Delhi District Court
State vs Ashraf on 22 July, 2023
CNR No. DLNE01-000931-2021
State v. Ashraf etc.
SC No.118/21, FIR No.83/20, PS Karawal Nagar
Judgment dated 22.07.2023
DLNE010009312021
IN THE COURT OF SH. PULASTYA PRAMACHALA
ADDITIONAL SESSIONS JUDGE-03,
NORTH-EAST DISTRICT
KARKARDOOMA COURTS: DELHI
INDEX
Sl. HEADINGS Page Nos.
No.
1 Description of Case & Memo of Parties 2
2 The case set up by the Prosecution 3-5
3 Charges 5-6
4 Description of Prosecution Evidence 6-16
5 Plea of accused under Section 313 Cr.P.C. 16
6 Arguments of Prosecution & Defence 16-18
APPRECIATION OF LAW, FACTS AND EVIDENCE
7 Unlawful Assembly and Riots 18
8 Identification of accused persons 18-19
9 Conclusion and Decision 20
Page 1 of 20 (Pulastya Pramachala)
ASJ-03, North-East District,
Karkardooma Courts, Delhi
CNR No. DLNE01-000931-2021
State v. Ashraf etc.
SC No.118/21, FIR No.83/20, PS Karawal Nagar
Judgment dated 22.07.2023
Sessions Case No. : 118/2021
Under Section : 143/147/148/436 IPC read with
149 IPC
Police Station : Karawal Nagar
FIR No. : 83/2020
CNR No. : DLNE01-000931-2021
In the matter of: -
STATE
VERSUS
1. ASHRAF
S/o. Sh. Animul Haq,
R/o. H.No. A/18, Chauhan Park,
Indira Park, Delhi.
2. PARVEJ
S/o. Sh. Riyajuddin,
R/o.H.No.A-30/6, Gali No.1,
Mahalakshmi Vihar, Babu Nagar, Delhi.
...Accused Persons
Case registered on the SH. RAJKUMAR
complaint of: S/o. Sh. Tek Chand,
R/o. Huts near Shiv Vihar
Tiraha, Karawal Nagar, Delhi.
Joint complainants : Dharmendra, Mahendra,
Smt. Gauri, Kamal,
Deepchand, Golu, Brahm
Singh, Karan Singh, Manoj,
Baalu, Sagar, Shani, Billu,
Santu and Rajinder.
Date of Institution : 20.07.2020
Date of reserving order : 17.07.2023
Date of pronouncement : 22.07.2023
Decision : Acquitted.
(Section 437-A Cr.P.C. not complied with by accused persons)
Page 2 of 20 (Pulastya Pramachala)
ASJ-03, North-East District,
Karkardooma Courts, Delhi
CNR No. DLNE01-000931-2021
State v. Ashraf etc.
SC No.118/21, FIR No.83/20, PS Karawal Nagar
Judgment dated 22.07.2023
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 147/148/149/427/436/188 IPC.
2. Brief facts of the present case are that on 29.02.2020, present FIR was registered on the basis of a joint written complaint dated 29.02.2020, made by one Raj Kumar, S/o. Sh. Tek Chand and other fifteen complainants namely Dharmendra, Mahendra, Smt. Gauri, Kamal, Deepchand, Golu, Brahm Singh, Karan Singh, Manoj, Baalu, Sagar, Shani, Billu, Santu and Rajinder. In their joint complaint, complainants alleged that they had been doing the work of ironsmith and were putting up in the huts with their families in the area of Shiv Vihar Tiraha, Karawal Nagar, Delhi-
110094. It was further alleged that on 25.02.2020, a riotous mob attacked their huts from Mustafabad side and thereafter, set the same on fire. It was further alleged that to save their lives, they ran away from that place and their household belongings and identity documents like Aadhaar Card etc. were burnt into ashes. Thereafter, investigation of the present FIR was assigned to HC Purshottam, who prepared site plan of scene of crime at the instance of complainants.
3. On 08.03.2020, further investigation of the present case was assigned to SI Mandeep. During investigation, IO/SI Mandeep visited scene of crime and tried to contact the complainants, but Page 3 of 20 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000931-2021 State v. Ashraf etc. SC No.118/21, FIR No.83/20, PS Karawal Nagar Judgment dated 22.07.2023 he could not contact them, as complainants had already vacated their huts. During further investigation, IO/SI Mandeep came to know that scene of crime of FIR No.61/20 falls within the radius of 100 meters of scene of crime of the present FIR. IO had suspicion that same mob might have involved in the incident of the present case. During further investigation on 20.04.2020, IO obtained permission and interrogated accused persons of FIR No.61/20, who confessed their involvement in the incident of the present case.
4. During further investigation on 21.04.2020, IO visited house of eyewitness Ajeet Kumar Tomar i.e. A-23, Gali No. Zero, Mahalakshmi Enclave, Delhi, who was cited as witness in FIR No.61/20. IO recorded statement of Ajeet Kumar Tomar in the present case, wherein he stated that accused Parvej and Ashraf being part of the mob, were throwing bottles on the huts of ironsmiths and set them on fire. Thereafter, on 22.06.2020, further investigation of the present case was assigned to IO/SI Ankit Kumar, who added Section 188 IPC for violation of proclamation u/s. 144 Cr.P.C. made in the area of North East District.
5. During further investigation, IO/ASI Ankit Kumar also recorded statement of main complainant Raj Kumar. IO also recorded statement of other complainants namely 1.Dharmender (s/o. Sh. Tekchand), 2.Mahender (s/o. Sh. Tekchand), 3.Kamal (s/o. Sh. Mahender), 4.Santu (s/o. Sh. Dharma), 5.Rajinder (s/o. Sh.
Page 4 of 20 (Pulastya Pramachala)ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000931-2021 State v. Ashraf etc. SC No.118/21, FIR No.83/20, PS Karawal Nagar Judgment dated 22.07.2023 Deepchand) and 6.Sagar (s/o. Karan), who returned to their jhuggies after around 1½ -2 months of date of incident. Due to worldwide Covid-19 pandemic situation, IO could not record statement of other 9 complainants, out of 16 complainants of the present case.
6. After completion of investigation, on 20.07.2020 a chargesheet was filed before Duty MM (North East), Karkardooma Courts, Delhi, against accused Ashraf and Parvej. Thereafter, on 23.12.2020, ld. CMM (North East), Karkardooma Courts, Delhi, took cognizance of offences punishable under Section 147/148/ 149/427/436. Vide said order, ld. CMM (N/E) declined to take cognizance for offence punishable under Section 188 IPC for want of complaint under Section 195 Cr.P.C. Thereafter, case was committed to the sessions court on 04.02.2021. On 24.12.2021, first supplementary chargesheet along with a complaint under Section 195 Cr.P.C and other documents, was filed before ld. CMM (N/E). That supplementary chargesheet was sent to the court of sessions vide order dated 14.01.2022.
CHARGES: -
7. On 28.08.2021, charges were framed against accused Ashraf and Parvez for offences punishable under Section 143/147/148/436 IPC read with Section 149 IPC, to which they pleaded not guilty and claimed trial. The charges were framed in following terms: -
"That on 25.02.2020 at time unknown, in the area of "Luharon ki Jhopdi", Shiv Vihar Tiraha, Delhi-94, within the jurisdiction of PS Karawal Nagar, both of you alongwith your other associates (unidentified) formed an unlawful assembly, the object Page 5 of 20 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000931-2021 State v. Ashraf etc. SC No.118/21, FIR No.83/20, PS Karawal Nagar Judgment dated 22.07.2023 whereof was to commit mischief by fire or explosive substance with intent to destroy the huts of 16 complainants named in complaint dated 29.02.2020, "Mark A" and thereby committed offences punishable under Section(s) 143/147/148 IPC read with Section 149 IPC and within my cognizance.
Secondly, on the aforesaid date, time and place, you both being members of the said unlawful assembly, in furtherance of your common object alongwith your other associates (unidentified) committed mischief by fire or explosive substance with intent to destroy the huts (huts) of 16 complainants named in "Mark A" and thereby committed an offence punishable under Section 436 IPC read with Section 149 IPC and within my cognizance."
DESCRIPTION OF PROSECUTION EVIDENCE: -
8. Prosecution examined 16 witnesses in support of its case, as per following descriptions: -
Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties PW1/Sh. Raj They were the complainants out of Ex.PW1/A Kumar, 16 complainants. (joint PW2/Sh. On 25.02.2020, when they were complaint of Dharmender doing work in front of their jhuggi PW1 as well as PW3/Sh. situated near Shiv Vihar Tiraha, other jhuggi Mahender, they saw a mob coming towards dwellers) PW4/Sh. jhuggies and violence had started.
Kamal, PW1, PW2, PW3, PW4, PW5 and
PW5/Sh. PW6 alongwith their respective
Santu & family and other jhuggi dwellers
ran away from that place. When
PW6/Sh. they returned to that place after
Sagar about three days, they found that
all the jhuggies had been
completely burnt and the articles which they had left in the jhuggies had been taken away.
PW1 alongwith other jhuggi dwellers had submitted a joint complaint regarding said incident, Page 6 of 20 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000931-2021 State v. Ashraf etc. SC No.118/21, FIR No.83/20, PS Karawal Nagar Judgment dated 22.07.2023 Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties in police station on 29.02.2020.
PW1 identified his thumb impression at point A on joint complaint Ex.PW1/A. PW1 also identified thumb impression of his brother Dharmender at point B, that of his another brother Mahender at point C, that of his sister in law Gauri at point D, that of his nephew Kamal at point E, that of his neighbour Deep Chand at point F, that of his nephew Golu at point G, that of his maternal uncle Brahm Singh at point H, that of his another maternal uncle Karan Singh at point I, that of Manoj (son in law of Brahm Singh) at point J, that of Balu (brother of Manoj) at point K, that of Sagar (son of Karan) at point L, that of Shani (son of Brahm Singh) at point M, that of his neighbour Billu at point N, that of Santu (Billu's uncle) at point O and that of Rajender (son of Deep Chand) at point P, on Ex.PW1/A. PW2, PW3, PW4, PW5 and PW6 had also identified their thumb impression on Ex.PW1/A at point B, C, E, O & L, respectively.
On the point of identification of accused persons, they did not support the case of prosecution.
PW7/Sh. On 25.02.2020 at about 11 AM, on asking of police, Ajeet Kumar he alongwith his family left his home bearing No. A- Tomar 23, Gali no. Zero, Mahalaxmi Enclave, Delhi, and Page 7 of 20 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000931-2021 State v. Ashraf etc. SC No.118/21, FIR No.83/20, PS Karawal Nagar Judgment dated 22.07.2023 Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties under protection of police he came upto Shiv Vihar Tiraha.
Thereafter, PW7 went to the house of his aunt (mausi) Bala near Shiv Vihar pulia. Between 3 to 4 PM, from the terrace of house of his aunt, PW7 had seen fire on the side of his house. PW7 came downstairs and went upto Shiv Vihar Tiraha near the gate of Dispensary, to see and check, if his house was safe or not. PW7 found mobs of persons from Muslim community on the side of Brijpuri road and of Hindu community on the side of Hanuman Temple. When PW7 was near Dispensary, he saw one person from Hindu mob falling down on the road, at the distance of about 3-4 meters from him. At that time, PW7 had seen accused Ashraf and Parvez in the mob of Muslim community. PW7 had seen their faces in that mob of around 1000 persons. When the aforesaid person had fallen down, PW7 had heard sound of gunshot also and PW7 had seen gunshot over forehead of that person. On seeing this, PW7 immediately fled away from that place towards Mahalaxmi Enclave. PW7 went towards his house from the back side, taking route behind Kalawati School, reaching the house of Kanhaiya, which was situated on the back side gali of his home. PW7 saw that his home was safe, though the adjacent house belonging to Mahender Uppal and shops of Kanhaiya as well as his brother were in burnt condition. PW7 came back to house of his aunt Bala from that place between 8-9 PM. PW7 had seen shops at and near Shiv Vihar Tiraha as well as huts situated near Dispensary on fire, which were of Dhudhaliye (Banjaras/ ironsmith) persons. PW7 had been there near Shiv Vihar Tiraha for about 15 minutes. PW7 was inquired about the riot taken place on 25.02.2020 by police officials and he had narrated Page 8 of 20 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000931-2021 State v. Ashraf etc. SC No.118/21, FIR No.83/20, PS Karawal Nagar Judgment dated 22.07.2023 Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties all the facts within his knowledge to the police for this day. PW7 knew accused Ashraf and Parvez since prior to aforesaid riots.
PW8/Sh. He was one of the complainants. Around 3 years Rajender back, riot had taken place in the area of Banjaro ki jhopriya, near Hanuman Temple, Shiv Vihar Tiraha, Karawal Nagar, Delhi. In that riot, pelting of stones was going on between group of Hindus and Muslims at Shiv Vihar Tirhara and therefore, PW8 had fled away from that place to Karawal Nagar. PW8 came back to his cottage (jhopri) at least after 10 days and PW8 had seen that his jhhopri was in burnt condition.
In his cottage, PW8 had kept cash amount and had also kept handcart and nothing was left there. PW8 had visited PS Karawal Nagar to make his complaint and police had written his complaint. PW8 had put his right thumb impression on that complaint, as he could not sign.
On the point of identification of accused persons, he did not support the case of prosecution. PW9/HC On 24.02.2020 he was working as reader to SHO at Ravinder PS Karawal Nagar. On that day, an order issued u/s.
144 Cr.P.C by DCP, N/E, was received by SHO in PS. SHO instructed PW9 to diary that order and to pronounce that order in the area of PS. PW9 made diary of that order and thereafter called an auto. PW9 visited East Kamal Vihar, West Kamal Vihar, Nanak Diary, Yamuna Dairy, Mukund Vihar, New Sabhapur, Kalighata Road, Karawal Nagar Chowk, Panchal Vihar, Shiv Vihar, Shiv Vihar Tiraha, Jagdamba Colony Johripur, Sunny Bazaar Road Johripur, Shanti Nagar, OP Block Shiv Vihar and Ambika Vihar, and announced aforesaid order of DCP through loud hailer.
Page 9 of 20 (Pulastya Pramachala)ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000931-2021 State v. Ashraf etc. SC No.118/21, FIR No.83/20, PS Karawal Nagar Judgment dated 22.07.2023 Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties PW10/Ms. She was also one of the complainants. Gauri In the year 2020, riot had taken place in the area of Shiv Vihar Tiraha, Karawal Nagar, Delhi. PW10 had left that place with her three children to a dispensary in Karawal Nagar, when pelting of stones had started between 2 mobs.
PW10 had seen that a number of persons were present on the road going towards Mustafabad and stones were coming from that side. When PW10 left that place, nothing had taken place in her zhuggi and cart (belgari) at Shiv Vihar Tiraha, Karawal Nagar, Delhi. PW10 came back to this place after around 2 months, because in the meantime, there was lock- down also. When PW10 came back, she saw that nothing was left at that place except ash. There were around 16-17 families, who had been residing in huts at that place. They all had left that place and had stayed at the dispensary. Subsequently, they all had visited PS and they had given a common complaint in the PS. PW10 had put her right thumb impression over the same. Police had made enquiry from her and had recorded her statement.
PW11/Sh. He was one of the complainant. Billu In February 2020, riot had taken place in the area of Shiv Vihar Tiraha, Karawal Nagar, Delhi. At that time, PW11 was residing with his wife and 2 children in the jhuggi, Shiv Vihar Tiraha, Karawal Nagar, Delhi and he had left aforesaid place with his family to a big dispensary in Karawal Nagar, where they stayed. PW11 had left that place out of fear on account of riot (danga fasaad) i.e. quarrel and a number of persons were present at the chowk. Till the time PW11 left his jhuggi, nothing had happened to the same. PW11 came back alongwith others after 2 days and then PW11 saw that his jhuggi was burnt. There were around 25-26 families residing there and Page 10 of 20 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000931-2021 State v. Ashraf etc. SC No.118/21, FIR No.83/20, PS Karawal Nagar Judgment dated 22.07.2023 Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties there were around 12 huts, which all had been burnt. Police had made enquiry about burning of his jhuggi. Police had read over before what had been written by him.
On the point of identification of accused persons, he did not support the case of prosecution. PW12/Sh. He was also one of the complainants. Baalu In February, 2020, due to start of pelting of stones, he along with his family consisting of wife and 2 children, had left his temporary jhuggi over his cart, for dispensary/ TB hospital in Karawal Nagar. By the time, they had left that place his cart and jhuggi were intact, which had been burnt in the evening. PW12 came back to that place after 2 months and found ash only. There were 2 mobs, which were pelting stones on each other. One was on the side of Shiv Vihar and another was on the road going towards Mustafabad. PW12 along with other jhuggi dwellers had visited PS Karawal Nagar and they had given a common complaint in the PS. PW12 had put his thumb impression over the same.
On the point of identification of accused persons, he also did not support the case of prosecution. PW13/Sh. He was also one of the complainants. Golu He had been residing at Shiv Vihar Tiraha in temporary jhuggi over his cart, since he was about 8 years old. The cart had been burnt during riots, which had taken place in February, 2020. At that time, PW13 was residing with his family consisting of his father, wife and 2 children. It was evening time, when there was pelting of stones from the side of Hanuman temple, Shiv Vihar and Mustafabad. They had left for dispensary in Karawal Nagar. By the time, they had left that place his cart and jhuggi were intact. PW13 came back to that place after 2 Page 11 of 20 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000931-2021 State v. Ashraf etc. SC No.118/21, FIR No.83/20, PS Karawal Nagar Judgment dated 22.07.2023 Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties months and found nothing except ash. PW13 along with other jhuggi dwellers had visited PS Karawal Nagar and they had given a common complaint in the PS. PW13 had put his thumb impression over the same.
On the point of identification of accused persons, he also did not support the case of prosecution.
PW-14/SI On 22.06.2020, on the directions of Ex.PW14/A
Ankit SHO, he received case file from (fresh site plan
MHC(R) in this case. prepared by
On 24.06.2020, PW14 placed copy PW14 at the of Order u/s 144 Cr. PC in the case instance of file and added Section 188 IPC. complainnat Raj Kumar) On 25.06.2020, PW14 recorded statement of Raj Kumar u/s 161 Cr.P.C. in P.S. PW14 prepared a fresh site plan at the instance of Raj Kumar. PW14 identified his signature at circle X on said site plan.
On 30.06.2020, the other complainants mentioned in the common complaint, namely, Dharmender, Mahender, Kamal and Santoo, were examined by PW14 u/s 161 Cr. PC. On 02.07.2020, PW14 examined Rajender and Sagar. Thereafter, PW14 prepared main chargesheet in this case and filed the same in the court. On 25.08.2021 and 26.08.2021, PW14 recorded statement of Gauri and Baalu. On 02.09.2021, PW14 recorded statement of Billu and on Page 12 of 20 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000931-2021 State v. Ashraf etc. SC No.118/21, FIR No.83/20, PS Karawal Nagar Judgment dated 22.07.2023 Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties 03.09.2021, PW14 recorded statement of Golu.
On 13.11.2021, PW14 obtained complaint u/s 195 Cr. PC and placed the same in the file. On 16.11.2021, PW14 examined official, who had pronounced Order u/s 144 Cr. PC. On 21.12.2021, PW14 had obtained certified copies of compensation order in favour of the victims in this case, from the office of SDM, Karawal Nagar.
On 22.12.2021, PW14 had placed photocopy of certified copies of CDR and CAF, pertaining to accused persons, in this case.
Original certified copies were placed in the file of FIR No.61/20.
Subsequently, PW14 filed a supplementary chargesheet in this case on 24.12.2021. PW14 placed photocopy of site plan prepared in FIR No.61/20, in the present case file. As per analysis of CDR of mobile phones of both accused persons, PW14 found their location at Shiv Vihar Tiraha on 25.02.2020 at around 5 PM.
PW15/HC On 29.02.2020, complainant Raj Ex.PW15/A
Purushottam Kumar came to PS along with 15- (rukka prepared
16 persons and he handed over a by PWPW15)
complaint to Duty Officer in the &
presence of PW15. Duty Officer Ex.PW15/B
assigned that complaint to PW15 (site plan
for further action. PW15 had gone prepared by
Page 13 of 20 (Pulastya Pramachala)
ASJ-03, North-East District,
Karkardooma Courts, Delhi
CNR No. DLNE01-000931-2021
State v. Ashraf etc.
SC No.118/21, FIR No.83/20, PS Karawal Nagar Judgment dated 22.07.2023 Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties through the complaint. It was PW15 at the common complaint on behalf of 16 instance of Raj persons. PW15 prepared rukka on Kumar). the basis of that complaint and gave it to Duty Officer for registration of FIR.
Rukka appeared on the back of the common complaint from points A to A1, bearing signature of PW15 at point X. Duty Officer handed over copy of FIR with rukka to PW15 for further investigation.
Thereafter, PW15 took Raj Kumar to scene of crime i.e. Shiv Vihar Tiraha and prepared site plan.
PW15 identified his signature at point X on the same.
PW15 had visited the place where jhuggies of complainants were situated i.e. near Shiv Vihar Tiraha. Thereafter, on the instructions of SHO, file was handed over to MHC(R). Further investigation was assigned to SI Mandeep.
PW16/SI On 08.03.2020, on the directions of SHO, he Mandeep received file of this case from MHC(R) for further Kukana investigation. PW16 went through the file.
In this case, the complainants had their jhuggies at Shiv Vihar Tiraha and hence, on same day PW16 visited Shiv Vihar Tiraha in search of the complainants.
At Shiv Vihar Tiraha all the jhuggies were already burnt to ash. PW16 made local inquiry in respect of those complainants. In the complaint date of incident was mentioned as 25.02.2020. On 16 or 17 March, Page 14 of 20 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000931-2021 State v. Ashraf etc. SC No.118/21, FIR No.83/20, PS Karawal Nagar Judgment dated 22.07.2023 Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties 2020, an information was received in PS Karawal Nagar from Crime Branch, Rohini. It was informed that in respect of incident taken place at Shiv Vihar Tiraha during evening time, Crime Branch had arrested two accused and they also found one eyewitness. Through his ATO, PW16 found out name of that eyewitness who was Ajit Tomar. Those two accused persons were found to be accused Ashraf and Parvez.
On 20.04.2020, PW16 along with ASI Rakam Singh visited Mandoli Jail and moved an application before MM in the court Jail seeking permission to interrogate and arrest accused Ashraf and Parvez. After obtaining permission, PW16 interrogated and formally arrested both accused persons in the jail vide arrest memo. PW16 identified his signature at point X on arrest memo of accused Parvez and Ashraf i.e. Ex.A-3 and Ex.A-4, respectively. On 21.04.2020, PW16 again visited house of Ajit Tomar and recorded his statement. Thereafter, PW16 went to Mandoli Jail and got sent both accused to J/C in this case by MM sitting in Mandoli Jail Court. On 22.06.2020, on the directions of SHO, PW16 handed over the case file to MHC(R). PW16 identified accused Parvez physically in the court and accused Ashraf through video conference. Witness Ajit Tomar in his statement had claimed to have seen the incident related to jhuggies of complainants herein and he had also stated that he had seen accused Ashraf and Parvez in that mob. Admitted documents under Section 294 Cr.P.C. Complaint under Section 195 Cr.P.C. as Ex.A-1; prohibitory order under Section 144 Cr.P.C. as Ex.A-2; arrest memos of accused Parvez and Ashraf as Ex.A-3 and Ex.A-4, respectively; CAF in respect of accused Parvez and Ashraf as Ex.A-5 and Ex.A-6, Page 15 of 20 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000931-2021 State v. Ashraf etc. SC No.118/21, FIR No.83/20, PS Karawal Nagar Judgment dated 22.07.2023 Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties respectively; certificate u/s.65-B of I.E. Act as Ex.A-7; CDRs of accused Parvez and Ashraf Ali as Ex.A-8 (colly. 8 pages) and Ex.A-9 (colly. 9 pages), respectively; DD No.17-A dated 29.02.2020 as Ex.A-10; FIR as Ex.A-11, certificate u/s.65-B of I.E. Act as Ex.A-12 and certified copy of statement of Mr. Ajit Tomar as recorded in FIR No.61/20, PS Karawal Nagar as Ex.A-13. PLEA OF ACCUSED PERSONS U/S. 313 CR.P.C.
9. All accused persons denied all the allegations and pleaded innocence, taking plea that they were not present at the spot on the day of incident and they have been falsely implicated in this case. They also took plea that their name was implicated in this case, just to work out the case and witnesses falsely deposed against them at the instance of IO. Accused persons did not opt to lead any evidence in their defence.
ARGUMENTS OF PROSECUTION & DEFENCE
10. I heard ld. Special PP and ld. defence counsels for accused persons. Certain case laws were filed on behalf of accused Parvez. I have perused the cited case laws and entire material on the record.
11. Sh. Nitin Rai Sharma, ld. Special PP argued that mob had set on fire jhuggies of Banjaras. PW1/Sh. Raj Kumar was main complainant in the present case. PW7/Sh. Ajeet Kumar Tomar was the eyewitness of this incident, who had seen both accused in the mob. It was further argued that Jhuggi's incident took place at 5 PM. PW7 saw accused in the mob at Shiv Vihar Tiraha, Page 16 of 20 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000931-2021 State v. Ashraf etc. SC No.118/21, FIR No.83/20, PS Karawal Nagar Judgment dated 22.07.2023 where these huts were situated. It was further argued that defence did not rebut and put any suggestion to PW7 that he was not present at the spot or that he had not seen the accused persons. It was further argued that PW9/HC Ravinder proved proclamation of order under Section 144 Cr.P.C. It was further argued that PW14/SI Ankit proved site plain in this case and in FIR No.61/20. It was further argued that PW7 named six accused in FIR No.61/20, though he named only two accused persons in this case. Hence, PW14 was not a tutored witness. It was further argued that distance between scene of crime in FIR No.61/20 and this case was 40-50 feet as testified by PW14.
12. Sh. Abdul Gaffar, ld. counsel for accused Ashraf Ali, argued that PW7/Sh. Ajeet Kumar Tomar said that he did not see incident of setting fire in shops or huts. PW7 said that both mobs i.e. persons belonging to Muslim community and Hindu community were reaching to jhuggies. It was further argued that PW16/SI Mandeep admitted that at the time of arrest of accused, there was no evidence against them, which shows that it was per- determined to implicate accused and then evidence was created.
13. Sh. Z. Babar Chauhan, ld. counsel for accused Parvez, argued that statement of PW7/Sh. Ajeet Kumar Tomar was recorded in FIR No.54/20, 59/20 and 61/20. His other statement as recorded in FIR No.61/20 was placed on the record of this case (certified copy is Ex.A-13/admitted document). These statements of PW7 are contradictory. It was further argued that PW7 is otherwise not Page 17 of 20 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000931-2021 State v. Ashraf etc. SC No.118/21, FIR No.83/20, PS Karawal Nagar Judgment dated 22.07.2023 credible witness and prosecution remained silent over delay in examining this witness. He further submitted that ratio of the case of Masalti is applicable to this case.
14. In support of his contentions, ld. counsel for Parvez also relied upon certain case laws, which are as follows: -
14.1 Masalti v. State of U.P. AIR 1965 SC 202. 14.2 Harbeen Singh v. Sheeshpal & Ors. decided on 20.10.2016 by Supreme Court in Criminal Appeals No.1624-1625 of 2023. 14.3 Khurshid Ahmed v. State of Jammu & Kashmir, (2018) 7 SCC 429.
APPRECIATION OF FACTS AND EVIDENCE UNLAWFUL ASSEMBLY & RIOTS
15. The first question is that whether there was an unlawful assembly, which set the huts of the complainants on fire?
16. Although, no photographs were taken by police officer to prove that huts were burnt, but evidence of all the complainants/victims have remained unchallenged in this respect. PW7 also stated that he had seen two mobs of persons from Hindu and Muslim community on opposite sides near Shiv Vihar Tiraha. They were pelting stones on each other. PW7 also saw huts on fire. Even police officials visited that place and found huts in burnt conditions. Therefore, it is not difficult to presume that these huts were set on fire by an unlawful assembly.
IDENTIFICATION OF ACCUSED PERSONS
17. The next question to be discussed here is whether the accused persons were part of mob on the date of incident at relevant time, Page 18 of 20 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000931-2021 State v. Ashraf etc. SC No.118/21, FIR No.83/20, PS Karawal Nagar Judgment dated 22.07.2023 which was behind setting the huts on fire. All complainants in the present case were not able to state exact time of incident since they had left their huts out of fear of mob and found the same in burnt condition when returned after the incident. Therefore, they did not identify anyone who set their jhuggi on fire.
18. However, prosecution examined a public witness Ajeet Kumar Tomar as PW-7 who stated that at the relevant time on 25.02.2023, he saw the mobs of two communities consisting of around 1000 persons. Even if it is relied that he had seen both accused persons on the day of incident in the mob of Muslims, still it has to be ensured that said mob of muslim persons had set the huts on fire. In his testimony, PW7 stated "I had not seen any incident of setting on fire any property myself. Though I had seen shops at and near Shiv Vihar Tiraha as well as huts situated near dispensary on fire. These were huts of dhudhaliye (banjaras/ ironsmith). I had not seen, as to who had set these huts on fire." On perusal of his evidence entirely, it is found that PW-7 did not see anyone to set huts on fire. Rather he said that during his presence there, both mobs were coming near the huts. This situation leaves a doubt as to which particular mob had set the huts on fire. Prosecution did not examine any other witness to prove the involvement of accused persons in setting huts of complainants on fire. In view of the above discussion, it is clear that prosecution is not able to establish it's case beyond reasonable doubt.
Page 19 of 20 (Pulastya Pramachala)ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000931-2021 State v. Ashraf etc. SC No.118/21, FIR No.83/20, PS Karawal Nagar Judgment dated 22.07.2023 CONCLUSION & DECISION
19. 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 reasonable doubts. Hence, accused 1. Ashraf, and 2. Parvez, are acquitted of all the charges levelled Digitally signed against them in this case. by PULASTYA PRAMACHALA PULASTYA PRAMACHALA Date:
2023.07.22 16:05:34 +0530 Announced in the open court (PULASTYA PRAMACHALA) today on 22.07.2023 ASJ-03 (North- East) (This order contains 20 pages) Karkardooma Courts/Delhi Page 20 of 20 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi