Delhi District Court
State vs Narbada Prasad Prajapati on 28 June, 2025
IN THE COURT OF MS. NEHA MITTAL
ADDITIONAL CHIEF JUDICIAL MAGISTRATE-03
ROUSE AVENUE DISTRICT COURT, NEW DELHI
State Vs Narbada Prasad Prajapati & Ors.
DLCT12-000275-2024
CR Cases No.13/2024
FIR No.38/2006
Police Station : Parliament Street
Date of institution of the case : 21.05.2008
Date of reserving for judgment : 30.05.2025
Date of pronouncement of judgment : 28.06.2025
a. Serial No. of the case 13/2024
b. Date of commission of offence 21.02.2006
c. Name of the complainant SI M.P. Saini
d. Name, parentage and address 1. Narbada Prasad Prajapati
of accused persons S/o Sh. Sant Ram
R/o H.No.121, Malviya Nagar,
Bhopal, M.P.
2. Phire Ram Prajapati
S/o Sh. Bhagan Singh
R/o Gali No.3, Kailash Colony,
Modi Nagar, Ghaziabad, U.P
(convicted vide order dt.
27.10.2016)
3. Rajender Tanwar Prajapati
S/o Sh. Kishan Lal
R/o Gali Dhankan, Patram Gate,
Bhiwani, Haryana. (convicted
Digitally
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FIR No. 38/2006 PS Parliament Street NEHA
State v. Narbada Prasad Prajapati & Ors. NEHA MITTAL
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vide order dt. 08.07.2017)
4. Laxmi Chand Prajapati
S/o Late Sh. Phool Singh
R/o H. No.61, Todarmal Colony,
Najafgarh, New Delhi.
(convicted vide order dt.
08.07.2017)
5. Keshav Prasad Prajapati
S/o Late Sh. Basawan Pandit
R/o Ward No. 3, Nai Bazar,
District Baxar, Bihar.
(proceeding abated vide order dt.
02.07.2015)
e. Offence complained of U/s 147/148/149/186/188/332/353 IPC
f. Plea of accused Pleaded not guilty
g. Final order Acquittal
h. Date of judgment 28.06.2025
JUDGMENT
1. Vide this judgment, this court shall proceed to decide the instant
matter emanating from the FIR No. 38/2006 PS- Parliament Street
registered under section 147/148/149/186/188/332/353 Indian Penal Code,
1860 (in short ‘IPC‘).
Digitally
signed by
NEHA
NEHA MITTAL
MITTAL Date:
2025.06.28
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FIR No. 38/2006 PS Parliament Street
State v. Narbada Prasad Prajapati & Ors. Page 2 of 26
2. At the outset, it is worth mentioning here that this court is a
special/designated court constituted for trying the cases instituted against
Members of Parliament/Members of Legislative Assemblies. In the matter
at hand, the accused no.1 Narbada Prasad Prajapati is a former MLA.
Brief Statement of facts:
3. The facts of the present case as per the prosecution are that on
21.02.2006, information was received in the control room that a procession
under the leadership of co-accused Phire Ram Prajapati (already convicted)
shall take place towards Parliament. On receiving the information,
necessary arrangements in the form of three layers of barricading was done
and staff was deputed. It is stated that at around 01:30 pm, a mob of
approximately 3000-3500 people came and they were being incited to enter
the Parliament by their leaders i.e. co-accused Phire Ram Prajapati (already
convicted), Laxmi Chand Prajapati (already convicted), Rajender Tanwar
Prajapati (already convicted), Keshav Prasad Pandit (already convicted)
and the present accused namely Narbada Prasad Prajapati. Upon being
incited, the mob started breaking the barricades and pelting stones on the
police personnel upon which the then Addl. SHO made announcement
using loudspeaker that Section 144 Cr.P.C. is in force in the said area due
to which the said procession is illegal. Despite the aforesaid warning and
request made by the then Addl. SHO, the mob broke the first barricade and
attacked the police personnel with stones, sticks and clay pots which they
were carrying. It is further stated that thereafter again same warning was
given by the then Addl. SHO but the mob was out of control and broke the
Digitally
signed by
NEHA
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second barricades also and when they were about to break the third
barricade, water canons were used to disperse the crowd. It is further stated
that in retaliation, the protesters again started pelting stones on the police
personnel due to which Ct. Ramesh, Ct. Babu Ram, Ct. Surender Singh, Ct.
Dinesh, Ct. Shiv Kumar (DHG), Ct. Jagbir Singh (DHG) and CRPF
personnel namely Mukesh, Kamaljeet, Manoj Kumar, Ram Prasad Singh
and Suresh Kumar sustained and they were taken to RML Hospital for
treatment. Tehrir was prepared by SI M.P. Saini, upon which the present
FIR was registered.
4. During investigation, Ist IO / SI M.P. Saini prepared site plan and
seized the stones / sticks lying near the barricades vide seizure memo,
collected the MLCs of the injured from RML hospital, recorded the
statement of the injured police officials. Thereafter, complaint under
section 195 Cr.P.C. was given by the then CP. After completion of
investigation, the present chargesheet was filed.
Filing of charge sheet and framing of charge:
5. After the completion of investigation, the charge sheet in the instant
case was filed on 21.05.2008 under section 147/148/149/186/188/332/353
IPC and section 3(1) of Damage to Public Property Act. Cognizance in the
present matter was taken vide order dated 21.06.2008. Proceedings against
co-accused Keshav Prasad Pandit were abated vide order dated 02.07.2015.
6. Vide order dated 31.07.2014, co-accused Phire Ram Prajapati was
declared as absconder and he was later-on taken into custody vide orderDigitally
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FIR No. 38/2006 PS Parliament Street NEHA
State v. Narbada Prasad Prajapati & Ors. NEHA MITTAL
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dated 20.10.2016. Co-accused Phire Ram Prajapati pleaded guilty to the
offences punishable under Section 146/147/148/ 186/188/332/353/174A
IPC and 3(1) of Damage to Public Property Act and vide order dated
27.10.2016, he was convicted and sentenced to period of imprisonment
already undergone. Thereafter, co-accused Laxmi Chand Prajapati and
Rajender Tanwar Prajapati were convicted vide order dated 08.07.2017 on
an application under Section 265-B Cr.P.C. for plea bargaining moved by
them. Accordingly, only the present accused Narbada Prasad Prajapati has
been left to face the trial.
7. Charge under Section 147/148/149/188/332/353 IPC was framed
against accused Narbada vide order dated 01.08.2018 to which he pleaded
not guilty and claimed trial.
Evidence Led By The Prosecution:
8. In order to prove the case, the prosecution has examined 14
witnesses in total. Vide order dated 07.11.2024, witnesses namely SI Pratap
Singh, Ct. Suresh (mentioned at Srl. No. 7 in list of witnesses) and Ct.
Pramod were dropped from the list of witnesses. PW ASI Joginder was
dropped from the list of witnesses vide order dated 07.12.2024 as he had
passed away.
9. PW1 HC Ramesh deposed that on 21.02.2006, while he was on
duty at Parliament road at barricade, at about 01:30 pm a mob of 3000-
3500 persons led by co-accused Phire Ram (already convicted) was coming
towards barricade. He deposed that the mob broke the first barricade,
Digitally
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NEHA MITTAL
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started pelting stones and moved towards the second barricade and that the
additional SHO was continuously announcing that promulgation under Sec.
144 Cr.P.C. was in force but the mob did not pay any attention. He further
deposed that he alongwith 8-10 police officials sustained injuries in the said
incident due to which they were medically examined in RML hospital. He
deposed that his statement was recorded in the hospital. He further deposed
that he can identify the accused Narbada Prasad but the identity of accused
was not disputed by his counsel. He identified the case property i.e. sticks
and one unsealed bag of stones and bricks (Ex.P1 colly). He was duly
cross-examined by Ld. Counsel for accused.
10. PW2 ASI Parth Singh deposed that on 21.02.2006, while he was on
duty near first barricade in front of PS Parliament Street, at about 01:30
pm, a mob of 30000-35000 persons led by co-accused Phire Ram (already
convicted) was coming towards barricade. He deposed that the additional
SHO was continuously announcing that promulgation under Sec. 144
Cr.P.C. was in force but the protesters started pelting stones due to which
police officials received injuries and water canon was used to disperse the
protesters. He further deposed that thereafter, tehrir prepared by IO / SI M.
P. Saini was handed over to him for getting the FIR registered. He deposed
that IO prepared seizure memo of wooden stick and stones Ex. PW2/A. He
further deposed that he can identify the accused Narbada Prasad but the
identity of accused was not disputed by his counsel. He identified the case
property i.e. sticks, stones and bricks (Ex.P1 colly). He was duly cross-
examined by Ld. Counsel for accused.
Digitally
signed by
NEHA
NEHA MITTAL
MITTAL Date:
FIR No. 38/2006 PS Parliament Street 2025.06.28
14:09:46
State v. Narbada Prasad Prajapati & Ors. +0530 Page 6 of 26
11. PW3 Retd. SI Surender Singh deposed that on 21.02.2006 at around
01:30 pm, he was present at barricade no.3 as water canon staff. He further
deposed that when around 30000-350000 protesters crossed barricade no. 1
and 2, he started water canon. He stated that he cannot identify the accused
Narbada. Thereafter, leading questions were put to the witness by Ld. APP
for the state. He was duly cross-examined by Ld. Counsel for the accused.
12. PW4 HC Dinesh Kumar deposed that on 21.02.2006, while he was
on duty on 1st barricade at about 01:30 pm, a mob of 3000-4000 persons led
by co-accused Phire Ram, Laxmi, Rajender, Keshav (all already convicted)
and accused Narbada were coming towards the first barricade having the
banner in the name of “Rashtriya Mahasabha Prajapati” in their hands. He
deposed that the leaders instigated the protesters by saying ‘Sansad ki taraf
koonch karna hai, jisse hamare adhikar hamein mile, chalo-chalo’ upon
which the mob broke the first barricade, started pelting stones and beating
the police personnel with stick. He deposed that the additional SHO was
trying to control the protesters with loudspeakers but they did not listen to
his request and marched towards second barricade. He further deposed that
he alongwith 4-5 other police officials sustained injuries in the said incident
due to which they were medically examined in RML hospital. He further
deposed that he can identify the accused Narbada Prasad but the identity of
accused was not disputed by his counsel. He was duly cross-examined by
Ld. Counsel for accused.
13. PW5 Ct. Suresh Kumar deposed that on 21.02.2006 at about 01:30
pm, a mob of 3000-3500 persons led by co-accused Phire Ram (already
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convicted) was coming towards barricade. He deposed that the mob broke
the first barricade, started pelting stones and moved towards the second
barricade and that the additional SHO was continuously announcing that
promulgation under Sec. 144 Cr.P.C. was in force but the mob did not pay
any attention. He further deposed that he alongwith many other police
officials sustained injuries in the said incident due to which they were
medically examined in RML hospital. He was duly cross-examined by Ld.
Counsel for accused.
14. PW6 HC / GD CRPF Manoj Kumar Ray deposed on the same lines
as PW-5. He was duly cross-examined by Ld. Counsel for accused.
15. PW7 ASI / CRPF Mukesh Chandra deposed on the same lines as
PW-5 and PW-6. He was duly cross-examined by Ld. Counsel for accused.
16. PW8 Retd. ACP Sushil Chandra deposed on the same lines as
PW-5, PW-6 and PW-7. He identified the accused correctly. He was duly
cross-examined by Ld. Counsel for accused.
17. PW9 Retd. SI Babu Ram and PW10 ASI Surender Singh also
deposed on the same lines as PW-5 to PW-8. They identified the accused
correctly. They were duly cross-examined by Ld. Counsel for accused.
18. PW-11 HC Kamaljit Singh also deposed on the same line as PW-5
to PW-10. As he was not sure whether he will be able to identify the
accused, leading question regarding the same was put to him by Ld. APP
for the State upon which he stated that the accused was most probably
Digitally
signed by
NEHA
FIR No. 38/2006 PS Parliament Street NEHA MITTAL
State v. Narbada Prasad Prajapati & Ors. MITTAL Date:
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present at the spot. He was duly cross-examined by Ld. Counsel for
accused.
19. PW-12 Sh. Jagbir Singh also deposed on the same line as PW-5 to
PW-11. He failed to identify the accused. He was duly cross-examined by
Ld. Counsel for accused.
20. PW-13 Shiv Kumar also deposed on the same line as PW-5 to
PW-12. On seeing the accused, the witness stated that he might be present
as a leader on the day of incident. He was duly cross-examined by Ld.
Counsel for accused.
21. PW-14 Inspector M.P. Saini deposed that he was posted as SI in
P.S. Parliament Street on 21.02.2006 and upon receiving information
regarding an upcoming protest by Prajapati Mahasabha, staff was deputed
at first, second and third barricade and water canon was also installed.
Thereafter, at around 1:30 p.m., accused Phire Ram Prajapati (already
convicted) came there along with 3000 to 3500 supporters who were
carrying sticks, stones and claypots. He further deposed that they were
informed regarding imposition of Section 144 Cr. P.C. and one banner
mentioning the same was also installed. However, despite this, accused
Phire Ram Prajapati and Laxmi Prajapati (both already convicted) along
with three other people incited the protesters upon which they broke all the
three barricade and started throwing stones and claypots on the police
personnel and attacked them with sticks. He further deposed that thereafter
crowd was controlled by using water canons. The police officials who had
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sustained injuries due to attack by the protesters were sent to RML
Hospital. He further deposed that he prepared Tehrir Ex.PW14/A and got
FIR Mark-A registered through HC Parth. He also prepared site plan
Ex.PW14/B, seized stones and sticks from the spot vide seizure memo
Ex.PW2/A, recorded the statement of witnesses and moved application
under Section 195 Cr.P.C. Mark-B. He identified the case property Ex. P1
and P2. He further submitted that he can identify the accused however, the
identity of the accused was not disputed by his counsel. He was duly cross-
examined by Ld. Counsel for accused.
22. Thereafter, PE was closed on 17.02.2025 and the matter got listed
for recording of statement of accused u/s 313 of Cr.P.C.
Examination of accused u/s 313 of the Code of Criminal Procedure, 1973:
23. As mandated u/s 313 of CrPC, the accused was given due
opportunity to personally explain the circumstances appearing against him
in evidence in the matter at hand. All the incriminating facts, circumstances
and evidences were put to him as appeared in the testimonies of
prosecution witnesses and the corresponding documents.
24. The accused in his statement u/s 313 of Cr.P.C. interalia stated that
he was not present at the spot and that he was identified by the witnesses as
he was single accused in the present case. He has further stated that he has
been named as he is one of the leaders of Madhya Pradesh Prajapati Samaj.
He further stated that he was MLA and Minister during 1993 to 1998 and
as such, he was a known face of Prajapati Samaj. The accused opted to lead
Digitally
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Date:
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defence evidence.
Defence Evidence Led By The Accused:
25. Application under Section 311 Cr. P.C. r/w Section 348 BNSS filed
on behalf of the accused for summoning of witnesses was partly allowed
vide order dated 01.04.2025 with permission to the accused to summon the
record/witness mentioned at serial no. 1 and 2 of the application.
26. However, upon issuing summons, reports were received that all the
summoned record has already been destroyed. Accordingly, no witness
could be examined by the accused in his defence and D.E. was closed vide
order dated 16.05.2025. Thereafter, the matter was listed for final
arguments.
Final Arguments:
27. It has been argued by Ld. APP for the State that the prosecution has
proved beyond reasonable doubt that the accused was a member of the
procession in question which took place without any permission. It has
been argued that all the witnesses have consistently deposed that the
members of the procession threw stones and clay pots on the police
officials who were on duty. It has further been argued that no dispute
regarding the identity of the accused has been raised during evidence as it
can be seen that the identity of the accused was not disputed in the
testimony of many witnesses such as PW-1, PW-2, PW-4 & PW-14. It has
further been argued that criminal liability of the acts done by the members
of the unlawful assembly can be fastened upon the accused in view of
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section 149 IPC. With these submissions, it is prayed that the accused be
convicted for the offences charged.
28. On the other hand, Ld. Counsel for accused has argued that the
prosecution has failed to prove the presence of accused at the spot on the
date of alleged incident. It is further argued that the identification of the
accused by some of the witnesses does not inspire confidence as the
accused used to be the single person present in the court or through VC and
thus, it was very convenient for the witness to point out towards the
accused as no one else used to be present. It has further been argued that
none of the prosecution witnesses is able to identify the fellow police
officials who were present with them on duty at the spot of incident and
therefore, identification of the accused by such witnesses becomes
doubtful. It has further been argued that no TIP was conducted and hence,
identification of the accused for the first time in the court after a lapse of
almost 11 years does not inspire confidence. Reliance has been placed upon
judgments ‘Kanan & Ors. Vs State of Kerala, (1979)3 SCC 319′ and
‘Jayan vs. State of Kerala, AIRONLINE 2021 SC 920’.
29. The accused has further taken the defence in his statement under
Section 313 Cr. PC that he was not a part of the procession in question and
that he was not even present in Delhi on that date.
30. Ld. Counsel for accused has further argued that the procession in
question was peaceful and that the same was done with prior permission of
the concerned authorities. He has relied upon Point No. 8 & 9 of Order
Digitally
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FIR No. 38/2006 PS Parliament Street Date:
MITTAL 2025.06.28
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Page 12 of 26
dated 23.12.2005 under Section 141 of Cr. PC to show that no procession
can take place in the area of Parliament Street without prior permission. It
is further argued that the inability of the accused to summon the record qua
permission for the procession cannot be attributed to him because as per the
report, the summoned record had already been destroyed.
31. Ld. Counsel for accused has further argued that the prosecution has
failed to prove the recovery of danda, stone etc. from the spot of incident as
the case property was produced in the Court during the testimony of PW-1
in unsealed condition. It has further been argued that even otherwise, the
prosecution witnesses have admitted that the case property does not have
any specific identity marks on the basis of which it could be identified by
them.
32. It has further been argued that the prosecution has failed to prove
the MLCs of the alleged injured police officials. It has been further argued
that this is a politically motivated case as the accused was a prominent
leader at that time.
33. It has further been argued that there are glaring contradictions in the
testimony of prosecution witnesses. Ld. Counsel for accused has
highlighted the following contradictions :-
(a) PW-1, PW-4 to PW-14 have deposed that there were
about three to four thousand protestors at the spot whereas
PW-2 & PW-3 have stated that there were around thirty to
thirty-five thousand protestors.
Digitally
signed by
NEHA
NEHA MITTAL
FIR No. 38/2006 PS Parliament Street MITTAL Date:
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(b) PW-4 has deposed that the leaders started speech near
the first barricade whereas none other witness has deposed
qua this fact.
(c) PW-4 has deposed that a videographer was present at
the spot who was also making video of the protest whereas
PW-8 has stated in his cross-examination that no
videography was done at the spot.
(d) PW-11 has deposed in his cross-examination that there
were no space between the three lines/layers of the
barricades whereas PW-12 has stated that there was around
10 feet or 3 meter gap between the layers of barricades.
(e) PW-14, who is the IO in the present case, has deposed in
his examination that he seized the broken barricades
whereas in his cross-examination, he has stated that he did
not seize any barricades.
34. In view of the above said lacunas and contradiction in the
prosecution case, it is submitted that the accused be acquitted of all the
offences charged upon him.
35. I have heard the final arguments at length. The entire record
has also been perused.
Analysis of evidence:
36. In the present case, it is not disputed by the accused that a
procession indeed took place on the date, time and place alleged by the
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prosecution i.e. on 21.01.2006 at about 01:30 PM on Parliament Road.
The case of the prosecution is that the procession continued despite
repeated warnings that the mob be dispersed as Section 144 Cr. PC was
in force, stones were pelted by the protestors on the police officials on
duty and they were also beaten with the lathis carried by the protestors
and barricades were broken by the protestors. The defense of the accused
is that it was a peaceful procession with prior permission and that he was
not a part of the procession.
37. Almost all the prosecution witnesses have consistently deposed
that injuries were caused to the police personnel and security forces on
duty by the mob by pelting of stones and beating with danda. No
inconsistency regarding this fact has come up in the cross-examination of
witnesses. However, it is also correct that the prosecution has failed to
prove the MLCs of the allegedly injured officials. Though the MLCs are
on record, neither the doctor who prepared them nor any other person
familiar with the doctor’s handwriting was available and hence, the
MLCs have remained unexhibited. Further, the identity of the case
property i.e. stones and sticks produced in the court is doubtful as it is
recorded in the testimony of PW-1 that case property was produced in
the Court in unsealed condition. Further, though the witness has
identified the case property during examination-in-chief, but in his cross-
examination the witness has admitted that there is no specific
identification mark on basis of which the case property can be identified.
Thus, it is only ocular evidence which supports the case of the
prosecution qua causing of injury to the police personnel. Neither the
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MLCs nor the weapon of offence have been proved. However, in the
opinion of the Court, the same cannot be a ground to discredit the
testimony of witnesses who are otherwise credible. The contradictions
highlighted by Ld. Counsel for accused are immaterial and hence, utterly
insufficient to discredit the witnesses. It is now well settled that non
recovery of the weapon of crime is not fatal to the prosecution case and
is not sine qua non for conviction, if there are direct reliable witnesses as
held in Rakesh v. State of U.P., (2021) 7 SCC 188, wherein it was
observed as follows:
“12. Now so far as the submission on behalf of the accused that as
per the ballistic report the bullet found does not match with the
firearm/gun recovered and therefore the use of gun as alleged is
doubtful and therefore benefit of doubt must be given to the
accused is concerned, the aforesaid cannot be accepted. At the
most, it can be said that the gun recovered by the police from the
accused may not have been used for killing and therefore the
recovery of the actual weapon used for killing can be ignored and it
is to be treated as if there is no recovery at all. For convicting an
accused, recovery of the weapon used in commission of offence is
not a sine qua non. PW 1 and PW 2, as observed hereinabove, are
reliable and trustworthy eyewitnesses to the incident and they have
specifically stated that A-1 Rakesh fired from the gun and the
deceased sustained injury. The injury by the gun has been
established and proved from the medical evidence and the
deposition of Dr Santosh Kumar, PW 5. Injury 1 is by gunshot.
Therefore, it is not possible to reject the credible ocular evidence of
PW 1 and PW 2 — eyewitnesses who witnessed the shooting. It has
no bearing on credibility of deposition of PW 1 and PW 2 that A-1
shot deceased with a gun, particularly as it is corroborated by bullet
in the body and also stands corroborated by the testimony of PW 2
and PW 5. Therefore, merely because the ballistic report shows that
the bullet recovered does not match with the gun recovered, it is not
possible to reject the credible and reliable deposition of PW 1 andFIR No. 38/2006 PS Parliament Street Digitally
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PW 2.”
38. The witnesses have also been consistent in their deposition qua
the fact that the mob broke the first and the second barricade despite
repeated warnings. Minor contradictions in the testimony of prosecution
witnesses regarding the distance between the three layers of barricades is
immaterial. Similarly, the contradictions regarding the number of people
in the mob is also ignore-worthy as it is only 1-2 witnesses who have
deposed that there were 30000-35000 people in the mob. Rest of the
witnesses have been consistent on the point that there were 3000-3500
people in the mob. The testimony of these witnesses cannot be discarded
on the ground that their counterparts failed to correctly state the number
of people present in the mob. It has been repeatedly held by Hon’ble
Apex Court that it is not every omission or contradiction in the testimony
of witnesses which can discredit the witness. Material contradiction
ought to be differentiated from the immaterial ones after keeping in mind
the factors such as time lapse after which the evidence has been
recorded. It has also to be kept in mind that the burden on the
prosecution is to prove the guilt of the accused beyond reasonable doubt
and not beyond any kind of doubt. Thus, in the opinion of this Court, the
prosecution has successfully proved that injuries were caused to the
police personnel by the mob by pelting of stones and barricades were
also broken by the protesters.
39. The next question that arises is whether the mob of protesters
can be labeled as unlawful assembly or not. Before proceeding further, it
Digitally
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would be apt to note the definition of Unlawful Assembly:-
‘Unlawful Assembly – An assembly of five or more persons is
designated an “unlawful assembly”, if the common object of the
persons composing that assembly is –
(i) to overawe by criminal force, or show of criminal force, the
Central or any State Government or Parliament or the Legislature of
any State, or any public servant in the exercise of the lawful power of
such public servant; or
(ii) to resist the execution of any law, or of any legal process; or
(iii) to commit any mischief or criminal trespass, or other offence; or
(iv) by means of criminal force, or show of criminal force, to any
person to take or obtain possession of any property, or to deprive any
person of the enjoyment of a right of way, or of the use of water or
other incorporeal right of which he is in possession or enjoyment, or
to enforce any right or supposed right; or
(v) by means of criminal force, or show of criminal force, to compel
any person to do what he is not legally bound to do, or to omit to do
what he is legally entitled to do.’
40. Only when the assembly fit into any of the above
circumstances, it could be construed as unlawful. 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 IPC. It cannot be laid down as a general
proposition of law that unless an overt act is proved against a person,
who is alleged to be a member of unlawful assembly, it cannot be said
that he is a member of an assembly. The only thing required is that he
should have understood that the assembly was unlawful and was likely to
commit any of the acts which fall within the purview of Section 141.
Digitally
signed by
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Date:
MITTAL
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41. 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.
42. The ‘common object’ of an assembly is to be ascertained from
the acts and language of the members composing it, and from a
consideration of all the surrounding circumstances. It may be gathered
from the course of conduct adopted by the members of the assembly.
What the common object of the unlawful assembly is at a particular stage
of the incident is essentially a question of fact to be determined, keeping
in view the nature of the assembly, the arms carried by the members, and
the behaviour of the members at or near the scene of the incident. It is
not necessary under law that in all cases of unlawful assembly, with an
unlawful common object, the same must be translated into action or be
successful. Under the Explanation to Section 141, an assembly which
was not unlawful when it was assembled, may subsequently become
unlawful. It is not necessary that the intention or the purpose, which is
necessary to render an assembly an unlawful one comes into existence at
the outset. The time of forming an unlawful intent is not material. An
Digitally
signed by
NEHA
FIR No. 38/2006 PS Parliament Street NEHA MITTAL
State v. Narbada Prasad Prajapati & Ors. MITTAL Date:
2025.06.28 Page 19 of 26
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assembly which, at its commencement or even for some time thereafter,
is lawful, may subsequently become unlawful. In other words it can
develop during the course of incident at the spot co instanti.
43. Thus, it is trite law that not every gathering/ assembly of people
can be termed as unlawful assembly unless five or more people have
gathered with one of the common objects as enumerated in Section 141
IPC. In the present case, the prosecution has successfully proved that the
mob of protesters had pelted stones upon the police personnel and beaten
them with danda. Thus, it can be termed as an unlawful assembly.
44. From the testimony of prosecution witnesses, it is clear that no
overt act has been attributed to the accused. Hence, the question which
is germane in determining the criminality of the accused is whether he
can be said to be a part of the unlawful assembly or not as the liability of
accused is sought to be established with the aid of Section 147 and 148
of IPC.
45. While dealing with the question of criminal liability of
members of unlawful assembly, the Apex Court in the matter of Chandra
Bihari Gautam & Ors. v. State of Bihar , 2002 (9) SCC 208 has held as
under:-
“6. It has been argued alternatively that even if the occurrence is held
to have taken place in the manner alleged by the prosecution and the
accused persons were seen on spot, they cannot be convicted and
sentenced as the prosecution allegedly failed to establish the existence
of a common object amongst the accused persons. Section 149 is an
exception to the criminal law whereunder a person can be convicted
and sentenced for his vicarious liability only on proof of his being aDigitally
signed by
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member of the unlawful assembly, sharing the common object,
notwithstanding as to whether he had actually participated in the
commission of the crime or not. Common object does not require
prior concert and a common meeting of minds before the attack. An
unlawful object can develop after the accused assembled. The
existence of the common object of the unlawful assembly has to be
ascertained in the facts and circumstances of each case. It is true that
the mere presence of the accused is not sufficient to hold them guilty
for the sharing of common object as the prosecution has to further
established that they were not mere by-standers but in fact were
sharing the common object. When a concerted attack is made by a
large number of persons, it is often difficult to determine the actual
part played by each of the accused but on that account, for an offence
committed by a member of the unlawful assembly in the prosecution
of the common object or for an offence which was known to be likely
to be committed in prosecution of the common object, persons
provide to be members cannot escape the consequences arising from
the doing of that act which amounts to an offence. There may not be a
common object in a sudden fight but in a planned attack on the
victim, the presence of the common object amongst the persons
forming the unlawful assembly can be inferred.”
(emphasis supplied)
46. The liability of member of unlawful assembly can also be
determined in view of the observations made in Dhirubhai Bhailalbhai
Chauhan vs The State Of Gujarat on 21 March, 2025 decided by Hon’ble
SC wherein it has been held as under:-
‘There may, however, be a situation where a crowd of assailants, who
are members of an unlawful assembly, proceeds to commit murder in
pursuance of the common object of that assembly. In such a case, any
person who is a member of that unlawful assembly is equally liable
even though no specific overt act of assault is attributed to him.
Otherwise also, where the assailants are large in number it may not
be possible for witnesses to describe accurately the part played by
each one of them. Besides, if a large crowd of persons armed with
weapons assault the intended victims, it may not be necessary that all
of them must take part in the actual assault. Therefore, in a situation
like this, what is important for the Court is to determine whether the
accused put on trial was a part of the unlawful assembly or just a
Digitally
signed by
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State v. Narbada Prasad Prajapati & Ors.
NEHA NEHA
Date:
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bystander. Such determination is inferential, Masalti v. State of U.P.,
AIR 1965 SC 202: 1964 SCC OnLine SC 30; followed in State of
U.P. v. Dan Singh, (1997) 3 SCC 747 Masalti v. State of U.P. (supra)
based on the proven facts of the case. Though it is not feasible to
exhaustively lay down the list of circumstances from which an
inference regarding the accused being part of the unlawful assembly
be drawn, the Courts have generally held the accused vicariously
liable, with the aid of Section 149 of the IPC, inter alia,(a) where he
had proceeded to the scene of crime along with other members of the
assembly carrying arms or instruments which could serve the object
of the assembly; and
(b) where he had participated in any manner in the events which serve
the common object of the assembly.’
47. The argument raised on behalf of accused that the identification
by a witness of the accused in the Court who has for the first time seen
the accused in the incident of offence is a weak piece of evidence
especially when there is a large time gap between the date of incident
and the date of recording of his evidence is legally correct but is not
applicable to the facts in hand. It is correct that none of the witnesses
have been able to recollect the name of their fellow police officials who
were on duty on the day of incident but almost all the witnesses have
been able correctly identify the accused even after lapse of more than 10
years in absence of TIP. However, the same is immaterial as in the
testimony of PW-1, PW-2, PW-4 and PW-14, the identity of the accused
was not disputed by his counsel. The next question, therefore, is
regarding the effect of identification of accused by the witnesses.
48. In the present case, though PW-1 has identified the accused,
but his testimony is completely silent regarding the role of the accused.
Digitally
signed by
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State v. Narbada Prasad Prajapati & Ors. NEHA MITTAL
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The witness has neither stated that the accused was a part of the mob nor
has he deposed regarding him being a leader of the mob. From the entire
testimony of PW-1, it cannot be ascertained whether the accused was
merely present on the spot as a by-stander or was an active participant of
the crowd or was he even present at the spot. There is no whisper in the
entire evidence regarding the same. After deposing about the entire
sequence of events, the witness has merely stated towards the end of his
examination-in-chief that he identifies the accused correctly but for what
purpose has the identification been done is not clear.
49. Similarly, PW-2 has also not deposed anything regarding the
role allegedly played by the accused. PW-3 and PW-12 have completely
failed to identify him.
50. PW-4 has identified the accused as one of the leaders who were
leading the protest at barricade no. 1, however, in his cross-examination,
he has admitted it to be correct that he cannot co-relate the name of the
leader with their physical identity. Hence, identification of the accused
by this witness does not inspire confidence. Further, the testimony of
PW-4 regarding the role of the accused Narbada Prasad is an
improvement as nothing as such has been stated by him in his statement
u/s 161 CrPC and hence, the same cannot be relied upon.
51. PW-5 to PW-7 have not deposed anything regarding the
identity of the accused.
Digitally
signed by
NEHA NEHA MITTAL
Date:
MITTAL 2025.06.28
FIR No. 38/2006 PS Parliament Street 14:12:57
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State v. Narbada Prasad Prajapati & Ors. Page 23 of 26
52. Though, PW-8 has correctly identified the accused but he has
also failed to attribute any act to him. The witness has not even deposed
qua the fact whether the accused was present at the spot or not. The
testimony of PW-9 and PW-10 can also be faulted on same ground.
PW-11 and PW-13 have been doubtful in the identification of the
accused and the hence, the same cannot be relied upon.
53. The last witness i.e., PW-14 who is the IO in the present case
has also failed to depose regarding the role played by the accused due to
which the identification of accused by him becomes meaningless. He has
merely stated in his examination-in-chief that accused Phire Ram
Prajapati and Laxmi Prajapati (both already convicted) along with three
other people incited the protesters. However, he has failed to name the
said three leaders. So, it cannot be ascertained in what capacity has the
accused been identified by him. Thus, upon perusal of entire evidence, it
can be safely deduced that none of the prosecution witnesses have
deposed anything regarding the presence and role of the accused i.e.
whether he was a mere by-stander or a passive member of the mob or an
active leader. In such circumstances, mere identification of the accused
by the prosecution witnesses is meaningless.
54. Constitution of unlawful assembly is a question of fact and the
prosecution is required to prove constitution of unlawful assembly and
its common object. Unlawful assembly may be constituted at any
moment and person may join unlawful assembly at any time, even at the
time of causing injury, but the prosecution is required to prove the
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NEHA
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aforesaid fact by adducing cogent and reliable evidence that the persons
have formed the unlawful assembly or joined in unlawful assembly
having its common object and was having its common object for
commission of the aforesaid offence. Mere presence as a stranger, by
passer or gathered on the spot to see quarrel or the incident would not
make the person liable for formation of unlawful assembly or liable for
the commission of offence.
55. In the present case, the prosecution has utterly failed to prove
that the accused was the member of the unlawful assembly. In view
thereof, even if it is assumed to be proved by the prosecution that injuries
were caused to the police personnel and security forces on duty by
pelting of stones and with danda by the mob, criminal liability for the
same cannot be attributed to the accused.
56. Further, it is pertinent to note that although there is statement of
Ct. Rooplal recorded u/s 161 CrPC in the chargesheet to the effect that
he made video of the incident of procession/protest and shall produce the
CD in the court, but neither the said witness has been examined nor any
such CD has been placed on record. This raises adverse inference against
the case of the prosecution.
57. Keeping in view the fact that neither the presence of the
accused at the spot nor the fact that he was member of unlawful
assembly has been proved by the prosecution, the accused cannot be held
liable for any of the offences charged.
Digitally
signed by
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Date:
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Conclusion:
58. Accordingly, this court hereby accords the benefit of doubt to
the accused for the offences u/s 147/148/149/188/332/353 IPC and hold
the accused not guilty of commission of said offences. Accused namely
Narbada Prasad Prajapati is hereby acquitted of the offences u/s
Digitally
147/148/149/188/332/353 IPC. signed by
NEHA
NEHA MITTAL
MITTAL Date:
2025.06.28
Announced in the open Court (NEHAMITTAL)
14:13:21
+0530Date: 28th June, 2025 ACJM-03/RADC
NEW DELHIFIR No. 38/2006 PS Parliament Street
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