Delhi District Court
State vs Neel Daman Khatri And Ors on 24 December, 2024
CNR No. DLCT11-000455-2024
IN THE COURT OF MR. VISHAL GOGNE:
SPECIAL JUDGE (PC ACT) CBI-24
(MP/MLA CASES), RADC
In the matter of
CNR No. DLCT11-000455-2024
SC No. 1/2024
FIR No. 1439/2014
PS Narela
under sections 147/149/186/332/353 IPC
State Vs. Neel Daman Khatri & Ors.
State
versus
1. Neel Daman Khatri
S/o Lt. Sh. Satya Prakash
R/o H. No. 1691, Pana Mamur Pur, Narela
Delhi
2. Joginder Dahiya
S/o Sh. Dayanand
R/o Gali No. 15 Sanjay Colony, Safiyabad Road, Narela
Delhi
3. Raj Kumar
S/o Sh. Inderaj
R/o Gali No. 7 Rajiv Colony, Narela,
Delhi
4. Surender
S/o Sh. Maha Singh
R/o Gali No. 6A, Safiyabad Road, Gautam Colony,
Narela, Delhi
FIR No. 1439/2014 State Vs. Neel Daman Khatri & Ors Page No.1/ 56
5. Praveen
S/o Sh. Subh Ram
R/o H. No. 117, New Basti, Pana Mamur Pur, Narela,
Delhi
6. Bhim Sen
S/o Sh. Dharm Dutt Sharma
R/o H. No. 1462, Pana Paposian Narela,
Delhi
Date of Institution : 19.07.2017
Reserved for Judgment on : 21.11.2024
Judgment pronounced on : 24.12.2024
S. No. Contents Page No.
1. Allegations 3- 5
2. Charge 5-6
3. Prosecution Evidence 6- 24
4. Examination under section 313 Cr. PC 24-25
5. Arguments on behalf of the State 25-26
6. Arguments on behalf of the accused 26-28
7. Discussion and reasons 28-52
A. Unlawful assembly 28-36
B. Applicability of section 149 IPC 36-37
C. Culpability under section 143 IPC 38
(i) Accused Raj Kuma, Surender, Praveen and 38-43
Bhim Sen
(ii) Accused Neel Daman and Joginder Dahiya 43-45
D. Other articles of charge against accused Neel 45-53
Daman and Joginder Dahiya
E. Applicability of section 109 IPC 53-55
F. Order 56
FIR No. 1439/2014 State Vs. Neel Daman Khatri & Ors Page No.2/ 56
JUDGMENT
1. Demolition drives against unauthorised construction are
often met with violent resistance from public persons against the
civil authorities and the police teams which are deployed for
providing security. The present trial reflects one such incident.
Allegations
2. The FIR in the present investigation was registered on the
written complaint made by a government official (Tehsildar)
namely Raj Kumar to the SHO PS Narela, Delhi regarding
obstruction in the official duties. The complainant asserted in this
complaint dated 14.11.2014 that a letter regarding demolition of
unauthorised construction in the area of Narela had been sent to
the SHO PS Narela for providing a police force. On 14.11.2014,
the Tehsildar and his staff reached the said police station along
with the JCB machine and were thereafter accompanied by police
officials towards the intended place of demolition. On the way,
some women blocked the path of the JCB machine but were
removed by female police officials. The team proceeded to the
place of intended demolition and started its proceedings.
3. In the mean while, a crowd comprising 250-300 persons
came from the direction of Gautam Colony and attempted to stop
the demolition proceedings. These persons started throwing
bricks, lying at the spot, upon the demolition team and JCB
machines. The mob was being led by some persons who
appeared to be leaders, described in the Hindi complaint as नेता
टाईप लोग (Neta type log).
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4. It was alleged by the complainant that the stone pelting
was committed upon the instigation by these leaders.
Consequently, 2-3 police persons suffered injuries and 3-4 public
persons were taken into custody for obstructing the discharge of
public duties and for causing injuries to public servants.
5. Upon receipt of this complaint by SI Amit at PS Narela, he
made an endorsement on the same complaint, thereby informing
the duty officer at PS Narela that on 13.11.2014 at about 08:00
p.m., a letter had been received from the office of the SDM
regarding a demolition programme in which the ACP had been
requested to provide a police force. Accordingly, a police force
comprising one Inspector, 3 Sub-Inspectors, 13 Head Constables,
37 Constables and 7 lady Constables were deputed for the said
arrangement. The police team headed towards Gautam Colony,
Narela at about 11:00 a.m. on 14.11.2014 with the Tehsildar and
his staff.
6. SI Amit further stated in his endorsement that some ladies
attempted to stop the JCB machines on the way but were
removed with the help of women constables. The revenue
officials thereafter commenced the work relating to demolition of
the unauthorised construction and which was also subjected to
videography as well as photography. The allegations of
complainant Raj Kumar were echoed by SI Amit in his
endorsement when he stated that in the meanwhile some नेता टाईप
आदमी (Neta Type Aadmi) came to the spot with a crowd of 200-
250 persons and started instigating the public to throw stones at
the demolition team. The ensuing stone pelting led to the
stoppage of the demolition work. When the police staff
intervened, stones were thrown at them too. Resultantly, women
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constable Jyoti, Constable Hem Chandra and Constable Rakesh
Kant suffered injuries and were taken to SRHC Hospital, Narela.
All three injured suffered simple injuries. The police team also
fired 10 rounds from the gas gun to control the mob. Four
persons namely Raj Kumar, Surendra Singh, Praveen and Bhim
Sen were purportedly apprehended at the spot. SI Amit lastly
stated that Tehsildar Raj Kumar had thereafter given a written
complaint to him.
7. SI Amit reported to the duty officer that the circumstances
of the incident and the MLC of the injured police officials
reflected the commission of the offences under sections
147/149/186/332/353 IPC and asked for the registration of the
FIR on these allegations.
8. The actual place of incident was recorded as being near
J.K. Farm House, Railway line, Gautam Colony, Narela, Delhi,
with the date and time of incident being 14.11.2014 at 3:00 p.m.
9. Upon the investigation being concluded, the chargesheet
was filed with six accused persons forwarded under column 11.
These accused were Neel Daman Khatri, Joginder Dahiya, Raj
Kumar, Surender, Praveen and Bhim Sen (Accused no. 1 to 6
respectively).
Charge
10. Charge was framed against the six accused persons in the
following manner:-
i. Charge was framed against all six accused persons
under section 143 read with section 149 IPC and under
section 147 read with section 149 IPC.
ii. Charge was framed against Neel Daman Khatri andFIR No. 1439/2014 State Vs. Neel Daman Khatri & Ors Page No.5/ 56
Joginder Dahiya under section 353 read with section 109
IPC and also read with section 149 IPC.
iii. Charge was framed against accused Raj Kumar,
Surender, Praveen and Bhim Sen under section 353 read
with section 149 IPC, section 332 read with 149 IPC and
section 333 read with section 149 IPC.
11. The charge, apart from detailing the allegations of
formation of an unlawful assembly, with the accused
persons being members of the same, also brought it to the
notice of the accused persons that three police officials
namely Constable Jyoti, Constable Hem Chander and
Constable Rakesh Kant had received injuries.
12. All accused persons pleaded not guilty to the
respective articles of charge.
13. The prosecution examined 26 witnesses in support
of the allegations. The evidence led by the prosecution is
detailed below.
Prosecution Evidence
Duty Officer and DD Writer
14. PW10 was the duty officer who recorded the FIR in
the present case. He deposed that on 14.11.2024, he was
posted as ASI/Duty Officer at PS Narela with his duty
hours being from 08:00 a.m. to 04:00 p.m. He further
stated that at about 10:50 a.m,he made a DD entry no.20 A,
proved by him as Ex. PW10/A, regarding the departure of
police officials upon their deployment in a demolition
drive at Gautam Colony on the orders of SI Amit Kumar.
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15. PW10 further stated that on the same day
(14.11.2014), he had also entered another DD bearing No.
21A (Ex. PW10/B) at about 10:52 a.m. regarding
deployment of HC Naresh, Ct. Yunus and other police
officials in same demolition drive as they had come from
PS Alipur. At about 03:00 a.m., PW10 received a rukka
brought by Ct. Kapil and having been sent by SI Amit
Kumar. He next proved his endorsement on the rukka as
Ex. PW10/C and stated that on the basis of said rukka, he
registered the present FIR no. 1439/2014 on a computer
with the help of woman Ct. Vimla.
16. After registration of the FIR, PW10 handed over a
copy of the FIR (Ex. PW10/D) and orginal rukka to Ct.
Kapil with the direction to hand over the same to SI Amit.
He also proved the certificate under section 65B of Indian
Evidence Act pertaining to the FIR as Ex. PW10/E.
17. The DD writer who made multiple entries regarding
the arrival and departure entries of the revenue officials as
well as police officials at PS Narela deposed as PW12. He
stated that on 14.11.2014, he was posted as DD Writer at
PS Narela and at about 10:00 a.m. on that day, he made a
DD entry no. 26B, proved by him as Ex. PW12/1,
regarding the deployment of driver namely Constable
Parvinder (Home Guard) along with Government tempo
bearing registration no. DL1LM 6767 for heavy
arrangements in Gautam Colony. He further deposed that
on the same day at about 11:00 a.m., Gyanendra Rana
Patwari along with two Tehsildars, two Panchayat
Secretaries and five JCBs came to police station for the
FIR No. 1439/2014 State Vs. Neel Daman Khatri & Ors Page No.7/ 56
demolition programme. They also went to the spot at
Gautam Colony and he entered their arrival as well as
departure entry vide DD. No. (Ex. PW12/2). He further
stated that Insp. Subash Chand along with three Sub-
Inspectors, 12 Head Constables, 30 Constables and 7 Lady
Constables along with ERV went for demolition
programme at Gautam Colony, Safiabad Road. He
recorded their departure entry vide entry no. 33B which he
proved as (Ex. PW12/3).
Videographer
18. The videography of the incident was conducted by
an employee of a photo studio namely Ravinder (PW11)
who deposed that in the year 2014, he was working as a
videographer in the photo studio named Deep Photo
Colour Lab and Studio, shop no. 502, Pana Udan, Narela,
Delhi. He further stated that the owner of the shop was
Amardeep who had asked him to go with police officials to
the area of Gautam Colony for the purpose of videography
of a demolition exercise. PW11 next stated that certain
government officials, including police officials, were
present during the said exercise and he did not recall the
date, month or year of the said exercise on account of
passage of time. He handed over the digital camera used
for conducting the videography of the incident to the
owner of the photo studio namely Amardeep. The video
footage itself was exhibited by him from a DVD which
was played in the court room during the course of his
FIR No. 1439/2014 State Vs. Neel Daman Khatri & Ors Page No.8/ 56
evidence as Ex. P-1.
19. PW11 tendered the certificate under section 65B of
Indian Evidence Act relating to the DVD Ex. P-1 as Ex.
PW11/1.
Sanction under section 195 Cr.P.C.
20. PW24 (Ms. Purva Garg), deposed that she was
posted as SDM, Narela in the month of February, 2018,
when she received a request from SI Karamvir upon being
forwarded through SHO PS Narela. The matter pertained
to permission under Section 195 Cr.P.C. She stated that
upon going through the case file and after application of
mind, she granted permission under section 195 Cr.P.C. to
prosecute the accused persons. The sanction dated
23.02.2018 was proved by her as Ex. PW21/1.
Medical Witnesses
21. The three Doctors who were examined in proof of
the injuries upon the various police persons were Dr.
Mukesh Bharti (PW20), Dr. Shipra Rampal (PW21) and
Dr. Kunal Sharma (PW22).
22. PW20 identified the signatures of Dr. Joginder
Kumar who had prepared the MLC of injured constable
Jyoti as Ex. PW20/1 and deposed that she had suffered
simple injuries. He also proved the MLC of injured
constable Rakesh Kant, also prepared by Dr. Joginder
Kumar as Ex. PW20/2. The opinion on the said MLC was
FIR No. 1439/2014 State Vs. Neel Daman Khatri & Ors Page No.9/ 56
that Constable Rakesh Kant had suffered grievous injuries.
The X-Ray report which formed the basis of the said
finding was identified as Mark PW20/M1.
23. PW20 lastly identified the signatures of Dr. Joginder
Kumar on the MLC of the third injured Constable namely
Hem Chander and proved it as Ex. PW20/3. The X-Ray
report of constable Hem Chander was denoted as mark
PW20/M2.
24. The doctor who had prepared the X-Ray reports of
injured Hem Chander and Rakesh Kant was PW21 (Dr.
Shipra Rampal). She deposed that on 19.11.2014, she was
posted as Specialist, Radiology in Satyawadi Raja
harischandra Hospital, Narela and had prepared X-ray
report on X-ray no. 1471 for injured Hem Chander (MLC
No. 3699). Upon examining the report, she found
dislocation at the right shoulder joint. The copy of the X-
ray report was tendered in evidence as Ex. PW21/1
whereas the X-ray plate was tendered in evidence as Ex.
PW21/2.
25. She next stated that on the same day i.e. 19.11.2024,
she had also prepared X-ray report on X-ray no. 1472 of
injured constable Rakesh Kant (MLC No. 3701). As per
the report, she found fractured pubic bone, both sides, in
the X-ray of the pelvis. The copy of the report was proved
as Ex. PW21/3 while the X-ray plates of injured were Ex.
PW21/4.
26. The last doctor to depose was PW22 who also
deposed regarding the injuries upon constable Hem
Chander and constable Rakesh Kant. He stated that on
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14.11.2014, he was posted as Medical Officer in Satyawadi
Raja Harischandra Hospital, Narela. On the said date, at
about 2:03 p.m., one injured namely Constable Hem
Chander was brought in emergency and he was examined.
Thereafter, at about 2:05 p.m., he was called for expert
opinion as Orthopedics Surgeon. He examined him and
found him to be suffering from pain in the right shoulder.
He advised X-ray examination to evaluate the injury and
proved the previously exhibited MLC Ex. PW20/3 by
identifying his noting and signature on the same.
27. He further deposed that on the same day, around
2:18 p.m., one injured namely Constable Rakesh Kant was
brought in the emergency department and was examined
by him at about 2:20 p.m. PW22 found that the said
constable had sustained injuries over the back and hip
region. PW22 stated that he advised X-ray examination to
evaluate the injury. He identified his signatures on the
previously exhibited MLC (Ex. PW20/2).
Eye witnesses
28. The prosecution examined as many as 18 persons as
eye witnesses. While 17 witnesses had been the members
of the police team which was deputed for the arrangement
to safeguard the demolition exercise on the date of
incident, one witness from the revenue team viz the
Tehsildar also came to be examined.
29. The eye witnesses from the police team were PW1,
PW2, PW4 to PW9, PW13 to PW19, PW23 and PW25.
FIR No. 1439/2014 State Vs. Neel Daman Khatri & Ors Page No.11/ 56
The complainant Tehsildar namely Raj Kumar was PW3
whereas the police official, namely SI Amit, on whose
complaint the FIR was registered, was examined as PW23.
30. The testimony of these witnesses is next recounted
in the expanse of relevant details.
Summary of the deposition of the eye witnesses
31. It may be observed at the outset that the deposition
of the eye witness police officials was largely in
consonance with each other regarding the presence of
accused Neel Daman Khatri and Joginder Dahiya at the
place of incident around the time when it occurred. The
witnesses also stated in unison that the crowd of persons
had pelted stones at the police team resulting in injuries to
the three police officials in question. However, the
witnesses were at some measure of variance in describing
the role of accused Neel Daman Khatri and Joginder
Dahiya as alleged instigators of the violence that followed.
Most of the eye witnesses did not identify the remaining
four accused viz Raj Kumar, Surender, Praveen and Bhim
Sen as being present at the spot whereas the few eye
witnesses who did assert the presence of these four persons
and their detention at the spot also rendered somewhat
differing accounts regarding the circumstances of their
detention and release. The role of these four persons was
not elucidated by the eye witness police officials.
32. The deposition of these police witnesses is thus
recounted in the above understanding of the combined
import of their testimony.
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Detailed testimony of the eye witnesses
33. PW1 (SI Somveer) and PW2 (Inspector Subhash),
who was the Inspector Incharge of Investigation at Police
Station Narela, similarly stated that accused Neel Daman
Khatri and Joginder Dahiya had instigated the mob which
then started pelting stones at police officials.
34. The role or presence of the remaining four accused
was only admitted by PW1 during cross-examination by
the state after he had failed to identify the four persons
who had been detained at the spot. Upon the leading
question from the prosecutor, PW1 admitted that these four
namely Raj Kumar, Surender, Praveen and Bhim sen were
the same persons who had been apprehended from the spot
and who were the part of the crowd which had pelted
stones on revenue officials and police officials. PW1 next
identified these four accused persons during the cross-
examination by the State.
35. PW2 was more forthcoming regarding the presence
of these four accused. He stated during the examination in
chief that these four had been detained at the spot but were
released subsequently. Though he did not name these four
accused, he identified them by appearance.
36. PW3 (Raj Kumar), the Tehsildar who reported the
violence to the police, did not name or identify either of
the six accused by his own knowledge during the
examination in chief. He did maintain that a crowd of 200-
300 persons led by some ‘leader type persons’ had pelted
stones on the revenue staff, police officials and the
machines. However, he stated that it was his staff who had
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informed him that the local Ex-MLA namely Neel Daman
Khatri had led the crowd. He then identified Neel Daman
Khatri before the court. PW3 did not state that other
persons had been detained at the spot. He, however,
maintained that two-three police persons and also two-
three public persons were injured in the incident. Further,
that the police had started a Lathi Charge (Baton charge).
37. PW4 (SI Roop Chand) rendered a different account
regarding the role of accused Neel Daman Khatri and
Joginder Dahiya. He did not state that they had instigated
the crowd but they had come with the crowd which pelted
stones. He did not refer to the detention or identity of the
other four accused persons at the spot. PW4 also stated that
one lady police constable and two male constables had
been injured in the incident.
38. The deposition in chief of PW5 and PW6 was
similar in tenor to the statement of PW4. They too asserted
that accused Neel Daman Khatri and Joginder Dahiya had
accompanied the crowd which pelted stones on the police
team. However, they did not allege instigation of the mob
by these two accused persons.
39. PW5 and PW6, however asserted the detention of
four persons by the police at the spot. Both of them
identified the said four accused viz Raj Kumar, Surender,
Praveen and Bhim Sen.
40. Since the allegations disclosed injures upon three
police officials, their deposition is taken up together.
41. PW7 (Head Constable Hem Chander) deposed
regarding accused Neel Daman Khatri and Joginder
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Dahiya having come to the spot with 200-250 persons and
having argued with the demolition team for stopping the
demolition. He stated that “in the meantime” the public
persons started pelting stones on the revenue team and
police officials, causing injuries to his right shoulder apart
from injuries to one male constable and one female
constable.
42. This witness identified accused Neel Daman Khatri
and Joginder Dahiya but only indicated the detention of
three-four unnamed persons by the police. He did not
name or identify the remaining four accused persons.
43. The next injured person was Head Constable Jyoti
who deposed as PW8 in consonance with PW7 and
identified one accused namely Neel Daman Khatri as
having come to the spot with 200-300 persons and arguing
with the demolition team for stopping the demolition. She
also stated that the public persons then started pelting
stones on the revenue team and police officials. She stated
that she had suffered injuries on her left shoulder and
scratches on her right hand and that two other police
officials namely constable Hem Chander and constable
Rakesh Kant also suffered injuries. PW-8 stated that four-
five persons were detained at the spot. However, unlike
PW7, PW8 could identify or name only one accused viz
Neel Daman Khatri and did not identify either Joginder
Dahiya or the other four accused.
44. The last injured person examined as a witness was
Constable Rakesh Kant (PW25) who supported PW17 in
asserting that accused Neel Daman Khatri and Joginder
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Dahiya came to the spot with 200-250 persons and started
arguing with the demolition team for stopping the
demolition while public persons started pelting stones. He
stated that he had suffered pelvic injuries while another
male constable as well as female constable too suffered
injuries. He maintained that three-four persons had been
detained at the spot by the police. While he did not name
these three-four persons or identify them in court, he did
identify accused Neel Daman Khatri and Joginder Dahiya.
45. The next police witness relating to the incident was
SI Satish Kumar (PW9) who too was a part of the police
team engaged in providing protection to the revenue team.
His deposition, while in consonance with other police
witnesses, was somewhat more detailed regarding the
actions of the crowd of people at the spot. He stated that as
the demolition process was started by the team of the
Tehsildar, former MLA namely Neel Daman Khatri and
another person named Joginder Dahiya, President of the
Narela Federation came to the spot and starting arguing
with the demolition team for stopping the demolition. PW9
specified that the gathering of public persons started
raising slogans to the effect that ” तोड़ फोड़ बंद करो,
डेमोलिशन बंद करो।” (Tod Phod band karo, demolition band
karo). Upon the team not stopping the demolition, the
public persons started pelting stones on the revenue team
and police officials leading to injuries upon one lady
constable and two male constables.
46. PW9 identified accused Neel Daman Khatri and
Joginder Dahiya and also stated that four persons had been
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detained at the spot. However, he did not indicate whether
the said four persons had taken part in the violence. He
also did not identify the four accused namely Raj Kumar,
Surender, Praveen and Bhim Sen as the said four persons.
47. PW13 (ASI Baljeet Singh) was the next police
witness who also stated that the Ex-MLA and Joginder
Dahiya had come to the spot with a crowd of 200-250
persons and that public persons pelted stones at the police.
He identified the Ex-MLA before the court by pointing
towards accused Neel Daman Khatri. He also identified
Joginder Dahiya. He did not mention the detention of any
other person and did not identify or name the other four
accused persons.
48. PW14 (HC Kapil) rendered an account similar to
PW1 and PW2 regarding instigation of the public persons
by accused Neel Daman Khatri and Joginder Dahiya,
leading to stone pelting and injuries upon the police
officials. He identified Neel Daman Khatri and Joginder
Dahiya. He also asserted that four public persons had been
detained at the spot though he did not mention their names
and also did not identify any of the other four accused
persons as the said detainees.
49. PW14 also stated that IO had prepared a rukka and
handed it over to him for registration of the FIR. PW14
then went to the police station and returned to the spot with
a copy of the original rukka and FIR so registered. These
documents were handed over to the IO by him.
50. PW15 (ASI Naresh) similarly maintained that
accused Neel Daman Khatri and Joginder Dahiya had
FIR No. 1439/2014 State Vs. Neel Daman Khatri & Ors Page No.17/ 56
instigated the public which then started pelting stones upon
the revenue officials and police officials causing injuries to
one lady constable and two male constables. PW15 also
stated that three-four persons had been detained at the spot.
However, he only identified accused Neel Daman Khatri
and Joginder Dahiya before the court and did not
incriminate the other four accused persons in the incident.
51. PW16 (SI Ram Kishan) maintained that accused
Neel Daman Khatri and Joginder Dahiya had come to the
spot along with the crowd of 150-200 persons. He stated
with respect to the circumstances of stone pelting that ” I
do not know how but suddenly the public persons started
throwing stones at the revenue staff”. Further, that when
the police officials tried to intervene, stones were also
thrown at them, thereby causing injuries to one lady
constable and two male constables. Though he stated that
four public persons had been detained at the spot, he did
not name them or identify them before the court. He
however, identified accused Neel Daman Khatri and
Joginder Dahiya.
52. PW17 (SI Sudhir) also deposed in conformity with
the other witnesses regarding the particulars of the incident
wherein he too asserted that after the demolition
proceedings had commenced, 150-200 persons came to the
spot along with former MLA Neel Daman Khatri and
Joginder Dahiya. He did not assert any previous familiarity
with these two persons and rather stated that the names of
these two persons were given to him by other police
officials. He next stated that “suddenly the public persons
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started throwing stones at the revenue staff. When the
police persons tried to intervene, stones were also thrown
at the police officials”. He also stated that three police
officials including one lady constable and two male
constables had been injured. He did not assert the
detention of four persons at the spot by the police officials,
however, he correctly identified accused Neel Daman
Khatri and Joginder Dahiya.
53. PW18 (SI Rajbir Singh) was the next in the line of
police witnesses who witnessed the incident. His
deposition mirrored the account given by the other
witnesses to the extent that he claimed that the crowd of
200-250 persons had been accompanied by Ex-MLA Neel
daman Khatri and Joginder Dahiya. Further, that the public
had suddenly pelted stones leading to injuries to one lady
constable and two male constables. He did not refer to the
detention of four other persons and only identified accused
Neel Daman Khatri and Joginder Dahiya before the court.
54. The account given by PW19 (ASI Bhim Sen) was
quite the same as the deposition of PW18 in its
identification of accused Neel Daman Khatri and Joginder
Dahiya as the persons who accompanied the crowd which
then pelted stones on the police officials.
Investigating Officers
First Investigating Officer
55. The court may next cite the deposition of the two
investigating officers. The first investigating officer was SI
FIR No. 1439/2014 State Vs. Neel Daman Khatri & Ors Page No.19/ 56
Amit (PW23) who had also prepared the rukka and sent
the same for registration of the FIR. He was also cited as
an eye witness, being a member of the police team which
had gone to the site of demolition proceedings.
56. PW23 deposed that on the date of incident viz
14.11.2014, he had been posted as Sub Inspector at PS:
Narela. Further, that on the said day, a demolition
programme had been planned at Gautam Colony, Narela.
PW23 stated that he left for the said area along with ACP
Ghanshyam, Inspector Subash Chand, SI Somvir and SI
Roop Chand and other Police staff, Tehsildar and other
revenue staffs. He stated that as they were approaching the
area of demolition along with a JCB in the direction of
Gautam Colony, some women blocked the passage of the
JCB by standing in front of it. However, they were
removed with the help of lady police staff.
57. PW23 described the sequence of events at the
location of the demolition proceedings in detail. He stated
that when they reached Gautam Colony, the demolition
proceedings were commenced by the revenue officials.
These proceedings were also photographed and
videographed. Further, that a crowd of 200-250 persons
soon came to the spot along with Ex-MLA Neel Daman
Khatri and Joginder Dahiya. PW-23 described the incident
of stone pelting by next stating that “I do not know how
but suddenly the public persons started throwing stones at
the revenue staff. When the police officials tried to
intervene, stones were also thrown at the police officials.
This lead to injuries to three police officials including one
FIR No. 1439/2014 State Vs. Neel Daman Khatri & Ors Page No.20/ 56
lady constable Jyoti, constable Hem Chander and
Constable Rakesh had sustained injuries” . Further, that the
injured police officials were taken to Raja Harischandra
hospital for medical treatment and additional force was
called at the spot. PW-23 stated that four public persons
were detained at the spot by the police officials and that
public persons also stopped the trains going through the
nearby train route of Gautam Colony. PW-23 confirmed
the circumstances of recording of the FIR by stating that
the Tehsildar, Narela had handed over a written complaint
to him on the basis of which he prepared a rukka which
was proved by him as Ex. PW23/1. He asserted that after
preparation of the rukka, he had handed over the same to
Constable Kapil who duly got the FIR registered at PS
Narela and came back to hand over the copy of the FIR
and original rukka to him.
58. PW-23 next proved the site plan prepared by him at
the instance of complainant Tehsildar Raj Kumar as Ex.
PW23/2. PW-23 then went to PS Narela where he recorded
the statements of witnesses. It was stated by him in the
context of detentions that four public persons who had
been apprehended from the spot were released at the police
station after verification of their addresses. PW-23
thereafter deposited the MLC of Constable Rakesh and
Constable Hem Chander in Raja Harischandra Hospital for
opinion. After receiving opinion on the MLC of Rakesh
and Hem Chander, section 333 IPC was added in the
present case.
FIR No. 1439/2014 State Vs. Neel Daman Khatri & Ors Page No.21/ 56
59. According to PW-23, he was subsequently
transferred from Narela police station.
60. The deposition of PW-23 regarding the four persons
detained at the spot was not certain in any measure. He
stated that on account of the passage of time, he was
unable to remember the names of the four public persons
who were apprehended from the spot. He, however,
asserted that their names were mentioned in the rukka.
Upon consulting the rukka, PW-23 stated the names of the
four public persons who were apprehended from the spot
as (i) Raj Kumar, son of Indra Raj, (ii) Surender Singh, son
of Mahar Singh, (iii) Praveen, son of Subhraj and (iv)
Bhim Sen, son of Dharam Dutt Sharma.
61. Yet, PW-23 did not identify these four accused
before the court though he pointed towards accused Neel
Daman Khatri and accused Joginder Dahiya to correctly
identify them. He qualified his stance on identification by
stating that he could identify the accused persons to the
best of his recollection as several years had passed.
62. On account of his failure to identify four of the
accused, PW-23 came to be cross examined by the Ld.
Prosecutor. Upon the prosecutor pointing towards these
four accused, namely Raj Kumar, Surender Singh, Praveen
and Bhim Sen and being asked whether these four were the
same as had been apprehended at the place of incident,
PW-23 still failed to identify them. He maintained that on
account of the passage of ten years, he was unable to say
whether these four accused persons were the same as had
been apprehended at the spot. ( For reference of the time
FIR No. 1439/2014 State Vs. Neel Daman Khatri & Ors Page No.22/ 56
frame, the court may note that the incident was dated
14.11.2014 and PW-23 was examined on 04.09.2024).
63. Infact, PW-23 denied the suggestion from the Ld.
Prosecutor to the effect that these four accused had been
apprehended at the spot on 14.11.2014.
Second Investigating Officer
64. The second investigating officer namely SI
Karamveer, who filed the chargesheet, was PW26.
65. PW-26 stated that in January 2015, he was
transferred to PS Narela and investigation of the present
case was marked to him on 30.01.2015. Upon examining
the case file, he found four accused persons namely Raj
Kumar, Surender, Praveen and Bhim Sen to have been
bound down by the previous Investigating Officer. He also
noticed allegations against accused Neel Daman Khatri
(Ex-MLA) and Joginder Dahiya (President Narela
Federation). These two accused persons were interrogated
on 16.08.2016. PW-26 stated that he had recorded the
statement of constable Kapil and also examined
photographer Ravinder. The photographer handed over a
certificate under Section 65B of Indian Evidence Act to
him. He also added section 109 Indian Penal Code in the
present case and subsequently submitted an application for
permission under section 195 Cr.P.C. before SDM, Narela.
66. After the completion of investigation, the charge
sheet came to be filed on 22.09.2016. PW-26 stated that he
had collected the permission under section 195 Cr.P.C. and
filed the same in the court.
FIR No. 1439/2014 State Vs. Neel Daman Khatri & Ors Page No.23/ 56
67. PW-26 identified the accused persons, except
accused Bhim Sen, before the court. The identity of
accused Bhim Sen was not disputed by the Counsel for the
accused.
Examination under section 313 Cr. PC
68. The incriminating evidence was projected to the
accused persons under section 313 Cr.P.C. wherein they
refuted the allegations and maintained their innocence.
69. The respective defence projected by the six accused
persons when they were granted liberty through the said
examination under section 313 Cr. PC is briefly noted
below.
70. Accused Neel Daman Khatri and Joginder Dahiya
similarly claimed that both of them had been asked by the
police authorities and local representatives to intervene for
withdrawal of the demonstration at the site and to ensure
that the public persons vacated the railway track near
Gautam Colony. They stated that upon their request, the
public gathered moved away.
71. A similar defence was projected by accused Raj
Kumar, Praveen and Bhim Sen wherein they stated that
they had visited the site of the protest out of curiosity
during an evening walk on the date of incident whereupon
the police officials present at the spot noted their names
and they were later summoned by the court. They claimed
that they had been falsely implicated in the present FIR.
72. Accused Surender rather stated that he was visiting
his agricultural land near Gautam Colony, Narela on the
FIR No. 1439/2014 State Vs. Neel Daman Khatri & Ors Page No.24/ 56
date of incident in evening hours at around 03:30 p.m.
when some police officials visited his farm and made
enquiries from him about his presence in the area. He
expressed his ignorance about the protest and later
received summons from the court. He too maintained that
he had been falsely implicated in the present case.
Arguments on behalf of the State
73. The Ld. Prosecutor sought a finding of guilt against
all accused persons under the various articles of charge on
the projected strength of the eye witness accounts and
injuries upon three police officials.
74. It was agitated that all police witnesses cited as eye
witnesses had described the incident from inception to the
end in corroborative detail by stating that the revenue team
and the police team had come under attack from public
persons led by accused Neel Daman Khatri and Joginder
Dahiya. The Ld. prosecutor referred to the eye witness
accounts of each of the police witnesses to submit that the
arrival of a multitude public persons and instigation of this
crowd by its two leaders qualified as an unlawful assembly
within the meaning of section 141 IPC and punishable
under section 143 IPC. It was asserted that the only
apparent motive of this assembly was to prevent the
successful completion of the demolition drive against
unauthorised construction at the site in Narela. Since the
revenue and police teams were public servants, the Ld.
Prosecutor submitted that the offence under section 353
FIR No. 1439/2014 State Vs. Neel Daman Khatri & Ors Page No.25/ 56
stood established apart from the offence of rioting
punishable under section 147 IPC.
75. The aid of section 149 IPC was sought for a verdict
of conviction of all accused persons on the submission that
they had the common object of preventing the demolition
activity. The injuries on the person of the three injured
police persons were highlighted by the prosecutor from
their respective MLCs to canvass the finding against four
accused persons namely Raj Kumar, Surender, Praveen
and Bhim Sen under sections 332 and 333 IPC.
76. It was submitted on the question of identification of
the accused that while accused Neel Daman Khatri and
Joginder Dahiya had been identified by all public
witnesses except PW-3 (Tehsildar Raj Kumar), the
remaining four accused had also been identified by PW-1
and PW-2.
77. In sum, the submission of the Ld. Prosecutor was
that the accused persons had been thoroughly established
as being guilty of commission of the offences under
consideration.
Arguments on behalf of the accused
78. In defence, it was argued by the Ld. Counsel for the
accused persons that the evidence flowing from the
prosecution witnesses was riddled with inconsistencies in
the account of the incident. The Ld. Counsel submitted
that the witnesses differed regarding the number of police
men at the spot and their mode of transport to the spot. It
FIR No. 1439/2014 State Vs. Neel Daman Khatri & Ors Page No.26/ 56
was further submitted that no specific evidence regarding
the instigation of the crowd by accused Neel Daman Khatri
and Joginder Dahiya had emerged from the statements of
the witnesses and that these two accused were infact
playing the role of peace makers to pacify the crowd on the
spot.
79. The innocence of these two accused persons was
also sought to be drawn from the statement of the second
investigating officer (PW-26) to the effect that they had
been joined to the investigation only on 16.08.2016 (which
was about one year and nine months from the date of
incident viz 14.11.2014).
80. The Ld. Counsel for the accused also stated that
while the intimation from the Tehsildar regarding the
requirement for a police force was stated to have been sent
to the ACP, Narela, the first investigating namely SI Amit
(PW-23) rather claimed that the information was given to
SHO PS Narela. The legality of the demolition exercise
was sought to be questioned on this claimed infirmity so as
to argue that there was no lawful discharge of public duty
in existence which could have then been obstructed by the
accused persons to their peril under section 353 IPC.
81. It was specifically argued with respect to accused
Raj Kumar, Surender, Praveen and Bhim Sen that multiple
prosecution witnesses (PW-1 and PW-23) had failed to
identify them and were infact cross examined by the State
as hostile witnesses. Also, that the witnesses had not
described any particular act of these four accused which
could be construed either as membership of a lawful
FIR No. 1439/2014 State Vs. Neel Daman Khatri & Ors Page No.27/ 56
assembly or as rioting and obstruction of public servants.
The Ld. Counsel submitted that none of the police
witnesses were able to clarify as to which accused or
which member of the public had inflicted injuries upon the
three police persons so as to establish the ingredients of
sections 332 and 333 IPC.
82. The Ld. Counsel for the accused highlighted the
absence of the public witnesses to submit that the
allegations were expressed only by police witnesses who
cannot be considered independent witnesses and that the
offences in question therefore remained not proved.
Discussion and reasons
83. The principal enquiry, upon which the findings qua
all penal provisions invoked in the charge are dependent, is
to determine whether an unlawful assembly came into
existence at the place of incident within the definition of
section 141 IPC.
Unlawful assembly
84. Section 141 reads as under:
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–
First.–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
Second.–To resist the execution of any law, or of any
legal process; or
Third.–To commit any mischief or criminal trespass, or
other offence; or
Fourth.–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; orFIR No. 1439/2014 State Vs. Neel Daman Khatri & Ors Page No.28/ 56
Fifth.–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.
Explanation.–An assembly which was not unlawful when
it assembled, may subsequently become an unlawful
assembly.
85. It is apparent that two requirements must be fulfilled
for an assembly to be termed an ‘unlawful assembly’
within the meaning of section 141 IPC. Firstly, the group
of persons in question must be more than five in number.
Secondly, the assembly must possess a common object of
the description given in the above reproduced five clauses
of section 141. These clauses essentially relate to the use
of criminal force to either commit an offence or resist the
execution of any legal process. Instances constituting the
exercise of criminal force upon public servants or the use
of such force to obtain the commission of an act which a
person is not bound to do would also lie within the
definition of an unlawful assembly.
86. The provision lastly envisages situations where the
object of an assembly evolves from the time of assembly
to a later stage and assumes intent covered by the above
five clauses.
87. Since the first charge against the accused persons
relates to section 143 IPC, which provides punishment for
membership of an unlawful assembly, the court must first
examine the evidence led by the prosecution in support of
this charge.
88. As a preface, it is observed that although the charge
under section 143 IPC had been invoked with the aid of
FIR No. 1439/2014 State Vs. Neel Daman Khatri & Ors Page No.29/ 56
section 149 IPC, the court finds the said modality to be a
surplusage. Section 143 is a stand alone offence which is
invited against a person because he is a member of an
unlawful assembly. The prosecution must first establish
that a person satisfies the test of section 141 IPC so that
section 143 may be employed to convict him. Section 149
IPC would come into play for the exercise of assigning
culpability for other substantive offences, apart from
section 143 IPC, as for instance the offences applied in the
charge against the various accused persons viz sections
147, 332, 333 and 353 IPC.
89. The court is able to decipher separate strands of
evidence which must be proved by the prosecution in
support of the charge under section 143 IPC in the present
allegations. The first aspect is the description of the
number of persons who assembled as a crowd with the
second element being the description of the behaviour of
the crowd in pelting stones. The last component of the
evidence is the purported leadership of the crowd by two
accused persons (accused Neel Daman Khatri and Joginder
Dahiya) who were allegedly inciting the mob.
90. The court would observe that all police witnesses
who were members of the team present at the place of
incident described the arrival of a crowd of persons in the
range of 200 to 250 persons after the demolition activities
had commenced. It is also material that all police
witnesses maintained that even on the way to the site of
demolition, the revenue team and police team were
obstructed by a group of women who had to be removed
FIR No. 1439/2014 State Vs. Neel Daman Khatri & Ors Page No.30/ 56
from the path of the JCB machines heading for the site.
Seen together, the only prudent assessment of the arrival of
such large numbers at the site is that the crowd intended to
compel the demolition team to stop the activity.
Pertinently, these persons came as a group and were not
just lay residents who may have been the residents of the
locality which was the subject of demolition. Ordinary
standards of deduction dictate the conclusion that the huge
gathering of persons came to the spot with the common
object of overawing the civil and police team deployed for
the demolition.
91. This finding is bolstered by the assertion of all
police witnesses that the crowd engaged in stone pelting.
All witnesses were explicit in stating that after the crowd
arrived at the spot, the public persons started pelting stones
at the revenue team as well as the police team.
92. The court is unable to accept the contention of the
Ld. Counsel for the accused that police witnesses must be
disbelieved only because no public witnesses were cited or
examined by the prosecution. There is no presumption
against the credibility of a police witness. Infact, every
public servant is presumed to be acting in good faith,
including by way of deposition in court, unless the
credibility of such a witness is impeached during cross
examination. With the chaotic environment of a
demolition drive amid a hostile gathering of local
residents, who were the subject of the drive, it would be
imprudent to expect the investigating officer to have
secured public witnesses for deposing against other public
FIR No. 1439/2014 State Vs. Neel Daman Khatri & Ors Page No.31/ 56
persons. The law must proceed on reasonable assumptions.
The insistence on public witnesses in a mob like
environment would be an unreasonable assumption. It is
then the content and consistency of the testimony of the
witnesses, even if they are police officials, which must
govern the faith of the court in their account. In the
present trial, the court is unable to detect any particular
infirmity or mala fides in the statements of the seventeen
police witnesses and the Tehsildar.
93. There is no particular reason for the court to
disbelieve the seventeen police witnesses (PW-1 to PW-2,
PW-4 to PW-9, PW-13 to PW-19 as well as PW-23 and
PW-25) who similarly testified that the crowd of persons
had engaged in stone pelting. This activity constitutes the
ingredients of clauses First, Second and Fifth of section
141 IPC in as much as the evident purpose of the crowd
was to overawe the public servants inter alia the Tehsildar
and his team as well as the police team who were
exercising their lawful power to carry out or safeguard the
demolition activity. The actions of the mob were clearly
designed to resist the demolition and to compel the team of
the Tehsildar to cease the exercise, thereby fulfilling the
definition under clauses Second and Fifth of section 141
IPC.
94. The court would preface the further discussion
regarding the role of each of the accused persons in the
said unlawful assembly by expressing that proof of section
141 IPC is distinct from proof of section 143 IPC. Section
141 IPC is generic in visualising an assembly of five or
FIR No. 1439/2014 State Vs. Neel Daman Khatri & Ors Page No.32/ 56
more persons as being an unlawful assembly if the
common object of such an assembly is of a description
satisfying the five clauses of section 141. Section 143 IPC
is, however, more specific to each accused where the
prosecution would have to separately establish the
membership of each accused in such an unlawful assembly
to seek conviction under section 143 IPC. Explained
another way, the prosecution must first establish that an
unlawful assembly came into existence and then prove as
to which accused was a member of the same.
95. The first step of this exercise is not identity specific.
Therefore, it would be enough for the witnesses to state
that persons more than five in number had come together
with the common object of the description given in the five
clauses of section 141 IPC. After all, when a crowd of
people assembles in the view of a witness, the witness may
not necessarily know their identities. He may, however,
still be able to convey that the crowd comprised more than
five persons and also offer an account of the conduct of the
gathering. This is precisely the scenario which has
unfolded in the present trial. All police witnesses
maintained that 200-250 persons arrived at the spot after
the demolition had started and started pelting stones. This
common conduct of a sizable number of persons reflects a
common object. After all, the group had reached the
location of a demolition activity carried out by government
agencies. The circumstances of an incident and the conduct
of the members of a group is relevant to determining their
common object. The widespread use of violence by the
FIR No. 1439/2014 State Vs. Neel Daman Khatri & Ors Page No.33/ 56
group in question establishes that its members intended to
unlawfully stop the demolition activity.
96. The court must highlight that it is immaterial as to
what was the pre meditated or original intention of the
crowd in coming to the spot. The explanation to section
141 IPC also contemplates an assembly, which was not
unlawful when it came into being, becoming an unlawful
assembly at a subsequent stage. In the present facts, the
crowd which came to the spot engaged in stone pelting on
the revenue and police team. At the point of such violence,
the assembly became an unlawful assembly.
97. The last aspect relates to leadership of the assembly.
Again, almost all police witnesses similarly maintained
that the crowd was led by accused Neel Daman Khatri and
Joginder Dahiya. While some witnesses (PW-1, PW-2,
PW-13, PW-14, PW-15 and PW-16) stated that these two
accused had instigated the crowd, others (PW-4, PW-5,
PW-6 and PW-9) stated that these two had come with the
crowd which then started pelting stones. The court shall be
taking up the individual culpability of these two accused
persons in the context of the statements of the above
witnesses in the later part of the judgment. Presently, the
exercise is limited to determining whether an unlawful
assembly came into existence. The above statements are
therefore relevant here to the extent that the crowd is
established as having ascertainable leaders and must
therefore be considered an organised group. If a heralded
group of public persons engages in violent activity against
public servants, it must be concluded that the assembly
FIR No. 1439/2014 State Vs. Neel Daman Khatri & Ors Page No.34/ 56
which they had formed was indeed an unlawful assembly.
98. The court may record here that the prosecution had
also relied upon certain purported video footage of the
incident by exhibiting it in evidence through a DVD which
was proved by the videographer (PW-11) who recorded the
same. PW11 (Ravinder) deposed that being a videographer
he had gone to the area of Gautam Colony with police
officials in the year 2014 on the instructions of the owner,
namely Amardeep, of the shop where he was working. He
exhibited the DVD as Ex. P-1.
99. The Ld. prosecutor had submitted that the footage
reflected accused Neel Daman Khatri and Joginder Dahiya
inciting the crowd to pelt stones and subsequently also
blocking the railway track near the place of incident.
100. The court does not find the DVD to be admissible in
evidence. For electronic evidence to be proved, a
certificate under section 65B of the Indian Evidence Act is
required to be filed by the person occupying a responsible
position in relation to the operation of the relevant device
or the management of the relevant activities. However, it
emerged from the cross-examination of PW11 that the
camera deployed for recording the incident by him was
using a small cassette which may not have been new and in
fact could have been reused. He also admitted that the
recording was made in multiple videos and was not
continuous. PW11 further stated that the recording had
been transferred to the DVD by Amardeep and not him.
The recording was not transferred in the presence of
PW11.
FIR No. 1439/2014 State Vs. Neel Daman Khatri & Ors Page No.35/ 56
101. The court is of the finding that the certificate under
section 65B is invalid as it was not given by the
appropriate person, who would have been Amardeep.
Since the camera, cassette and DVD essentially remained
in the control and management of Amardeep, especially
when the contents of the cassette were transferred to a
DVD, PW11, being only the videographer, was not
competent to provide the certificate regarding the footage.
Infact, as admitted by PW11 during cross-examination, he
was deputed only to hand over the DVD to the police on
the instructions of Amardeep. Since PW11 was not cited as
an eye witness but as a witness to the recording of footage
of the incident, his deposition, involving as it does
electronic evidence, must submit to the modality of
Section 65B. His tender of the footage in the form of the
DVD fails the test of section 65B of the Indian Evidence
Act.
102. Yet, as noted in the preceding discussion on the
basis of the other evidence on record, the prosecution has
succeeded in the initial exercise of establishing the
existence of the ingredients of section 141 IPC.
Applicability of section 149 IPC
103. Since the court has concluded that the common
object of this assembly was to unlawfully restrain the
demolition team from carrying out its duties of demolition
and to prevent the police team from providing protection to
this official act, the prosecution has consequently also
justified the invoking of section 149 IPC.
FIR No. 1439/2014 State Vs. Neel Daman Khatri & Ors Page No.36/ 56
104. Section 149 reads as under:-
149. Every member of unlawful assembly guilty of
offence committed in prosecution of common object.–If an
offence is committed by any member of an unlawful
assembly in prosecution of the common object of that
assembly, or such as the members of that assembly knew to
be likely to be committed in prosecution of that object,
every person who, at the time of the committing of that
offence,is a member of the same assembly, is guilty of that
offence.
105. Section 149 IPC invokes the principle of
constructive liability of accused persons even if no overt
act is imputed to them in an offence if it can be established
that such an offence was committed by any member of an
unlawful assembly in prosecution of the common object of
such assembly. The provision would be invoked even
when the members of such an assembly had knowledge
that an offence was likely to be committed in the
prosecution of the common object. As a logical corollary,
once the ingredients of section 141 IPC are proved by the
prosecution, the grounds for invoking section 149 IPC
stand established too.
106. It stands established beyond reasonable doubt that
an unlawful assembly comprising a large crowd of about
200-250 persons was present at the site of the demolition
on the date of the incident with the common object of
preventing the demolition activity at the place of incident.
It stands to reason that all members of this crowd
reasonably knew that a concerted group action of such
huge number of persons, led as they were by local leaders,
would lead to violence in the nature of rioting or assault
upon the public servants who were attempting to carry out
or safeguard the demolition process.
FIR No. 1439/2014 State Vs. Neel Daman Khatri & Ors Page No.37/ 56
Culpability under section 143 IPC
107. The next exercise, as expressed earlier, is to identify,
within the ambit of section 143 IPC, from among the six
accused persons, the accused who were members of this
unlawful assembly as the articles of charge flow from
proof of such membership. It would then be determined by
the court whether all or any of the six accused persons are
liable for a finding of guilty qua the substantive offences
invoked against them through the articles of charge for
which they have faced trial.
108. The six accused persons can be viewed in two
clusters on account of the role ascribed to them in the
chargesheet and agitated against them by the Ld.
Prosecutor during the course of arguments. The first
identifiable group comprises the purported instigators of
the violence viz accused Neel Daman Khatri and Joginder
Dahiya. The second group of accused, who are alleged to
have been detained at the spot, as members of the unlawful
assembly, were Raj Kumar, Surender, Praveen and Bhim
Sen. The role of the second group of accused persons is
taken up first for discussion.
Accused Raj Kumar, Surender, Praveen and
Bhim Sen
109. Of the plethora of police officials examined as eye
witnesses, only five witnesses alluded to the role of these
FIR No. 1439/2014 State Vs. Neel Daman Khatri & Ors Page No.38/ 56
four accused in some measure albeit not without
contradictions.
110. SI Amit (PW23), who was effectively the first
investigating officer, rendered an unsure account regarding
these four accused. During his examination-in-chief, he did
state that four public persons had been detained at the spot
by police officials. However, he also stated that he was
unable to remember the names of these four public persons
although their names were mentioned in the rukka. PW23
then named these four accused persons after going through
the rukka. Yet, he could still not identify them.
111. The court would observe that as an eye witness and
also the police official who dispatched the rukka, PW23
was well placed to cite the names and render the
identification of these four accused persons. However, he
was found wanting on both counts. The naming of these
four accused persons only by reference to the rukka does
not constitute a weighty incrimination. While passage of
time, as stated by PW23, may have been a good reason for
failing to recognise the accused persons in court, the fact
remains that PW23 did not identify these four accused
persons. Moreover, his account did not contain any detail
of the physical position of the four accused persons
relative to the other members of the crowd when they were
purportedly detained at the spot. No details came forth
regarding their role in the incident either. The deposition of
PW23 is not inspiring enough to find that these four
accused persons were a part of the unlawful assembly.
FIR No. 1439/2014 State Vs. Neel Daman Khatri & Ors Page No.39/ 56
112. The next witness of note with respect to these four
accused persons was SI Somveer (PW1). He too was a
member of the police team which had come under the
onslaught of stone pelting. While he asserted during his
examination-in-chief that four persons were apprehended
at the spot and subsequently released on the directions of
the senior officers, he could not identify them. This
witness came to be cross-examined by the state and it was
only during the cross-examination by the Ld. Prosecutor
that PW-1 affirmed the leading question from the
prosecutor seeking confirmation of these four accused
persons as the same persons who had been apprehended
from the spot as members of the stone pelting crowd.
113. The court does not find the prompted identification
of these four accused by PW1 during the cross-
examination by the Prosecutor to be worthy of belief.
Interestingly, PW1, much like PW23, had identified the
other two accused persons namely Neel Daman Khatri and
Joginder Dahiya. Thus, the failure of PW1 to identify these
four accused persons at the first instance (during the
examination-in-chief) denies the credibility of such
identification during his cross-examination as a witness
hostile to the prosecution (on the aspect of identity of these
four accused persons).
114. The next witness against these four accused persons
was Inspector Subhash (PW2) who was the Inspector,
investigation at PS Narela on the date of incident and had
led the police team of 61 police officials to the place of
incident.
FIR No. 1439/2014 State Vs. Neel Daman Khatri & Ors Page No.40/ 56
115. He deposed that four persons from the unlawful
assembly were detained at the spot and released later upon
orders of the senior police officials on account of them
being permanent resident of Narela. Though PW2 could
not tell their names, he did identify them before the court.
116. Notwithstanding the identification of these four
accused persons by PW2, the court is unable to place its
conviction in the testimony of PW2. Much like PW23 (the
first investigating officer), PW2 was also an eye witness.
Yet, similar to the account given by the PW23, PW2 also
did not specify the role of these four accused persons in the
violence at the spot.
117. Now, the court is indeed conscious that it has
reached a finding in the preceding part of the judgment
that an unlawful assembly had come into existence at the
place of incident. It is also the mandate of section 149 IPC
that if an offence is committed by any member of an
unlawful assembly in prosecution of the common object of
that assembly or such as members of the assembly knew to
be likely to be committed, every member of such assembly
would be guilty of the offence. Yet, this principle of
constructive liability comes into play only if membership
of the unlawful assembly is established through evidence.
118. Here, the presence of an accused at the spot is to be
distinguished from membership of an unlawful assembly.
The court has thus far only concluded that the crowd of
250-300 persons emerged as an unlawful assembly from
the consistent account of all police eye witnesses inter alia
that the crowd pelted stones at the revenue team and police
FIR No. 1439/2014 State Vs. Neel Daman Khatri & Ors Page No.41/ 56
officials in order to stop the demolition exercise. This
finding is only one leg of the exercise for the prosecution.
119. The next and more critical endeavor for the
prosecution was to prove as to which of the accused
persons were members of the unlawful assembly.
120. While the testimony rendered by PW23, PW1 and
PW2 attempted to establish presence of these four accused
persons at the spot, their presence is not equivalent to
membership of the unlawful assembly. Every present
person in the vicinity of a place of occurrence involving an
unlawful assembly cannot prosecuted with the aid of
sections 141, 143 and 149 IPC.
121. The three witnesses (PW23, PW1 and PW2)
discussed thus far neither inspire confidence in the
presence of these four accused persons at the spot nor do
they indicate how these four may have been members of
an unlawful assembly.
122. The other two police witnesses who spoke about the
role of these four accused persons were SI Rajbir (PW5)
and SI Jagbir Singh (PW6). Both of them similarly
asserted that the four members of the crowd of public
persons detained by the police officials were these four
accused persons. Both PW5 and PW6 identified accused
Raj Kumar, Surender, Praveen, Bhim Sen by pointing
towards them.
123. The reasons recorded by the court for disbelieving
the account given by PW2 also apply in equal measure to
the appraisal of the evidence given by PW5 and PW6.
These witnesses also did not ascribe any particular role of
FIR No. 1439/2014 State Vs. Neel Daman Khatri & Ors Page No.42/ 56
these four accused persons or specify their positioning in
the crowd. Their examination-in-chief was devoid of
material details for the court to determine whether any role
was being played by these four accused persons in the
violence which occurred at the spot. The mere assertion
that these four accused persons had been detained by the
police does not elevate the testimony to the level of proof
of membership of an unlawful assembly.
124. Since the prosecution has not succeeded in
establishing that these four accused persons were member
of an unlawful assembly, none of the articles of charge,
which flow from such membership, can be sustained. The
ingredients of section 143 IPC remain not proved against
these four accused. No specific act of rioting (punishable
under section 147 IPC) or assault upon public servants
(punishable under section 353 IPC) has been proved
against them either. Similarly, no witness has asserted that
these four accused persons caused injuries upon any of the
three injured police men. Thus, neither by operation of
sections 143 or 149 IPC nor through any individual
evidence does the finding of guilt attach itself to these four
accused persons.
125. Accused Raj Kumar, Surender, Praveen and Bhim
Sen are entitled to acquittal under all articles of charge.
Accused Neel Daman Khatri and Joginder Dahiya
126. The evidence against the remaining two accused
namely Neel Daman Khatri and Joginder Dahiya is next
taken for analysis.
FIR No. 1439/2014 State Vs. Neel Daman Khatri & Ors Page No.43/ 56
127. As highlighted in the preceding portions of the
present judgment, all police witnesses referred to these two
accused as having led the crowd of 200-250 persons or
having arrived with it. While PW1, PW2, PW13, PW14,
PW15 and PW16 maintained that these two accused had
incited the crowd and stone pelting followed thereafter, the
other police witnesses viz PW4, PW5, PW6, PW7, PW8,
PW9, PW17, PW18, PW19, PW23 and PW25 asserted that
these two accused had come along with the crowd and the
stone pelting started thereafter.
128. The gathering of persons which had reached the spot
was undoubtedly an unlawful assembly. Being the former
MLA, Neel Daman Khatri was not only identified by all
these witnesses as having either led or accompanied the
crowd but was also in the nature of a leader per se. A
former MLA arriving at the scene of demolition activity by
the revenue authorities can only be viewed as leading the
group. His peculiar position as a former Member of the
Legislative Assembly denies him the benefit of being
viewed as a lay by stander or participant. In fact, even the
drift of the cross-examination of these seventeen police
witnesses by the ld. counsel for accused Neel Daman
Khatri and Joginder Dahiya was that as local leaders, both
of them were regular visitors to the police station and even
participating in the social outreach programme of the
police. All police witnesses identified accused Neel Daman
Khatri and Joginder Dahiya before the court. In fact, the
presence of these two persons at the site of the demolition
was not even a subject of dispute by the defence. The
FIR No. 1439/2014 State Vs. Neel Daman Khatri & Ors Page No.44/ 56
defence had rather portrayed them as attempting to pacify
rather than aggravate the situation.
129. The court concludes from the deposition of the
police witnesses that accused Neel Daman Khatri and
Joginder Dahiya were members of the unlawful assembly
which formed at the place of incident on 14.11.2014 at
about 12:30 p.m.
130. As members of an unlawful assembly, both of them
are liable for conviction under Section 143 IPC.
131. The court has previously highlighted in this
judgment that the applicability of section 149 along with
section 143 IPC is quite superfluous as section 143 is a
stand alone offence arising from proof of the ingredients of
Section 141 IPC. Each accused shall have to be judged
separately qua section 143 IPC on the touchstone of the
evidence led against him. Thus, accused Neel Daman
Khatri and Joginder Dahiya are liable to be held guilty
under section 143 IPC even without the aid of section 149
IPC.
Other articles of charge against accused Neel
Daman Khatri and Joginder Dahiya
132. The other two articles of charge invoked against
accused Neel Daman Khatri and Joginder Dahiya are
section 147 IPC read with section 149 IPC and section 353
read with both – section 109 IPC and section 149 IPC.
133. The court would engage in a more granular analysis
of the evidence in the context of the above two articles of
charge.
FIR No. 1439/2014 State Vs. Neel Daman Khatri & Ors Page No.45/ 56
134. It had been the argument of the ld. counsel for the
defence that the solitary witness from a department other
than the police team had failed to identify accused Neel
Daman Khatri or Joginder Dahiya as leading or being
members of the unlawful assembly in question.
135. This witness was the Tehsildar namely Raj Kumar
(PW3) who was leading the team of revenue officials for
the demolition activity on 14.11.2014. PW3 had deposed
that “some leader type persons were leading the crowd and
upon their arrival, the crowd obstructed us from doing the
demolition and started pelting stones on our staff, police
officials and machines. The crowd had obstructed us from
doing our official duty i.e. demolition work”.
136. PW3 lastly stated that “Later on, I was also
informed by my staff that the local Ex-MLA of Narela Mr.
Neel Daman Khatri was leading the crowd. Accused Neel
Daman Khatri is present in the court today” . PW3 then
identified accused Neel Daman Khatri.
137. It was the submission of the ld. Counsel for the
accused that the accused had been falsely identified by the
police officials.
138. The court would observe that every eye witness is
not cited or expected to identify each of the accused
persons. The police officials, as apparent from the
consistent cross-examination of all police witnesses, were
evidently familiar with Neel Daman Khatri on account of
him having previously been the local MLA. The
identification of Neel Daman Khatri or his presence at the
site was infact not even the subject of dispute or
FIR No. 1439/2014 State Vs. Neel Daman Khatri & Ors Page No.46/ 56
suggestion by the defence during the cross-examination of
the police witnesses. Infact, the assertion by PW3 that the
crowd was being led by “some leader type persons” works
in conjunction with the deposition of the police witnesses
who identified these leaders as accused Neel Daman
Khatri and Joginder Dahiya.
139. The other ground urged in defence was that since
accused Neel Daman Khatri and Joginder Dahiya were
joined to the investigation only as late as 16.08.2016, the
delay from the date of incident viz 14.11.2014 till
16.08.2016 dented the authenticity of the deposition of the
17 police witnesses against these two accused.
140. The court would emphasise that time consumed in
investigation cannot be equated with delay in joining
accused persons to the investigation. Evidently, no arrest
was made upon the incident in question and the two
leaders viz Neel Daman Khatri and Joginder Dahiya were
already known to the police. Hence, there would not have
been any reasonably apprehension of the two accused not
being traceable so as to compel immediate joining of these
persons to the investigation. The eye witness account given
by the police witnesses regarding the presence of these two
persons at the time of incident cannot be displaced by the
circumstance of the investigation having joined them only
on 16.08.2016.
141. Addressing itself to the articles of charge at hand,
the court would rely on the description of violence by the
police witnesses. All these witnesses specifically stated
that the crowd of public persons had resorted to stone
FIR No. 1439/2014 State Vs. Neel Daman Khatri & Ors Page No.47/ 56
pelting at the revenue team and police team. Section 147
IPC, which pertains to punishment for rioting, becomes
applicable once the ingredients of the defining section i.e.
146 IPC are met.
142. Section 146 IPC reads as under:-
146. Rioting- Whenever force or violence is used
by an unlawful assembly, or by any member
thereof, in prosecution of the common object of
such assembly, every member of such assembly is
guilty of the offence of rioting.
143. This definition reflects two components, the first
being the use of force and violence by an unlawful
assembly and the second being prosecution of the common
object of such assembly.
144. The court has already rendered the finding that the
two accused were members of an unlawful assembly of
which the common object was to prevent the lawful
demolition exercise. Since it has emerged that the crowd
pelted stones which amounts to use of force and violence,
it stands established that rioting occurred at the date, time
and place of incident within the meaning of section 146
IPC and punishable under section 147 IPC. Since no overt
act is required to be proved by a member of an unlawful
assembly if an offence is committed by any of the
members in prosecution of the common object of such
assembly, the two accused namely Neel Daman Khatri and
Joginder Dahiya are liable to be held guilty under section
147 IPC with the application of section 149 IPC.
FIR No. 1439/2014 State Vs. Neel Daman Khatri & Ors Page No.48/ 56
145. The last article of charge against these two accused
is section 353 IPC read with section 109 IPC and also read
with section 149 IPC.
146. Section 353 IPC is noted below:-
353. Assault or criminal force to deter public
servant from discharge of his duty.–Whoever
assaults or uses criminal force to any person being a
public servant in the execution of his duty as such
public servant, or with intent to prevent or deter
that person from discharging his duty as such
public servant, or in consequence of anything done
or attempted to be done by such person to the
lawful discharge of his duty as such public servant,
shall be punished with imprisonment of either
description for a term which may extend to two
years, or with fine, or with both.
147. This provision seeks to punish acts of violence
against public servants who may be discharging their
official duties. The revenue team and police team were
present at the site under the color of official duty on
account of the planned activity of demolition of
unauthorised encroachment or construction at Narela on
14.11.2014. The prosecution had relied upon the letter Ex.
PW3/A, proved by Tehsildar Raj Kumar (PW3), of which
a copy had been sent to various authorities including the
Deputy Commissioner (North), SDM (Narela), BDO
(North) and ACP, Narela. The ACP had been directed to
provide 150 police personnel for assistance to the revenue
officials on 14.11.2014 and 15.11.2014 at 10:00 a.m.
FIR No. 1439/2014 State Vs. Neel Daman Khatri & Ors Page No.49/ 56
148. The letter Ex. PW3/A reads as under:-
DEMOLITION PROGRAMME
F. No. 3483-91 Dated: 12/11/14
A demolition programme has been fixed for
14.11.2014 and 15.11.2014 at 10:00 a.m. for
demolition of unauthorized encroachment/
construction at Narela and Bawana (list attached).
All the concerned officials are hereby
directed to demolish the above said land on the date
and time mentioned above.
(Raj Kumar)
TEHSILDAR: NARELA: DELHI
149. The ld. counsel for the accused had sought to fault
this intimation on the submission that whereas it purported
to have been sent as a copy to ACP Narela, PW23 (SI
Amit) rather stated that the intimation in question had been
submitted by the office of the SDM to the SHO, Narela for
seeking police staff in aid of the demolition drive. The ld.
counsel argued that the legality of the presence of the
police team was in doubt as the request possibly went to
the SHO when it should have been sent to the ACP.
150. The court is inclined to reject the above argument in
toto. It is not required in a trial pertaining to section 353
IPC that the legality of the official act in question and all
the ministerial acts which accompany any such act be
proved in the manner of deciding the validity of state
FIR No. 1439/2014 State Vs. Neel Daman Khatri & Ors Page No.50/ 56
action. What section 353 IPC seeks to punish is the use of
force against the public servant who is acting in the
execution of the duty as a public servant and with the
intent of preventing such public servant from discharging
his duties. The intimation Ex. PW3/A, coupled with the
deposition of the Tehsildar (PW3) as well as the seventeen
police witnesses, is profuse proof of the revenue team and
the police team having been present at the spot in due
discharge of their duties. There is absolutely no reason for
the court to reach an outlandish conclusion that the civil
and police team were marauding and truant public servants
on a private adventure targeting a site for demolition.
151. The leaders of the crowd namely Neel Daman
Khatri and Joginder Dahiya as well as the crowd itself
cannot be considered, under any stretch of imagination, to
have been in doubt about the identity and purpose of the
revenue and police teams. The crowd of public persons
still proceeded to use criminal force against these public
servants by pelting stones. As recorded repeatedly in this
judgment, the common object of the unlawful assembly
was to deter the teams of the Tehsildar and the police from
carrying out the demolition drive. Consequently, the
ingredients of section 353 IPC stand established. Since
accused Neel Daman Khatri and Joginder Dahiya were
members of this unlawful assembly, they would be liable
for the act of any other member which constitutes an
offence in prosecution of the common object of this
unlawful assembly. The pelting of stones by public persons
being led by these two accused renders them liable for
FIR No. 1439/2014 State Vs. Neel Daman Khatri & Ors Page No.51/ 56
conviction under section 353 IPC with the aid of section
149 IPC.
152. The Ld. Counsel for the accused had placed much
reliance on the cross examination of the three injured
police witnesses (PW-7, PW-8 and PW-25) to agitate that
the causation of the specific injuries on these police
officials could not be proved. It was submitted that
notwithstanding the accounts given by these police
witnesses and others regarding stone pelting, the non
recovery of the stones and the non specification of the
identity of the particular stone pelters prevented any
finding favouring the culpability of the accused. These
purported lacunae in the depositions on the question of
injuries were represented as weakening the prosecution
version of rioting and assault upon police persons.
153. The court would observe that the proof of injuries
on the three police persons in question is not directly in
issue in proof of either article of charge viz sections 147
and 353 IPC framed against accused Neel Daman Khatri
and Joginder Dahiya. The offence of rioting, punishable
under section 147 IPC, does not call for proof of injuries.
The offence punishable under section 353 IPC also relates
to use of criminal force and not injury. Both these offences
inter alia rioting and use of criminal force against a public
servant have been proved from the actions of the crowd
which engaged in pelting stones. The offences under
section 147 and 353 IPC stood completed in their
commission when any or many from the crowd engaged in
violence. The infliction of particular injuries upon the
FIR No. 1439/2014 State Vs. Neel Daman Khatri & Ors Page No.52/ 56
three police witnesses is not material to this exercise.
154. The offence under section 143 IPC pertains only to
membership of an unlawful assembly and is not dependent
either upon causation of injuries to any person.
155. Consequently, the purported import of the cross
examination of the three injured police persons or the other
police witnesses on the point of causation of injuries does
not dilute the finding of guilty against accused Neel
Daman Khatri and Joginder Dahiya.
Applicability of section 109 IPC
156. As noticed earlier, the charge under section 353 IPC
has been framed with the aid of section 109 IPC as well as
section 149 IPC.
157. The court is of the determination that since section
149 has also been invoked for the charge under section 147
IPC, it is the more appropriate provision to test the
culpability of these two accused persons on principals of
joint liability. Once the accused are established as the
members of the unlawful assembly and the assembly is
proved to have committed an offence in prosecution of its
common object, such accused would be liable for the
offence with the application of section 149 IPC. In fact,
section 149 IPC was crafted for the precise purpose of
ensuring the accountability of accused persons who may
not have overtly participated in the commission of the
offence but were nevertheless a part of the grand design
viz common object of the assembly.
FIR No. 1439/2014 State Vs. Neel Daman Khatri & Ors Page No.53/ 56
158. The court would relate this understanding of section
149 IPC to the facts of the present trial by observing that
accused Neel Daman Khatri and Joginder Dahiya would be
culpable under section 353 IPC even if they themselves did
not pitch a single stone at the public servants. Since the
crowd was an unlawful assembly, stones thrown by any of
the members constitute the culpability of all members
including the two leaders namely Neel Daman Khatri and
Joginder Dahiya.
159. In this view, a finding regarding abetment inter alia
section 109 IPC is redundant as the accused are not
required to be convicted with the aid of every available
tool of inviting constructive liability. Yet, the court may
observe that as many as six witnesses (PW1, PW2, PW13,
PW14,PW15 and PW16) deposed that accused Neel
Daman Khatri and Joginder Dahiya had instigated the
crowd which was followed by stone pelting and two
witnesses viz PW7 (injured/HC Hem Chander) and PW8
(injured/HC Jyoti) stated that these two had started arguing
with the demolition team for stopping the demolition.
Thus, there is a multitude of accounts suggesting the active
abetment of stone pelting by these two accused persons.
The court would reiterate that every witness is not
expected to recount the same version in all particulars.
Thus, the non-assertion by other police witnesses (PW4,
PW5, PW6 and PW9) regarding incitement by these two
accused does not deny the import of the deposition of
those police witnesses who did allege incitement of the
crowd by the two leaders. The court finds it to be the
FIR No. 1439/2014 State Vs. Neel Daman Khatri & Ors Page No.54/ 56
dominant interpretation that upon the arrival of accused
Neel Daman Khatri, a former MLA and Joginder Dahiya, a
local leader, the crowd became more agitated when these
two accused entered into an animated argument with the
official team and then instigated the crowd. Since the
offence punishable under section 353 IPC did get
committed by the act of stone pelting by the crowd, the
abettors viz Neel Daman Khatri and Joginder Dahiya are
liable for the same punishment as the stone pelters by
application of section 109 IPC.
160. However, as recorded earlier, section 149 IPC,
which pertains to commission of an offence by any
member of an unlawful assembly in prosecution of the
common object of the assembly, is the more appropriate
provision to be read with the charge under section 353 IPC
as the other articles of charge are consistent in invoking
section 143 (pertaining to membership of an unlawful
assembly) and section 147 (which has been invoked with
the aid of section 149 IPC).
161. Accused Neel Daman Khatri and Joginder Dahiya
are held guilty under section 353 IPC read with section
149 IPC.
162. As discussed in the initial part of the judgment, the
prosecution has failed to prove the articles of charge
against the other four accused namely Raj Kumar,
Surender, Praveen and Bhim Sen.
FIR No. 1439/2014 State Vs. Neel Daman Khatri & Ors Page No.55/ 56
ORDER
163. Accused Neel Daman Khatri and Joginder Dahiya
are convicted under section 143 IPC, section 147 read with
section 149 IPC and section 353 read with section 149
IPC.
164. Accused Raj Kumar, Surender, Praveen and Bhim
Sen are acquitted of the articles of charge framed against
them under section 353 read with section 149 IPC, section
332 read with section 149 IPC, section 333 read with 149
IPC, section 143 IPC read with section 149 IPC and
section 147 read with section 149 IPC.
Digitally signed
by VISHAL
VISHAL GOGNE
Dictated and announced in open Court GOGNE Date:
2024.12.24
17:09:51 +0530on 24 December, 2024
th
(Vishal Gogne)
Special Judge (PC Act) CBI-24
(MP/MLA Cases), RADC
New DelhiFIR No. 1439/2014 State Vs. Neel Daman Khatri & Ors Page No.56/ 56