CHOEGYAL Vs. STATE

JUDGEMENT

(1.) On 11 th March, 1992 the Chinese President visited this country. The Appellants who were Tibetan nationals living in this country, reached outside the Chinese Embassy and raised slogans against China. An information was sent to P.S. Chanakyapuri. On receipt of DD No. 55-B SI Ram Sunder along with Constable Ranbir, Constable Rohtas, Constable Raj Bir, Constable Aas Mohd and DHG Ram Kumar reached outside the Chinese Embassy where the Appellants were raising the slogans against China and quarrelling with the Special Task Force. Stones were lying on the main gate of Chinese Embassy and window panes of the guardroom were lying broken outside the guardroom. The main gate of the Chinese Embassy was broken and broken bottles and its caps were lying near the main gate. Statement of PW2 Ram Shresth Mandal, Guard at the Chinese Embassy was recorded who stated that at about 12:45 P.M. he was in the guardroom inside the Chinese Embassy. At that time, 3-4 taxies came in which some persons were sitting. One of the persons was having Tibetan Flag in his hands and others were having bottles filled with petrol. All of them while raising slogans against China, started pelting stones and also threw fire bottles at the gate of the Embassy due to which the main gate got burnt. They tried to stop them but they threw a glass after lighting it with fire on him due to which his right hand got burnt. He then locked the main gate of the Embassy and in the meantime the police arrived. On the basis of this statement, a case FIR No. 62/1992 under Sections 307/436/427/147/148/149/186/353 IPC was registered. The medical examination of PW2 Ram Shresth Mandal was done. Constable Manoj Kumar alleged that the Appellants gave him fist blows on his chest. On completion of investigation, charge-sheet was filed. Co-accused Tashi absented during trial, thus he was declared a proclaimed offender. After recording statement of 11 prosecution witnesses and the accused, the Appellants were convicted for offences punishable under Sections 324/149 IPC and sentenced to Rigorous Imprisonment for a period of one year and a fine of '500/- each and in default of payment of fine to further undergo Simple Imprisonment for 15 days. They were further convicted for offences punishable under Section 435/149 IPC and sentenced to Rigorous Imprisonment for a period of three years and a fine of '1000/- each and in default of payment of fine to further undergo Simple Imprisonment for one month. They were also convicted for offence punishable under Sections 186/149 IPC and sentenced to Rigorous Imprisonment for a period of one month and a fine of '100/- each and in default of payment of fine to further undergo Simple Imprisonment for one day. They were also convicted for offence punishable under Sections 353/149 IPC and sentenced to Rigorous Imprisonment for one year and a fine of '500/- each and in default of payment of fine to further undergo Simple Imprisonment for 15 days. They were convicted for offence punishable under Sections 148/149 IPC and awarded a sentence of Rigorous Imprisonment for one year and a fine of '500/- each and in default of payment of fine to further undergo Simple Imprisonment for 15 days. This judgment of conviction and order on sentence in Sessions Case No. 72/1993 is impugned in the present appeal.

(2.) Learned counsel for the Appellants contends that PW 2 Ram Shresth Mandal the maker of the FIR who is also injured alongwith PW1 Om Prakash who were the guard and supervisor at the Chinese Embassy and thus natural witnesses have turned hostile and have not identified the Appellants as the accused. PW11 Constable Manoj Kumar is also an injured witness who has alleged that he was given fist blow by the Appellants however he has not identified the Appellant who gave him the fist blows. Moreover, his MLC was got conducted after six hours of the incident. There was no apparent injury on his body. No role has been ascribed to the Appellants by PW11. The case of the prosecution is contrary as PW1 and PW2 state that the rioters came in 2-3 taxies whereas PW11 has stated that taxies were stopped at Shanti Path because of the heavy 'bandobast' in view of the arrival of the Chinese President. The presence of the Appellant has been proved because of two suggestions given by the Appellants in cross-examination. Reliance is placed on Vikas & Ors vs. State of Karnataka and Narain Singh & Another vs. State, 1997 2 Crimes 464 to contend that the prosecution has to prove its case beyond reasonable doubt and for the same it has to stand on its own legs and cannot to take advantage of the weaknesses of the defence.

(3.) It is further contended that DD No. 55/B which was the information received by the police has been suppressed and not placed on record. Thus an adverse inference has to be drawn against the prosecution in this regard. As per the investigating officer, PW7 he went to the spot on receipt of DD No. 55/B. Thus that being the FIR, the statement of PW2 on which the FIR is registered is non-est. Since PW2 in his statement has stated that he made the statement in the evening, the FIR is clearly ante-timed. No stones or glass pieces were seized. All the seizure memos bear the signatures of PW1 and PW2 who have clearly stated that they did not see the Appellants on that date. It is further stated that the offence under Section 149 is not made out as no sharp injury has been proved by the prosecution. Even an offence under Sections 323/149 is not made out because the complaint of chest pain by PW11 was reported after six hours and not soon after the incident. Neither PW4 nor PW11 have named the Appellants. Furthermore, the provisions of Sections 439/149 IPC are not attracted as no mischief of fire explosive was proved. There is no fire report nor was fire tender called. There is no damage proved to the iron-gate and sofa as the same have not been seized and produced in the Court. Value of the property destroyed in fire being more that '100/- is presumptive as no report of the loss has been got prepared and no offence in this regards has been led. Moreover, the claim of the prosecution is that the Appellants were arrested from the spot. However from their personal search neither any match box nor lighter nor match stick has been recovered. The offences punishable under Sections 353/186 IPC are also not made out as no hindrance has been caused to any public servant in discharge of his official duty. Moreover, the essential requirement that the officers was deterred in performing of their duty has also not been stated by PW4 and PW11, thereby not attracting Section 353 IPC. Even in the complaint under Section 195 Cr.P.C. Ex. PW8/A there is no allegation of obstruction or any injuries which were caused to deter them from duty. Even if assuming that an injury was caused, the same was simple which would not attract the provision of Section 353 IPC. Reliance is placed on P. Rama Rao vs. State of Andhra Pradesh, 1984 CrLJ 27. The provisions of Sections 148/149 are also not attracted as the petrol bottles are not deadly weapons. Moreover, allegedly these bottles were thrown at the Chinese Embassy Gate and a gate of iron would not catch fire with such petrol bottles. Relying on Nand Kishore Mohanti vs. State of Orissa, 1961 AIR(Ori) 29 it is stated that the constructive liability envisaged under Section 149 IPC cannot apply to an offence under Section 148 IPC. In the alternative, it is stated that the Appellants are all aged around 60 years and 19 years have elapsed since the alleged incident occurred. There is no previous nor any subsequent criminal record of the Appellants. They have faced the ordeal of trial and have been regularly appearing in the trial court and in this Court since 19 years. They have suffered custody of 31 days and have already deposited the fine. The Appellants are also leading lives as refugees in this country and so they be not sent to jail after 19 years and the sentence be reduced to the period already undergone.