Delhi District Court
State vs . Noor Mohd. on 29 May, 2023
IN THE COURT OF DR. SHIRISH AGGARWAL
CHIEF METROPOLITAN MAGISTRATE, NORTH-EAST
DISTRICT, KARKARDOOMA COURT, DELHI
State Vs. Noor Mohd.
FIR No.223/2020
Police Station : Khajuri Khas
Under Section: 147,148, 188, 323, 394 and 427 r/w Section 149
of Indian Penal Code, 1860 (in short "IPC")
Date of institution : 30.06.2020
Date of reserving : 23.05.2023
Date of pronouncement : 29.05.2023
JUDGMENT
a) Serial number of the case : 780/2020
b) Date of commission of 24.02.2020
offence
c) Name of the complainant Satish Kumar
d) Name, parentage and Noor Mohammed @ Noora
address of the accused s/o Munna Mouji r/o A-1,
Kalia Cable Wali Gali,
Milan Garden, Near Mangal
Bazar, Sabhapur Village,
Sonia Vihar, Delhi
e) Offences complained of Sections 147,148, 188, 323,
394 and 427 r/w Section 149
of Indian Penal Code
f) Plea of the accused Pleaded not guilty.
g) Final order Acquitted
j) Date of final order 29.05.2023
CR Case No.780/20, FIR No.223/20 Page 1 of 25
JUDGMENT
CASE OF THE PROSECUTION
1. The above named accused has been chargesheeted by the police for having committed offences punishable under Sections 147, 148, 188, 323, 394 and 427 r/w Section 149 of IPC.
2. Brief facts of the present case are that on 04.03.2020, the present FIR was registered at PS Khajuri Khas pursuant to a complaint dated 02.03.2020 received from Mr. Satish Kumar. It is the case of the State that the complainant has an office under the name & style of Balaji Tour & Travels at Jaini Market, E-Block Extension, Khajuri Khas, Main Karawal Nagar and on 24.02.2020 some rioters vandalized his office, committed robbery of various articles and money and caused hurt to his driver Mukesh Kumar. Investigation of the present case was assigned to ASI Jeevanand.
3. During investigation, IO visited office of the complainant which is under the name & style of Balaji Tour & Travels at Jaini Market, E-Block Extension, Khajuri Khas, Main Karawal Nagar and prepared site plan at the instance of the complainant. He also obtained photographs of the vandalized shop and recorded statement of the complainant. On 02.04.2020, SI Sandeep handed over the disclosure statement of the accused Noor Mohd. @ Noora to the IO ASI Jeevanand in case FIR No.221/2020 wherein IO SI Sandeep informed the IO regarding the involvement of the accused in the present case. Thereafter, the IO interrogated the accused Noor Mohd. @ Noora. Meanwhile, Ct. Sangram arrived at the police station and informed the IO that he had seen accused CR Case No.780/20, FIR No.223/20 Page 2 of 25 Noor Mohd. @ Noora vandalizing the office of complainant and was part of the mob. During interrogation, complainant Satish Kumar also came to the police station to enquire about his case and identified the accused as one of the persons who had vandalized his office and was part of the mob.
4. IO also recorded the statement of the Driver of the complainant, namely, Mukesh Kumar on 04.04.2020 and on the basis of this statement, added section 394 of IPC. Thereafter, IO recorded the statement of the PCR callers. IO interrogated the accused Noor Mohd. @ Noora who disclosed his involvement in the present case. Thereafter, the IO arrested the accused vide arrest memo dated 02.04.2020.
5. During further investigation, IO took the accused to the place of the incident and prepared the pointing out memo.
6. After completion of investigation, on 30.06.2020, the present chargesheet was filed before Duty Magistrate, North-East District, Delhi against the aforesaid accused. Thereafter, cognizance of offences was taken.
CHARGE
7. On 21.09.2022, charge were framed against the accused for offences punishable under Section 147, 148, 188, 323, 394 and 427 r/w Section 149 of IPC to which the accused pleaded not guilty and claimed trial. The charge was framed in the following terms:-
That on 24.02.2020 at the shop of Satish Kumar S/o Brajpal Singh (By the name of Shree Bala Ji Tour & Travels) within the jurisdiction of PS Khajuri Khas, you alongwith your other associates (unidentified) armed with sticks had formed an unlawful assembly, the common object whereof was to cause mischief and robbery and in violation of the Proclamation issued under Section 144 Cr.PC by the competent CR Case No.780/20, FIR No.223/20 Page 3 of 25 authority, committed rioting and you (noor Mohammed @ Noora) being member of the aforesaid unlawful assembly having knowledge that the offences of mischief and robbery are likely to be committed in prosecution of that common object and thereby committed offences punishable under Sections 147 and 148 of IPC read with Section 149 and Section 188 of IPC and within my cognizance.
Secondly, on the aforesaid date time and place you being member of unlawful assembly alongwith your other associates (unidentified) vandalized the aforesaid shop (by the name of Shree Bala Ji Tour & Travesl) belonging to complainant Satish Kumar s/o Braj Pal caused simple injuries to the complainant Mukesh Kumar and committed robbery of various articles including of laptop and Rs.2,000/- and thereby committed offences punishable under Sections 323, 394 and 427 read with Section 149 IPC and within my cognizance.
DESCRIPTION OF PROSECUTION EVIDENCE:-
8. Prosecution examined seven witnesses in support of its case, as per following descriptions:
Sl No. & Role of witness & Description Proved documents/case Name of of documents properties witness PW-1 Mr. He is the complainant in the Ex.PW-1/A is a written Satish present case. PW-1 gave a complaint of PW1- Kumar written complaint in the PS on complainant 02.03.2020. He identified his signature at point A on the Ex.PW-1/B is the site complaint. Police officials plan prepared at the visited his office and prepared instance of site plan at his instance. PW-1 PW1/complainant identified his signature at point A on the site plan. However, PW-1/C are the the said witness was declared photographs of the hostile by the prosecution since office of the he did not identify the accused complainant/PW1 as the offender PW-2 HC He was working as Reader to concerned SHO. On Devender 24.02.2020 he received copy of the order under Section 144 Cr.PC issued by the DCP, North-East District through Dak. PW2 informed SHO about the same.
On the direction of SHO, PW2 announced proclamation CR Case No.780/20, FIR No.223/20 Page 4 of 25 under Section 144 Cr.PC in the area of PS Khajuri Khas through loud speaker/handler PW-3 HC On 24.02.2020, he was posted Ex.PW-3/A is the arrest Sangram at Khajuri Khas Police Station. memo Singh PW3 was present at the spot when the riot took place. He Ex.PW-3/B is the stated that the rioters disclosure statement of vandalised the office of the the accused complainant under the name & style of 'M/s Balaji Tour and Ex.PW-3/C is the Travels'. pointing out memo On 02.04.2020 he identified which was prepared at the accused Noor Mohd. @ the instance of the Noora who was being accused interrogatied by ASI Jeevanand in PS Khajuri Khas as the same person who had taken part in riots by vandalizing the office of the complainant under the name & style of 'Balaji Tour and Travels'.
On his identification, the accused was arrested by ASI Jeevanand.
PW-4 ASI PW-4 was the first IO in the Jamshed Ali present case. On 04.03.2020, he received one complaint of complainant Mr. Satish Kumar from the Reader to the SHO for registering FIR and further investigation.
PW-5 PW-5 was working as driver Mukesh with Balaji Tour and Travels.
Kumar He deposed about vandalizing of the office, robbery and hurt caused to him.
PW-6 In the month of October, 2021, CR Case No.780/20, FIR No.223/20 Page 5 of 25 Inspector he was posted as SI at PS Rajeev Khajuri Khas. PW-6 at the Kumar instructions of the SHO PS Khajuri Khas, received case file from MHC(R) PS Khajuri Khas On 23.11.2021, he obtained the complaint under Section 195 Cr.PC from the office of DCP, North-East District. Thereafter, on 25.11.2021, he recorded the statement of Ct. Devender who had announced the prohibitory order under Section 144 Cr.PC within the jurisdiction of PS Khajuri Khas. Thereafter, he filed the supplementary chargesheet.
PW-7 ASI On 12.03.2020 PW-7 was posted as ASI at PS Khajuri Jeevanand Khas. On that day he received the file from MHC(R) of PS Khajuri Khas.
On 13.03.2020, he contacted the complainant Satish Kumar and went to the place of incident alongwith the complainant Satish Kumar where he prepared the site plan at the instance of the complainant. He also took photographs of the vandalized office of the complainant. Thereafter, PW-7 recorded the statement of the complainant at the place of incident.
On 02.04.2020, PW-5 arrested the accused vide arrest memo dated 02.04.2020. Thereafter, he had taken the accused to the place of incident and prepared the pointing out memo.
ADMITTED DOCUMENTS UNDER SECTION 294 CR.PC
9. Ex.A-1 is FIR No.223/20, Ex.A-2 is certificate under Section 65-B of the Indian Evidence Act, Ex.A-3 is G.D Entry CR Case No.780/20, FIR No.223/20 Page 6 of 25 No.226, Ex.A-4 is PCR Form, Ex.A-5 is G.D Entry No. 229-A, Ex.A-6 is PCR Form, Ex.A-7 is G.D Entry No.222-A, Ex.A-8 is PCR Form, Ex.A-9 is G.D Entry No.227-A, Ex.A-10 is PCR Form, Ex.A-11 is complaint under Section 195 Cr.PC, Ex.A-12 is endorsement on the rukka, Ex.A-13 is Prohibitory order under Section 144 Cr.PC and Ex.A-14 is scene of crime report bearing number 469/2020 dated 26.05.2020.
STATEMENT OF ACCUSED UNDER SECTION 313 Cr.P.C/DEFENCE OF THE ACCUSED
10. The accused in his statement under Section 313 Cr.P.C recorded on 18.04.2023 denied the entire evidence put to him taking plea that he has been falsely implicated in this case only to work out the case and he has not been identified by the witnesses. Accused did not opt to lead any evidence in his defence.
FINAL ARGUMENTS
11. The Court heard final arguments addressed by the Ld. Special Public Prosecutor and perused the record. Despite grant of opportunity, Ld. Counsel for the accused did not come forward to address arguments.
ANALYSIS AND FINDINGS
12. The relevant legal provisions are reproduced below:
Section 141 IPC defines Unlawful assembly as: An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is First- To overawe by criminal force, or show of criminal force, the Central or any State Government or Parliament or the Legislature of any State, or any public servant in the exercise of the lawful power of such public servant; or CR Case No.780/20, FIR No.223/20 Page 7 of 25 Second- To resist the execution of any law, or of any legal process; or Third- To commit any mischief or criminal trespass, or other offence; or Fourth - By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or Fifth - By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.
Explanation.--An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.
Section 142 IPC provides the consequences of joining an unlawful assembly as follows:-
"Whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly."
Section 146 IPC defines Rioting as follows:-
"Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting."
Sections 147 IPC provides punishment for rioting which is as follows:-
"Whoever, is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
Section 148 IPC provides punishment for rioting armed with deadly weapon which is as follows:-
"Whoever, is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
Section 149 IPC provides that every member of unlawful assembly will be guilty of offence committed in prosecution of common object. It is as follows:
CR Case No.780/20, FIR No.223/20 Page 8 of 25"If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence is a member of the same asembly, is guilty of that offence"
Section 188 IPC provides for punishment for disobedience of order promulgated by public servant. It is as follows:
"Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both; and if such disobedience causes or trends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both "
Section 319 defines hurt as follows:
"Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt"
Section 323 provides for punishment for voluntary causing hurt, as follows:
"Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both"
Section 394 provides for punishment for causing hurt while committing robbery. It is as follows:
"If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly CR Case No.780/20, FIR No.223/20 Page 9 of 25 concerned in committing or attempting to commit such robbery, shall be punished with 1[imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."
Section 425 defines mischief as follows:
"Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits "mischief""
Section 427 provides for punishment for causing loss or damage to the amount of Rs.50 or upwards by committing mischief. It is as follows:
"Whoever commits mischief and thereby causes loss or damage to the amount of fifty rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both"
IDENTIFICATION OF THE ACCUSED
13. After careful perusal of the record, this Court is of the opinion that the identification of the accused as the offender by the prosecution witness/es is not believable for various reasons.
14. As per the chargesheet, the complainant Mr. Satish Kumar and the concerned beat officer HC Sangram Singh had identified the accused Noor Mohd. as the offender. However, when evidence was recorded, the complainant Mr. Satish Kumar examined as PW-1 failed to identify the accused as the offender. Infact, the complainant stated that he never informed the police that he can identify the offenders. He also denied identifying the accused as the offender in the police station.
15. The complainant Mr. Satish Kumar testified that on the date of the offence he and his driver were in his office. He saw a CR Case No.780/20, FIR No.223/20 Page 10 of 25 mob of 15-20 persons carrying stones and dandas in their hand coming towards his office. The mob started pelting stones at his office. His driver sustained injuries in his hand. Thereafter, they both ran away and went to their house. After one hour, he came back to his shop and found his laptop missing and glasses of windows were broken. He deposed that he cannot identify or recognize any of the rioters who pelted stones and vandalized his office.
16. With the permission of the Court, the Ld. Special Public Prosecutor cross-examined the complainant. During cross- examination, the witness denied having stated to the police that he can identify the persons who were present in the riots. He denied that the accused was arrested in his presence or that he identified him in the police station on 02.04.2020. He also denied that he has been won over by the accused.
17. PW-3 HC Sangram Singh who was the beat officer at the place where the office of the complainant is situated, deposed that he was present at the spot of offence and identified some persons in the mob. He deposed that he had tried to stop the mob, but could not control the same as the mob comprised of 200-300 rioters.
18. PW-3 further deposed that on 02.04.2020, ASI Jeevanand was interrogating one person whose name was later revealed as Noor Mohammad. He stated that he identified the said person and informed that he is the same person who had taken part in riots by vandalizing and arsoning Balaji Tours & Travels. He deposed that thereafter the accused was arrested by the IO and his personal search was conducted. The witness stated that he can CR Case No.780/20, FIR No.223/20 Page 11 of 25 identify the accused if shown to him. However, on behalf of the accused, it was submitted that the accused is not disputing his identity as he had sought exemption from personal appearance.
19. During cross-examination, PW-3 admitted that before 02.04.2020, he had not informed the IO that he can identify the rioters and that he had not even informed his superior officers in writing in this regard.
20. He also admitted that he was at a distance of 40-50 meters from the spot. He admitted that he had not made any video of rioting on that day or of any incident. He admitted that he was carrying mobile phone which had the option of recording video.
21 PW-3 also admitted that he was accompanied by 2-3 police officials at that time.
LAW ON APPRECIATION OF EVIDENCE OF SOLITARY EYE WITNESS IN CASES OF RIOTING
22. It is the case of the State that the accused has committed offences under Sections 147, 148 r/w Section 149, 188, 323, 394 and 427 r/w Section 149 of IPC. In order to prove these offences, the prosecution is required to prove that the accused , being member of unlawful assembly had committed the offence of rioting.
23. A word of caution was added by the Hon'ble Supreme Court in cases of rioting, where large number of accused persons were involved by holding that it was not safe to rely upon uncorroborated and unsubstantiated testimony of one solitary witness. In fact, in the case of Masalti vs State of U.P. AIR 1965 SC 202, the Hon'ble Apex Court had laid down a principle that CR Case No.780/20, FIR No.223/20 Page 12 of 25 where a court has to deal with the 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 conviction can be sustained only if it is supported by two/ three or more witnesses who give a consistent account of the incident. It was further observed by the Hon'ble Court that the test may be described as mechanical; but it cannot be treated as irrational or unreasonable. This principle which was laid down by the Hon'ble Supreme Court in the case of Masalti (supra) in the year 1965 was reiterated by Hon'ble Apex Court in the case of State of U.P. vs Dan Singh & Ors. reported in (1997) 3 SCC 747. In the said case, the Hon'ble apex Court adopted the above principle/test laid down in the case of Masalti (Supra) while examining the testimonies of eye witnesses in order to ascertain the guilt of the accused beyond reasonable doubt and observed that:
"48... Even though we see no reason to disregard their evidence, nevertheless, keeping in mind the observations of this Court in Masalti's case (supra), we feel that even though a very large number of members of the unlawful assembly had taken part in the attack on the Doms, it would be safe if only those of the respondents should be held to be the members of the unlawful assembly who have been specifically identified by at-least four eye witnesses..."
24. In view of the aforementioned decisions, this Court finds it unsafe to rely on uncorroborated testimony of a single purported eye witness i.e. HC Sangram Singh who has been examined as PW-3. This is more so because his testimony has been found to be in contradiction with the other evidence on record and also because of the other deficiencies, drawbacks and infirmities in his own testimony, which will be elaborated below.
CR Case No.780/20, FIR No.223/20 Page 13 of 25Law on appreciation of Ocular Evidence
25. The account of an eyewitness is considered to be the best evidence in any case. However, it is settled law that the testimony of eyewitness is required to be carefully analyzed to test the reliability, credibility and truthfulness of the witness. The ocular evidence has to be tested for its inherent consistency and inherent probability of the version and also for the consistency of the account given by the witness. This principle was laid down by the Hon'ble Supreme Court in the case of Dilawar Hussain & Ors. vs State of Gujarat & Anr. (1991) 1 SCC 253. The said case was of an incident of communal riots and mob violence on the basis of caste. The apex court laid down principles regarding appreciation of evidence and also observed the parameters on the basis of which the credibility/ truthfulness of a witness can be ascertained. The relevant paragraph in this regard is reproduced below:
"3... Acquittal or conviction depends on proof or otherwise of the criminological chain which invariably comprises of why, where, when, how and who. Each knot of the chain has to be proved, beyond shadow of doubt to bring home the guilt. Any crack or loosening in it weakens the prosecution. Each link, must be so consistent that the only conclusion which must follow is that the accused is guilty. Although guilty should not escape. But on reliable evidence truthful witnesses and honest and fair investigation. No free man should be amerced by framing or to assuage feelings as it is fatal to human dignity and destructive of social, ethical and legal norm. Heinousness of crime or cruelty in its execution howsoever abhorring and hateful cannot reflect in deciding the guilt."
"4.Misgiving, also, prevailed about appreciation of evidence. Without adverting to submissions suffice it to mention that credibility of witnesses has to be measured with same yardstick, whether, it is an ordinary crime or a crime emanating due to communal frenzy. Law does not make any distinction either in leading of evidence or in its assessment. Rule is one and only one namely, if depositions are honest and true. Whether the witnesses, who claim to have seen the incident in this case, withstand this test is the issue? But before that CR Case No.780/20, FIR No.223/20 Page 14 of 25 some legal and general questions touching upon veracity of prosecution version may be disposed of....."
26. In the recent judgment of the Hon'ble Supreme Court in the case of Balu Sudam Khalde Vs. State of Maharashtra Crl. Appeal No.1910 of 2010 decided by the Hon'ble Supreme Court on 29.03.2023, it was held that in assessing the value of evidence of an eye witness, one of the principle considerations is whether there is anything inherently improbable or unreliable in the evidence. It was held that the circumstances elicited from the eye witness himself or established by other evidence tending to improbablise or discredit the veracity of the statement, will have a bearing upon the value which a Court would attach to the evidence.
27. In view of the aforementioned decisions, this court will examine the testimony of the sole purported eye witness HC Sangram Singh and that of the other witnesses to assess how much value the Court can attach to the evidence of HC Sangram Singh.
DELAY IN RECORDING STATEMENTS UNDER SECTION 161 CR.PC OF EYE WITNESSES
28. The offence was committed in the morning of 24.02.2020. Complaint was given by PW-1 Mr. Satish Kumar to the police on 02.03.2020. FIR was registered on 04.03.2020. The sole eye witness HC Sangram Singh was posted in the Beat where the office of the complainant is situated. He claims to be present when the offence took place and to have witnessed it. However, during cross-examination he admitted that he never informed the IO or any superior officer that he had witnessed the offence being CR Case No.780/20, FIR No.223/20 Page 15 of 25 committed and that he can identify some of the offenders.
29. It is hard to believe that a police officer who has witnessed an offence being committed in his area of posting did not make any complaint in this regard. He never reported the matter to his police station for registration of FIR. He did not call up 100 number for seeking immediate police aid. He did not make any attempt to arrest any of the offenders. In his examination-in- chief, he has claimed that he tried to stop the mob, but could not control the same. If he have the courage of making efforts to stop the mob, he could have also made attempt to arrest the offenders or to atleast report the crime if he had indeed witnessed it. He did not even bother to ask the complainant whether the complainant had reported the matter to the police.
30. If for some reason he could not do his duty at the time when the offence was committed, he could have atleast reported it later on the same day or on a subsequent day. He ought to have given a written complaint to the police station. He did not do so even at any point of time in the future when the volatility subsided.
31. It is hard to fathom that a police officer who is courageous enough to make efforts for stopping a mob of 200-300 rioters just stood there as a mute spectator when the rioting and plundering was taking place. He did not even deem it fit to make a video of the offence being committed, even though he was at a relatively safe distance of 40-50 meters from the place of offence and was accompanied by 2-3 other police officers. No explanation has been given by the said witness who is a police officer for standing by and just watching and waiting.
CR Case No.780/20, FIR No.223/20 Page 16 of 2532. It is too much of a coincidence that HC Sangram Singh and the complainant Satish Kumar happen to be at the police station on 02.04.2020 at the time when the accused herein was being interrogated by the IO ASI Jeevanand and that too at the place of the police station where the accused was being interrogated. Admittedly, the complainant did not frequent the police station and it was only the first time after registration of FIR that the complainant had come to the police station to enquire about his case.
33. Admittedly, till 02.04.2020, HC Sangram Singh never disclosed to anyone that he can identify the offenders. As per the prosecution, he disclosed the same for the first time on 02.04.2020 when he happen to see the accused Noor Mohd. at the police station. His statement under Section 161 Cr.PC was recorded by the IO only on 02.04.2020. Prompt reporting of crime is expected from a police officer specially when he had witnessed the crime happening at his place of duty. As per the testimony of PW-1, after around one hour from commission of offence, he had returned to the place of offence alongwith the ACP and other police officers. If at the peak of the communal riots, the police officers had time to come back to the place of offence immediately after the offence was committed only to take a look at the place of offence, this Court does not agree with the submission of the Ld. SPP that due to the police being busy with law & order arrangements during the communal riots, the police could not promptly report offences and have their statements recorded. The fact that there was a substantial delay on part of HC Sangram Singh in disclosing material information to the IO CR Case No.780/20, FIR No.223/20 Page 17 of 25 creates a doubt on the veracity of his version that he can identify the offender.
34. The prosecution has failed to bring on record the reasons for delay in HC Sangram Singh reporting the matter to the investigating officer. The fact that he did not take any action when he purportedly witnessed the crime also creates a doubt on the veracity of his testimony.
35. In the case of Harbeer Singh Vs. Sheeshpal & Ors. 2017 (1) JCC 289, the following was held:
"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 161 Cr.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.
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, CR Case No.780/20, FIR No.223/20 Page 18 of 25 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.".
36. In the case of John Pandial Vs. State (2010) 14 SCC 129, Hon'ble Supreme Court held that statement of eye witnesses should be recorded immediately or with least possible delay. It was held that early recording of statement gives credibility to evidence of witnesses, but is not an absolute rule that where the statement is recorded later, witness is false or a trumped - up witness. It was held that credibility of the witness will depend on the quality of evidence of the witness.
37. In view of the aforesaid decisions, it can be concluded that due to delay in examination of the purported eye witness HC Sangram Singh, it gives rise to suspicion and the Court has to carefully examine his testimony for infirmities.
38. For unknown reasons neither he nor the other witnesses disclosed the identity of the 2-3 other police officers who were with HC Sangram Singh at the time of offence. These 2-3 witnesses have not been examined even though investigation in riots cases was being done under the direct supervision of senior police officers and it is settled law that in cases of rioting, conviction can be sustained only if there is consistent account of the incident given by atleast 2-4 witnesses.
39. The prosecution has failed to give any plausible explanation for non-joining the 2-3 other police officers who were purportedly accompanying PW-3 at the place of offence.
CR Case No.780/20, FIR No.223/20 Page 19 of 25This casts a serious doubt about the veracity of the entire prosecution case that PW-3 had indeed seen the accused Noor Mohammad committing the offence.
40. It is the case of the prosecution that the complainant Mr. Satish Kumar himself identified the accused as the offender. However, this has been denied by the complainant. No explanation has been given by the State as to why the complainant would deny identifying the accused. Only a suggestion was given by the Ld. SPP for the State to the complainant during his cross-examination that he has been won over by the accused. No further questions were put to the witness. It is hard to believe that the accused who appears to be from a very humble background could win over the complainant. As per the disclosure of the accused recorded by the police, the accused makes seat covers in Bhajanpura area. In the recent case of Balu Sudam Khalde Vs. State of Maharashtra Crl. Appeal No.1910 of 2010 decided by the Hon'ble Supreme Court on 29.03.2023, it was held that when evidence of an injured eye- witness is to be appreciated, the under-noted legal principles enunciated by the Courts are required to be kept in mind:
(a) The presence of an injured eye-witness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition.
(b) Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the Accused.
(c) The evidence of injured witness has greater evidential value and unless compelling reasons exist, their statements are not to be discarded lightly.
41. In view of the aforementioned recent decision of the CR Case No.780/20, FIR No.223/20 Page 20 of 25 Hon'ble Supreme Court which has enunciated the previous decisions on how to evaluate testimony of the victim, testimony of the complainant Mr. Satish Kumar is to be given precedence over testimony of the police witnesses. Testimony of the complainant is to be given greater evidential value. There is no reason brought on record by the State for which the complainant would allow the accused to escape punishment.
42. A victim usually has a better opportunity to see offenders from a closer distance and to note their appearance and facial expressions. However, the victims herein i.e. the complainant Mr. Satish Kumar and his driver Mr. Mukesh Kumar have not identified the accused as the offender. Infact, as per the testimony of the complainant, he cannot identify any of the offenders. He denied telling the police that he can identify the offenders. Even in his first handwritten and signed complaint given to the police identified as Ex.PW-1/A, he did not mention that he had seen the offenders and can identify them. If he had seen the offenders and could have identified them, he would have mentioned this in his complaint. The fact that the State falsely cited the complainant as a witness who can identify the accused as the offender, indicates that the case of the prosecution that the offence was committed by the accused Noor Mohammad is false.
43. It is the tendency of the police witnesses to speak in line with the police case. Delhi police being a disciplined force, a Head Constable is under the influence of the SHO and the supervisory police officers. It appears that his statement was procured and prepared falsely and belatedly to solve this case.
44. It is also observed that the Test Identification Proceedings CR Case No.780/20, FIR No.223/20 Page 21 of 25 (TIP) of the accused was not conducted after he was purportedly identified by HC Sangram Singh at the police station. No efforts were made by the police to keep the accused away after he was identified by HC Sangram Singh and before the complainant could see him, so that Test Identification Parade can be carried out. This creates a doubt in the case of the prosecution. The significance of TIP has been noted in the case of Rameshwar Singh vs State of Jammu & Kashmir 1971 SCC Crl. 638, wherein the Hon'ble Supreme Court while dealing with the issue regarding the evidence relating to identification of the accused by the witness has observed as under:
"6......... It may be remembered that the substantive evidence of a witness is his evidence in court but when the accused person is not previously known to the witness concerned then identification of the accused by the witness soon after the former's arrest is of vital importance because it furnish to the investigating agency an assurance that the investigation is proceeding on right lines in addition to furnishing a corroboration of the evidence to be given by the witness later in court at the trial. From this point of view it is a matter of great importance both for the investigation agency and for the accused and a fortiori for the proper administration of justice that such identification is held without avoidable and unreasonable delay after the arrest of the accused and that all the necessary precautions and safeguards are effectively taken so that the investigation proceeds on correct lines for punishing the real culprit. It would, in addition, be fair to the witness concerned who was a stranger to the accused because in that event the chances of his memory fading are reduced and he is required to identify the alleged culprit at the earliest possible opportunity after the occurrence. It is thus and thus alone that justice and fairplay can be assured both to the accused and to the prosecution. The identification during police investigation, it may be recalled, is not substantive evidence in law and it can only be used for corroborating or contradicting evidence of the witness concerned as given in court. The identification proceedings, CR Case No.780/20, FIR No.223/20 Page 22 of 25 therefore, must be so conducted that evidence with regard to them when given at the trial, enables the court safely to form appropriate judicial opinion about its evidentiary value for the purpose of corroborating or contradicting the statement in court of the identifying witness."
45. Since TIP of the accused was not conducted by the police for identification by the complainant, it can be inferred that it was not carried out since the police was already aware that its case is fabricated and the accused has been shown as the offender only for solving of this case.
CONTRADICTIONS IN THE TESTIMONY OF PW-1, PW-3 and PW-5
46. The complainant Mr. Satish Kumar examined as PW-1 testified the mob which came towards his office consisted of 15- 20 persons. The victim Mr. Mukesh Kumar examined as PW-5 deposed that the mob was of around 30-40 persons. The testimony of these two victims which as per the aforesaid decision in the case of Balu Sudam Khalde is to be given precedence and greater value than evidence of other witnesses, is in contradictions with the claim of the sole supporting eye witness HC Sangram Singh that the mob consisted of 200-300 persons.
47. HC Sangram Singh who did not even bother to report the matter immediately to his superiors and did not even make a video of the offence claims to have tried to stop the mob of 200- 300 rioters. It is hard to believe that such a person would risk his life to stall the attempts of a mob comprising of 200-300 rioters. For this reason also, the Court is of the view that the mob may have been of much fewer people as has been testified by PW-1 CR Case No.780/20, FIR No.223/20 Page 23 of 25 and PW-5 or HC Sangram Singh did not really witness the offence. As such, it appears that the testimony of HC Sangram Singh is false. This Court is unable to believe his testimony. As per the victim Mr. Mukesh Kumar examined as PW-5, the offenders had covered their faces. If the offenders had covered their faces, PW-3 could not have seen their appearance and could not have identified the accused as offender. For this reason also, the Court is unable to repose faith in the testimony of PW-3.
48. During cross-examination, PW-3 testified that he was at a distance of 40-50 meters from the place of offence. It is doubtful if HC Sangram Singh could have clearly seen and identified one of the 200-300 rioters from such a long distance. Also, it is hard to understand how from such a long distance, PW-3 tried to stop the mob as he claims to have done.
49. Even the testimony of the two victims i.e. PW-1 and PW-5 is in contradiction. As per PW-1, the mob was coming towards his office and they started pelting stones. As a consequence his driver i.e. PW-5 sustained injuries in his hand. Thereafter, he alongwith his driver ran away from the office and went to their house and informed the police. After one hour, they returned to the office alongwith the police and found the laptop to be missing and windows broken.
50. On the other hand, as per the testimony of PW-5, the mob came to the office and beat PW-1 and PW-5. As per his testimony, the laptop and Rs.2,000/- were snatched by the mob from him.
51. As per PW-1, they had left the office when the mob was coming towards them, whereas as per PW-5, the mob reached the CR Case No.780/20, FIR No.223/20 Page 24 of 25 office, hit them and snatched laptop and Rs.2,000/- from them. PW-1 has not mentioned anything about robbery of Rs.2,000/- or that Rs.2,000/- was also found to be missing, besides the laptop. Therefore, there is contradiction in the version of the two victims which creates a doubt in the correctness of their testimony.
CONCLUSION
52. The burden of proof on the prosecution is to prove the case by leading convincing evidence to prove the guilt of accused persons beyond reasonable doubt. The accused persons cannot be convicted on the basis of mere probabilities or presumptions. Suspicion, howsoever grave may be, cannot take place of proof. Every benefit of doubt goes in favour of accused persons.
53. In view of the above discussion, since the prosecution has failed to prove its case beyond reasonable doubt, the accused Noor Mohammad stand acquitted of the offences punishable under Section 147, 148, 188, 323, 394 and 427 r/w Section 149 of Indian Penal Code.
54. File is ordered to be consigned to record room as per rules (Announced in the open court on 25.05.2023) (Shirish Aggarwal) Chief Metropolitan Magistrate North-East District, KKD Courts Delhi, 25.05.2023 CR Case No.780/20, FIR No.223/20 Page 25 of 25