Delhi District Court
State vs Mohd Shahnawaz @ Shanu And Others on 25 November, 2023
CNR No. DLNE01-000438-2021
State v. Shahnawaz @ Shanu etc.
SC No.46/21, FIR No.65/20, PS Gokalpuri
Judgment dated 25.11.2023
DLNE010004382021
IN THE COURT OF SH. PULASTYA PRAMACHALA
ADDITIONAL SESSIONS JUDGE-03,
NORTH-EAST DISTRICT
KARKARDOOMA COURTS: DELHI
INDEX
Sl. No. HEADINGS Page Nos.
1 Description of Case & Memo of Parties 2-3
2 The case set up by the Prosecution 3-5
3 Charges 5-6
4 Description of Prosecution Evidence 6-20
5 Plea of accused under Section 313 Cr.P.C. 20
6 Arguments of Defence & Prosecution 20-22
APPRECIATION OF LAW, FACTS AND EVIDENCE
7 Unlawful Assembly and Riots 22-25
8 Identification of accused 25-43
9 Conclusion and Decision 43
Digitally signed
by PULASTYA
PULASTYA PRAMACHALA
PRAMACHALA Date:
2023.11.25
14:33:12 +0530
Page 1 of 43 (Pulastya Pramachala)
ASJ-03, North-East District,
Karkardooma Courts, Delhi
CNR No. DLNE01-000438-2021
State v. Shahnawaz @ Shanu etc.
SC No.46/21, FIR No.65/20, PS Gokalpuri
Judgment dated 25.11.2023
Sessions Case No. : 46/2021
Under Section : 147/148/424/436 read with 149
IPC & 188 IPC
Police Station : Gokalpuri
FIR No. : 65/2020
CNR No. : DLNE01-000438-2021
In the matter of: -
STATE
VERSUS
1. Mohd. Shahnawaz @ Shanu
S/o. Mohd. Rashid,
R/o. H.No. 528, Gali No.22, Phase-10,
Shiv Vihar, Delhi.
2. Mohd. Shoaib
S/o. Sh. Islam,
R/o. H.No.93, Gali No.5/2,
Babu Nagar, Mustafabad, Delhi.
3. Shahrukh
S/o. Sh. Salauddin,
R/o. H.No. B-262, Gali No.7,
Near Shiv Mandir, Babu Nagar, Delhi.
4. Rashid
S/o. Sh. Riyajuddin,
R/o. A-22, Gali No.1, Chaman Park, Delhi.
5. Azad
S/o. Sh. Riyasat Ali,
R/o. H.No. 824, Gali No.9,
Old Mustafabad, Delhi.
6. Ashraf Ali
S/o. Sh. Anisul Haq,
R/o. H.No. A-18, Chaman Park,
Indira Vihar, Delhi.
7. Parvez
S/o Sh. Riyajuddin,
R/o. Gali No.1, Karawal Nagar, Delhi.
Digitally signed
by PULASTYA
PULASTYA PRAMACHALA
PRAMACHALA Date:
Page 2 of 43 (Pulastya Pramachala)
2023.11.25
14:33:24 +0530
ASJ-03, North-East District,
Karkardooma Courts, Delhi
CNR No. DLNE01-000438-2021
State v. Shahnawaz @ Shanu etc.
SC No.46/21, FIR No.65/20, PS Gokalpuri
Judgment dated 25.11.2023
8. Md. Faisal
S/o. Sh. Raisuddin,
R/o. F-14, Gali No.1, Babu Nagar,
Main Brijpuri Road, Delhi.
9. Rashid @ Monu
S/o. Khalil,
R/o. H.No. 259, Gali No.7,
Shiv Mandir, Shakti Vihar, Delhi.
...Accused Persons
Complainant: SH. DINESH AGGARWAL,
S/o. Sh. Ramesh Chand Aggarwal,
R/o. C-286, Vivek Vihar, Delhi.
Date of Institution : 20.07.2020
Date of reserving judgment : 09.11.2023
Date of pronouncement : 25.11.2023
Decision : All accused are acquitted.
(Section 437-A Cr.P.C. complied with by all accused persons.)
JUDGMENT
THE CASE SET UP BY THE PROSECUTION: -
1. The above-named accused persons have been charge-sheeted by the police for having committed offences punishable under Section 147/148/149/188/427/436 IPC.
2. Brief facts of the present case are that on 01.03.2020 FIR was registered at PS Gokalpuri pursuant to receipt of a written complaint dated 28.02.2020 from Sh. Dinesh Aggarwal i.e. owner of M/s. S.S. Glass & Plywood Company having its business at property no. 52/13, Chaman Park, opposite Rajdhani Public School near Shiv Vihar Tiraha. Complainant alleged that during the course of violence on 25.02.2020 his aforesaid godown as well as Tempo TATA-709 bearing no. DL01-LAC-Digitally signed Page 3 of 43 by PULASTYA
PULASTYA (Pulastya Pramachala) PRAMACHALA ASJ-03, North-East PRAMACHALA District, Date: Courts, Karkardooma 2023.11.25 Delhi 14:33:34 +0530 CNR No. DLNE01-000438-2021 State v. Shahnawaz @ Shanu etc. SC No.46/21, FIR No.65/20, PS Gokalpuri Judgment dated 25.11.2023 1157 and motorcycle bearing no. DL-5SCH-7967 were burnt by the rioters. Complainant further alleged that another vehicle bearing no. DL05-CQ-8058 and motorcycle bearing no. DL- 5SCE-4253 were extensively damaged. ASI Ramdass was marked investigation of the present case.
3. During investigation, IO visited the spot and prepared site plan at the instance of complainant Dinesh Aggarwal. On 08.03.2020, IO seized aforesaid four vehicles in the present case and deposited in the malkhana. IO also recorded statements of the labourers working in the godown of the complainant. After discussion, IO also added Sections 436/188 IPC in the present case. On 15.03.2020, IO called crime team, got inspected and photographed the scene of crime and obtained inspection report as well as photographs. On 07.04.2020, IO recorded statement of eyewitnesses namely Ct. Vipin and HC Hari Babu, who named accused Shahnawaz @ Shanu, Azad, Shahrukh, Mohammad Shoaib @ Chhutwa, Rashid @ Monu, Parvez, Rashid @ Raja, Mohammad Faisal and Ashraf Ali.
4. During further investigation, IO came to know about arrest of accused persons by crime branch in another FIR No.39/20, PS Gokalpuri. Accordingly, IO visited Mandoli Jail on 24.04.2020 and after seeking permission from ld. Duty MM, he interrogated and formally arrested seven accused persons namely Mohd. Shahnawaz @ Shanu, Mohd. Shoaib, Shahrukh, Rashid, Azad, Ashraf Ali and Parvez. Accused Mohd. Faisal and Rashid @ Monu, who had been lodged in Tihar Jail, were also interrogated and formally arrested by IO on 27.04.2020.
Digitally signed by PULASTYA Page 4 of 43 PULASTYA (Pulastya Pramachala) PRAMACHALA PRAMACHALA ASJ-03, North-East District, Date: 2023.11.25 Karkardooma Courts, 14:33:44 Delhi +0530 CNR No. DLNE01-000438-2021 State v. Shahnawaz @ Shanu etc.
SC No.46/21, FIR No.65/20, PS Gokalpuri Judgment dated 25.11.2023
5. During further investigation, IO obtained a CD containing video footage recorded in the CCTV camera installed at Rajdhani Public School from Insp. Surender Singh, who was investigating the case FIR No.39/20. During further course of investigation, more witnesses including PCR callers were examined.
6. After completion of investigation, on 20.07.2020 a chargesheet was filed before Duty MM (North East), Karkardooma Courts, Delhi, against aforesaid accused persons. Thereafter, on 23.12.2020, ld. CMM (North East), Karkardooma Courts, Delhi, took cognizance of offences punishable under Section 147/148/ 149/427/436 IPC. Vide this order, ld. CMM (North East) declined to take cognizance of offences under Section 188 IPC for want of complaint u/s 195 Cr.P.C. Thereafter, case was committed to the court of sessions on 12.01.2021.
7. On 22.10.2021, first supplementary chargesheet was filed before ld. CMM (N/E), along with a complaint under Section 195 Cr.P.C and other documents. On 28.10.2021, this supplementary chargesheet was sent to the court of sessions. On 27.09.2022, subsequent supplementary chargesheet along with certificate u/s. 65-B of I.E. Act, statement of SI Surender, supplementary statement of ASI Hari Babu and HC Vipin, was filed directly before this court.
CHARGES: -
8. On 06.12.2021, charges were framed against aforesaid accused persons for offences punishable under Section 147/148/424/436/ IPC read with Section 149 IPC, in following terms: -
"That from 24.02.2020 to 26.02.2020 at Main Road, Chaman Park, Shiv Vihar Tiraha, Delhi within the jurisdiction of PS Digitally signed Page 5 of 43 (Pulastya Pramachala) by PULASTYA PULASTYA ASJ-03, North-East PRAMACHALA PRAMACHALADistrict, Karkardooma Courts, Delhi Date: 2023.11.25 14:33:55 +0530 CNR No. DLNE01-000438-2021 State v. Shahnawaz @ Shanu etc. SC No.46/21, FIR No.65/20, PS Gokalpuri Judgment dated 25.11.2023 Gokalpuri, all of you from a particular community formed an unlawful assembly, the object whereof was to commit robbery and arson in the properties of the persons from other community by use of force or violence in prosecution of common object of such assembly and committed rioting and you all 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(s) 147/148 read with Section 149 IPC and within my cognizance.
Secondly, on 25.02.2020 at around 4.00 p.m.to 5.00 p.m., you all being members of unlawful assembly in furtherance of your common object entered into property no.52/13, Chaman Park, Opposite Rajdhani School, Near Shiv Vihar Tiraha, Delhi, belonging to complainant Dinesh Aggarwal s/o. Ramesh Chand Aggarwal and dishonestly removed the various articles lying therein and thereafter also committed mischief by fire or explosive substance with the intent to destroy the aforesaid shop and thereby committed an offence punishable under Section 424/436 IPC read with Section 149 IPC and within my cognizance."
9. Thereafter, on 20.09.2022, additional charge was framed against aforesaid accused persons for offence punishable under Section 188 IPC, in the following terms: -
"That, from 24.02.2020 to 26.02.2020 and particularly on 25.02.2020 at and around 4.00 p.m to 5.00 p.m. at and around the area of main road, Chaman Park, Shiv Vihar, Delhi, within the jurisdiction of PS Gokalpuri, you all accused persons being member of an unlawful assembly alongwith your other associates (unidentified) were present at aforesaid place, in prosecution of the common object of an unlawful assembly and in violation of the proclamation issued u/s 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 Gokalpuri, thereby you all committed offence punishable under Section 188 IPC and within my cognizance."
DESCRIPTION OF PROSECUTION EVIDENCE: -
10. Several witnesses were dropped on the basis of admission of documents under Section 294 Cr.P.C. and prosecution examined 17 witnesses in support of its case, as per following descriptions:-Digitally signed by PULASTYA
PULASTYA PRAMACHALA PRAMACHALA Date:
2023.11.25 14:34:06 +0530 Page 6 of 43 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000438-2021 State v. Shahnawaz @ Shanu etc. SC No.46/21, FIR No.65/20, PS Gokalpuri Judgment dated 25.11.2023 Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties PW1/Sh. On 24.02.2020 at around 3-4 PM, he along with his Atul Kumar father, was present in his house bearing no. C-3/C-2, Chaman Park, Shiv Vihar Tiraha, Delhi-94. Some people had come from the side of Mustafabad and they were pelting stones on the houses. They took out the goods from the shop in the area and set ablaze those shops. There was a shop on the ground floor of his house under the name and style of Pizza diet, which was also set ablaze by the rioters. An electricity meter installed on the rear side of his house also caught fire. Some rioters had come to the roof of his house and started pelting stones from there. PW1 made call at 100 number from his mobile no.9953190769. Due to riotous incident, PW1 and his father left the house at night and started residing in the house of their relatives at Karawal Nagar. They returned on 27.02.2020 and saw that their entire house had been burnt on 25.02.2020, with all furnitures.
On the point of identification of accused persons, PW1 did not support the case of prosecution and was declared hostile.
PW2/Sh. As per his testimony, on 25.02.2020 at about 6 PM, a Himanshu riotous mob comprising of members belonging to muslim community had come from the side of Mustafabad near his house bearing no. C-3/C-2, Chaman Park, Shiv Vihar Tiraha, Delhi-94, raising religious slogans and they set ablaze his house. PW2 had made a call at 100 number from his mobile no. 7827735228. Army had rescued him and all his family members from his house during the night intervening 25.02.2020 and 26.02.2020. On the point of identification of accused persons, PW2 did not support the case of prosecution and was declared hostile.
PW3/ASI On 14.03.2020, he alongwith SI Ex.PW-3/A Mahavir Surender Kumar (In-charge) had (colly) (seven visited A-52/13, Chaman Park. photographs of On that day, on the direction of the spot clicked Digitally signed by PULASTYA Page 7 of 43 (Pulastya Pramachala) PRAMACHALA PULASTYA ASJ-03, North-East PRAMACHALA Date: District, Karkardooma Courts, Delhi 2023.11.25 14:34:15 +0530 CNR No. DLNE01-000438-2021 State v. Shahnawaz @ Shanu etc. SC No.46/21, FIR No.65/20, PS Gokalpuri Judgment dated 25.11.2023 Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties IO/ASI Ram Dass, PW3 had by PW3 at A-
clicked seven photographs of the 52/13); & spot. PW3 had prepared Ex.PW-3/B certificate u/s. 65-B of I.E. Act, (certificate u/s. bearing his signature at circle X. 65-B of I.E. Act of PW3) PW4/Md. He was a PCR caller. On 25.02.2020, he along with Arif his family was present at his home i.e. B-142/2, Indira Vihar, Delhi. On that day, at about 10 PM, PW5 heard some commotion in the gali and he became terrified and accordingly made a call at 100 number from his mobile no. 9267959923. However, he said nothing about the incident probed in this case.
PW5/Sh. He was the complainant, who had Ex.PW5/A Dinesh a godown opposite to Rajdhani (complaint of Aggarwal School, near Shiv Vihar Tiraha, PW5) Brijpuri, Delhi. PW5 had been running a company in the name of M/s S.S.Glass and Plywood Company. PW5 used to keep/store glass in aforesaid godown of this company. PW5 had locked his godown and had gone out of Delhi.
When PW5 came back to Delhi and visited his godown, PW5 found that shutter of his godown was open. The glass materials kept inside the godown were in broken condition. PW5 had also parked/kept four vehicles inside that godown and one of those vehicles bearing registration no.
DL-01 LAC 1157 was a tempo
709. Apart from this tempo, there was one Ecco Vehicle and two motorcycles. Three of his aforesaid vehicles were found in Digitally signed by PULASTYA Page 8 of 43 (Pulastya PRAMACHALA PULASTYA Pramachala) PRAMACHALA ASJ-03, North-East Date: District, 2023.11.25 Karkardooma14:34:24 Courts, +0530 Delhi CNR No. DLNE01-000438-2021 State v. Shahnawaz @ Shanu etc. SC No.46/21, FIR No.65/20, PS Gokalpuri Judgment dated 25.11.2023 Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties burnt condition while one vehicle i.e. Ecco was also in damaged condition.
PW5 had given a written complaint in PS, bearing his signature at circle X. Police officials had inspected his aforesaid godown in his presence on several occasions. They had lifted burnt materials in polybag.
Police had made enquiries in the surrounding areas. All four aforesaid vehicles were brought by police to PS. PW5 identified location of his godown at point A in the site plan, bearing his signature at Circle X. The tempo as well as Ecco Vehicle were registered in the name of aforesaid company of PW5. The two m/cycles were belonging to workers of his godown. Three of aforesaid four vehicles were got released by PW5 from the PS. Police had taken 12 photographs of his godown and aforesaid vehicles.
PW6/Sh. On 25.02.2020, when riot had taken place in the area Sandeep of Shiv Vihar, Delhi, PW6 along with his father Kumar Bhawan Dev and brother Deepak remained present up to about 03:00 PM, in the godown of glasses owned by Sonu Bhaiya, which was situated at Shiv Vihar, Delhi. Since mob/rioters had started pelting stones on their godown, they left that place from the back door.
Next day, they all left Delhi for their native place and PW6 again came back to Delhi in January 2021 and went to that godown. A motorcycle bearing registration no. DL5SC7967 in the name of PW6 Digitally signed by PULASTYA Page 9 of 43 PULASTYA(Pulastya Pramachala) PRAMACHALA ASJ-03, North-East PRAMACHALA Date: District, Karkardooma Courts, Delhi 2023.11.25 14:34:34 +0530 CNR No. DLNE01-000438-2021 State v. Shahnawaz @ Shanu etc. SC No.46/21, FIR No.65/20, PS Gokalpuri Judgment dated 25.11.2023 Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties was parked outside the godown on 25.02.2020. When pelting of stones had started, PW6 had parked it inside that godown. When they left that godown, shutter of the same was locked from inside. In the evening, Bhawan Dev had received a call from some person/driver, who informed him that all of the articles and his motorcycle as well as motorcycle of Bhawan Dev were burnt by the mob, after breaking open the shutter of the godown.
PW7/Sh. In February 2020, he had been working for Sh. Bhawan Dev Dinesh Aggarwal in a godown of glass, situated in Singh Chaman Park, Shiv Vihar, Delhi. On 25.02.2020, a riot had taken place in that area. On that day, PW7 was on duty in this godown up to around 03:00 PM. When rioters started pelting stones on his godown, then he along with Hukam Singh, Deepak, Suprai and some other boys left that godown from the back door. When PW7 had left the godown on 25.02.2020, at that time there was one 709 vehicle, one Ecco vehicle, two motorcycles (one my motorcycle bearing registration no. DL1L5SCE4253 and other motorcycle belonging to Sandeep). The godown was full of glass sheets, apart from their clothes. In front of the godown there was open space wherein 709 vehicle was parked. Other vehicles were also parked inside the godown. There was a gate also and the gate as well as shutter of the godown were locked by them before leaving the same. After around 3 days, when PW7 came back to that godown, all the glass sheets were completely broken, motorcycle of PW7 was completely damaged/ broken. Ecco vehicle was partly broken and partly burnt. Motorcycle of PW6/Sandeep and 709 vehicle were completely burnt. After around one week, PW7 went to PS Gokalpuri and handed over his complaint. At that time, his statement was also recorded by the police. PW8/Sh. On 01.03.2020, Mr. Vipin from Ex.PW-8/A Pramod PS Gokalpuri came to him and (document/ Kumar asked him to prepare video of the application of damaged properties and articles in PW8 regarding Digitally signed Page 10 of 43 (Pulastya Pramachala) by PULASTYA PULASTYA ASJ-03, North-East PRAMACHALADistrict, PRAMACHALA Date: 2023.11.25 Karkardooma Courts, Delhi 14:34:43 +0530 CNR No. DLNE01-000438-2021 State v. Shahnawaz @ Shanu etc. SC No.46/21, FIR No.65/20, PS Gokalpuri Judgment dated 25.11.2023 Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties and around the area of his photo handing over studio shop being run under name DVD by PW8 to and style of Kajal Studio, situated police); at D-46, Gali No.6, Bhagirathi Ex.PW-8/B Vihar, Delhi. Accordingly, PW8 (document recorded video of damaged prepared by properties in the area of police at the Gokalpuri, Ganga Vihar, time of handing Bhagirathi Vihar and Chaman over the DVD Park. PW8 recorded this video by PW8) through his camera make Canon 6D Mark-2. All the recordings Ex.PW-8/ were stored in the memory card Article-1 of the camera and PW8 (DVD) transferred the videos in several DVDs using computer in his lab and thereafter, PW8 handed over all these DVDs in PS Gokalpuri.
PW8 had given one document/ application with his signature to the police, stating that PW8 had handed over the DVDs. PW8 identified his signature at circle X on said document. The DVD handed over by PW8 bore writing in his handwriting. He identified his handwriting on the DVD placed on the record.
PW8 also identified his signature at circle X on the document prepared by police, at the time of handing over the DVD by PW8 to the police.
By the time PW8 had recorded aforesaid video, riots had already come to an end.
PW9/SI On 24.04.2020 he had gone to Ex.PW-9/A to Satyadev Mandoli Jail alongwith ASI Ram Ex.PW-9/G Dass, for interrogation of accused (arrest memo of Digitally signed by PULASTYA Page 11 of 43 PULASTYA (Pulastya Pramachala) PRAMACHALA ASJ-03, North-East PRAMACHALA Date: District, Karkardooma2023.11.25 Courts, Delhi 14:34:54 +0530 CNR No. DLNE01-000438-2021 State v. Shahnawaz @ Shanu etc. SC No.46/21, FIR No.65/20, PS Gokalpuri Judgment dated 25.11.2023 Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties in his case bearing FIR No.83/20. accused ASI Ram Dass had also Shahnawaz, accompanied PW9 and ASI Ram Shoaib, Dass also took permission from Shahrukh, duty MM at Mandoli Jail for Rashid @ Raja, interrogation of accused Azad, Ashraf Ali Shahnawaz, Shoaib, Shahrukh, and accused Rashid, Parvez, Ashraf and Azad. Parvez) ASI Ram Dass interrogated all accused persons on the same day.
In jail no.13, accused Shahnawaz, Rashid, Mohd. Shoaib and Shahrukh, were interrogated and accused Parvez was interrogated in jail no.12. Accused Ashraf and Azad were interrogated in jail no.11. After their interrogation, all accused persons were arrested in this case by ASI Ram Dass vide separate arrest memos. PW9 had signed the arrest memos, as witness. PW9 identified his signature at circle X on the arrest memo of accused Shahnawaz, Shoaib, Shahrukh, Rashid @ Raja, Azad, Ashraf Ali and accused Parvez.
PW10/HC On 24.02.2020, he was working as reader to SHO. Pradeep On that day, an order issued u/s. 144 Cr.P.C, by DCP, N/E, was received in the PS through Dak and PW10 showed that order to SHO. On the direction of SHO, PW10 visited the area of PS Gokalpuri and announced aforesaid order through loud hailer. PW11/HC On 24.02.2020 at about 9 AM, he along with HC Vipin Hari Babu and other staff from different security agency reached Shiv Vihar Tiraha. They found that around 500-600 persons from muslim community had assembled near Shiv Vihar Tiraha on the side of A-Block, Chaman Park. The said mob had been raising slogans and they started pelting stones on Page 12 of 43 (Pulastya Pramachala) Digitally signed ASJ-03, North-East PULASTYA by PULASTYA District, PRAMACHALA Karkardooma PRAMACHALA Courts, Delhi Date: 2023.11.25 14:35:03 +0530 CNR No. DLNE01-000438-2021 State v. Shahnawaz @ Shanu etc. SC No.46/21, FIR No.65/20, PS Gokalpuri Judgment dated 25.11.2023 Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties police party. At about 5 PM, this mob also started vandalism and arson in the nearby properties including houses/shops of A Block, Chaman Park. Many of the members of this mob had covered their face with helmet and otherwise.
PW11 knew and had identified some of the persons in that mob i.e. accused Shahnawaz @ Shanu, who had a shop of betel leaves (pan ki dukan) at Shiv Vihar Tiraha; accused Shoiab, Shahrukh and Rashid @ Monu, who used to run TSR auto; accused Rashid @ Raja who was resident of A block, Chaman Park; accused Ashraf as a hawker, who used to sell clothes; accused Parvez, who had auto repair shop in gali no.5, Old Mustafabad, Delhi; accused Faisal, who used to work as electrician and accused Azad who resided in Old Mustafabad.
PW11 knew accused persons because PW11 worked as beat constable at Chaman Park for about 2 or 2*1/2 years and PW11 had seen all of the accused in the area of Chaman Park, as well as on the main Brijpuri Road, where they used to visit Hotel to take their food etc. This mob broke open the lock of door of godown of glass material, which was situated in property no. A- 52/13, Chaman Park and entered into the same. They vandalized the articles lying there and set a small truck parked inside the godown on fire. The incident had taken place at about 05:30-06:00 PM. In property no. A-5, there was a shop on the ground floor in the name of Priyanka Copy house. Same mob broke open this shop and set fire inside that shop. This property was near A-52/13. At about 07:00 PM, the same mob came on main Karawal Nagar Road from main Brijpuri Road, on the side of A-Block, Chaman Park. At that place, a property no. A-53 was having a beauty parlor shop on the ground floor and residence on the upper floor. This beauty parlor was also set on fire by this mob and the flames went upto upstairs also. This property Digitally signed Page 13 of 43 (Pulastya by Pramachala) PULASTYA PULASTYA PRAMACHALA ASJ-03, North-East District, PRAMACHALA Date:
Karkardooma Courts, Delhi 2023.11.25 14:35:12 +0530 CNR No. DLNE01-000438-2021 State v. Shahnawaz @ Shanu etc. SC No.46/21, FIR No.65/20, PS Gokalpuri Judgment dated 25.11.2023 Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties was at a distance of 150-120 metres from A-52/13. On 07.04.2020, PW11 gave his statement before ASI Ram Dass and ASI Manvir, wherein PW11 informed them about involvement of accused persons in the riot dated 25.02.2020 and the incident in the respective property in their respective cases. Prior to this, PW11 had orally informed his senior officers about involvement of accused persons. PW11 identified accused persons before the court. PW12/ASI On 25.02.2020, he along with Ct. Ex.PW12/A Hari Babu Vipin and other staff from (colly. 4 sheets) different security agency reached (Photocopy of Shiv Vihar Tiraha at about 09:00 medical AM to control the riots. They documents of found around 400-500 persons his treatment, from muslim community had from 12.01.22 assembled near Shiv Vihar Tiraha till 21.01.22, on the side of Chaman Park and pertaining to strength of this mob kept Garg Hospital);
increasing. At about 05:00 PM, &
this mob vandalized and set on Ex.PW12/B
fire one godown of glasses and (colly. 5 sheets)
one Priyanka Book/copy store (photocopy of
bearing A-5, which were situated medical on the side of Chaman Park, just documents opposite to Rajdhani Public pertaining to School. The mob had broken open treatment taken the locks of aforesaid godown. at Jain Hospital Thereafter, this mob proceeded from 21.01.2022 towards Johripur. The mob also up to vandalized a beauty parlor 21.03.2022) bearing A-53 and set it on fire.
The members of this mob were carrying danda and were also pelting stones. They were having such substance, which on being thrown used to burst into fire and using that substance, aforesaid properties were set on fire. After Digitally signed by PULASTYA Page 14 of 43 PULASTYA(Pulastya Pramachala) PRAMACHALA PRAMACHALA ASJ-03, North-East District, Date: 2023.11.25 Karkardooma Courts,+0530 14:35:21 Delhi CNR No. DLNE01-000438-2021 State v. Shahnawaz @ Shanu etc. SC No.46/21, FIR No.65/20, PS Gokalpuri Judgment dated 25.11.2023 Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties making call, additional force came there at 09:00 PM.
On 07.04.2020, his statement and that of Ct. Vipin were recorded by ASI Manvir and ASI Ram Dass, in separate cases.
PW12 identified accused Shahnawaz as he was having a shop of betel (pan ki dukan) at Shiv Vihar Tiraha near Anil Sweets. PW12 had also identified accused Azad as he used to frequently roam around on the road in that area. PW12 had also identified other accused persons also in the area of his beat.
He produced original medical documents of his treatment, which started from 12.01.2022 and continued till 21.01.2022, pertaining to Garg Hospital.
PW12 continued his treatment at Jain Hospital from 21.01.2022 up to 21.03.2022. PW12 continued taking medicines up to June 2022.
PW12 had felt dizziness on 12.01.2022, due to which he started aforesaid treatment. In the Jain hospital, he was treated by Neuro doctor.
PW13/ASI On 26.07.2022, he recorded statement of Ct. Manvir Pradeep, who pronounced order u/s. 144 Cr.P.C. on 24.02.2020. On 20.09.2022, PW13 recorded statement of Ct. Vipin and HC Hari Babu. On same day, PW13 also recorded statement of SI Surender from crime team. Thereafter, PW13 prepared supplementary chargesheet and filed the same along with aforesaid statements before the court.Digitally signed by PULASTYA Page 15 of 43 PULASTYA (Pulastya Pramachala)
PRAMACHALA ASJ-03, North-East PRAMACHALA Date: District, 2023.11.25 Karkardooma Courts, Delhi 14:35:29 +0530 CNR No. DLNE01-000438-2021 State v. Shahnawaz @ Shanu etc. SC No.46/21, FIR No.65/20, PS Gokalpuri Judgment dated 25.11.2023 Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties PW14/ASI On 01.03.2020, he was handed Ex.PW14/A Ram Dass over copy of FIR alongwith (site plan complaint of Dinesh Aggarwal prepared by and certificate u/s. 65-B of I.E. PW14 at the Act for investigation. PW14 instance of recorded statement of complainant); & complainant, visited property no. Ex.PW14/B 52/13, Chaman Park. On (seizure memo 08.03.2020 PW14 again visited four burnt said property and recorded vehicles seized statement of four employees of from the the complainant namely Bhawan godown of Dev, Hukam Singh, Sandeep and complainant) Pradeep.
PW14 prepared site plan at the instance of complainant. PW14 identified his signature at circle Y on the said site plan.
PW14 seized four burnt vehicles from the godown of complainant i.e. Tata Tempo burnt from inside, a completely burnt motorcycle, another motorcycle and one Ecco vehicle in damaged condition, vide a seizure memo, bearing his signature at circle X. On 15.03.2020 he called crime team at 52/13, Chaman Park for inspection and SI Surender and ASI Mahavir came there. ASI Mahavir took photograph of that place and SI Surender prepared SOC report and handed over the same to PW14. PW14 recorded their statement.
On 07.04.2020 PW14 recorded statement of beat constables HC Hari Babu and Ct. Vipin. PW14 came to know about arrest of Digitally signed by PULASTYA Page 16 of 43 PULASTYA(Pulastya Pramachala) PRAMACHALA PRAMACHALA ASJ-03, North-East District, Date: 2023.11.25 Karkardooma Courts, 14:35:37 Delhi +0530 CNR No. DLNE01-000438-2021 State v. Shahnawaz @ Shanu etc. SC No.46/21, FIR No.65/20, PS Gokalpuri Judgment dated 25.11.2023 Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties accused Shahnawaz @ Shanu, Shoiab, Shahrukh, Rashid, Ashraf Ali, Azad, Parvez, Faisal and Rashid @ Monu by Crime Branch in FIR No.39/20, PS Gokalpuri.
On 24.04.2020 PW14 along with SI Satyadev visited Mandoli Jail and after obtaining permission from Duty MM, he interrogated and formally arrested accused Shahnawaz @ Shanu, Shahrukh, Shoiab, Rashid, Azad, Ashraf Ali and Parvez vide separate arrest memos i.e. Ex.PW9/A, Ex.PW9/C, Ex.PW9/B, Ex.PW9/D, Ex.PW9/E, Ex.PW9/F and Ex.PW9/G, respectively. PW14 identified his signature at circle Y on these arrest memos. PW14 also recorded statement of SI Satyadev after coming back to PS. On 27.04.2020, PW14 visited Tihar Jail and after obtaining permission from duty MM, PW14 interrogated and formally arrested accused Faisal and Rashid @ Monu, vide separate arrest memos Ex.A-6 and Ex.A-7 (admitted documents). PW14 identified his signature at circle X on the same.
On 04.07.2020, PW14 demanded documents relating to property from the complainant by giving notice u/s 91 Cr.PC. to him.
Complainant furnished copy of GPA, photographs of his burnt vehicles, copy of R/Cs of the vehicles and his ID. PW14 again examined complainant. PW14 Digitally signed Page 17 of 43 (PulastyabyPramachala) PULASTYA ASJ-03, North-East PULASTYA District, PRAMACHALA PRAMACHALA Karkardooma Date:
Courts, Delhi 2023.11.25 14:35:45 +0530 CNR No. DLNE01-000438-2021 State v. Shahnawaz @ Shanu etc. SC No.46/21, FIR No.65/20, PS Gokalpuri Judgment dated 25.11.2023 Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties verified R/Cs from MLO office.
On 07.07.2020, PW14 recorded statement of PCR callers viz.
Khurshid, Himanshu etc. PW14 obtained copy of order u/s 144 Cr.PC. PW14 prepared charge sheet in this case and filed the same before the court. PW14 obtained complaint u/s 195 Cr.PC.
PW14 also recorded statement of Chitha Munshi, PS Gokalpuri and one Insp. of Crime Branch. PW14 prepared a supplementary charge sheet along with various documents including copy of complaint u/s. 195 Cr.P.C, additional statements, CDRs etc. and filed the same before the court in October 2021. PW14 added Section 436 IPC before filing main chargesheet in this case.
PW15/Sh. He was authorised by Dr. Ex.PW15/A Himanshu Sangeeta Jain, Director of Jain (authority letter) Hospital, Vikas Marg, Delhi, to produce attested photocopies of medical prescription and other medical documents of patient namely Hari Babu. PW19 identified signature of Dr. Sangeeta Jain at point X as well as of himself at point Y, on authority letter. Original of all these documents were given to the patient.
PW16/Dr. He compared original medical document with Sanjay Garg photocopies of the same i.e. Ex.PW12/A (colly 4 sheets). Those documents were prepared in Garg Digitally signed by PULASTYA Page 18 of 43 PRAMACHALA PULASTYA(Pulastya Pramachala) PRAMACHALA ASJ-03, North-East Date: District, Karkardooma2023.11.25 Courts, Delhi 14:35:55 +0530 CNR No. DLNE01-000438-2021 State v. Shahnawaz @ Shanu etc. SC No.46/21, FIR No.65/20, PS Gokalpuri Judgment dated 25.11.2023 Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties hospital, AGCR Enclave, Delhi. The patient was checked and treated by PW20. The documents bore his signature at circles X. As per those records, the patient had come with problem of chest infection, breathlessness, high grade fever, weakness and vertigo and was subsequently found Covid positive. All those medical documents were prepared under his instructions.
PW17/Dr. He worked as Consultant Neurologist in Jain Arun Kumar Hospital, Jagriti Enclave, Delhi, from August 2019 Agrawal upto May, 2022. PW17 had prepared OPD prescription i.e. Ex.PW12/B (colly 5 pages) from Jain Hospital. PW17 identified impression of his signature at point X on the back page of said document. PW17 used to sign his prescription at same place, as appearing in that document. The patient namely Hari Babu complained before him about chakkar and dizziness, which was episodic i.e. one, two or three episodes daily. That prescription was dated 21.01.2022. On his next visit on 31.01.2022, PW17 had prepared another prescription, wherein PW17 had recorded his diagnosis as peripheral vestibulopathy and ET (essential tremors). On both the aforesaid occasions, PW17 had prescribed medicines on prescriptions.
On 07.02.2022, the patient again visited PW17 for follow up. PW17 again prepared prescription for that date, which was also part of aforesaid document. On that day, PW17 declared him fit to join his duties. There was another prescription dated 21.03.2022. The patient came for follow up, but as per his complaint his symptoms had not subsided completely. PW17 again prescribed him few medications. All those subsequent prescriptions were prepared by PW17 and were signed by PW17. PW17 identified impression of his signature appeared on all the prescriptions at point X. The problem narrated by the patient was related to Neurology. The witness explained that Peripheral Vestibulopathy meant disfunction of vestibular system, which was Digitally signed Page 19 of 43 by PULASTYA PULASTYA(Pulastya Pramachala) PRAMACHALA ASJ-03, North-East District, PRAMACHALA Date: 2023.11.25 Karkardooma Courts, 14:36:04 Delhi +0530 CNR No. DLNE01-000438-2021 State v. Shahnawaz @ Shanu etc. SC No.46/21, FIR No.65/20, PS Gokalpuri Judgment dated 25.11.2023 Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties responsible for balance of the body. Disfunction could cause vertigo and imbalance. ET meant essential tremors, which caused trembling of the body parts and cause was idiopathic (not known). On 21.03.2022, PW17 had asked this patient to come after one month for follow up.
Admitted documents under Section 294 Cr.P.C. PCR form (running in 19 pages) as Ex.A-1 (colly.); FIR as Ex.A-2; complaint u/s. 195 Cr.P.C. as Ex.A-3; prohibitory order u/s. 144 Cr.P.C. as Ex.A-4; finger print expert report as Ex.A-5; arrest memo of accused Mohd.Faisal and Rashid @ Monu as Ex.A-6 & Ex.A-7, respectively and R/Cs as Ex.A-8 to Ex.A-11; and certified copy of statement of PW HC Hari Babu as recorded in FIR No.40/20 and 83/20, as Ex.A-12.
PLEA OF ACCUSED PERSONS U/S. 313 CR.P.C.
11. Accused persons denied all the allegations and pleaded innocence, taking plea in their statement under Section 313 Cr.P.C. that witnesses deposed falsely against them at the instance of IO, being interested to show that the case was solved. They further took plea that they were not present at the spot on the day of incident. Accused persons further took plea that they have been falsely implicated in the present case by the investigating agency. They further took plea that they were falsely arrested in this case only to work out the case. Accused persons did not opt to lead any evidence in their defence.
12. I heard ld. Special PP and ld. counsels for accused persons. I have perused the entire material on the record. ARGUMENTS OF DEFENCE & PROSECUTION
13. Sh. Z Babar Chauhan, ld. defence counsel for accused Mohd. Shahnawaz @ Shanu, Azad and Parvez, argued in respect of Digitally signed by PULASTYA Page 20 of 43 PULASTYA (Pulastya Pramachala) PRAMACHALA ASJ-03, North-East PRAMACHALA Date: District, Karkardooma Courts, Delhi 2023.11.25 14:36:12 +0530 CNR No. DLNE01-000438-2021 State v. Shahnawaz @ Shanu etc. SC No.46/21, FIR No.65/20, PS Gokalpuri Judgment dated 25.11.2023 PW12/ASI Hari Babu, that he falsely took plea of suffering through illness of memory loss, to justify not identifying accused persons in FIR No. 40/20. Ld. counsel argued that PW17 admitted that ASI Hari Babu did not complain about memory loss before him. PW16 also admitted this fact. Ld. counsel referred to judgment passed in the case of Harbeer Singh vs. Sheeshpal & ors. (Crl. Appeal 1624-1625 of 2003 decided on 20.10.2016), to challenge the credibility of prosecution witness on the grounds of their statement being recorded at belated stage by IO. Ld. counsel further argued that no public witness supported identification of accused persons and PW12/ASI Hari Babu is not reliable witness.
14. Sh. Salim Malik, ld. counsel for accused Shoaib @ Chhutwa, Shahrukh, Rashid @ Raja as well as Sh. Abdul Gaffar, ld. counsel for accused Ashraf Ali, Rashid @ Monu and Mohd. Faisal, argued that despite public notice given and briefing by SHO, police witnesses did not give their statement earlier. They further argued that complainant/PW5 could not tell the time of incident. Sh. Salim Malik further argued that PW11/Ct. Vipin was the sole witness to identify accused Shoaib @ Chhutwa, Shahrukh and Rashid @ Raja and therefore, ratio of judgment passed in the case of Masalti v. State of U.P., AIR 1965 SC 202, is applicable to this case.
15. Per-contra, Sh. D. K. Bhatia, ld. Special PP for State argued that PW11/HC Vipin and PW12/ASI Hari Babu identified all the accused persons together. Testimony of PW12 in FIR No.40/20, cannot have adverse effect in all the cases. At that time, problem Digitally signed by PULASTYA PULASTYA PRAMACHALA Page 21 of 43 (Pulastya PRAMACHALA Date:Pramachala) ASJ-03, North-East 2023.11.25District, 14:36:21 Karkardooma +0530 Courts, Delhi CNR No. DLNE01-000438-2021 State v. Shahnawaz @ Shanu etc. SC No.46/21, FIR No.65/20, PS Gokalpuri Judgment dated 25.11.2023 of PW12 was not explained and proved. PW12 was undergoing treatment and hence, could not remember the face of accused persons correctly in FIR No.40/20. Ld. Special PP further argued that memory loss is totally different concept, which is almost permanent in nature and PW12 had temporary memory loss because of his illness.
APPRECIATION OF FACTS AND EVIDENCE UNLAWFUL ASSEMBLY & RIOTS
16. Complainant/PW5 proved his complaint as Ex.PW5/A, wherein he alleged vandalism and arson in his godown situated in 52/13, Chaman Park, by the rioters on 25.02.2020. As per his testimony, he was running a company in the name of M/s. S.S. Glass and Plywood Company and its godown was situated in 52/13, Chaman Park, which was opposite to Rajdhani Public School, near Shiv Vihar Tiraha. He did not remember the date or month, but he could mention that either in February or March 2020 before Corona and Lockdown, he had locked his godown and gone out of Delhi. When he came back and visited his godown, at that time he found shutter of his godown in open condition. All the glass materials kept inside the godown were in broken condition. There were four vehicles parked inside that godown including one Tempo-709, Ecco and two motorcycles. Ecco was in damaged condition while other three vehicles were in burnt condition. But he had no knowledge about the persons who had done these things.
17. PW6/Sh. Sandeep Kumar was present in this godown, being employee of PW5. PW6 in his testimony confirmed that rioters Digitally signed by PULASTYA PULASTYA PRAMACHALA Page 22 of 43 PRAMACHALA (Pulastya Date:Pramachala) 2023.11.25 ASJ-03, North-East 14:36:30 District, +0530 Karkardooma Courts, Delhi CNR No. DLNE01-000438-2021 State v. Shahnawaz @ Shanu etc. SC No.46/21, FIR No.65/20, PS Gokalpuri Judgment dated 25.11.2023 were pelting stones on this godown since about 3pm, when he along with other persons left this godown through back door. They had locked the godown from inside. He also deposed about vehicles being there inside this godown. His testimony was not challenged by defence as PW6 was not cross-examined at all by defence counsels, though he was cross-examined by ld. Special PP for State to suggest that he had not left Delhi on 26.02.2020 or that he had given his statement before police on 08.03.2020. PW6 denied the suggestions, however, he stated that there was one Ecco vehicle in that godown, which belonged to the owner.
18. Similarly, PW7/Sh. Bhawan Dev Singh also affirmed aforesaid facts as he was also inside that godown at that time. He further affirmed parking of four vehicles of given description inside that godown. He also deposed that when he came back to this godown, all the glass sheets were completely broken, his motorcycle was completely damaged/ broken. Ecco vehicle was partly broken and partly burnt. Motorcycle of Sandeep (PW6) and 709 vehicle were completely burnt. PW7 was given only the suggestion by the defence counsels to the effect that he was not present in the godown on 25.02.2020 or that he did not visit police station subsequently. PW7 denied these suggestions. However, I do not find any reason to discard his testimony.
19. PW3/ASI Mahavir was photographer in crime team, who deposed about visiting this property with PW5. He proved seven photographs stating that same were taken by him. He also proved certificate under Section 65-B of I.E. Act in respect of these photographs. The photographs Ex.PW3/A (Colly.), do show a Digitally signed by PULASTYA Page 23 of 43 PULASTYA (Pulastya Pramachala) PRAMACHALA PRAMACHALA ASJ-03, North-East District, Date: 2023.11.25 Karkardooma Courts, 14:36:39 +0530Delhi CNR No. DLNE01-000438-2021 State v. Shahnawaz @ Shanu etc. SC No.46/21, FIR No.65/20, PS Gokalpuri Judgment dated 25.11.2023 shop big in size, was having black burn marks. These photographs leave no doubt that this shop and the property was ransacked and set on fire by the rioters. During cross- examination of PW3, defence suggested that the photographs did not pertain to A-52/13. However, the witness stated that he was given information of address by IO. For such reasons, defence challenged taking of these photographs of this place by PW3.
20. I do not find any need for PW3 to verify the address of scene of crime from other sources. He was called there by the IO and particular of the place was to be furnished by the IO. I do not find any material on the record to show that photograph of a different place was taken by PW3. If these photographs were not showing pictures of the godown, then defence could have placed the photographs of godown on the record. They could have also confronted the complainant or PW6 or PW7 with such photographs, to confirm if they pertained to this godown.
21. The photographs do show burn marks inside the godown, even though these photographs were taken much later in time after the alleged incident. Similarly, the video taken by PW8, DVD of which is proved as Ex.PW8/Article-1, showed a property in vandalized condition. Though, PW8 could not vouch about the particulars of place of this video recording, but he stated that this property was situated in Chaman Park in front of Rajdhani Public School, which is the same location as per the given address of the godown in question. PW8 also proved certificate in respect of this DVD vouching correctness of the same, as well as seizure memo of this DVD. There is no reason to doubt the authenticity Digitally signed by PULASTYA PULASTYA PRAMACHALA Page 24 of 43 PRAMACHALA (Pulastya Pramachala) Date:
2023.11.25 ASJ-03, North-East 14:36:46District, +0530 Karkardooma Courts, Delhi CNR No. DLNE01-000438-2021 State v. Shahnawaz @ Shanu etc. SC No.46/21, FIR No.65/20, PS Gokalpuri Judgment dated 25.11.2023 of this video. The testimony of PW6 and PW7 is corroborated by the evidence of PW3 and PW8 to establish that incident of vandalism and arson took place in this godown belonging to PW5, on 25.02.2020 and same was done by the rioters i.e. unlawful assembly.
IDENTIFICATION OF ACCUSED
22. In respect of identification of the members of responsible mob, prosecution relied upon the evidence of PW11 and PW12. The relevant part of their examination in chief has already been mentioned in the description of prosecution evidence. Their testimony during cross-examination by defence is reproduced herein-after for the purpose of ready reference.
(a) Testimony in cross-examination of PW11: -
"XXX by Sh. Abdul Gaffar, ld. counsel for accused Mohd. Faisal, Ashraf Ali & Rashid @ Monu; XXX by Sh. Salim Malik and Ms. Shavana, ld. counsels for accused Rashid @ Raja, Shahrukh and Sohaib @ Chutwa; and XXXX by Sh. Z. Babar Chauhan, ld. counsel for accused Mohd. Shahnawaz @ Shanu, Parvez and Azad.
8. I am witness in about 10-15 cases of riots. I do not remember, when for the first time, I had given my statement in any case of riots. I remained on duty continuously upto 07.04.2020 after riots. I do not remember, as to in which FIR my statement was recorded first. My statement was recorded in FIR no.65/20 and thereafter, the IO confirmed from me, if I had seen the incident in the property pertaining to FIR no.47/20 and FIR no.68/20 and I confirmed the same. In all these FIRs, my statement was recorded, while sitting in the same room on same date, during evening hours.
9. It is correct to suggest that SHO used to conduct briefing everyday in PS and that same was attended by myself, ASI Ram Dass and ASI Manvir also. During those days, PS was visited by an officer of the rank of DCP/Addl.DCP everyday. These officers did not conduct meeting with all of us in PS everyday. I did not have any interaction with these officers. It is correct to suggest that posters and public notices were pasted outside the PS, thereby seeking information from any person in respect of riots.
10. I do not remember the date, when I had orally informed my senior officers about involvement of accused persons in the riots. I would Digitally signed Page 25 of 43 by PULASTYA (Pulastya Pramachala) PULASTYA PRAMACHALA ASJ-03, North-East District, PRAMACHALA Date: 2023.11.25 Karkardooma 14:36:56Courts, +0530 Delhi CNR No. DLNE01-000438-2021 State v. Shahnawaz @ Shanu etc. SC No.46/21, FIR No.65/20, PS Gokalpuri Judgment dated 25.11.2023 have given such information after around a week-15 days from the riots. I did not make any call at 100 number, nor did I lodge any complaint or DD entry in the PS in respect of incidents seen by me. It is correct to suggest that I did not work as beat constable of the area of Shiv Vihar and that Shiv Vihar is within jurisdiction of PS Karawal Nagar. I also knew owner of Anil Sweets corner, which was near the shop of accused Shahnawaz. His name was Anil. I had not purchased any item from the shop of accused Shahnawaz. I can not tell the property no.of shop of accused Shahnawaz, or Anil Sweets Corner. Both these shops otherwise fell in the jurisdiction of PS Dayalpur.
11. Distance between me and the mob ranged from 50 metres to 100 metres at different time. In my presence, none of the public person or police official was injured. I had sustained minor injury over my finger, but I did not go for medical check-up/treatment because I had myself applied band aid and it was minor injury. This injury was sustained due to pelting of stones. I did not inform any of the IOs about sustaining this minor injury. I had not stated before IO that some of the accused used to come to the hotels on main Brijpuri Road to have food. I had not given description of items/weapons being carried by accused persons, before I.Os. I did not state before I.Os that I had orally informed senior officers about involvement of accused persons in the riot. I.Os did not ask me, as to why didn't I give my statement about involvement of accused persons in the riot, before them, prior to 07.04.2020. Vol. I had orally mentioned before the I.Os about involvement of accused persons in the riots, prior to 07.04.2020.
12. In respect of my departure for duty on 25.02.2020, duty officer had made common DD entry for all police officials. There was no arrival entry made on 25.02.2020. In the departure entry, my duty place was mentioned on the Brijpuri main road and Shiv Vihar Tiraha. Shiv Vihar Tiraha did not fall into jurisdiction of PS Gokalpuri. On same day, I had seen assembly of persons from Hindu community on the side of Shiv Vihar, who were pelting stones towards assembly of persons from Muslim community, as well as towards us. I had seen mob of persons from Hindu community during incidents of all 10-15 cases, wherein I am a witness. It is correct to suggest that both mobs were violent. I am witness in such riot case, where accused persons are from Hindu community.
13. It is wrong to suggest that I did not see any incident of riot on 25.02.2020, or that I falsely mentioned name of accused persons, as part of mob, in order to falsely implicate them in riot cases, so that such cases could be shown to be solved by IO, or that my statement was prepared in connivance with I.Os for such purposes only, or that I identified all the accused persons at the instance of IO, or that I am a planted witness in this case, or that I have deposed falsely against accused persons in this case.
Digitally signed by PULASTYA Page 26 of 43 PULASTYA (Pulastya Pramachala) PRAMACHALA PRAMACHALA ASJ-03, North-East Date: District, 2023.11.25 14:37:05 +0530 Karkardooma Courts, Delhi CNR No. DLNE01-000438-2021 State v. Shahnawaz @ Shanu etc.
SC No.46/21, FIR No.65/20, PS Gokalpuri Judgment dated 25.11.2023
14. I remained beat constable in the area of Chaman Park from June/July, 2018 upto March/April, 2021. On 25.02.2020 for the purpose of communication, I had my mobile phone only. HC Hari Babu was also not carrying any walkie talkie. I had given update of the situation of that place I the PS through my mobile phone, to Chitha Munshi. I had given information to him about incidents of vandalism and arson, as taken place during evening hours in general manner without specific details. I had not mentioned name of any person involved in the riot, before Chitha Munshi.
15. I did not make any written communication regarding involvement of accused persons in the aforesaid riot, prior to 07.04.2020. Even on 07.04.2020, I did not give anything in writing. I do not remember the exact time of reaching PS on 25.02.2020. I would have reached back by midnight. I also knew one Retd. police official probably name something like Kallu Khan, who resided near house of Rashid @ Raja. I knew Kallu Khan because he was having a licenced firearm and for the purpose of verification etc., I used to visit him. I can not tell who resided next to the house of Kallu Khan. Just adjacent or probably after one property to the house of Rashid @ Raja, there was a shop of preparing mathi (a kind of snacks). It is wrong to suggest that no such shop was there.
16. I did not arrest accused Shahrukh and Shoaib @ Chutwa at any point of time in any case. I did not ride their auto at any point of time. It is wrong to suggest that I have falsely deposed about accused persons carrying any kind of weapon, or that I had not seen them at all."
(b) Testimony in cross-examination of PW12 dated 17.11.2022:-
""XXX by Sh. Abdul Gaffar, ld. counsel for accused Mohd. Faisal, Ashraf Ali & Rashid @ Monu; XXX by Sh. Salim Malik and Ms. Shavana, ld. counsels for accused Rashid @ Raja, Shahrukh and Sohaib @ Chutwa; and XXXX by Sh. Z. Babar Chauhan, ld. counsel for accused Mohd. Shahnawaz @ Shanu, Parvez and Azad.
6. I am witness in about 10-12 cases of riots. I do not remember, when for the first time, I had given my statement in any case of riots, or in which case, my statement was recorded first by the IO. My first statement in any case related to riots would have been recorded after around 8-10 days, from the riots. My last statement was recorded on 07.04.2020 in any case. I do not remember, if I remained on duty continuously upto 07.04.2020 after riots. I remained on duty continuously for about 15-20 days after riots.
7. It is correct to suggest that SHO used to conduct briefing everyday in PS. However, I did not attend the briefing during riots, though I attended the briefing everyday after riots. ASI Ram Dass and ASI Manvir also used to attend the briefings. During those days, PS was visited by an officer of the rank of DCP/Addl.DCP occasionally.Digitally signed Page 27 of 43 (Pulastya Pramachala)
by PULASTYA PULASTYA ASJ-03, North-East District, PRAMACHALA PRAMACHALA Date: 2023.11.25 Karkardooma Courts, Delhi 14:37:14 +0530 CNR No. DLNE01-000438-2021 State v. Shahnawaz @ Shanu etc. SC No.46/21, FIR No.65/20, PS Gokalpuri Judgment dated 25.11.2023 However, they did not come to PS during briefings. I did not see any posters, or public notices pasted outside the PS, thereby seeking information from any person in respect of riots.
8. Probably on 01/02.03.2020, I had orally informed my SHO about involvement of some persons in the riots, whom I had identified. I did not make any call at 100 number, nor did I lodge any complaint or DD entry in the PS in respect of incidents seen by me, or identifying some of the rioters. I did not work as beat constable of the area of Shiv Vihar. It is correct that Shiv Vihar is within jurisdiction of PS Karawal Nagar. I can not tell the property no. of Shahnawaz. I can not tell where did Azad reside. Except for Ct.Vipin, I did not see any police or public person being injured on this day. Ct.Vipin had sustained some injury on his finger.
9. Distance between me and the mob remained about 50 metres. I had not made any departure or arrival entry. DO used to make such entry automatically. I do not know, as to for which particular place, my departure entry was made by DO. I had given description of physical appearance of those persons before IO, whom I identified only through their faces.
10. IO did not ask me, as to why didn't I give my statement about involvement of accused persons in the riot, before them, prior to 07.04.2020. I.Os had made call to me to record my statement and accordingly, I went to them. It is correct to suggest that I deposed as witness in FIR no.40/20 of same PS, before the court. I did not state before the court in that case that due to lapse of long time, I could not identify the accused persons. In that case, 2-4 accused persons were same, which are accused in the present case also. (Witness has been asked to point out to those accused persons, who are accused in FIR no.40/20 also. Witness has taken name of Shahnawaz and has pointed out to accused Shoaib & Shahrukh.) I had not identified all accused persons, before the court in FIR no.40/20. I do not remember, as to how many accused were identified by me, before the court in FIR no.40/20. It is correct to suggest that on same day after FIR no.40/20, my statement was recorded in FIR no.83/20 of same PS. I do not remember, as to how many accused were identified by me, in FIR no.83/20. I also do not remember, if I was able to identify all the accused persons in the FIR no.83/20, or only some of the accused persons. Apart from this case, I had identified all the accused persons, whom I identified today, in FIR no.53/20. My statement in the court was recorded in FIR no.53/20, subsequent to my examination in FIR no.40/20 and 83/20.
11. It is wrong to suggest that I had stated before the court in FIR no.40/20 that due to lapse of long time, I could not identify the accused persons in that case. I can not admit or deny that all the accused persons present today were also present, as accused in the court in FIR no.40/20 during my examination. Vol. On that day, I had stated before the court that I was taking some medicine for my mind Digitally signed Page 28 of 43 by PULASTYA (Pulastya Pramachala) PULASTYA PRAMACHALA ASJ-03, North-East District, PRAMACHALA Date: 2023.11.25 Karkardooma Courts, Delhi 14:37:23 +0530 CNR No. DLNE01-000438-2021 State v. Shahnawaz @ Shanu etc. SC No.46/21, FIR No.65/20, PS Gokalpuri Judgment dated 25.11.2023 and therefore, I did not remember everything. It is wrong to suggest that I did not give description of any accused, before IO. It is wrong to suggest that today before my examination in this case at about 11- 11.30 a.m., IO pointed out to each accused outside the court room and made me identify them, on the basis of which I identified them, before the court. It is wrong to suggest that I was present with IO outside the court room today at about 11-11.30 a.m. Vol. I was with him outside the court room after about 1.00 p.m. I had mentioned before IO that incident at Priyanka Book Store had taken place somewhere between 5-6 p.m.
12. It is wrong to suggest that I did not see any incident of riot on 25.02.2020, or that I falsely mentioned name of accused persons, as part of mob, in order to falsely implicate them in riot cases, so that such cases could be shown to be solved by IO, or that my statement was prepared in connivance with I.Os for such purposes only, or that I identified all the accused persons at the instance of IO, or that I am a planted witness in this case, or that I have deposed falsely against accused persons in this case.
13. I remained beat constable in the area of Chaman Park. My duty as beat constable for this area had been changing from time to time and I remained beat constable for this area for about 1 year in total. I remained beat constable for this area somewhere between 2018 and February, 2020. I do not remember the exact period. During riots, I was beat constable of that area. I had not seen face of any other person other than the persons identified by me today in the court, during the riots. In my presence, during whole period of my duty on 25.02.2020, no announcement was made for the public persons to disperse or to go back to their home. I would have reached back by 11-11.30 p.m."
(c) Testimony in cross-examination of PW12 dated 03.08.2023:-
"XXX by Sh. Salim Malik and Ms. Shavana, ld.counsels for accused Md. Shoiab, Shahrukh and Rashid @ Raja;XXXX by Sh. Z. Babar Chauhan and Mohd. Dilshad, ld. counsels for accused Md. Shahnawaz, Azad and Parvez; and XXXXX by Sh. Abdul Gaffar and Mohd. Nazim, ld. counsels for accused Ashraf Ali, Rashid @ Monu and Mohd.Faisal.
4. After my last examination in this case before the court, I did not have any talk with IO of this case. I did not have any meeting also with him after my last examination in this case. I had paid fees in both the hospitals. In Garg Hospital, I had paid only Rs.50/- and in Jain Hospital, Rs.150/- was paid by me on each visit. It is correct to suggest that I was not satisfied with the treatment given at Garg Hospital. I had not seen the complete Jain Hospital, hence I can not state, if it was a bigger hospital than Garg Hospital. In Garg Hospital, there used to be one doctor sitting in the room, where I was checked by the doctor and in Jain Hospital, 4 doctors used to sit in that room (On pointing out of Page 29 of 43 (Pulastya DigitallyPramachala) signed by PULASTYA PULASTYA ASJ-03, North-East District, PRAMACHALA Karkardooma PRAMACHALA Courts, Delhi Date: 2023.11.25 14:37:32 +0530 CNR No. DLNE01-000438-2021 State v. Shahnawaz @ Shanu etc. SC No.46/21, FIR No.65/20, PS Gokalpuri Judgment dated 25.11.2023 ld. defence counsel, doctor with other staff from Garg Hospital have been asked to leave the court room till examination of this witness). Jain Hospital was also on the panel of Delhi Police. It is correct to suggest that I was satisfied with the treatment and medicine prescribed in Jain Hospital. It is also correct to suggest that doctor at Jain Hospital had declared me fit to join duties from 07.02.2022 and that I had not opted to take additional opinion from any other doctor or hospital, after treatment at Jain Hospital. It is correct to suggest that after treatment at Jain Hospital, I was feeling completely fit and, therefore, I did not take additional opinion from any other doctor. Vol. After taking medicines as prescribed in Jain Hospital, I was feeling fit.
5. I had visited Jain Hospital after 07.02.2022. The evidence of the same can be found in the medical documents i.e. prescription dt. 21.03.2022 (part of Ex.PW14/B). I did not visit Jain Hospital between 07.02.2022 and 21.03.2022. I visited Jain Hospital once after 21.03.2022, but I do not have any document related to this visit. During this visit, I met the doctor and no fresh prescription was prepared by him. He asked me to continue taking the medicine already prescribed. I did not take advise from any doctor before stopping to take those medicines. I have the receipt of the fees paid by me in aforesaid 2 hospitals, but I have not brought them today. I can produce them. I had received summons through WhatsApp for my appearance today in this court (Ld. defence counsel has demanded to show that summons and witness has shown the same in his mobile phone, which has photo/scanned copy of summons in FIR no.140/20, 113/20, 65/20 and this case). Apart from aforesaid treatment, I did not take treatment of any other problem either at Garg Hospital or at Jain Hospital at any other point of time. I used to visit Panchsheel Hospital in Yamuna Vihar in case of other problems like fever etc. I did not read the prescriptions given by doctors as they were written in English and I did not know reading English. Doctors at Garg Hospital and Jain Hospital did not explain the contents of prescription before me. During my first visit before doctor at Jain Hospital itself, I had mentioned before him about my problem of forgetting the things. Prior to Jain Hospital, I did not mention this problem before any other doctor. After first visit at Jain Hospital, during my subsequent visits, doctor used to ask about my improvement and I used to respond that there was improvement. I did not tell any doctor that I was not able to identify accused in the court during my evidence, in any case. I had informed doctor at Jain Hospital on 21.01.2022 that my mind used to remain disturbed. Thereafter I did not mention these problems as doctor used to ask about improvement and I used to respond accordingly and therefore, there was no need to tell it again (jararut nahi padi). I was given showcause notice by DCP (5th battalion), after I did not identify accused in FIR no.40/20 on 28.03.2022, during my statement before the court, wherein prosecutor had even cross examined me on this point. I gave reply to that showcause notice alongwith my medical papers and thereafter I have not received further response. This Digitally signed Page 30 of 43 by PULASTYA (Pulastya Pramachala) PULASTYA PRAMACHALA ASJ-03, PRAMACHALA North-East District, Date: 2023.11.25 Karkardooma Courts, Delhi 14:37:40 +0530 CNR No. DLNE01-000438-2021 State v. Shahnawaz @ Shanu etc. SC No.46/21, FIR No.65/20, PS Gokalpuri Judgment dated 25.11.2023 showcause notice was received by me in the month of June, 2023.
6. It is wrong to suggest that I have started identifying accused persons in my subsequent evidence in the court, after my examination in FIR no.40/20, because of receiving showcause notice from DCP. It is wrong to suggest that after my examination in FIR no.40/20, my senior officers had reprimanded me (dant fatkar lagayi thi); or that due to such reprimand, I changed my subsequent statement to identify the accused persons; or that I was tutored regarding identification of every accused by IO, during my examination in FIR no.40/20 and thereafter; or that I never complained about forgetting the things before any doctor; or that I am deposing falsely, at the behest of IO and senior officers.
7. It is wrong to suggest that I never had problem of forgetting the things. I had joined duties from 07.02.2022.
8. I did not demand lighter job from my seniors after joining duties from 07.02.2022. I had made departure entry on 21.03.2022, to visit the hospital. I did not tell prosecutor before my examination on 28.03.2022 in FIR no.40/20 about having any problem with my memory."
23. Defence counsel had referred to the test mentioned in the case of Masalti (supra). I shall first deal with this argument that test referred in the judgment passed in the case of Masalti (supra) applies to the facts and circumstances of this case. In the case of Masalti (supra), hon'ble Supreme Court dealt with a case of multiple murder by an unlawful assembly. The court while dealing with the aspect of identification of members of that mob, made certain observations regarding test of consistent testimony by four witnesses as applied by High Court. The relevant part of the same is as follows: -
"16. Mr. Sawhney also urged that the test applied by the High Court in convicting the appellants is mechanical. He argues that under the Indian Evidence Act, trustworthy evidence given by a single witness would be enough to convict an accused person, whereas evidence given by half a dozen witnesses which is not trustworthy would not be enough to sustain the conviction. That, no doubt is true; but where a criminal court has to deal with evidence pertaining to the commission of an offence involving a large number of offenders and a large number of victims, it is usual to adopt the test that the conviction could be sustained only if it is supported by two or three or more witnesses who give a consistent account of the incident. In a sense, the Digitally signed by Page 31 of 43 PULASTYA (Pulastya Pramachala) PULASTYA PRAMACHALA ASJ-03, PRAMACHALA North-East District, Date: 2023.11.25 Karkardooma 14:37:48Courts, +0530Delhi CNR No. DLNE01-000438-2021 State v. Shahnawaz @ Shanu etc. SC No.46/21, FIR No.65/20, PS Gokalpuri Judgment dated 25.11.2023 test may be described as mechanical; but it is difficult to see how it can be treated as irrational or unreasonable. Therefore, we do not think any grievance can be made by the appellants against the adoption of this test. If at all the prosecution may be entitled to say that the seven accused persons were acquitted because their cases did not satisfy the mechanical test of four witnesses, and if the said test had not been applied, they might as well have been convicted. It is, no doubt, the quality of the evidence that matters and not the number of witnesses who give such evidence. But sometimes it is useful to adopt a test like the one which the High Court has adopted in dealing with the present case."
24. The test mentioned in the case of Masalti (supra), was deliberated upon by Supreme Court in the case of State of Maharashtra v. Ramlal Devappa Rathod, (2015) 15 SCC 77, and the court made following observations: -
"24. The liability of those members of the unlawful assembly who actually committed the offence would depend upon the nature and acceptability of the evidence on record. The difficulty may however arise, while considering the liability and extent of culpability of those who may not have actually committed the offence but were members of that assembly. What binds them and makes them vicariously liable is the common object in prosecution of which the offence was committed by other members of the unlawful assembly. Existence of common object can be ascertained from the attending facts and circumstances. For example, if more than five persons storm into the house of the victim where only few of them are armed while the others are not and the armed persons open an assault, even unarmed persons are vicariously liable for the acts committed by those armed persons. In such a situation it may not be difficult to ascertain the existence of common object as all the persons had stormed into the house of the victim and it could be assessed with certainty that all were guided by the common object, making every one of them liable. Thus, when the persons forming the assembly are shown to be having same interest in pursuance of which some of them come armed, while others may not be so armed, such unarmed persons if they share the same common object, are liable for the acts committed by the armed persons. But in a situation where assault is opened by a mob of fairly large number of people, it may at times be difficult to ascertain whether those who had not committed any overt act were guided by the common object. There can be room for entertaining a doubt whether those persons who are not attributed of having done any specific overt act, were innocent bystanders or were actually members of the unlawful assembly. It is for this reason that in Masalti [Masalti v. State of U.P., AIR 1965 SC 202 : (1965) 1 Cri LJ 226 : (1964) 8 SCR 133] this Court was Digitally signed by PULASTYA Page 32 of 43 PULASTYA (Pulastya Pramachala) PRAMACHALA PRAMACHALAASJ-03, Date:North-East 2023.11.25 District, 14:37:56 +0530 Karkardooma Courts, Delhi CNR No. DLNE01-000438-2021 State v. Shahnawaz @ Shanu etc. SC No.46/21, FIR No.65/20, PS Gokalpuri Judgment dated 25.11.2023 cautious and cognizant that no particular part in respect of an overt act was assigned to any of the assailants except Laxmi Prasad. It is in this backdrop and in order to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly", this Court at SCR pp. 148-49 in Masalti [Masalti v. State of U.P., AIR 1965 SC 202 observed that his participation as a member of the unlawful assembly ought to be spoken by more than one witness in order to lend corroboration. The test so adopted in Masalti [Masalti v. State of U.P., AIR 1965 SC 202 was only to determine liability of those accused against whom there was no clear allegation of having committed any overt act but what was alleged against them was about their presence as members of the unlawful assembly. The test so adopted was not to apply to cases where specific allegations and overt acts constituting the offence are alleged or ascribed to certain named assailants. If such test is to be adopted even where there are specific allegations and overt acts attributed to certain named assailants, it would directly run counter to the well-known maxim that "evidence has to be weighed and not counted" as statutorily recognised in Section 134 of the Evidence Act."
25. In the same case, Supreme Court explained the nature of cases wherein test mentioned in the case of Masalti (supra), can be applied, while making following observations: - "26. We do not find anything in Masalti [Masalti v. State of U.P., AIR 1965 SC 202 : (1965) 1 Cri LJ 226 : (1964) 8 SCR 133] which in any way qualifies the well-settled principle that the conviction can be founded upon the testimony of even a single witness if it establishes in clear and precise terms, the overt acts constituting the offence as committed by certain named assailants and if such testimony is otherwise reliable. The test adopted in Masalti [Masalti v. State of U.P., AIR 1965 SC 202 : (1965) 1 Cri LJ 226 : (1964) 8 SCR 133] is required to be applied while dealing with cases of those accused who are sought to be made vicariously responsible for the acts committed by others, only by virtue of their alleged presence as members of the unlawful assembly without any specific allegations of overt acts committed by them, or where, given the nature of assault by the mob, the Court comes to the conclusion that it would have been impossible for any particular witness to have witnessed the relevant facets constituting the offence. The test adopted in Masalti [Masalti v. State of U.P., AIR 1965 SC 202 : (1965) 1 Cri LJ 226 : (1964) 8 SCR 133] as a rule of prudence cannot mean that in every case of mob violence there must be more than one eyewitness."
26. The above-mentioned observations of Supreme Court, make it Digitally signed by PULASTYA PULASTYA PRAMACHALA Page 33 of 43 PRAMACHALA (Pulastya Pramachala) Date: 2023.11.25 ASJ-03, North-East 14:38:05 +0530District, Karkardooma Courts, Delhi CNR No. DLNE01-000438-2021 State v. Shahnawaz @ Shanu etc. SC No.46/21, FIR No.65/20, PS Gokalpuri Judgment dated 25.11.2023 clear that for inviting liability by virtue of Section 149 IPC, it is not required to prove overt act on the part of every member of the mob. However, a rule of prudence has been spoken about, for fastening vicarious liability with aid of S.149 IPC. That rule of prudence is the genesis of test mentioned in the case of Masalti (supra). In that case also, it was approved as a mark of precaution, rather than laying it down as a hard and fast rule. Therefore, it shall depend upon the quality of evidence of PW11 and PW12, before taking any decision in this case, so as to apply this rule of prudence.
27. Defence took plea that PW11 and PW12 had though knowledge of the names and particulars of the accused persons, but they did not take any step to formally get this information recorded, before 07.04.2020. Defence claimed that PW11 and PW12 were planted and tutored witnesses and hence, there was delay in recording their statements by IO. In respect of delayed examination of PW11 and PW12 by IO in this case, Mr. Babar referred to judgment passed in the case of Harbeer Singh (supra). Relevant observations made in that judgment, are as follows: -
"17. However, Ganesh Bhavan Patel Vs. State Of Maharashtra, (1978) 4 SCC 371, is an authority for the proposition that delay in recording of statements of the prosecution witnesses under Section 161Cr.P.C., although those witnesses were or could be available for examination when the Investigating Officer visited the scene of occurrence or soon thereafter, would cast a doubt upon the prosecution case. [See also Balakrushna Swain Vs. State Of Orissa, (1971) 3 SCC 192; Maruti Rama Naik Vs. State of Mahrashtra, (2003) 10 SCC 670 and Jagjit Singh Vs. State of Punjab, (2005) 3 SCC 68]. Thus, we see no reason to interfere with the observations of the High Court on the point of delay and its corresponding impact on the prosecution case.Digitally signed by PULASTYA
PULASTYA PRAMACHALA
Page 34 of 43 PRAMACHALA(Pulastya
Date: Pramachala)
ASJ-03,2023.11.25
North-East District,
14:38:13 +0530
Karkardooma Courts, Delhi
CNR No. DLNE01-000438-2021
State v. Shahnawaz @ Shanu etc.
SC No.46/21, FIR No.65/20, PS Gokalpuri Judgment dated 25.11.2023
18. Further, the High Court has also concluded that these witnesses were interested witnesses and their testimony were not corroborated by independent witnesses. We are fully in agreement with the reasons recorded by the High Court in coming to this conclusion.
19. In Darya Singh Vs. State of Punjab, AIR 1965 SC 328 = 1964 (7) SCR 397, this Court was of the opinion that a related or interested witness may not be hostile to the assailant, but if he is, then his evidence must be examined very carefully and all the infirmities must be taken into account. This is what this Court said:
"There can be no doubt that in a murder case when evidence is given by near relatives of the victim and the murder is alleged to have been committed by the enemy of the family, criminal courts must examine the evidence of the interested witnesses, like the relatives of the victim, very carefully........But where the witness is a close relation of the victim and is shown to share the victim's hostility to his assailant, that naturally makes it necessary for the criminal courts examine the evidence given by such witness very carefully and scrutinise all the infirmities in that evidence before deciding to act upon it. In dealing with such evidence, Courts naturally begin with the enquiry as to whether the said witnesses were chance witnesses or whether they were really present on the scene of the offence...... If the criminal Court is satisfied that the witness who is related to the victim was not a chance-witness, then his evidence has to be examined from the point of view of probabilities and the account given by him as to the assault has to be carefully scrutinised.""
28. It is true that in normal circumstances delayed examination of an eyewitness would give rise to a reason to be suspicious against statement of such eyewitness. However, it depends upon case to case and facts and circumstances of each case, to look into the credibility of given reasons behind such delay. It is not the ratio of aforesaid judgment that in all the cases delayed examination of any eyewitness would result into rejection of his evidence in toto. In the case of John Pandian v. State, (2010) 14 SCC 129, on the point of effect of delayed examination of witnesses, hon'ble Supreme Court observed that statement of eyewitnesses should be recorded immediately or with least possible delay. Early recording of statement gives credibility to evidence of witnesses, Digitally signed Page 35 of 43 PULASTYA (Pulastya Pramachala) by PULASTYA ASJ-03,PRAMACHALA PRAMACHALA North-East District, Date: 2023.11.25 Karkardooma Courts, Delhi 14:38:20 +0530 CNR No. DLNE01-000438-2021 State v. Shahnawaz @ Shanu etc. SC No.46/21, FIR No.65/20, PS Gokalpuri Judgment dated 25.11.2023 but it is not an absolute rule that where statement is recorded late, witness is a false or a trumped-up witness. Supreme Court held that it will depend upon the quality of evidence of the witness.
29. In the present case, it is matter of common knowledge that on account of unexpected riots, which rocked North-East part of Delhi for about four days, there had been huge pressure upon the police agency. Large number of complaints were bound to pour in and it so happened. It is matter of common knowledge that huge damage was done in this riot, affecting a large number of victims. Police was having task to tackle such grave situation. It is well within knowledge of everyone that year 2020 was also rocked on account of unexpected pandemic of Covid-19. There had been cases since beginning of the year and because of highly accelerated increase in the positive cases of Covid-19, even Government of India was compelled to take a hard decision for complete lock-down in the whole country since 24.03.2020. It does not mean that prior to 24.03.2020, the situation was normal. On account of everyday reporting of positive cases of Covid-19, there had been advise and guidelines issued for all for least interaction, to avoid physical contact and to maintain physical distance etc. Therefore, there was impact on the functioning of every organization. Police organization could not be exception to this impact. Police in Delhi would have been recovering from the impact of riots taken place during concluding days of February 2020, when they were also expected to enforce the directions of government given on account of Covid-19. For such reasons, I find that the delay in recording statement of witnesses, was much Digitally signed by PULASTYA PULASTYA Page 36 of 43 (PulastyaPRAMACHALA PRAMACHALA Pramachala) Date: 2023.11.25 ASJ-03, North-East District, 14:38:29 +0530 Karkardooma Courts, Delhi CNR No. DLNE01-000438-2021 State v. Shahnawaz @ Shanu etc. SC No.46/21, FIR No.65/20, PS Gokalpuri Judgment dated 25.11.2023 probable in the given scenario, hence, same cannot be a reason to discard the evidence of PW11 and PW12.
30. Defence challenged the credibility of PW12 on the basis of his previous testimony recorded in FIR No.40/20 and 83/20, PS Goklapuri on 28.03.2022. Certified copy of those testimonies is Ex.A-12. At that time this witness could not identify the accused persons in FIR 40/20, taking plea of lapse of long time. However, he had stated that he had seen some persons in the mob and identified them. He had disclosed names of those persons as Shahrukh, Parvez and Azad. In that case, he was talking about the riotous act of the mob as taken place on Main Brijpuri Road on 25.02.2020 at about 01-02 PM. He was cross-examined by ld. Special PP at that time also and in that process, he admitted that the person identified by him was Shahnawaz and not Shahrukh. Ld. defence counsel made contentions that this witness identified the accused persons in FIR 83/20, subsequent to his examination in FIR No.40/20 only because of tutoring. His other argument was that since this witness had not seen any accused, therefore, he could not identify any accused during his examination in FIR No.40/20, but subsequently this witness identified same accused persons in other cases. In this respect, ld. Special PP submitted that at the time of examination in FIR No.40/20, this witness was not in fit condition.
31. PW12 was again examined on application u/s 311 Cr.P.C. and then he stated that he took treatment and medicine from Garg hospital and Jain Hospital, Anand Vihar for his problem of mind. He produced original medical documents, copies of which were Digitally signed by PULASTYA Page 37 of 43 PULASTYA (Pulastya Pramachala) PRAMACHALA ASJ-03, North-East PRAMACHALA Date: District, Karkardooma Courts, Delhi 2023.11.25 14:38:38 +0530 CNR No. DLNE01-000438-2021 State v. Shahnawaz @ Shanu etc. SC No.46/21, FIR No.65/20, PS Gokalpuri Judgment dated 25.11.2023 proved on the record. PW16 was the treating doctor at Garg hospital and PW17 was the treating doctor at Jain hospital. Both of them confirmed that these medical prescriptions were authored by them and that this patient was treated as per complaint made by him. The defence counsels took plea that these medical documents do not show any mental illness of the witness. Hence, the plea of memory loss due to medical problems as taken by PW12, is not sustainable.
32. It is correct that medical documents of Garg Hospital show that PW12 was suffering from problem related to his ear, which included the problem of vertigo. However, medical documents of Jain Hospital show treatment being given by Neurologist. For the purpose of not being able to recollect any fact or face of a person correctly, it is not necessary that the person concerned would be suffering from some sort of mental illness. The term used by this witness, was a term used by layman, which was given over emphasis by defence. In fact, even without suffering from any particular illness, it is a normal tendency of any person that he does not recollect an incident taken place in the past completely and very accurately. If I compare the condition of PW12 with such normal person, then apparently his condition was worse than others. As per alleged history mentioned in his medical documents, he was admitted in Garg hospital on 12.01.2022 with complaint of high-grade fever with vertigo. He was discharged on 15.01.2022 and was found suffering from acute vertigo with cervical spondylosis with Covid-19. Thereafter also he remained under treatment in Garg hospital. On 21.01.2022, he visited Jain Digitally signed Page 38 of 43 by PULASTYA PULASTYA (Pulastya Pramachala) PRAMACHALA ASJ-03, North-East District, PRAMACHALA Date: 2023.11.25 Karkardooma Courts, 14:38:46 Delhi +0530 CNR No. DLNE01-000438-2021 State v. Shahnawaz @ Shanu etc. SC No.46/21, FIR No.65/20, PS Gokalpuri Judgment dated 25.11.2023 hospital with complaint of dizziness, nousea and his sleep was also reported to be disturbed. His medical prescriptions show that he continued taking medical advice and the last prescription is dated 21.03.2022, wherein again complaint of dizziness was reported. As per common knowledge of medical science, the problem of vertigo does make a person unstable and very uncomfortable because of severe giddiness etc. In that state of mind, it can be possible with anyone that he does not recollect all the things very correctly and accurately.
33. Moreover, testimony of PW17 is very relevant in respect of condition of this witness at that time period. PW17 was cross examined at length by the defence counsels and he came up with very natural answers to the questions put to him. His cross examination rather made it very clear that this witness was actually having severe physical problem at that time, which was defined as Peripheral Vestibulopathy. He explained that this symptom meant dis-function of vestibular system, which is responsible for balance of the body. Dis-function can cause vertigo and imbalance. PW17 further affirmed that the complaint made by ASI Hari Babu was relating to brain and that he had made complaint of dizziness before him. Thus, the problem of PW12 was not a simple problem. His problem must have acted as aggravating factor to make him confused, being in uncomfortable physical condition. Therefore, forgetting the things or mixing up several faces in the memory, was very much possible for this witness during that period.
34. Ld. Special PP argued that just because of mishappening taken Digitally signed Page 39 of 43 by PULASTYA (Pulastya Pramachala) PULASTYA ASJ-03,PRAMACHALA North-East District, PRAMACHALA Date: 2023.11.25 Karkardooma Courts, Delhi 14:38:56 +0530 CNR No. DLNE01-000438-2021 State v. Shahnawaz @ Shanu etc. SC No.46/21, FIR No.65/20, PS Gokalpuri Judgment dated 25.11.2023 place in one case, the testimony of same witness as given in other cases should not be seen with suspicion and rejected. After having the aforesaid medical documents on the record and appreciating the probable mental state of this witness during his examination in FIR No.40/20, I am now in agreement with such contention of ld. Special PP. It is also worth to mention here that after his examination in FIR No.40/20, this witness was examined in another FIR No.83/20 on same day, wherein he had identified some of the accused persons and at that time the court had recorded its observations about failure of this witness to identify those accused in FIR No.40/20 and his subsequent identification in FIR No. 83/20. However, at that time the court could not and did not assess the reasons behind such conduct of this witness and therefore, those observations cannot be given much weightage. The subsequent identification could be because the witness would have occasion to recollect the faces during his cross examination in the previous case i.e. FIR 40/20. Therefore, testimony of PW12 in this case cannot be discarded merely on account of nature of his testimony as recorded in FIR No. 40/20 and 83/20. Having said so, I do not mean to say that evidence of PW12 is found credible in this case. That question is to be dealt with herein-after.
35. When PW12 was cross-examined in the present case, he denied the suggestion that during his examination in previous case he had stated before the court that due to passage of long time, he could not identify accused Shahnawaz, Parvez and Azad. Though, in FIR No. 40/20 he had stated so. His testimony in Digitally signed by PULASTYA Page 40 of 43 PULASTYA (Pulastya Pramachala) PRAMACHALA PRAMACHALA ASJ-03, North-East District, Date: 2023.11.25 Karkardooma Courts, 14:39:04 +0530Delhi CNR No. DLNE01-000438-2021 State v. Shahnawaz @ Shanu etc. SC No.46/21, FIR No.65/20, PS Gokalpuri Judgment dated 25.11.2023 cross-examination is already reproduced herein-above. This witness had been examined in several cases against same accused persons, before his evidence was recorded in this case. Despite that, this witness stated that he did not know name of other accused persons except Shahnawaz, Azad and Ashraf. According to him, he knew name of Shahnawaz and Azad since prior to the alleged incident. He came to know name of Ashraf during his evidence being recorded in other cases. However, in his statement recorded under Section 161 Cr.P.C. it has been shown that he had mentioned name of nine accused persons, on the plea that he knew them since prior to the alleged incident.
36. Forgetting a fact is much different from wrongly asserting a fact. Without having knowledge of a fact, one cannot assert it. On the other hand, despite having knowledge of a fact, one can forget it and may come up with wrong description of such fact. Therefore, it is improbable that a person would know name of someone at one point of time, but at subsequent point of time he would not know his name. He can forget such name, but it cannot be said by that person that he did not know such names at all. PW12 herein on the previous occasion had claimed knowing Shahrukh, Parvez and Azad (FIR No. 40/20), who all are also accused in this case. In that situation, PW12 could not have said validly that he did not come to know about the names of other accused persons, except Shahnawaz, Azad and Ashraf. This fresh stand taken by PW12 does have its adverse effect on his claim of having seen all the accused persons in the mob, during the alleged incident in this case.
Digitally signed by PULASTYAPULASTYA PRAMACHALA Page 41 of 43 PRAMACHALA (Pulastya Date: Pramachala) 2023.11.25 ASJ-03, North-East District, 14:39:12 +0530 Karkardooma Courts, Delhi CNR No. DLNE01-000438-2021 State v. Shahnawaz @ Shanu etc. SC No.46/21, FIR No.65/20, PS Gokalpuri Judgment dated 25.11.2023
37. Now, I shall deal with the testimony of PW11. The testimony of this witness could not be shaken in material terms during his cross-examination by defence. However, this witness said about having seen all the accused persons in the mob and according to him the mob had assembled near Shiv Vihar Tiraha since about 9 AM. It may be possible that he would have seen accused persons in the mob at some point of time and at that time he would have seen them carrying danda or other articles, as deposed by him. When this witness referred to the peculiar incidents at particular places, he referred to mob having done so within his sight. He had referred to two more incidents, which though do not pertain to this case, but the peculiar feature remains that a mob was referred while narrating even such incidents. It does not become clear in unequivocal manner that whether this witness had seen all the accused persons in that mob throughout the period from 9 AM till all these incidents took place in the late evening/night. This question is important because there can be one possibility that accused persons became part of this riotous mob, remained in the mob for some time and thereafter, went away. If vicarious liability is to be fixed on the basis of Section 149 IPC, then conscious presence of an accused in such mob at the time of peculiar incident for which prosecution has been launched, is must. Such fact must be established with all the clarity. The testimony of PW11 leaves scope for another possibility also and in that situation, I find that the rule of prudence spoken about in the case of Masalti (supra) is appropriate to be applied in this case also. Even otherwise on the basis of existence of other Digitally signed by PULASTYA Page 42 of 43 PULASTYA (Pulastya Pramachala) PRAMACHALA PRAMACHALA ASJ-03, North-East District, Date: 2023.11.25 Karkardooma Courts, 14:39:20 Delhi +0530 CNR No. DLNE01-000438-2021 State v. Shahnawaz @ Shanu etc. SC No.46/21, FIR No.65/20, PS Gokalpuri Judgment dated 25.11.2023 possibility regarding absence of accused persons during the peculiar incident being prosecuted in this case, I find accused persons to be entitled for benefit of doubt. Since, the allegations of riot and violation of order u/s. 144 Cr.P.C., have been made with reference to particular incidents taken up for prosecution in each case, therefore, I am not giving separate finding on the general allegations of riot and violation of the order. Such finding had to be given with reference to particular incident probed and prosecuted in the present case.
CONCLUSION & DECISION
38. In view of my foregoing discussions, observations and findings, I find that charges levelled against all the accused persons in this case are not proved beyond doubts. Hence, accused 1. Mohd. Shahnawaz @ Shanu, 2. Mohd. Shoaib, 3. Shahrukh, 4. Rashid @ Raja, 5. Azad, 6. Ashraf Ali, 7. Parvez, 8. Md. Faisal, and 9. Rashid @ Monu, are acquitted of all the charges.
Digitally signed by PULASTYAPULASTYA PRAMACHALA PRAMACHALA Date: 2023.11.25 14:39:28 +0530 Announced in the open court (PULASTYA PRAMACHALA) today on 25.11.2023 ASJ-03 (North- East) (Judgment contains 43 pages) Karkardooma Courts/Delhi Page 43 of 43 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi