1984 Crl. L.J. 27. The provisions of Sections 148/149 are also not attracted

as the petrol bottles are not deadly weapons. Moreover, allegedly these bottles

were thrown at the Chinese Embassy Gate and a gate of iron would not catch

fire with such petrol bottles. Relying on Nand Kishore Mohanti vs. State of

Orissa, AIR 1961 Orissa 29 it is stated that the constructive liability envisaged

under Section 149 IPC cannot apply to an offence under Section 148 IPC. In

the alternative, it is stated that the Appellants are all aged around 60 years and

19 years have elapsed since the alleged incident occurred. There is no

previous nor any subsequent criminal record of the Appellants. They have

faced the ordeal of trial and have been regularly appearing in the trial court

and in this Court since 19 years. They have suffered custody of 31 days and

have already deposited the fine. The Appellants are also leading lives as

refugees in this country and so they be not sent to jail after 19 years and the

sentence be reduced to the period already undergone.

4. Learned APP on the other hand contends that PW1 and PW2 have

clearly stated that glass bottles after burning were thrown at the guardroom.

The window panes of the guardroom were also broken and sofa set caught

fire. Though, PW1 and PW2 have not supported the prosecution case as to

the identity of the Appellants but rest of the entire prosecution version has

been supported by the PW1 and PW2. The identity of the Appellants is

established by the testimony of PW4 Constable Satinder Singh and PW11

Constable Manoj Kumar. Even if the provisions of Section 435 IPC is not

attracted, the provisions of Section 425 read with explanation punishable

under Section 426 IPC is clearly attracted which is duly corroborated vide

MLC of PW2 and PW1. The said MLCs were not required to be proved as

the same were not disputed by the accused. From the statement of PW4 and

PW11 duly corroborated by the MLC of PW11, the offence of obstruction and

assault and obstruction in official duty i.e. Section 353/149 and 186/149 are

clearly proved. The presence of the Appellant is proved by the positive

testimony of the prosecution witnesses PW4 and PW11 who have duly

identified them. PW2 though failed to identified the witnesses however, he

admits his statement Ex. PW2/A being recorded and also the personal search

memos Ex. PW D/1 to Ex. PWD/9 and that the same bear his signatures.

Both PW4 and PW11 have stated that the accused persons were beating

Manoj and also gave fist blow to PW11. PW7 SI Ram Sunder who also

reached the spot has also stated that he saw the Appellants quarrelling with the

Special Task Force. Thus obstruction in discharge of official duty is clearly

proved and from the act the deterrence is also proved. PW7 has also

identified all the Appellants and has named the Appellant Choegyal as the one

who was holding Tibetan Flag which was seized from him vide Memo

Ex.PW7/A. Thus, in view of the testimony of PW4, PW11 duly corroborated

by PW1, PW2 and PW7, the prosecution has proved its case beyond

reasonable doubt and it is prayed that the appeal be dismissed being devoid of

any merit.

5. I have heard learned counsel for the parties and perused the records.

PW2 Shri Ram Shresth Mandal the maker of the FIR has stated that on 11th

March, 1992 about 12:45 P.M., he was present in the guardroom inside the

Embassy building when he started taking food. In the meantime, 3-4 taxies in

which persons sitting with Tibetan Flags came. On seeing the taxies, he tried

to lock the gate of the Embassy. The persons sitting in the taxies started

pelting stones outside the gate of the Embassy. He went inside and informed

offices that some persons have come in taxies and are throwing stones at the

Embassy. In the meantime, police also reached there. He showed the burnt

sofa and some broken window panes. He was not injured in the incident. The

police officers came at the spot and apprehended the persons who were

throwing the stones. His statement was recorded at the spot vide Ex. PW2/A

and he also signed the personal search memos of the accused persons Ex.PW

D1 to D9. Though he resiled as to the identification of the persons and has

deposed that nothing material was seized in his presence, however, he

identified his signatures on the seizure memos Ex.PW1/A, Ex. PW1/B and Ex.

PW1/C. On cross-examination by the learned APP, he admited that he was

medically examined on the same day and he did not remember whether he had

told to the police that he had received injury on his right hand due to throwing

of petrol bottle. Similarly, PW1 Shri Om Prakash who was a supervisor of

Chinese Embassy stated about the persons coming in the taxies having

Tibetan flags, throwing glass bottles at Chinese Embassy causing fire in the

guardroom, breaking of the window panes and burning of the sofa set. He

stated that he did not receive any injuries but PW2's hand was burnt at the

gate of the Embassy. He also failed to identify the Appellants however

admitted his signatures being taken on memos Ex. PW1/A, Ex.PW1/B and Ex.

PW 1/C. He also identified his signatures on the personal search memos Ex.

PW1/D1 to Ex PW1/D9. PW4 Const. Satinder Singh in his testimony has

stated that he was posted in the 7th Battalion and at about 12:45 PM he along

with Const. Manoj was patrolling at Shantipath. In the meantime, 2-3 taxies

came towards the Chinese Embassy main gate. One person was having flag

and the remaining persons were having petrol bottles. He and Constable

Manoj tried to apprehend the accused who were present in the Court but they

started beating Manoj. Thereafter, he informed the PCR and also informed at

the Chankyapuri Police Station. Senior police officers reached there and local

police also reached at the spot and arrested all the accused persons. PW11

Constable Manoj Kumar has also reiterated the same facts as stated by PW4.

He deposed that on 11th March, 1992 he was posted in Special Task Force in

Police Station Chanakyapuri and at about 12.45 PM he along with PW4 was

on patrolling duty at Shanti Path near Chinese Embassy. About 8-10 persons

got down from three vehicles and proceeded towards Chinese Embassy. The

person leading them was having a Tibetan Flag in his hand and rest all were

having bottles with wick on it. When he and PW4 tried to stop them in front

of Chinese Embassy, they started abusing them and gave him fist blows. He

has identified the 8 Appellants and one more person who had assaulted him

and had thrown burning bottles at the Chinese Embassy. The witness further

deposed that after he was beaten and as he felt pain on the right side of his

chest which increased by the evening, he was medically examined at the RML

Hospital. PW7 Sub-Inspector Ram Sunder, the Investigating Officer who

reached at the spot has stated that he saw the Appellants quarrelling with

Constables of Special Task Force and that the gate of Chinese Embassy was

burnt and window panes were broken. This witness has identified Appellant

No.1 Choegyal as the person who was holding the Tibetan Flag in his hand

which was seized by him vide Memo Ex.PW7/A. He arrested the accused and

conducted his personal search vide memo Ex.PW1/D1 to D9. He also seized

the caps of broken bottles Ex/P3 and coloured bands with some inscription on

it Ex. X1 and X2 vide memo Ex. PW1/C. Broken glass pieces lying outside

and inside the Chinese Embassy and from inside the guard room were also

seized vide memo Ex.PW1/A. Thus, from the testimony of PW7, PW11 and

PW4 duly corroborated by PW1 and PW2 to the extent of the occurrence of

incident, it is proved that the Appellants on the date of incident reached at the

Chinese Embassy and raised slogans against China and manhandled the police

officials and hence were arrested on the spot by PW7. Though PW1 and PW2

have denied the identity of all the Appellants who were apprehended at the

spot but they have admitted having signed the personal search memo Ex.

PW1/D1 to D9. Thus, in my opinion, the prosecution has proved the presence

of the Appellants at the spot and the rioting committed by them in furtherance

of their common intention. The identity of the Appellants is being duly

proved by PW 11, PW 4 and PW7 who arrested them on the spot; even though

PW1 and PW2 have turned hostile. Thus, there is no merit in the contention

of learned counsel for the Appellants that the presence of the Appellants at the

spot has been held to be proved because of the suggestions given on behalf of

the Appellants and the prosecution has not proved its case and the conviction

is based on the weaknesses of the defence.

6. As regards offence under Section 324/149 IPC is concerned, PW 2 has

denied having received any injury however he has admitted that he was

medically examined on that day. The MLC of PW 2 has not been disputed

during the trial by the accused persons. It is well settled that an admitted

document is not required to be proved. As per the MLC, there was a small

burn of about 1 c.m. at lower half of the interior aspect of right forearm with

slight blister formation. The nature of injury was opined to be simple. Even

the MLC of PW 11 Constable Manoj Kumar has been admitted by the accused

persons and thus was not required to be proved. As per the MLC, the injury

on the person of PW1, was tenderness at the right side of Antereior chest wall

and nature of injury was opined to be simple caused by a blunt object. Thus, I

find no infirmity in the conviction of the Appellants under Sections 324/149

IPC for causing hurt by burn is proved by the Prosecution.

7. As regards offence under Section 435 is concerned, it may be noted that

the CFSL Report has not been proved by the prosecution nor the burnt articles

were seized. What has been seized and proved is broken glass pieces and in

the absence of proof that mischief was caused by fire, the Appellants are

liable to be convicted for offence punishable under Section 426 IPC.

8. From the testimony of PW11, PW4 and PW7, it is clear that the

Appellants obstructed the police officers in discharge of their duties. The

Appellants even assaulted PW11 thereby causing deterrence to the police

officers in performance of their duty which can be inferred from the facts of

the present case and the testimonies of PW11 and PW4 deposing about the

same and hence there is no infirmity in the impugned judgment convicting the

Appellants for offence punishable under Sections 353/186/149 IPC. The

reliance of the Appellant on P. Rama Rao (supra) is misconceived and the

same has no application to the facts of the present case. In the said case, there

was no deterrence caused and thus the Court came to the conclusion that the

provision under Section 353 IPC was not attracted.

9. As regards the conviction under Sections 148/149 IPC is concerned, the

presence of the Appellants have been proved. It is proved that they formed an

unlawful assembly with the object of rioting and thus there is no infirmity in

judgment on this count. Thus, the judgment of conviction of the Appellants is

maintained, except modifying it from an offence under Sec. 435 IPC to that

for offence under Section 426 IPC.

10. The Appellants have been awarded a sentence of imprisonment for one

year and fine of `500/- each for offence punishable under Sections

353/324/149/148 IPC and Rigorous Imprisonment for one month and a fine of

`100/- each under Section 186 IPC, the Appellants have already paid the fine.

Since the conviction of the Appellants is modified from that under Section

435 IPC to that under Section 426 IPC which is punishable upto three months,

in my opinion, it would be in the interest of justice that the sentence of the

Appellants is modified to that of the period already undergone particularly in

view of the fact that they have faced the ordeal of trial in the present appeal

for the last 19 years. The appeal is disposed of accordingly.

(MUKTA GUPTA) JUDGE JULY 07, 2011 vn