Delhi District Court
State vs Hashim Ali And Others on 2 August, 2024
CNR No. DLNE01-002899-2021
State v. Hashim Ali etc.
SC No.291/2021, FIR No. 72/2020, PS Karawal Nagar
DLNE010028992021
IN THE COURT OF SH. PULASTYA PRAMACHALA
ADDITIONAL SESSIONS JUDGE-03,
NORTH-EAST DISTRICT
KARKARDOOMA COURTS: DELHI
Sessions Case No. : 291/2022
Under Section : 148/380/427/435/436 IPC read with
Section 149 IPC as well as u/s. 188 IPC
Police Station : Karawal Nagar
FIR No. : 72/2020
CNR No. : DLNE01-002899-2021
In the matter of: -
STATE
Versus
1. Hashim Ali
S/o. Sh. Dhola Khan,
R/o. H.No.506, Gali No.14,
Phase-6, Shiv Vihar, Karawal Nagar, Delhi-94.
2. Abu Bakar
S/o. Mohd. Shamshad,
R/o. H.No. 328, Gali No.16, Phase-6,
Shiv Vihar, Karawal Nagar, Delhi-94.
3. Mohammad Ajeej
S/o. Sh. Shaan Mohammad,
R/o. H.No.320, Gali No.19, Phase-7,
Shiv Vihar, Karawal Nagar, Delhi.
4. Rashid Ali
S/o. Sh. Hashim Ali,
R/o. Near Chaand Masjid,
Mustafabad, Loni, Ghaziabad, U.P.
5. Najmuddin @ Bhola
S/o. Sh. Mainuddin,
R/o. H.No.341, Gali No.13, Phase-6,
Shiv Vihar, Karawal Nagar, Delhi.
Digitally signed
by PULASTYA
PULASTYA PRAMACHALA
Page 1 of 11 PRAMACHALA
Date: 2024.08.02
16:36:32 +0530
CNR No. DLNE01-002899-2021
State v. Hashim Ali etc.
SC No.291/2021, FIR No. 72/2020, PS Karawal Nagar
6. Mohammad Danish
S/o. Mohammad Nizamuddin,
R/o. H.No. 319, Gali No.19, Phase-7,
Shiv Vihar, Karawal Nagar, Delhi.
...Accused persons
Complainant : Sh. Naresh Chand
S/o. Late Ram Singh,
R/o. H.No. 341, Gali No.12,
Phase-VI, Shiv Vihar, Delhi.
Date of Institution : 11.01.2021
Date of reserving order : 02.08.2024
Date of pronouncement : 02.08.2024
Decision : All accused acquitted.
(Section 481 BNSS/437-A Cr.P.C. complied with by the accused
persons)
JUDGMENT
THE CASE SET UP BY THE PROSECUTION: -
1. Briefly stated, on 28.02.2020 FIR in the present case was registered on the written complaint dated 28.02.2020 of one Sh.
Naresh Chand, S/o. Late Ram Singh. In his complaint, Sh. Naresh Chand alleged that on 25.02.2020 at about 4:30 PM the situation in the area around his house bearing no.341, Gali No.12, Phase-6, Shiv Vihar, Delhi, was abnormal. Thereafter, at around 5 PM, some rioters barged into his house. It was further alleged that he along with his family members cried and shouted to save their lives and were saved by other persons. Rioters ransacked his house and thereafter put it on fire. Even the motorcycle which was parked in the gallery as well as three shops in the house, were also put on fire. It was further alleged that in this incident, fridge, LED 40", cash amount, jeweleries as well as four cylinders, were also looted by this mob. They also Page 2 of 11 Digitally signed by PULASTYA PULASTYA PRAMACHALA PRAMACHALA Date: 2024.08.02 16:36:41 +0530 CNR No. DLNE01-002899-2021 State v. Hashim Ali etc. SC No.291/2021, FIR No. 72/2020, PS Karawal Nagar vandalized the whole house. ASI Suman Kumar was assigned investigation of the present case.
2. During investigation, IO/ASI Suman visited gali no.12, 25 Foota Road, which ended at Johripur Ganda Nala, Shiv Vihar. IO prepared site plan at the instance of complainant. During further investigation on 04.03.2020, complainant took name of accused Hashim, Rashid, Abu Bakar, Ajeet (s/o. Pappu), Shanu (s/o. Nizam), Saleem @ Bhola, stating that they had looted and set his house on fire on 25.02.2020 in the presence of his son namely Umakant. IO recorded supplementary statement of complainant in this respect. IO also added Section 188 IPC in the present case for violation of prohibitory order u/s. 144 Cr.P.C. issued by DCP (N/E) on 24.02.2020.
3. During further investigation, IO received 13 other complaints made by complainants 1. Mohd. Aslam (s/o. Mansoor Alam), 2. Hashim Ali, 3. Mohd. Aslam (s/o. Chhote Khan), 4. Mohd. Irfan,
5. Moeenuddin, 6. Tauseef, 7. Imran Khan, 8. Gulab Hasan,
9. Jaheer, 10. Akram, 11. Aameer, 12. Sahanwaz Khan and 13. Hasim Ali. IO clubbed these 13 complaints with present FIR on the grounds of proximity of place and date of incident, for investigation.
4. During further investigation on 16.03.2020, IO called crime team/NE and got inspected H.No.341 by ASI Mahaveer and photographed it by Ct. Vikas. IO obtained SOC inspection report, photographs and certificate u/s. 65-B of I.E. Act, from them and recorded their statement.
5. During further investigation, DVR of the CCTV installed at the house of Shri Naresh Chand was taken into possession on Digitally signed by PULASTYA Page 3 of 11 PULASTYA PRAMACHALA PRAMACHALA Date: 2024.08.02 16:36:49 +0530 CNR No. DLNE01-002899-2021 State v. Hashim Ali etc. SC No.291/2021, FIR No. 72/2020, PS Karawal Nagar 04.04.2020 in the presence of his son namely Shri Umakant @ Titu. The CCTV footage was analyzed. Complainant and his son Umakant @ Titu identified accused Hasim Ali and Abu Bakar to be part of the riotous mob that had put his house on fire. On the same day, complainant also identified the son of Hasim Ali namely Rashid, Ajeej, Shanu, Salim Ali and Bhola, as some of the rioters who were involved in arson, loot and vandalism. On the identification of Umakant @ Titu, Hasim Ali and Abu Bakar were arrested in the case on 04.04.2020. IO also obtained certificate u/s. 65-B of I.E. Act from Umakant and recorded his supplementary statement. During further investigation, IO also seized burnt motorcycle bearing no. DL-5SCC-4439 make and model Passion Pro, which was registered in the name of Umakant and deposited the same into malkhana.
6. After completion of investigation, on 11.01.2021 chargesheet was filed before ld. CMM, North East District, Karkardooma Court, Delhi, against accused Hashim Ali and Abu Bakar, for offences u/s.147/148/149/188/427/436/34 IPC. Thereafter, on 24.02.2021 ld. CMM, North East District, Karkardooma Court, Delhi, took cognizance of offences u/s.147/148/149/ 427/436/34 IPC, against two accused persons namely Hashim Ali and Abu Bakar. Vide this order, ld. CMM (N/E) declined to take cognizance of offence u/s.188 IPC for want of complaint under Section 195 Cr.P.C.
7. Thereafter, order dated 24.02.2021 was challenged by accused Hashim Ali and Abu Bakar vide Criminal Revision No.15/21 and revision petition was dismissed by sessions court vide order dated 20.07.2021.
Digitally signed by PULASTYAPULASTYA PRAMACHALA Page 4 of 11 PRAMACHALA Date: 2024.08.02 16:36:59 +0530 CNR No. DLNE01-002899-2021 State v. Hashim Ali etc. SC No.291/2021, FIR No. 72/2020, PS Karawal Nagar
8. Thereafter, ld. CMM (N/E) committed this case to the sessions court vide order dated 23.08.2021. On 14.12.2021 first supplementary chargesheet along with complaint u/s. 195 Cr.P.C. and other documents, was filed before ld. CMM (N/E), Karkardooma Court, Delhi, impleading additional accused persons namely Mohd. Ajeej, Rashid Ali, Najmuddin @ Bhola and Mohd. Danish, in the present case. This supplementary chargesheet was sent to the court of sessions vide order dated 19.02.2022. Thereafter, on 01.12.2022 second supplementary chargesheet along with report from FSL as well as sealed parcel from FSL, was filed directly before this court.
9. During proceedings of this case on 06.07.2022, this court had raised query before IO regarding fate of 13 other complaints and it was informed that same were being investigated in some other FIR. On same day, IO moved application, thereby seeking return of 13 such complaints, which were being investigated in other cases, and that application was allowed by this court on that day. Thereafter on 17.10.2022, IO filed a status report thereby submitting that 14 complaints had been taken back from this case and had been clubbed in FIR No.142/20, for further investigation.
10. Thereafter on 11.07.2023, subsequent supplementary chargesheet was filed directly before this court. As per this supplementary chargesheet, prosecution took stand to prosecute present case for complaint of Sh. Naresh Chand (on the basis of which present FIR has been registered) along with complaint of Sh. Dharampal Singh.
11. In his complaint dated 01.03.2020 (recorded vide 121-DR), Digitally signed by PULASTYA PULASTYA PRAMACHALA Page 5 of 11 PRAMACHALA Date: 2024.08.02 16:37:09 +0530 CNR No. DLNE01-002899-2021 State v. Hashim Ali etc. SC No.291/2021, FIR No. 72/2020, PS Karawal Nagar complainant Dharampal Singh alleged that he was running his clinic in H.No.341, Gali No.12, Phase-VI, Main Road, 25 foota road, Shiv Vihar, for 20 years. It was further alleged that rioters damaged all articles of his clinic and set it on fire. CHARGES: -
12. On 23.08.2023, charges were framed against accused persons namely 1. Hashim Ali, 2. Abu Bakar, 3. Mohd. Ajeej, 4. Rashid Ali, 5. Nazmuddin @ Bhola, and 6. Mohammad Danish for offences punishable under Section 148/380/427/435/436 IPC read with Section 149 IPC as well as Section 188 IPC, to which they pleaded not guilty and claimed trial. The charges were framed in following terms: -
"That on 25.02.2020, at around 06:30 PM onwards, in and around the area of Gali No.12, Phase-6, Shiv Vihar, Delhi, within the jurisdiction of PS Karawal Nagar, you accused persons along with your other associates (unidentified) from Muslim community had formed an unlawful assembly, the object whereof was to vandalize and arson in the shops, houses and other properties of persons from Hindu community, in the said area, by the use of force and violence; and in prosecution of the aforesaid common object of such assembly and in violation of the Proclamation issued under section 144 Cr.PC by the competent authority/DCP, North East vide order dated 24.02.2020 bearing no.10094-170 X-1, North East, Delhi dt.24.02.2020, which was duly announced in all the localities of District North-East including area of PS Karawal Nagar, this mob including you accused persons being equipped with deadly weapons like lathi, danda, stone, a long sickle-shaped object etc., committed riot, and you all accused persons knew being members of the aforesaid unlawful assembly that an offence was likely to be committed in prosecution of that common object and thereby committed offences punishable under section 148 IPC read with section 149 IPC; and section 188 IPC and within my cognizance.
Secondly, on the aforesaid date, time and place, this mob including you all accused persons, vandalized and damaged three shops and house, all situated in property bearing no.341, Gali No.12, Phase-6, Shiv Vihar, Delhi, of complainant Sh. Naresh Chand, s/o. Late Ram Singh; and committed theft of various articles lying therein i.e. fridge, LED 40", cash, jewelleries as well as four cylinders belonging to complainant Sh. Naresh Chand. This mob also committed mischief by fire or explosive substance with the intent to destroy aforesaid three Digitally signed Page 6 of 11 by PULASTYA PULASTYA PRAMACHALA PRAMACHALA Date: 2024.08.02 16:37:18 +0530 CNR No. DLNE01-002899-2021 State v. Hashim Ali etc. SC No.291/2021, FIR No. 72/2020, PS Karawal Nagar shops, house and a motorcycle make and model Passion X-Pro, bearing registration no. DL-5SCC-4439 belonging to Sh. Umakant, which was parked in the gallery of aforesaid house of complainant, as well; and thereby you all accused persons committed offence(s) punishable under Section 380/427/435/436 IPC read with Section 149 IPC and within my cognizance."
DESCRIPTION OF PROSECUTION EVIDENCE: -
13. Several witnesses were dropped on the basis of admission of documents under Section 294 Cr.P.C. and prosecution examined 15 witnesses in support of its case.
14. PW1/ASI Ishwar Singh was the Duty Officer, who registered FIR in this case. PW2/Sh. Naresh Chand was the complainant. He proved his complaint as given to the police and deposed about the damage to his property bearing no. 341, Gali No.12, Phase- VI, Shiv Vihar Delhi, in the riots taken place on 25.02.2020, during evening time. He had left his property with his daughter- in-law before riotous incident taking place at his house. He denied having named anyone before police. He further deposed that his son or wife did not tell him about seeing anyone among the rioters. PW3/ASI Mahabir was incharge of Mobile Crime Team and he visited aforesaid property with photographer HC Vikas Tomar (PW9) on 13.03.2020. PW3 found this property in open condition. PW3 also found articles in the shop and residential part of this property in burnt condition apart from burn mark in the property. PW3 prepared SOC report and handed over the same to IO. PW9/HC Vikas Tomar took 36 photographs of this property and proved the same. PW4/ASI Naresh Pal had produced the office record of order passed under Section 144 Cr.P.C. and complaint made under Section 195 Cr.P.C. He identified the signatures on this order and complaint. PW5/Sh.
Digitally signed by PULASTYA PULASTYA PRAMACHALA
Page 7 of 11 PRAMACHALA Date: 2024.08.02
16:37:27 +0530
CNR No. DLNE01-002899-2021
State v. Hashim Ali etc.
SC No.291/2021, FIR No. 72/2020, PS Karawal Nagar Dharampal was having his clinic in the same property. He had also given a complaint to the police in respect of arson at his clinic during riots. He had also given photographs of his clinic to the police and he proved the same with support of certificate under Section 65-B of Indian Evidence Act. PW6/HC Ravinder had pronounced the order under Section 144 Cr.P.C. in the area of PS Karawal Nagar on 24.02.2020. PW7/Sh. Umakant was son of the complainant. At the time of riotous incident at his home, he was present at his home with his mother and was rescued by some of the persons and taken to the house of the another friend. He had handed over DVR in respect of CCTV camera installed at his house, to the police. He denied having identified any rioter. PW8/Smt. Munni Devi was wife of the complainant, who had remained with PW7 at the property and was rescued along with him. She also denied having seen and identified any rioter. PW10/Ct. Dinesh had taken the exhibits of this case to FSL, Rohini. PW11/Sh. Amit Kumar was Junior Forensic/Assistant Chemical Examiner in FSL, Rohini and he had received one DVR in sealed condition. He had prepared a clone copy of the contents of that DVR. Thereafter, he extracted the data from the clone copy in a DVD, which was sent back by him. He had also subsequently prepared nine (9) duplicate copies of aforesaid DVD. PW12/HC Bhim Singh was working as MHC(M) in PS Karawal Nagar on 09.12.2021. He had sent exhibits in this case to FSL, Rohini and he proved the entries made in register no. 19 and 21. PW13/Sh. V. Lakshmi Narasimhan was working as Assistant Director in FSL, Rohini, who had examined the contents of DVD as prepared by PW11 and had prepared his Digitally signed Page 8 of 11 by PULASTYA PULASTYA PRAMACHALA PRAMACHALA Date: 2024.08.02 16:37:36 +0530 CNR No. DLNE01-002899-2021 State v. Hashim Ali etc. SC No.291/2021, FIR No. 72/2020, PS Karawal Nagar report regarding tempering in the video files. As per his report no tempering was found in the video files. PW14/ASI Suman Kumar had prepared rukka in this case for registration of FIR and thereafter, he started investigation. He had prepared site plan and recorded supplementary statement of complainant. He had also received other complaints, which were clubbed by him in this case. However, subsequently those complaints were taken away and clubbed in other FIR. He had seized the DVR in this case and had arrested the accused persons at the instance of PW7/Sh. Uma Kant. He had obtained certificate from PW7/Sh. Uma Kant in respect of DVR as well. PW15/SI Mandeep was the IO, who had prepared and filed the chargesheet in this case after obtaining reports from FSL and other documents like bills of damaged articles from the complainants. He had also obtained the complaint under Section 195 Cr.P.C. from the office of DCP and had added Section 188 IPC.
ARGUMENTS OF DEFENCE AND PROSECUTION
15. Sh. Salim Malik and Ms. Shavana, ld. counsels for and Hashim Ali and Rashid Ali; Mohd. Mobashshir Aneeq, ld. counsel for accused Mohd. Ajeej and Nazmuddin @ Bhola and Sh. Mushfique Raja, ld. counsel for accused Mohd. Danish, argued that there is no incriminating evidence against any of the accused persons, because there is no evidence to establish their identity as part of the mob. It was further argued that DVR or contents thereof do not establish identity of the accused persons, for want of any such identification made by any witness in the videos.
16. Sh. Naveen Kumar Raheja, ld. Special PP argued that though the complainant and other cited witness did not support the case of Digitally signed by PULASTYA Page 9 of 11 PULASTYA PRAMACHALA PRAMACHALA Date: 2024.08.02 16:37:47 +0530 CNR No. DLNE01-002899-2021 State v. Hashim Ali etc. SC No.291/2021, FIR No. 72/2020, PS Karawal Nagar prosecution to identify the accused persons as part of the mob behind the incident, however, prosecution has proved DVR and contents thereof, which include video files. He further argued that this DVR had recording of CCTV camera installed at the house of complainant, which is also a kind of eyewitness and that is sufficient incriminating evidence against the accused persons. Ld. Special PP also referred to admitted CDR with Cell ID Chart of the accused persons to show presence of accused Abu Bakar and Hashim Ali at the place of incident.
APPRECIATION OF FACTS AND EVIDENCE
17. I have considered the rival contentions and have gone through the evidence on the record carefully. It is true that DVR with its contents containing video files are proved on the record. However, no witness is there to identify any of the accused persons in the videos. Moreover, appearance of any accused in the video could be confirmed through scientific examination, by way of comparison of picture appearing in the video and specimen picture of the accused persons. However, no such steps were taken by IO in this case. Thus, there is no evidence at all to establish that accused persons are appearing in those videos.
18. As far as CDR and Cell Id Chart are concerned, they do not establish the exact location of the accused persons, nor do they establish involvement of the accused persons in the incident probed in this case. They could be used only as corroborative piece of evidence. In absence of any evidence to establish the presence of the accused persons in the mob behind the incident in question, I am of the opinion that there is no incriminating evidence against the accused persons.
Digitally signed by PULASTYA Page 10 of 11 PULASTYA PRAMACHALAPRAMACHALA Date: 2024.08.02 16:38:02 +0530 CNR No. DLNE01-002899-2021 State v. Hashim Ali etc. SC No.291/2021, FIR No. 72/2020, PS Karawal Nagar
19. For aforesaid reasons, statement of accused persons u/s 351 BNSS/313 Cr.PC is dispensed with as per provisions u/s 255 BNSS/232 Cr.PC, because there is not a single evidence on the record to point out towards the accused persons, as member of the riotous mob behind the incident at the premises of PW2/Sh. Naresh Chand and PW5/Sh. Dharampal.
CONCLUSION & DECISION
20. In view of my foregoing discussions, observations and findings, I find that charges leveled against the accused persons in this case are not proved at all. Hence, accused persons 1. Hashim Ali, 2. Abu Bakar, 3. Mohd. Ajeej, 4. Rashid Ali, 5. Nazmuddin @ Bhola, and 6. Mohammad Danish are hereby acquitted of all the charges leveled against them in this case. Digitally signed by PULASTYA PRAMACHALA PULASTYA PRAMACHALA Date:
2024.08.02 16:38:10 +0530 Announced in the open court (PULASTYA PRAMACHALA) today on 02.08.2024 ASJ-03 (North- East) (This order contains 11 pages) Karkardooma Courts/Delhi Page 11 of 11