Delhi High Court
Shiv Kumar @ Bhaggu vs State on 31 May, 2016
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on: May 26, 2016
% Judgment Delivered on: May 31, 2016
+ CRL.A. 489/2015
SUNIL BIHARI ..... Appellant
Represented by: Mr.Sunil Tiwari, Adv.
versus
THE STATE ( NCT OF DELHI) ..... Respondent
Represented by: Mr.Ravi Nayak, APP with SI
Pawan Kumar PS Subzi Mandi,
SI Satvir Singh PS Kasmere
Gate.
+ CRL.A. 1085/2015
SHIV KUMAR @ BHAGGU ..... Appellant
Represented by: Ms.Rakhi Dubey, Adv.
versus
STATE ..... Respondent
Represented by: Mr.Ravi Nayak, APP with SI
Pawan Kumar PS Subzi Mandi,
SI Satvir Singh PS Kasmere
Gate.
+ CRL.A. 1188/2015
RAHUL JAIN @ SONU ..... Appellant
Represented by: Mr.Harsh Prabhakar, Adv.
DHCLSC with Mr.Anirudh
Tanwar, Adv.
versus
STATE ..... Respondent
Represented by: Mr.Ravi Nayak, APP with SI
Pawan Kumar PS Subzi Mandi,
SI Satvir Singh PS Kasmere
Gate.
Crl.A. 489/2015 & conn.matters Page 1 of 25
+ CRL.A. 595/2015
AJAY @ AJJU ..... Appellant
Represented by: Mr.Dhan Mohan, Ms.Tanu B.
Mishra, Advs.
versus
THE STATE GNCT OF DELHI ..... Respondent
Represented by: Mr.Ravi Nayak, APP with SI
Pawan Kumar PS Subzi Mandi,
SI Satvir Singh PS Kasmere
Gate.
+ CRL.A. 843/2015
SHABIR ALI ..... Appellant
Represented by: Mr.Dhan Mohan, Ms.Tanu B.
Mishra, Advs.
versus
STATE GNCT OF DELHI ..... Respondent
Represented by: Mr.Ravi Nayak, APP with SI
Pawan Kumar PS Subzi Mandi,
SI Satvir Singh PS Kasmere
Gate.
+ CRL.A. 848/2015
ANIL @ BUTA ..... Appellant
Represented by: Mr.Dhan Mohan, Ms.Tanu B.
Mishra, Advs.
versus
STATE (GNCT OF DELHI) ..... Respondent
Represented by: Ms.Rajni Gupta, APP with SI
Pawan Kumar PS Subzi Mandi,
SI Satvir Singh PS Kasmere
Gate.
Crl.A. 489/2015 & conn.matters Page 2 of 25
+ CRL.A. 891/2015
AMIT SHUKLA @ GOLDI ..... Appellant
Represented by: Ms.Rakhi Dubey, Adv.
versus
STATE NCT OF DELHI ..... Respondent
Represented by: Ms.Rajni Gupta, APP with SI
Pawan Kumar PS Subzi Mandi,
SI Satvir Singh PS Kasmere
Gate.
+ CRL.A. 907/2015
DEEPAK ..... Appellant
Represented by: Mr.Dhan Mohan, Ms.Tanu B.
Mishra, Advs.
versus
STATE G.N.C.T. OF DELHI ..... Respondent
Represented by: Ms.Rajni Gupta, APP with SI
Pawan Kumar PS Subzi Mandi,
SI Satvir Singh PS Kasmere
Gate.
+ CRL.A. 910/2015
GOMTI @ MANOJ ..... Appellant
Represented by: Mr.Dhan Mohan, Ms.Tanu B.
Mishra, Advs.
versus
STATE G.N.C.T. OF DELHI ..... Respondent
Represented by: Ms.Rajni Gupta, APP with SI
Pawan Kumar PS Subzi Mandi,
SI Satvir Singh PS Kasmere
Gate.
Crl.A. 489/2015 & conn.matters Page 3 of 25
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J.
1. Appellants have been convicted for the offences punishable under
Sections 307/186/332/353/148/342/440/120-B IPC vide the impugned
judgment dated February 20, 2015 and vide order dated March 27, 2015
they have been sentenced to undergo rigorous imprisonments ranging from a
period of 9 years to 4 years which will be dealt in detail while dealing with
the order on sentence. Besides the appellants, 4 more persons were
convicted i.e. Rehan, Satpal Bedi, Dheeraj and Dharm who preferred no
appeal, thus this Court in the present appeals is concerned with the
abovenoted appellants only.
2. The sequence of events leading to the registration of FIR
No.118/2011 at PS Subzi Mandi under Sections
307/186/333/353/148/342/440/120-B IPC exhibited as Ex.PW-2/A are that
one FIR No.207/2011 was registered at PS Uttam Nagar under Sections
307/34 and 27 Arms Act wherein Bimla the informant, mother of Ajay @
Ajju suffered a firearm injury on her right thigh. In the said FIR Khalil
Ahmed PW-6 and Akbar Khan PW-7 besides Aftab and Neeraj Gupta were
arrested which led to animosity between appellant Ajay @ Ajju and
witnesses Khalil Ahmed and Akbar Khan, all three of whom were lodged in
Jail. On June 06, 2011 Khalil Ahmed, Akbar Khan and Ajay @ Ajju were
to be produced in Tis-Hazari Court from Tihar jail and Rohini Jail. Thus
they were taken to Tis-Hazari lockup. At around 12.30 PM HC Om Prakash
PW-5 and Constable (in short „Ct.‟) Tej Prakash returned with Ajay @ Ajju
to the lockup after producing him before the Court. As soon as the door of
High Risk kharja was opened, 9-10 Under Trial Prisoners (in short „UTPs‟)
forcibly rushed out of the said kharja. In the meanwhile UTPs, namely,
Gomti @ Manoj (co-accused), Anil (co-accused) and Deepak (co-accused)
also returned to the lockup after attending the proceedings of their respective
cases. Thereafter all of them started yelling that they would kill Khalil
Ahmed PW-6and Akbar Khan PW-7 as they had fired at the mother of Ajay
@ Ajju (co-accused). The accused persons bolted the main entry gate of the
lockup from inside in order to prevent the police officials from entering.
Further, they broke an iron bench which was lying in the lockup and
grabbed the iron pieces of the bench. The accused persons tore the warrants.
They broke open the lock of SAG kharja in which Akbar Khan PW-7was
kept with the iron rods/pieces of the bench. Khalil Ahmed PW-6 was not
present in the said SAG kharja at the said time as he had been taken to
attend the proceedings of the case in which he was arrayed as accused. The
accused persons started beating Akbar Khan PW-7 with the broken iron
rods/pieces of the bench. When Ct. Tej Prakash PW-3 along with other
police officials tried to intervene, co-accused Gomti @ Manoj struck on the
head of Ct. Tej Prakash PW-3.
3. In this regard DD No.16 Ex.PW-1/A was received at Police Post Tis
Hazari where after SI Satbir Singh PW-21 and Ct.Pawan Kumar PW-16
reached Tis Hazari lockup. Ct.Tej Prakash PW-3 was admitted in Aruna
Asaf Ali hospital and had suffered a linear cut injury on the right temporal
region. Akbar Khan PW-7 was taken to Sushruta Trauma Centre and as per
MLC Ex.PW-8/A he suffered the following injuries:
"i) Six contused lacerated wounds over parietal, B/L
temporal and occipital region of skill.
ii) A contused lacerated wound admeasuring 3 cm over
forehead.
iii) An incised wound admeasuring 3 x 1 cm over chin.
iv) An incised wound admeasuring 1 cm over right postero-
superior of neck.
v) Swelling along with a laceration admeasuring 2 cm over
right mid forearm.
vi) An incised wound admeasuring 3 cm over left little
finger [partial amputation].
vii) Deep abrasion over right heel pad.
viii) Abrasion over the right shoulder joint and swelling over
left elbow joint.
ix) Abrasion over right ...(illegible) region of abdomen and
...(illegible) aspect of chest."
4. Injuries No. 1, 2, 5, 7, 8 & 9 on Akbar Khan were opined to be caused
by blunt object whereas injuries No.3, 4 & 6 were caused by sharp object.
The nature of injuries was opined to be grievous. Since Ct.Tej Prakash was
declared fit for statement, his statement was recorded on the basis of which
FIR No.118/2011 was registered at PS Subzi Mandi.
5. Ct.Tej Prakash stated that he was posted at Vikas Puri Lines and on
June 06, 2011 he along with HC Om Prakash high risk Guard had brought
high risk UTPs to the lockup at Tis Hazari. He along with HC Om Prakash
had produced UTP Ajay S/o Ram Kishore in Court No.152 before the
learned Metropolitan Magistrate in FIR No.64/2011 under Section 325 IPC
PS Hari Nagar. After completion of proceedings before the Court, he along
with HC Om Prakash brought Ajay to the lockup and the moment they
entered the high risk kharja after opening the door suddenly 9-10 high risk
prisoners who were locked inside, came out of the kharja forcibly. In the
meantime high risk UTPs Gomti, Anil and Deepak who had also attended
their proceedings reached the kharja. They all started shouting that Khalil
and Akbar Khan have got fired Ajay‟s mother and they would be killed.
These accused persons closed the latch of the main entry gate of the kharja
from inside so that Police staff could not enter in and broke the iron bench in
the gallery of the kharja. They held the pieces of the iron bench lying in
their hand. They tore the warrants in the hands of the Police staff. From the
iron pieces of the bench they broke open the lock of SAG kharja where
Khalil and Akbar Khan were locked. He clarified that Khalil was not in the
kharja as he had been taken for the proceedings before the Court. The
accused assaulted Akbar Khan with the iron pieces from the bench with an
intention to kill him and stated that they would finish him. When he and
other police staff entered to stop the scuffle, UTP Gomti inflicted an injury
on his head and others also beat him. The UTPs also injured themselves
deliberately. He was brought to the hospital and discharged after treatment.
According to him Ajay and his companions in a pre-planned manner
attacked Akbar Khan to kill him.
6. SI Satbir Singh PW-21 took into possession and seized samples of
blood found near the gate of high risk kharja, torn government papers
(warrants), two iron handcuffs with chain, two pieces of broken iron bench,
a piece of blood stained newspaper, sample of blood collected near SAG
kharja, a blood stained piece of commode, a pair of blood stained slippers,
two pages of blood stained handwritten letter, sample of blood present on a
register over the warrant table, hair found outside SAG kharja, one broken
lock and a blood stained white kurta vide Seizure Memo Ex. PW 3/B in the
presence of Ct. Pawan Kumar PW-16 and Ct. Tej Prakash PW-3.
7. After Akbar Khan was declared fit for statement at 6.15 PM on June
06, 2011 his statement under Section 161 Cr.P.C. was recorded. SI Satbir
Singh sought opinion with regard to the weapon of offence by filing an
application to the Sushruta Trauma Centre on which Dr.J.K.Basu after
examining the two hollow iron rods Ex.P-4 opined that the possibility of
injuries No.1, 2 & 5 mentioned in Ex.PW-8/A, the MLC of Akbar Khan
PW-7 having been sustained due to the impact of aforementioned weapon
could not be ruled out.
8. At the time of framing of charge Vikram was discharged whereas
Naim passed away during trial. Thus the present appeals before this Court.
9. Learned counsels for the appellants contends that the 'best evidence'
i.e. CCTV footage has been withheld by the prosecution. The said footage
would reveal the events that actually transpired in the kharja and the accused
persons who were involved. HC Gulab Singh PW-10 and SI Manbir Singh
PW-18 have admitted that CCTV cameras were installed in the kharja and
were in operating condition on the day of incident. During the course of
Trial the prosecution has not formally proved the extracts of the register that
was maintained at the kharja to record the movement of prisoners between
the Court and the kharja. Ct. Tej Prakash PW-3, HC Gulab Singh PW-10,
HC Rakesh PW-12, HC Rajeev PW-13 and SI Satbir Singh PW-21 have
admitted the existence of such a register and the fact that the Investigating
Officer did not seize the same. It would however be pertinent to highlight
that the extracts of the said register form part of the Lower Court Record as
it was comprised in the documents appended with the Final Report. No
prosecution witness has attributed any specific overt act to any of the present
appellants except Gomti @ Manoj. A perusal of the testimony of HC Gulab
Singh PW-10 and HC Rakesh PW-12 who have deposed about the
appellants besides those named in rukka being involved in the incident, have
done so in a blogged and an omnibus manner. Furthermore, the statement
under Section 161 Cr.PC of the HC Gulab Singh PW- 10 and HC Rakesh
PW-12 were recorded after a delay of around 1 month i.e. on 4th July, 2011.
It is a settled proposition of law that in cases where many accused are
involved in a mass fight, the Courts must be cautious as there may be a
tendency to implicate passive by-standers. It has been held that unless some
specific overt act has been attributed to the accused, it may not be safe to
sustain a finding of guilt. It assumes significance that in the present case the
incident has occurred in a confined space and the investigating agency has
chosen to implicate all the accused persons lodged in the High Risk kharja.
Ct Tej Prakash PW-3 has deposed before the Court that 4-5 accused persons
(other than accused- Gomti @ Manoj, Anil and Deepak) had forcibly come
out of the door of the High Risk kharja. Therefore it is evident that all the
prisoners lodged in the said kharja were not involved in the incident.
Interestingly, the investigating agency has seized only two pieces of iron rod
from the spot of occurrence Ex. PW-3/B and therefore, it stands ruled out
that every member of the riotous mob alleged to have been formed was
beating Akbar Khan PW-7 with weapons. It would thus not be safe to
readily render a finding of guilt qua the appellants against whom the
witnesses have deposed in a vague fashion and there exists no iota of
corroborative evidence.
10. Learned Amicus Curiae for Rahul Jain Shri Harsh Prabhakar,
Advocate who led the arguments above-noted in addition also stated that
Khalil Ahmed PW-6 expressly said that Rahul Jain was not among the
prisoners who extended threat in the morning and thus there was no pre-
existing enmity between Rahul Jain and Akbar Khan or Khalil Ahmed.
Name of Rahul Jain has been taken by three witnesses i.e. HC Gulab Singh
PW-10, HC Rakesh PW-12 and HC Ram Bhajan PW-15. The learned Trial
Court has already disbelieved the evidence of HC Ram Bhajan PW-15 for
the reason in his cross-examination he has stated that he had not witnessed
the incident. As regards HC Gulab Singh and HC Rakesh are concerned,
though they claim to be eye-witnesses, however their statement under
Section 161 Cr.P.C. was recorded on July 04, 2011 after nearly one month
of the incident though they were Police witnesses and were available to the
investigating agency. HC Gulab Singh in his examination-in-chief stated
that Rehan was part of the group whereas HC Rakesh stated that Rehan and
Sunil were part of the group of assailants. From the kharja register which
shows the entry and exit of the UTPs, Rehan and Sunil were not present at
the time when incident took place. Thus testimonies of both HC Gulab
Singh and HC Rakesh are suspect. Therefore, no reliance can be placed on
their testimony even though they name Rahul Jain. Further the two injured
witnesses have not named Rahul Jain as a member of unlawful assembly nor
attributed any overt act to him. Referring to the decision of the Supreme
Court in State of Punjab Vs. Praveen Kumar AIR 2005 SC 1277 it is
contended that one piece of unreliable evidence cannot be used to
corroborate another piece of unreliable evidence. Learned counsel further
contends that where number of people are implicated, the Court has to adopt
a cautious approach as the chances of false implication are very high. There
is no specific overt act attributable to Rahul Jain. Further from the MLC of
Akbar Khan it is evident that at best two weapons were used one by Gomti,
however who yielded the second weapon is not known. In the absence of
any witness testifying to this effect, appellants cannot be convicted all and
sundry.
11. Learned counsel for Amit Shukla further contends that both the
injured witnesses have not named the appellant. Only PW-10 had identified
the appellant who has not been relied upon by the learned Trial Court.
Further the only role attributed to the appellant if the witnesses are to be
believed is of tearing the warrants, hence he cannot be convicted for the rest
of the offences.
12. Learned counsel for Shiv Kumar further stated that in his statement
under Section 313 Cr.P.C. he had taken the plea that he was unwell, had
taken medicine and was sleeping in the kharja. Though PW-6 stated that
Shiv Kumar threatened however PW-6 himself was not in the kharja when
the incident took place, thus there was no occasion to threaten PW-6.
13. Learned counsel for Sunil Bihari contends that he has specifically
taken the plea and suggested to the witnesses that when the incident took
place he had been produced in the Court and was not present in the kharja
which fact has not been considered by the learned Trial Court. The register
of the kharja which noted the entry and exit of the UTPs was deliberately
not exhibited by the prosecution though filed with the charge-sheet. Since
the entries therein are in favour of the appellant, he can certainly utilise the
same to show his false implication. Despite the fact that the appellant was
not named in the FIR, no TIP was got conducted. Thus omnibus
identification in the dock cannot be the basis of conviction.
14. Learned counsel for Deepak and Gomti contends that they took the
specific plea that they were outside the kharja at the relevant time in their
statement under Section 313 Cr.P.C. which has not been considered by the
learned Trial Court.
15. In the alternative all the accused have taken the plea that undue harsh
sentence has been imposed on them. In case this Court upholds the
conviction of the appellants, they be released on the period already
undergone.
16. Learned APP for the State on the other hand contends that though
Ajay, Gomti, Anil and Deepak have been named but witnesses have clearly
stated that there were other UTPs and the FIR is not the encyclopaedia of the
prosecution case. In the Court Ct.Tej Prakash, the maker of the FIR
identifies all the appellants who were present at the time of incident and
committed the offences alleged. Parwaiz Ahmed PW-11 DCP 3rd Batalion
appeared in the witness box and deposed that no CCTVs were installed
either inside the lockup of Tis Hazari or at the main entrance gate of Tis
Hazari lockup. Thus the best evidence has not been withheld. This version
of the DCP is also corroborated by the other witnesses. The entry exit
register was inadvertently not exhibited though filed with the charge-sheet.
Though Khalil PW-6 did not depose about the incident, however he deposed
about the previous threat and involvement of Rehan, Sunil Bihari, Satpal
Bedi and Amit Shukla as well. Thus even if they were not named in the
rukka they were involved in the incident.
17. Before dealing with the rival contentions, it would be appropriate to
note the testimony of the relevant witnesses before the Court. Ct.Tej
Prakash PW-3 deposing in sync with his statement on the basis of which FIR
was registered stated that when Ajay was sent inside the high risk lockup, at
that time 4-5 UTPs of the high risk lockup forcibly came out of the door of
the kharja and UTPs Gomti, Anil and Deepak also came in the kharja after
their peshi and they started shouting that they would kill Khalil and Akbar
Khan as they have got fired on the mother of Ajay. The above-named UTPs
bolted the latch of the kharja so that the Police personnel could not enter the
kharja. They picked up the pieces of iron after breaking the bench and
proceeded towards SAG kharja and broke the lock of the same. UTP Akbar
was inside the kharja and the above-named UTPs along with others started
beating Akbar Khan with the pieces of iron bench by threatening him. He
along with other Police Personnel intervened to save Akbar Khan when UTP
Gomti hit him on the head with the piece of iron bench. They were
controlled by the other Police personnel. In Court he identified the accused
involved in the incident by saying "the other accused persons present in
Court today are the same Under Trial Prisoners who were attacking Akbar
Khan". In cross-examination he admitted that he could not identify each of
the UTP by their name and that he could also not identify Deepak, Anil and
Ajay @ Ajju by their name.
18. HC Gulab Singh was examined as PW-10 who claimed to be an eye-
witness. According to HC Gulab Singh after Ajay and 2-3 other accused
entered inside the kharja, other accused persons namely Shabir, Dharm,
Naim, Rehan, Gomti, Deepak, Shukla and Jain came out of the lockup, they
tore the warrants, broke the bench of the lockup, broke the lock of the
lockup, entered inside SAG lockup and started beating Akbar Khan. Police
officials intervened and controlled the accused persons and put them in
separate kharjas. He identified that all the accused persons present in the
Court except Naim who was not present, as the accused who had inflicted
injuries to the Police officials who were on the duty in the lockup. In cross-
examination PW-10 admitted that he had never participated in a judicial TIP
and had never identified any accused person before the investigating officer.
He also admitted that his statement under Section 161 Cr.P.C. was recorded
on July 04, 2011. He also admitted that CCTV was installed inside the
lockup including SAG and other kharjas and was in an operative mode on
June 06, 2011. Reliance cannot be placed on the testimony of HC Gulab
Singh PW-10 for the reason his statement under Section 161 Cr.P.C. was
recorded after nearly one month. He did not know the accused by name and
only could identify them on being produced. He has identified the accused
for the first time in Court on January 28, 2014 after a period of 2½ years and
it was not possible for him to have known their faces so well except the one
whom he would have produced in Court or had the occasion to sit with them
for quite some time. This witness in his cross-examination admitted that he
was outside the cell when the incident took place and what was happening
inside the lockup was not visible from outside.
19. HC Rakesh PW-12 also deposed in sync with the testimony of HC
Gulab Singh PW-10. He stated that when Ajay was being brought back into
the lockup, Ajay, Shabir, Rehan, Satpal Bedi, Dharm, Gomti, Sunil, Naim,
Rahul Jain and some more persons started shouting and abusing. He
narrated about the incident. In his cross-examination he stated that he had
witnessed the incident in question, however he admitted that he was outside
the cell at that time and from outside the cell what was happening inside the
lockup was not visible. He also admitted that he never identified any of the
accused in judicial TIP nor before the investigating officer and that his
statement was recorded on the same day i.e. June 06, 2011. However, from
the record it is evident that statement of HC Rakesh under Section 161
Cr.P.C. was recorded on July 04, 2011 and not June 06, 2011. Thus this
belated statement of HC Rakesh with no judicial TIP or identification before
the investigating officer and identification for the first time in the dock after
a period of more than 2 and a half years cannot be relied upon. Moreover
this witness himself admitted that he was outside and could not see what
happened inside the lockup.
20. Supreme Court in the decision reported as AIR 2010 SC 3000
Siddanki Ram Reddy Vs. State of Andhra Pradesh emphasizing the need of
an immediate test identification parade wherein a mob attacks the injured
and there is hardly any time for the injured to see the assailants held-
"20. This Court has held in Daya Singh v. State of Haryana
(AIR 2001 SC 1188; 2001 AIR SCW 936) (supra) cited by Mr.
Reddy that the purpose of test identification is to have
corroboration to the evidence of the eye witnesses in the form of
earlier identification and that the substantive evidence of a
witness is the evidence in the Court and if that evidence is found
to be reliable then absence of corroboration by test identification
would not be in any way material. In the facts of the present
case, a mob attacked the deceased in the crowded corridors of
the court of the 2nd Additional District Judge and PW-1, PW-5
and PW-6 in their evidence in the court claim to have seen the
accused No. 1 (appellant) chasing the deceased with an axe and
assaulting the deceased with axe on his neck. All these three eye
witnesses have also stated that soon after the assault the
appellant ran away from the court premises. The three eye
witnesses thus saw the assailant for a very short time when he
assaulted the deceased with the axe and thereafter when he made
his escape from the court premises. When an attack is made on
assailant by a mob in a crowded place and the eye witnesses had
little time to see the accused, the substantive evidence should be
sufficiently corroborated by a test identification parade held
soon after the occurrence and any delay in holding the test
identification parade may be held to be fatal to the prosecution
case. In Lal Singh and Ors. v. State of U.P.( AIR 2004 SC 2009;
2003 AIR SCW 6133), this Court has held that where the witness
had only a fleeting glimpse of the accused at the time of
occurrence, delay in holding a test identification parade has to
be viewed seriously."
21. HC Rajeev PW-13 who was posted as MHC in ODI lockup Tis Hazari
deposed about the incident and that both Akbar Khan and Tej Prakash
received injuries and were taken to the hospital. He stated that he was inside
the lockup and witnessed the incident. Though having witnessed the
incident he does not name or identify any of the appellants present in the
Court. Thus testimony of HC Rajeev is of no avail as he has neither named
any of the appellants nor identified them in the Court.
22. HC Ram Bhajan PW-15 though in his examination-in-chief stated that
on June 06, 2011 Ajay @ Ajju, Shabir Ali, Neeraj, Sunil, Rehan, Dharm,
Naim, Rahul Jain, Shukla and Satpal Bedi were inside lockup of high risk
kharja and when Ajay entered the lockup, Ajay along with these accused
started abusing, the other accused started making noise and after using the
force came out and tore the warrants. However in the dock he was able to
identify only 4 accused namely Amit Shukla, Rehan, Rahul Jain and Anil.
In cross-examination this witness stated that he had not seen the incident and
was outside kharja and that on the day he was not performing his duty at
kharja. His duty was only to bring the accused persons from jail to kharja
lockup and thereafter to produce them in the Court. This witness has rightly
not been relied upon by the learned Trial Court and discredited.
23. Akbar Khan was examined as PW-7. However he had not supported
the prosecution case and stated that he was hit by somebody on his head
from behind the back and he did not know who the persons were. He was
confronted with his statement recorded under Section 161 Cr.P.C. by the
learned APP which he denied.
24. HC Om Prakash who had brought Ajay from the Court Room No.152
Tis Hazari Courts along with Ct.Tej Prakash and re-admitted Ajay into the
lockup when the incident took place stated that he had not witnessed who
quarrelled with the UTPs and could not identify them.
25. Even as per the prosecution case Khalil Ahmed PW-6 was not present
when the incident took place. However Khalil Ahmed deposed that on June
06, 2011 when he was being brought to Tis Hazari lockup for hearing of the
case he was sitting in the front side of the vehicle separately due to Court
orders. 7-8 prisoners threatened him by showing the blades that they would
kill him in the lockup itself. In view of the Court orders he was kept in a
separate lockup i.e. SAG lockup where Akbar Khan was also lodged. He
named Ajay @ Ajju, Dharm @ Bunti, Shabir Ali, Dheeraj and others as the
prisoners who threatened him. In Court he identified the 4 above-named
prisoners besides Anil and Shiv Kumar. He however did not identify Amit
Shukla, Rahul, Satpal Bedi, Deepak, Sunil Bihari, Gomti @ Manoj and
Rehan as the prisoners who threatened him. He deposed that when he was
brought back to the lockup at 12.45 noon, he found the lock of the SAG
lockup broken and articles scattered. He deposed that the accused identified
by him were inside and they had bolted the grill from inside whereas the
security staff was outside and one of the Police official was injured.
26. Testimonies of HC Ram Bhajan and HC Rajeev are of no avail to the
prosecution as they do not identify any of the accused and state that they
have not witnessed the incident. As regards HC Gulab Singh and HC
Rakesh PW-10 and PW-12 though they claim to have witnessed the incident
as noted above, their statements under Section 161 Cr.P.C. were recorded
only after a period of one month. No judicial TIP was conducted nor they
identified the accused before the investigating officer.
27. Though some of the witnesses stated that CCTV cameras were not
fitted in the kharja, the other stated that CCTV cameras were installed
however the concerned DCP appeared as PW-11 and set at rest the
controversy, deposing that on the date of the incident no CCTV cameras
were installed either inside or outside the lockup. In the absence of CCTV
camera the other evidence which can be relied upon was entry and exit
register kept at the lockup which though filed with the charge-sheet was not
exhibited by the prosecution. Thus though the said document cannot be read
in favour of the prosecution, however it would be appropriate to note certain
entries in the said register. As per entry No.5 appellant Sunil was taken out
of the lockup at 11.00 AM for being produced in Court. Sunil re-entered the
lockup vide entry No.11 at 1.30 PM. The incident took place around 12.30
PM immediately after Ajay entered the lockup at 12.25 PM. Thus Sunil
who has been named as an accused by the witnesses was not even in the
lockup at the relevant time. Similarly, as per entry No.9 Rehan S/o
Safiuddin was taken for Court proceedings at 12.25 PM. Thus he could not
have been at the time of incident inside the lockup. Besides Sunil and Rehan
entitled to the benefit of doubt, the version of HC Gulab Singh and HC
Rakesh who have named the other co-accused with Sunil and Rehan become
suspect.
28. As noted above, in the rukka Ct.Tej Prakash PW-3 named Ajay,
Gomti, Anil and Deepak. He reiterated these names in his deposition before
the Court. However, 4-5 other UTPs who were involved were not named by
him nor was any supplementary statement recorded identifying the other 4-5
UTPs. No Test Identification was conducted. The dock identification is
omnibus as noted above wherein he says that the accused persons present in
the Court were the same UTPs who were attacking Akbar Khan. Thus
reliance cannot be placed on the testimony of Ct.Tej Prakash as regards the
involvement of other appellants besides Ajay, Gomti, Anil and Deepak.
29. The Supreme Court in the decision reported as (2012) 12 SCC 711
Busi Koteswara Rao and Ors. Vs. State of Andhra Pradesh reiterating the
decision of the larger Bench in Masalti Vs. State of U.P. AIR 1965 SC 2002
held:
"12. Even, as early as in 1965, a larger Bench of this Court
in Masalti v. State of U.P. [AIR 1965 SC 202 : (1965) 1 Cri LJ
226] considered about how the prosecution case is to be
believed. The principles laid down in para 16 of the decision
are relevant which are as under: (AIR p. 210)
"16. Mr Sawhney also urged that the test applied by
the High Court in convicting the appellants is
mechanical. He argues that under the Evidence Act, 1872
trustworthy evidence given by a single witness would be
enough to convict an accused person, whereas evidence
given by half a dozen witnesses which is not trustworthy
would not be enough to sustain the conviction. That, no
doubt is true; but where a criminal court has to deal with
evidence pertaining to the commission of an offence
involving a large number of offenders and a large
number of victims, it is usual to adopt the test that the
conviction could be sustained only if it is supported by
two or three or more witnesses who give a consistent
account of the incident. In a sense, the test may be
described as mechanical; but it is difficult to see how it
can be treated as irrational or unreasonable. Therefore,
we do not think that any grievance can be made by the
appellants against the adoption of this test. If at all the
prosecution may be entitled to say that the seven accused
persons were acquitted because their cases did not
satisfy the mechanical test of four witnesses, and if the
said test had not been applied, they might as well have
been convicted. It is, no doubt, the quality of the evidence
that matters and not the number of witnesses who give
such evidence. But sometimes it is useful to adopt a test
like the one which the High Court has adopted in dealing
with the present case."
13. It is clear that when a criminal court has to deal with
evidence pertaining to the commission of an offence involving a
large number of offenders and a large number of victims, the
normal test is that the conviction could be sustained only if it is
supported by two or more witnesses who give a consistent
account of the incident in question.
14. No doubt, in State of U.P. v. Dan Singh [(1997) 3 SCC
747 : 1997 SCC (Cri) 469] , a Bench of two Judges, in para 48
has held that: (SCC p. 765)
"48. ... it would be safe if only those of the
respondents should be held to be the members of the
unlawful assembly who have been specifically identified
by at least four eyewitnesses."
15. We have already quoted the requirements for convicting
an accused in a clash between two groups as per Masalti [AIR
1965 SC 202 : (1965) 1 Cri LJ 226] which is a larger Bench
decision of this Court. In the light of the same, we reiterate and
hold that when an unlawful assembly or a large number of
persons take part in arson or in a clash between two groups, in
order to convict a person, at least two prosecution witnesses
have to support and identify the role and involvement of the
persons concerned."
30. Applying the law laid down by the Supreme Court it may be noted
that injured Akbar Khan PW-7 has not named any assailant whereas PW-3
has specifically named Ajay, Gomti, Anil and Deepak and by way of an
omnibus statement identified all the other accused whom he has not named
in the FIR and no supplementary statement was recorded. Further HC
Rajeev PW-13 whose statement under Section 161 Cr.P.C. was recorded on
June 06, 2011 has also not assigned any specific role to any accused and in
his examination-in-chief he has not identified any of the accused present in
Court as the member of the unlawful assembly, or the assailant, or who gave
exhortation. Though he admits that no TIP proceedings were conducted and
states that he identified the accused before investigating officer however no
such statement in regard to identification was available on the judicial file.
Further as noted above, statements of HC Gulab Singh PW-10 and Rakesh
PW-12 under Section 161 Cr.P.C. were recorded after a period of nearly one
month and there was no basis how they could name all the appellants.
Testimony of PW-10 and PW-12 is contradicted by the register showing the
entry and exit of Sunil and Rehan. Hence it would be unsafe to rely upon
their testimony.
31. A perusal of the Trial Court Record would reveal that vide Ex.PW-
14/A the prosecution proved the list of high risk UTPs who were brought
from Tihar jail and the Police officers who accompanied them. Though all
the participants of the unlawful assembly could not be identified it is
apparent that on the basis of list all the high risk UTPs who were brought on
that day have been involved in the present case besides Ajay @ Ajju who
was the other high risk prisoner brought from Rohini jail by HC Om Prakash
and Ct.Tej Prakash. The mere presence of a prisoner in the high risk cell of
the kharja where the incident took place would not make him a member of
the unlawful assembly. The prosecution was required to prove by leading
positive evidence, even if no overt act was attributed, that the accused
participated in the unlawful assembly with a common object. In the absence
of specific evidence of participation with a common object, a person cannot
be convicted with the aid of Section 148.
32. Discussing the scope of constructive liability in an unlawful assembly
the Supreme Court in the decision reported as (2013) 4 SCC 607 Subal
Ghorai & Ors. Vs. State of West Bengal held:
"52. The above judgments outline the scope of Section 149
IPC. We need to sum up the principles so as to examine the
present case in their light. Section 141 IPC defines unlawful
assembly to be an assembly of five or more persons. They must
have common object to commit an offence. Section 142 IPC
postulates that whoever being aware of facts which render any
assembly an unlawful one intentionally joins the same would be
a member thereof. Section 143 IPC provides for punishment for
being a member of unlawful assembly. Section 149 IPC
provides for constructive liability of every person of an
unlawful assembly if an offence is committed by any member
thereof in prosecution of the common object of that assembly or
such of the members of that assembly who knew to be likely to
be committed in prosecution of that object. The most important
ingredient of unlawful assembly is common object. Common
object of the persons composing that assembly is to do any act
or acts stated in clauses "First", "Second", "Third", "Fourth"
and "Fifth" of that section. Common object can be formed on
the spur of the moment. Course of conduct adopted by the
members of common assembly is a relevant factor. At what
point of time common object of unlawful assembly was formed
would depend upon the facts and circumstances of each case.
Once the case of the person falls within the ingredients of
Section 149 IPC, the question that he did nothing with his own
hands would be immaterial. If an offence is committed by a
member of the unlawful assembly in prosecution of the common
object, any member of the unlawful assembly who was present
at the time of commission of offence and who shared the
common object of that assembly would be liable for the
commission of that offence even if no overt act was committed
by him. If a large crowd of persons armed with weapons
assaults intended victims, all may not take part in the actual
assault. If weapons carried by some members were not used,
that would not absolve them of liability for the offence with the
aid of Section 149 IPC if they shared common object of the
unlawful assembly.
53. But this concept of constructive liability must not be so
stretched as to lead to false implication of innocent bystanders.
Quite often, people gather at the scene of offence out of
curiosity. They do not share common object of the unlawful
assembly. If a general allegation is made against large number
of people, the court has to be cautious. It must guard against
the possibility of convicting mere passive onlookers who did not
share the common object of the unlawful assembly. Unless
reasonable direct or indirect circumstances lend assurance to
the prosecution case that they shared common object of the
unlawful assembly, they cannot be convicted with the aid of
Section 149 IPC. It must be proved in each case that the person
concerned was not only a member of the unlawful assembly at
some stage, but at all the crucial stages and shared the common
object of the assembly at all stages. The court must have before
it some materials to form an opinion that the accused shared
common object. What the common object of the unlawful
assembly is at a particular stage has to be determined keeping
in view the course of conduct of the members of the unlawful
assembly before and at the time of attack, their behaviour at or
near the scene of offence, the motive for the crime, the arms
carried by them and such other relevant considerations. The
criminal court has to conduct this difficult and meticulous
exercise of assessing evidence to avoid roping innocent people
in the crime. These principles laid down by this Court do not
dilute the concept of constructive liability. They embody a rule
of caution."
33. For the discussion aforesaid it can safely be held that the prosecution
has proved its case beyond reasonable doubt only against Ajay @ Ajju,
Gomti @ Manoj, Anil @ Buta and Deepak. Thus the impugned judgment
of conviction qua appellants Ajay @ Ajju, Gomti @ Manoj, Anil @ Buta
and Deepak is upheld.
34. Appellants Ajay @ Ajju, Anil @ Buta and Gomti @ Manoj have been
awarded rigorous imprisonment for a period of 9 years. Ajay @ Ajju, Anil
@ Buta and Gomti @ Manoj are suffering life imprisonment with
unsatisfactory jail conduct. Thus I find no reason to interfere with the
sentence awarded by the learned Trial Court. Since there was no previous
conviction of Deepak and he was acquitted in one case in which he was
undergoing trial, the learned Trial Court awarded him imprisonment for a
period of 4 years and 3 months which also needs no interference.
Accordingly, Crl.A.Nos. 595/2015, 848/2015, 907/2015 and 910/2015 are
dismissed.
35. Appellant Sunil Bihari, Shiv Kumar @ Bhaggu, Rahul Jain @ Sonu,
Shabir Ali, Amit Shukla @ Goldi are granted the benefit of doubt and
acquitted of the charges. The impugned judgment of conviction and order
on sentence qua Sunil Bihari, Shiv Kumar @ Bhaggu, Rahul Jain @ Sonu,
Shabir Ali, Amit Shukla @ Goldi are set aside. Crl.A.Nos. 489/2015,
1085/2015, 1188/2015, 843/2015 & 891/2015 are disposed off. Sunil
Bihari, Shiv Kumar @ Bhaggu, Rahul Jain @ Sonu, Shabir Ali and Amit
Shukla @ Goldi be released forthwith, if not required in any other case.
36. Copy of this order be sent to Superintendent Central Jail Tihar for
updation of the Jail record.
37. TCR be returned.
(MUKTA GUPTA)
JUDGE
MAY 31, 2016
'ga'
