Delhi District Court
State vs Lokesh Solanki @ Rajpoot And Others on 5 June, 2025
CNR No. DLNE01-002730-2020
State v. Lokesh Solanki etc.
SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri
DLNE010027302020
IN THE COURT OF SH. PULASTYA PRAMACHALA
DISTRICT JUDGE (COMMERCIAL COURT)-01,
PATIALA HOUSE COURT, NEW DELHI
INDEX
Sl. HEADINGS Page Nos.
No.
1 Description of Case & Memo of Parties 2-3
2 Case set up by the Prosecution 4-9
3 Charges 9-11
4 Description of Prosecution Evidence 11-34
5 Plea of accused under Section 351 BNSS 34
6 Arguments on behalf of Defence and 34-35
Prosecution on the point of incriminating
evidence
7 Section 255 BNSS and 351 BNSS 35-41
8 Plea of accused Lokesh Solanki 41
9 Plea of accused Tinku 41
10 Final arguments of Defence and Prosecution 41-43
APPRECIATION OF FACTS AND EVIDENCE
11 Unlawful Assembly & Riot 43-45
12 Identification of accused persons 45-56
13 Section 153-A IPC and 505 IPC 56-61
14 Conclusion and Decision 61-62
Digitally signed
by PULASTYA
PULASTYA PRAMACHALA
PRAMACHALA Date: 2025.06.05
11:04:50 +0530
Page 1 of 62 (Pulastya Pramachala)
District Judge (Commercial Court)-01,
Patiala House Court, New Delhi
CNR No. DLNE01-002730-2020
State v. Lokesh Solanki etc.
SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri
Sessions Case No. : 136/2020
Under Section : 144/147/148/149/188/302/153A/
505/201/120B/ 34 IPC
Police Station : Gokalpuri
FIR No. : 149/2020
CNR No. : DLNE01-002730-2020
In the matter of: -
STATE
VERSUS
1. Lokesh Kumar Solanki @ Rajput
S/o. Sh. Yogender Kumar,
R/o. H.No. C-5/47, 4th Floor,
Yamuna Vihar, Delhi-53.
2. Pankaj Sharma
S/o. Late Sh. Rajveer Sharma,
R/o. H.No. C-162, Gali No.3,
Bhagirathi Vihar, Delhi-94.
3. Sumit Chaudhary @ Badshah
S/o. Late. Sh. Om Prakash,
R/o. H.No. A-367, Gokalpuri, Delhi.
4. Ankit Chaudhary @ Fouzi
S/o. Sh. Rajkumar,
R/o. H.No. G-14, Gali No. 2, G-Block,
Ganga Vihar, Gokalpuri, Delhi-94.
5. Prince @ D.J. Wala
S/o. Sh. Mahender Singh,
R/o. H.No. C-33, Gali No.2,
Bhagirathi Vihar, Delhi-94.
6. Rishabh Chaudhary @ Tapas
S/o. Sh. Yogender Singh,
R/o. H.No. F-53, Gali No.1,
Ganga Vihar, Gokalpuri, Delhi-94.
7. Jatin Sharma @ Rohit
S/o. Sh. Gouri Shankar Sharma,
R/o. H.No. C-101, DLF,
Dilshad Extension-II, Ghaziabad,
Sahibabad, U.P.-201005.
Page 2 of 62 (Pulastya Pramachala)
District Judge (Commercial Court)-01,
Patiala House Court, New Delhi
CNR No. DLNE01-002730-2020
State v. Lokesh Solanki etc.
SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri
8. Vivek Panchal @ Nandu
S/o. Sh. Pramod Kumar Panchal,
R/o. H.No. D-106, Gali No.4, Ganga Vihar, Delhi-94.
9. Himanshu Thakur
S/o. Sh. Harender,
R/o. H.No. F-19, 1st Floor, Flat No.1,
Ekta Society, DLF-Ankur Vihar,
Loni, Ghaziabad, U.P.
10. Tinku Arora
S/o. Sh. Ashok Kumar,
R/o. H.No. E-51, Gali No.2,
Bhagirathi Vihar, Delhi-94.
11. Sandeep Kumar @ Mogli
S/o. Late Sh. Dalveer Singh,
R/o. H.No. E-24, Gali No.3,
Bhagirati Vihar, Delhi-94.
12. Sahil @ Babu
S/o. Late Sh. Rakesh Sharma,
R/o. H.No. D-138, Gali No.11,
Bhagirathi Vihar, Delhi-94. ...Accused persons
Complainant: ASI Manvir Singh
Date of Institution : 19.08.2020
Date of reserving Judgment : 29.05.2025
Date of pronouncement : 05.06.2025
Decisions: -
1. Accused Lokesh Kumar Solanki is convicted of offences
punishable u/s. 153-A/505 IPC. He is acquitted of remaining
charges levelled against him in the present case.
2. Remaining accused persons are acquitted of all the charges
levelled against them in the present case.
(Section 481 BNSS complied with by all the accused persons)
Page 3 of 62 (Pulastya Pramachala)
District Judge (Commercial Court)-01,
Patiala House Court, New Delhi
CNR No. DLNE01-002730-2020
State v. Lokesh Solanki etc.
SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri
JUDGMENT
CASE SET UP BY THE PROSECUTION: -
1. The above-named accused persons have been chargesheeted by the police for offences punishable under Section 144/147/148/149/153-A/188/505/302/201/120-B/34 IPC.
2. As per the case of the prosecution, on 01.03.2020 at about 14:34 hrs., a PCR call regarding a dead body lying in the Nala near Ganga Public School, was received at PS Gokalpuri. This call was recorded in Daily Diary vide DD No.26A. This call was entrusted to ASI Manveer Singh for necessary action.
3. ASI Manveer Singh along with PSI Ashish Garg reached the spot i.e. drain (Nala) near Ganga Public School, where the water of the drain was found flowing towards Gokalpuri Metro Station.
One male dead body was found moving towards Gokalpuri Metro Station with the flow of drain. The dead body was stopped in the drain near Gokalpuri Metro Station and same was taken out of drain with the help of other police staff. During personal search of the dead body, one small glass bottle with AVIL written on its lid and a needle, was recovered from pocket of pant worn by the deceased. IO seized the same and deposited it in malkhana. IO took photographs of the dead body with his mobile phone. The dead body could not be identified and it was sent to RML Hospital, where it was declared brought dead by the doctor vide MLC No. E-45293/20. The dead body was got preserved in mortuary of RML Hospital pending identification.
4. On 06.03.2020, postmortem examination on the body of Page 4 of 62 (Pulastya Pramachala) District Judge (Commercial Court)-01, Patiala House Court, New Delhi CNR No. DLNE01-002730-2020 State v. Lokesh Solanki etc. SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri deceased as "unknown, s/o. Unknown" was conducted at RML Hospital by a Medical Board, vide Post-Mortem no.162/2020. Doctors preserved clothes worn by deceased, tooth for DNA and blood in gauze and same were taken into police possession. Postmortem proceedings were got videographed through Sh. Ankit Shrivastava. After post-mortem examination, the dead body was preserved in the mortuary of GTB hospital for the purpose of identification, because there was no facility of preserving dead-body at RML hospital.
5. On 09.03.2020, Mohd. Tehsin along with his family members and relatives came to PS Gokalpuri in search of his son, who was missing since 25.02.2020 and he met ASI Manvir Singh. Mohd. Tehsin complained that his son namely Aas Mohammad had left his house for work in the morning of 25.02.2020 and he had not come back since then. He showed the photograph of his son to IO. They were taken to GTB hospital by ASI Manvir Singh and were shown the aforesaid dead-body (found on 01.03.2020 vide DD No.26A). Mohd. Tehsin identified the dead-body as that of his son Aas Mohammad. After identification, the dead body was handed over by IO to the family members on 09.03.2020.
6. During postmortem examination, doctors had verbally conveyed to SHO/PS Gokalpuri that there were serious fatal injuries on the head of deceased. Accordingly, this case FIR No.149/20, u/s. 147/148/149/302/201 IPC, was registered on 10.03.2020 at PS Gokalpuri, by Duty Officer ASI Yeshpal on the basis of DD Entry. Further investigation was handed over to Insp. Bineet Kumar Pandey.
Page 5 of 62 (Pulastya Pramachala)District Judge (Commercial Court)-01, Patiala House Court, New Delhi CNR No. DLNE01-002730-2020 State v. Lokesh Solanki etc. SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri
7. During the course of further investigation on 10.03.2020, IO/Insp. Bineet Kumar Pandey prepared site plan of spot at the instance of ASI Manvir Singh and recorded statement of witnesses. On 11.03.2020 the exhibits preserved in the case i.e. tooth and blood sample of deceased, were sent to FSL, Rohini through PSI Ashish Garg and were deposited there for DNA fingerprinting. On 22.03.2020 remaining exhibits i.e. clothes of the deceased, were deposited in malkhana. As per prosecution, on 25.02.2020 at about 7-7.30 PM, deceased Aas Mohd. was killed by the rioters and was thrown in the drain (nala) at Bhagirathi Vihar/Johripur pulia. He was coming on foot from the side of Loni Border, Ghaziabad.
8. On 24.03.2020, further investigation of the case was transferred to the SIT-II of Crime Branch and it was entrusted to Insp. Vinod Kumar Ahlawat on 07.04.2020. On 10.04.2020 postmortem report of the deceased Aas Mohammad was received from RML Hospital through SI Ashish Garg. The cause of death was opined as "Head injury and its complications due to blunt force impact. All injuries were ante-mortem in nature." On 12.06.2020 subsequent opinion regarding kind of weapon of offence in the present case, was taken from Medical Board. It was opined that "Most of the injuries sustained by the deceased could be caused by heavy blunt objects like (but not limited to) heavy lathis, metal rods, bricks, heavy stones etc.".
9. On 12.04.2020, IO recorded statement u/s. 161 Cr.P.C. of Ct.
Vipin, who took name of accused Ankit, Badshah, Pankaj, Prince, Himanshu, Jatin Sharma, Rishabh, Vivek, Lokesh, Babu Page 6 of 62 (Pulastya Pramachala) District Judge (Commercial Court)-01, Patiala House Court, New Delhi CNR No. DLNE01-002730-2020 State v. Lokesh Solanki etc. SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri and others. He stated that on 25.02.2020 at around 4 PM on seeing police party, rioters alerted their associates to hide themselves to each other by taking their afore-said names.
10. On 15.04.2020, blood sample of father and son of the deceased namely Mohd. Tehsin and Rehan were got preserved at GTB hospital. The samples were seized by the IO and deposited in malkhana. On 16.04.2020, report of crime team was obtained. Photographs of the spot clicked by IO/ASI Manvir Singh was also obtained. On 08.05.2020, blood sample and other exhibits were sent to FSL, Rohini for DNA matching and biological examination. On 22.04.2020 spot was got inspected and photographed by FSL Team, and report was obtained by IO. On 08.05.2020 mobile phone of eyewitness Nilu Jain was sent to FSL, Rohini for retrieval of data, images, videos and posts. On 15.05.2020 mobile phones of witnesses Anuj Kumar Sharma, Piyush Panchal, Shubham Sharma @ Sahil, Abhishek Panchal and Aniket Panchal, were also sent to FSL for retrieval of data and posts. On 22.07.2020 spot was inspected by draughtsman, scaled site plan of the spot was got prepared and same was received on 30.07.2020. IO added Sections 144, 153A, 505, 120B, 34 IPC in the present case.
11. During the course of further investigation, eleven (11) accused persons namely, (1) Lokesh Kumar Solanki @ Rajput, (2) Pankaj Sharma, (3) Sumit Chaudhary @ Badshah, (4) Ankit Chaudhary @ Fauzi, (5) Prince, (6) Jatin Sharma, (7) Rishabh Chaudhary @ Tapash, (8) Vivek Panchal @ Nandu and (9) Himanshu Thakur were arrested in this case. Certified copies of CDR and CAF of Page 7 of 62 (Pulastya Pramachala) District Judge (Commercial Court)-01, Patiala House Court, New Delhi CNR No. DLNE01-002730-2020 State v. Lokesh Solanki etc. SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri the mobile numbers of accused persons obtained from respective service providers.
12. As per the chats of WhatsApp group namely "Kattar Hindut Ekta", accused persons and their associates conspired to teach Muslims a lesson for attacking the Hindus, and they equipped themselves with lathis, dandas, sticks etc. and started roaming in the area with the motive to vandalize/burn the properties. They further resolved to kill Muslims, whoever came across before them.
13. After completion of investigation, on 19.08.2020 main chargesheet was filed against nine (9) accused persons namely Lokesh Solanki @ Rajput, Pankaj Sharma, Sumit Chaudhary @ Badshah, Ankit Chaudhary @ Fauzi, Prince, Rishabh Chaudhary @ Tapas, Jatin Sharma @ Rohit, Vivek Panchal @ Nandu and Himanshu Thakur, for offences punishable under Section 302/144/147/148/149/153-A/505/201/120-B/34 IPC. On 16.09.2020, ld. CMM/NE took cognizance of offences under Section 302/144/147/148/149/201/120-B/34 IPC against afore- said nine (9) accused persons. Vide this order, ld. CMM/NE declined to take cognizance of offences u/s. 153-A and 505 IPC for want of prior sanction u/s. 196 Cr.P.C.
14. On 15.10.2020 first supplementary chargesheet along with photocopy of reports of retrieved data of mobile phone (seized in FIR No.35/20), FSL reports, one pen-drive containing soft copy of FSL report and other documents, was filed before ld. CMM/NE. This supplementary chargesheet was sent by ld. CMM/NE to the Court of Sessions vide order dated 21.10.2020.
Page 8 of 62 (Pulastya Pramachala)District Judge (Commercial Court)-01, Patiala House Court, New Delhi CNR No. DLNE01-002730-2020 State v. Lokesh Solanki etc. SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri
15. On 07.05.2021 second supplementary chargesheet along with sanction order u/s. 196 Cr.P.C., subsequent medical opinion regarding possible weapons of offence and other documents, was filed before ld. Duty MM (North-East), Karkardooma Courts, Delhi. This supplementary chargesheet was filed impleading three additional accused persons namely Tinku Arora, Sandeep @ Mogli and Sahil @ Babu, in the present case. Section 188 IPC was also added in the present case through this supplementary chargesheet. This supplementary chargesheet was sent by ld. CMM/NE to the Court of Sessions vide order dated 26.10.2021.
16. On 15.09.2022 third supplementary chargesheet along with sanction u/s.195 Cr.P.C. and copy of order u/s. 144 Cr.P.C. was filed before ld. CMM/NE. On that day, ld. CMM/NE took cognizance of offence u/s. 188 IPC in the present case. This chargesheet was sent by ld. CMM/NE to the Court of Sessions vide order dated 22.10.2022.
17. On 25.11.2024 fourth supplementary chargesheet along with data retrieved in respect of WhatsApp chats, was filed directly before this court. On 18.12.2024 fifth supplementary chargesheet along with certificate u/s. 63 BSA as issued by expert from CERT-In, was also filed directly before this court.
CHARGES
18. On 04.04.2022, charges were framed against accused 1. Lokesh Kumar Solanki @ Rajput 2. Pankaj Sharma, 3. Ankit Chaudhary @ Fauzi, 4. Prince @ D.J Wala, 5. Jatin Sharma @ Rohit, 6. Himanshu Thakur, 7. Vivek Panchal @ Nandu, 8. Rishabh Chaudhary @ Tapash 9. Sumit Chaudhary @ Badshah, 10. Tinku Page 9 of 62 (Pulastya Pramachala) District Judge (Commercial Court)-01, Patiala House Court, New Delhi CNR No. DLNE01-002730-2020 State v. Lokesh Solanki etc. SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri Arora, 11. Sandeep @ Mogli and 12. Sahil @ Babu for offences punishable under Section 144/147/148/153A/302/201/432/505/34 IPC read with Section 149 IPC, to which they pleaded not guilty and claimed trial. The charges were framed in following terms: -
"That from the early morning of 25.02.2020 till the late night of 26.02.2020, in the area at or around main Ganda Nala Road, near C-Block, Bhagirathi Vihar, Delhi, within the jurisdiction of PS Gokalpuri, all of you being members of unlawful assembly along with your other associates (identified & unidentified) formed an unlawful assembly carrying deadly weapons like lathis, sticks(danda), stones, swords and other arms, used force or violence in prosecution of a common object i.e. committed rioting and you all knew being members of the aforesaid unlawful assembly that offences were likely to be committed in prosecution of that common object and thereby committed offences punishable under Section(s) 144/147/148 IPC read with Section 149 IPC and within my cognizance. Secondly, on 25/02/2020, at around 07:00 - 07: 30 p.m., at or around main Ganda Nala Road, near C-Block, Bhagirathi Vihar, Delhi,, you all being members of said unlawful assembly along with your other associates (identified and unidentified) used force or violence in prosecution of a common object and in furtherance of common intention committed murder of Aas Mohammad S/o Shri Tehsin, merely on account of the fact that he belonged to the other community and thereafter threw his dead body in the Bhagirathi Vihar ganda nala with a view to conceal/destroy his identity and thereby you all along with your other associates (identified and unidentified) committed offences punishable under Section(s) 302/201/432/34 IPC read with Section 149 IPC and within my cognizance. Thirdly, that on the aforesaid dates, time and place, you all being members of said unlawful assembly along with your other associates (identified and unidentified) raised religious slogans in furtherance of common intention and common object to incite and promote enmity between different groups on the ground of religion and acted in a way that are prejudicial to the ways of Page 10 of 62 (Pulastya Pramachala) District Judge (Commercial Court)-01, Patiala House Court, New Delhi CNR No. DLNE01-002730-2020 State v. Lokesh Solanki etc. SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri harmony and thereby you all along with your associates (identified and unidentified) committed offences punishable under Section(s) 153A/505 IPC read with Section 149 IPC and within my cognizance."
DESCRIPTION OF PROSECUTION EVIDENCE
19. Several witnesses were dropped on the basis of admission of documents under Section 294 Cr.P.C./330 BNSS and prosecution examined 32 witnesses in support of its case, as per following description: -
Sl. No. & Role of Witness & Description of Proved Name of Testimony documents/ Witness case properties PW1/Sh. PW1 deposed that on 25.02.2020, he had gone to the Narottam temple at about 7.30-8 pm and he was strolling Singh around that temple and came back to his home bearing F-442-A, Gali No.8, Ganga Vihar, Gokalpuri, Delhi, at about 9-9.30 pm. PW1 further deposed that on 25.02.2020, he did not see any particular incident except vehicles in burnt condition.
During his cross-examination by ld. Special PP, PW1 denied the suggestion that he had stated before the police that on 25.02.2020 at about 4 pm, while looking for his motorcycle, he reached on Bhagirathi Nala or that he saw a mob at that place indulging in rioting and assaulting persons.
PW1 did not support the case of prosecution on the point of identification of accused persons and he was declared hostile.
PW2/Nisar In February 2020, PW2 was resident of E-61/1, Main Ahmed Nala Road, near Johripur pulia, Bhagirathi Vihar, Delhi.
On 25.02.2020 at about 7-7.30 a.m., PW2 made a telephonic call to his sister Amina and told her to come to his home, keeping in view the tensed situation due to riots. When he had gone in search of Page 11 of 62 (Pulastya Pramachala) District Judge (Commercial Court)-01, Patiala House Court, New Delhi CNR No. DLNE01-002730-2020 State v. Lokesh Solanki etc. SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri Sl. No. & Role of Witness & Description of Proved Name of Testimony documents/ Witness case properties her sister, PW2 saw a mob of some persons assembled at Johripur pulia. PW2 identified some members of this mob, as he knew some by their names and some by their faces. In the mob, PW2 saw accused persons namely Vikas, Golu, Avdhesh Mishra, Shekhar, Michael, Mogli, Tinku, Babu, Prince, Ashok, Tikkiwala, Gaurav Dabral and Himanshu Thakur. As per his testimony, on 25.02.2020 at 8 am, PW2 had seen Sandeep, Vikas, Golu, Michael, Akash, Sanjay and Ashok Tikkiwala in the mob on the road going towards Chaman Park from Johripur pulia. On that day, at about 10 am, PW2 was present in his balcony, when he saw that afore-said mob came towards his home and that mob started looting shop of Salman situated adjacent to his house.
During his testimony, PW2 identified accused Sumit, Babu @ Sahil, Sandeep @ Mogli, Tinku, Pankaj, Vivek Panchal, Jatin, Himanshu and Prince, by taking their names in the court. PW2 pointed out towards accused Lokesh Solanki while taking his name as Himanshu. PW2 also pointed out towards accused Rishabh and Pawan stating that he did not know their name.
During his cross-examination by ld. Special PP, PW2 deposed that in the murders taken place on Johripur pulia by the mob on 25.02.2020, accused Vikas, Golu, Sandep @ Mogli, Michael, Tinku, Prince, Pankaj, Avdhesh Mishra, Shekhar, Akash and Sanjay were there among the others in that mob. PW2 also admitted the suggestion that on 25.02.2020 the same mob consisting of around 200- 250 persons including above-mentioned persons and others were present at ganda nala, Tiraha, Johripur; and that he had told police that on 25.02.2020 for Page 12 of 62 (Pulastya Pramachala) District Judge (Commercial Court)-01, Patiala House Court, New Delhi CNR No. DLNE01-002730-2020 State v. Lokesh Solanki etc. SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri Sl. No. & Role of Witness & Description of Proved Name of Testimony documents/ Witness case properties whole day, said rioters/mob continued to commit loot, arson and killing; and that same mob/persons were checking the ID of passers-by and on finding the same as Muslim, they used to kill the person and throw the dead body in the nala.
PW2 correctly identified accused Ankit in the court, stating that he was present in the mob on 25.02.2020. On court query, PW2 deposed that on 25.02.2020, he had seen accused Ankit for the first time at about 8 am and thereafter at about 4 pm, in the mob. PW3/ PW3 was resident of C-129, Ex.PW3/ Shivam Bhagirathi Vihar, Delhi. He was Article-1 Bhardwaj using a mobile phone make (mobile phone Realme using no. 7217779080 of make Realme Jio company, during period belonging to between 24.02.2020 to 26.02.2020. PW3) He was member of certain WhatsApp group during that period. His afore-said mobile phone was taken from him in the Crime Branch Office. He identified his signature at circle X on the seizure memo of WhatsApp Chat dated 08.03.2020 with print of chats (39 pages), pertaining to FIR No.35/20. PW3 identified his said mobile phone before the court.
PW3 did not support the case of prosecution and he was declared hostile on the point of knowing some accused and about confession made by Lokesh for killing Muslim persons alongwith Page 13 of 62 (Pulastya Pramachala) District Judge (Commercial Court)-01, Patiala House Court, New Delhi CNR No. DLNE01-002730-2020 State v. Lokesh Solanki etc. SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri Sl. No. & Role of Witness & Description of Proved Name of Testimony documents/ Witness case properties other accused persons.
PW4/Sh. PW4 was resident of H.No. C-106, Gali No.3, Mohit Bhagirathi Vihar, Delhi. He was working in Khaiber Sharma Pass Metro Depot as Technician. He was user of mobile phone no. 89 ....... He was added in a WhatsApp group namely "Katter Hindut" with afore-said mobile number.
Officials of Crime Branch Office, Shakarpur, had made enquiry from PW4 in respect of chats of afore- said WhatsApp group. His mobile phone was seized there in FIR No.35/20, PS Gokalpuri. PW4 identified his mobile phone of Samsung company (as Ex.PW4/Article-1 in FIR No.35/20), in the court. PW4 did not support the case of prosecution and he turned hostile on the point of identification of the accused persons.
PW5/Sh. PW5 was residing at B-4/A, gali no.1, Bhagirathi Aman Vihar, in February 2020. Saxena PW5 did not support the case of prosecution and was
declared hostile by ld. SPP on certain aspects. PW6/ On 25.02.2020, PW6 was present Ex.PW6/A Shehjad at his home bearing no. E-289, gali (Site plan);
no.4, Bhagirahi Vihar. At about 9 Ex.PW6/B a.m., he was present at the main (photograph) gate of his home. He saw 400-500 persons were raising slogans of 'Jai Shri Ram'. The member of that mob were carrying hockey, iron rod etc. He thereafter closed the door of his house and went to the terrace of his home. From the terrace, he continued watching that mob. PW6 saw that mob was vandalizing the house of Nisar, which was situated on the nala Page 14 of 62 (Pulastya Pramachala) District Judge (Commercial Court)-01, Patiala House Court, New Delhi CNR No. DLNE01-002730-2020 State v. Lokesh Solanki etc. SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri Sl. No. & Role of Witness & Description of Proved Name of Testimony documents/ Witness case properties road.
At about 7 p.m., PW6 alongwith his brother Jahid went to Toll Tax on the main road, where he saw a boy coming from the side of Loni on that road, wearing green jacket and black trouser. At that time, there were about 250-300 persons at Toll Tax and the mob caught hold of that boy, assaulted him and threw him in the drain near Toll Tax.
PW6 deposed that he did not know any person in the afore-said mob, prior to afore-said incident.
However, he had seen some persons in that mob. On the basis of photograph shown by police, PW-6 identified that person in the photo as the same, who was assaulted and thrown in the drain.
In the court, PW6 identified that photograph with his signature at point X, which was given exhibit mark as Ex.PW6/B. Police had prepared site plan at the instance of PW6.
During his testimony, PW6 pointed out towards accused Tinku Arora as member of afore-said mob, in the court.
PW7/Sh. PW7 was resident of B-99, Gali No.1, Bhagirathi Paras Vihar, Delhi and he was working in Kosmos Hospital. He deposed about making a call to police Page 15 of 62 (Pulastya Pramachala) District Judge (Commercial Court)-01, Patiala House Court, New Delhi CNR No. DLNE01-002730-2020 State v. Lokesh Solanki etc. SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri Sl. No. & Role of Witness & Description of Proved Name of Testimony documents/ Witness case properties at 100 number on 25.02.2020 regarding situation of riots. However, his testimony had no reference to incident in question.
PW8/ Zahid PW8 was resident of H.No.289, gali no.4, E block, Alvi Bhagirathi Vihar, Delhi. He was brother of PW6.
On 25.02.2020 at about 7-7.30 p.m, PW8 alongwith his brother Shehjad (PW6) went to Tikona, in order to see the riots. There was a mob of around 100-150 persons at that Tikona. This Tikona was situated immediately after coming down from the flyover coming from the side of Ganga Vihar. PW8 saw that one thin boy was being assaulted by said mob and thereafter that boy was thrown in the drain. The members of the mob were carrying weapons like danda or iron rod and were raising slogan of 'Jai Shri Ram'. PW8 deposed that he did not know any person in afore-said mob. Though he had seen faces of some persons, but he did not remember as to how many faces seen by him. No one had asked him to identify members of afore-said mob by showing any photograph. He had seen the face of boy, who was being beaten, but no one had shown him photograph of that boy for identifying him.
During his cross-examination by ld. Prosecutor, PW8 admitted that he knew faces of number of persons residing in his locality and that there were persons from local area in the afore-said mob. However, PW8 again modified his statement to say that there were no persons from local area. He admitted that the afore-said mob was comprising of persons from Hindu Community. He pointed out to accused Prince, Mogli and Pankaj by taking their names as the persons of his locality, in the court. PW8 also pointed out towards Tinku and Babu stating that he Page 16 of 62 (Pulastya Pramachala) District Judge (Commercial Court)-01, Patiala House Court, New Delhi CNR No. DLNE01-002730-2020 State v. Lokesh Solanki etc. SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri Sl. No. & Role of Witness & Description of Proved Name of Testimony documents/ Witness case properties does not know their name. These persons were pointed out to say that they were resident of his locality, but he denied having seen these persons in the afore-said mob.
PW8 deposed that he had made complain to police on 26.02.2020, but police did not make any enquiry regarding riots from him at any point of time. He further deposed that he never informed police on his own about afore-said incident of beating of the thin boy.
PW9/Ct. On 25.02.2020, vide DD No.25-B, PW9 was deputed Vipin for law & order duty in the area of Bhagirathi Vihar.
On that day, his duty hours were from 9 a.m. onwards.
On that day, at about 4 p.m., when PW9 came towards Johripur pulia from the side of Bhagirathi Vihar, he saw a mob of around 100-150 persons near this pulia. On seeing PW9 with other police staff, that mob started running away, while taking names of Rishabh, Pankaj, Prince, Lokesh, Badshah, Ankit and some other names.
During his cross-examination by ld. Special PP, he admitted the suggestion that he had mentioned the names of accused Himanshu, Jatin, Avdhesh Mishra, Vivek and Shekhar, in his statement given before Insp. Vinod.
PW10/ PW10 was resident of C-156, gali no.3, Bhagirathi Neelu Jain Vihar, since about 2018 upto 2020 and he had been using WhatsApp on his mobile no.786867686 for last 5-6 years. Riots had taken place in the locality of PW10 and he remained inside his home for 3-4 days. During riots, someone had added PW10 to a WhatsApp group i.e. 'Hindu Bajran etc.' In some messages of that group, it was mentioned that in a Page 17 of 62 (Pulastya Pramachala) District Judge (Commercial Court)-01, Patiala House Court, New Delhi CNR No. DLNE01-002730-2020 State v. Lokesh Solanki etc. SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri Sl. No. & Role of Witness & Description of Proved Name of Testimony documents/ Witness case properties colony near Maujpur, riot was going on and no one should come out of the house. PW10 visited PS Nand Nagri after receiving the call from police after 28.02.2020. PW10 identified his signature at point X on the seizure memo dt.01.05.2020 and seizure memo of hard copy of WhatsApp chat.
PW10 did not support the case of prosecution on the point of identification of accused persons and he was declared hostile.
PW11/Sh. PW11 was residing at H.No.93, gali Ex.PW11/A Nazim no.1, Aisha Masjid, Shakti Vihar, (Receipt of Dayalpur. Riots had taken place in delivery of the year 2020 and brother of PW-11 dead body) namely Aas Mohammad had gone on 25th day towards the side of Johripur for his work. He was not having any mobile phone at that time. Aas Mohammad did not return back to his home on that day. Father of PW11 had made a complaint about missing of Aas Mohammad and on 09.03.2020, PW-11 alongwith his uncle went to GTB hospital, where he saw the dead body of Aas Mohammad. PW11 identified his signature on 'receipt of delivery of dead body' at point X. PW12/Ms. PW12 was the widow of Aas Mohammad. On Sahiba 25.02.2020, husband of PW12 left home at about 10- 11 a.m. for his work. Aas Mohammad did not return back to his home on that day. Riots were going on during those days. Father-in-law of PW12 made online complaint regarding missing of Aas Mohammad. In the month of March 2020, Manvir saheb took PW12, her father-in-law and brother-in-
Page 18 of 62 (Pulastya Pramachala)District Judge (Commercial Court)-01, Patiala House Court, New Delhi CNR No. DLNE01-002730-2020 State v. Lokesh Solanki etc. SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri Sl. No. & Role of Witness & Description of Proved Name of Testimony documents/ Witness case properties law to GTB Hospital, where they identified the dead body of Aas Mohammad on the basis of clothes worn by Aas Mohammad on that date. PW12 identified the photograph of Aas Mohammad. PW13/Sh. PW13 used to work as vendor for scrap dealing and Ahmad for this purpose, he used to roam around in the area Shahid of Ganga Vihar, Bhagirathi Vihar, Johripur, Shiv Vihar, Mustafabad, Dayalpur and Karawal Nagar. PW13 deposed that riot had taken place on 24/25.02.2020 in and around the area of Brijpuri Pulia. Since atmosphere had worsened since 24.02.2020, therefore, PW13 was at his home on 25.02.2020.
On receipt of telephonic call from his aunt (mausi) Ameena, at about 3-4 pm, PW13 went to her house situated at the corner of a street (gali) near Johripur pulia. PW13 saw that there was a mob of around 100-150 persons at Ganga Vihar/Johripur pulia, who were raising slogans like Har Har Mahadev, Jai Siya Ram. PW30 went to the terrace of house of Ameena and from the terrace, PW13 saw that the persons from that mob were equipped with lathi, danda etc. They were stopping the passers-by. PW13 knew 2-4 persons in that mob, who were Thakur (who was carrying danda), Mukesh Master, Avdhesh Mishra, Kanhaiya, Sahil, Tinku & Mogli. PW13 had seen these persons in the aforesaid mob, who were raising slogans etc. Thereafter, PW13 took his aunt Ameena to his home, through back side streets. PW13 identified accused Mogli, Tinku and Sahil in the court. PW13 was declared hostile by prosecution on the point of identifying some accused persons. PW14/SI PW14 was Duty Officer in PS Ex.PW14/A Yashpal Gokalpuri. He registered FIR in (endorsement Page 19 of 62 (Pulastya Pramachala) District Judge (Commercial Court)-01, Patiala House Court, New Delhi CNR No. DLNE01-002730-2020 State v. Lokesh Solanki etc. SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri Sl. No. & Role of Witness & Description of Proved Name of Testimony documents/ Witness case properties the present case on the basis of of PW14 on rukka handed over by ASI Manvir. rukka); & Thereafter, he also made Ex.PW14/B endorsement on the back side of (FIR) rukka.
PW15/ASI On 23.05.2020, PW-15 was posted Ex.PW15/A Mahesh in SIU-II, Crime branch, Nand (arrest memo Nagri as ASI. Accused Ankit of Ankit Chaudhary, Sumit Chaudhary, Chaudhary) Pankaj Sharma and Prince were in Ex.PW15/B police custody in FIR no.156/20, (pointing out PS Gokalpuri. IO/Insp. Vinod memo at the Ahlawat interrogated them and instance of arrested them in the present case. Ankit PW-15 was holding custody of Chaudhary) Ankit Chaudhary and he signed over arrest memo of Ankit Chaudhary.
Thereafter on same day at about 11 a.m., PW15 alongwith IO, SI Deepak Pandey, ASI Billu Singh, HC Karambir and HC Pankaj, took aforesaid accused to southern part of Johripur pulia towards side of Ganga Vihar. PW15 prepared pointing out memo at the instance of Ankit Chaudhary.
All aforesaid accused persons were sent to J/C. PW15 identified accused Ankit Chaudhary, Sumit, Pankaj Sharma and Prince, in the court.
PW16/ASI PW16 deposed on the same lines Ex.PW16/A Billu Singh of PW15. IO/Insp. Vinod Ahlawat (arrest memo Page 20 of 62 (Pulastya Pramachala) District Judge (Commercial Court)-01, Patiala House Court, New Delhi CNR No. DLNE01-002730-2020 State v. Lokesh Solanki etc. SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri Sl. No. & Role of Witness & Description of Proved Name of Testimony documents/ Witness case properties interrogated and arrested Sumit of accused Chaudhary, vide arrest memo Sumit which was signed by PW16. Chaudhary) Pointing out memo at the instance Ex.PW16/B of Sumit Chaudhary was prepared, (pointing out which was signed by PW16. memo at the PW16 identified accused Sumit instance of Chaudhary in the court. Sumit Chaudhary) PW17/HC On 25.02.2020, PW17 was Ex.PW17/A Sarnam working as Deployment Officer in (OSR colly 4 PS Gokalpuri and he had prepared Sheets) (true duty roster for the date of photocopy of 25.02.2020. duty roster).
PW18/ASI PW18 along with PSI Ashish Garg Ex.PW18/A Manvir was witness to recovery of three (seizure memo dead bodies from nala, on of glass bottle 01.03.2020. with syringe);
The dead body concerning to this Ex.PW18/B case was taken out by PW18 with (certificate u/s the help of other police staff from 65B of IE Act); Ganga Vihar drain. This dead body Ex.PW18/P1 to was stuck near Gokalpuri Metro Ex.PW18/P5 Station in the drain. PW18 (photographs) witnessed recovery and seizure of one glass bottle having mark of Ex.PW18/C Avil, from the right side pocket of (Inquest wearing trouser of this dead body. papers); PW18 also deposed that mobile Ex.PW18/D crime team was called at the spot (seizure memo and got the place of incident of pullanda of inspected. PW18 took 5 teeth and blood photographs of the dead body on gauze); through his mobile phone. PW18 Page 21 of 62 (Pulastya Pramachala) District Judge (Commercial Court)-01, Patiala House Court, New Delhi CNR No. DLNE01-002730-2020 State v. Lokesh Solanki etc. SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri Sl. No. & Role of Witness & Description of Proved Name of Testimony documents/ Witness case properties proved his certificate u/s. 65-B of Ex.PW18/E I.E. Act and said photographs. (endorsement PW18 deposed that dead body on DD concerning to this case was taken no.26A); to RML hospital by him and PSI Ex.PW18/F Ashish Garg. The dead body was (site plan);
declared 'bought dead' vide MLC No. 45293/20 in RML hospital. Ex.PW18/G This dead body was preserved in (seizure memo mortuary of RML hospital. of 2 On 06.03.2020, PW18 prepared photographs);
inquest papers for postmortem Ex.PW18/H examination of the dead body (seizure memo pertaining to this case and of mobile submitted the same in RML phone) hospital. After postmortem examination, PW18 brought the dead body and got it preserved in mortuary GTB hospital, as there was scarcity of space at mortuary in RML hospital.
On 09.03.2020, PW18 prepared identification memo of the third dead body at GTB hospital, at the instance of one Bhullan and one Shamshad, which are Ex.A1 and Ex.A-2. PW18 delivered the dead body vide memo Ex.PW11/A. On same day PW18 reached RML hospital and after receiving sealed pullanda of teeth and blood on gauze, seized them vide a seizure memo.
On 10.03.2020, PW18 made Page 22 of 62 (Pulastya Pramachala) District Judge (Commercial Court)-01, Patiala House Court, New Delhi CNR No. DLNE01-002730-2020 State v. Lokesh Solanki etc. SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri Sl. No. & Role of Witness & Description of Proved Name of Testimony documents/ Witness case properties endorsement on DD no.26A dated 01.03.2020, for registration of FIR. Further investigation was assigned to Insp. Bineet Pandey and thereafter PW18 took Insp. Bineet Pandey to the drain in front of Ganga Public School, Ganga Vihar and he prepared site plan of that place at the instance of PW18.
Subsequently, investigation was transferred to Crime branch and Insp. Vinod Ahlawat was IO of the case.
On 10.02.2021, PW18 had seized one mobile phone and one pen-
drive containing photographs, in FIR No.78/20 of same PS, from one Nisar Ahmed. PW18 had arrested accused Sandeep @ Mogli, Babu @ Sahil and Tinku in that case, who were appearing in the video recorded by Nisar Ahmed. PW18 had handed over documents pertaining to that FIR, to Insp. Vinod.
PW19/SI PW19 deposed on the lines of Ex. PW19/A Ashish Garg PW18 in respect of recovery of (R/C no.
dead body from Ganga Vihar nala 09/21/20) near Ganga Public School, as well as recovery and seizure of glass bottle from right side pocket of wearing trouser of the dead body.
PW19 also deposed in respect of dead body taken by him along with PW18 to RML hospital and Page 23 of 62 (Pulastya Pramachala) District Judge (Commercial Court)-01, Patiala House Court, New Delhi CNR No. DLNE01-002730-2020 State v. Lokesh Solanki etc. SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri Sl. No. & Role of Witness & Description of Proved Name of Testimony documents/ Witness case properties regarding preserving the same in mortuary of RML hospital.
On 11.03.2020, PW19 had taken 2 exhibits to FSL Rohini and deposited the same, vide R/C no.
9/21/20. Till the period, exhibits remained in his possession, same were not tampered with.
PW20/ASI On 15.04.2020 on the directions of Ex.PW20/A Karambeer IO/Insp. Vinod, PW20 took father (seizure memo and son of deceased to GTB of pullanda hospital and got preserved their containing blood sample. PW20 handed over blood sample 4 sealed pullandas with their with MLC); MLCs, to IO, who seized the same, Ex.PW20/B vide a seizure memo. (arrest-memo On 23.05.2020, PW20 alongwith of Vivek); IO, SI Deepak Pandey, PW16/ASI Ex.PW20/C Billu Singh, PW15/ASI Mahesh, (arrest memo HC Pankaj, took accused Prince, of Rishabh); Pankaj Sharma, Badshah and Ex.PW20/D Fauji, to Johripur pulia. PW20 (arrest memo witnessed preparation of pointing of Jatin);
out memo at the instance of 4 accused persons. PW20 also Ex.PW20/E witnessed (i) preparation of arrest (Pointing-out memo of accused Himanshu, memo at the Rishabh Chaudhary, Jatin Sharma instance of Vivek Panchal, Badshah, Fauji, Rishabh); Prince and Pankaj Sharma; (ii) Ex.PW20/F preparation of pointing out memos (arrest memo at the instance of Rishabh of Prince) Chaudhary.
Page 24 of 62 (Pulastya Pramachala)District Judge (Commercial Court)-01, Patiala House Court, New Delhi CNR No. DLNE01-002730-2020 State v. Lokesh Solanki etc. SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri Sl. No. & Role of Witness & Description of Proved Name of Testimony documents/ Witness case properties PW20 identified accused Vivek, Prince, Rishabh, Fauji and Badshah in the court. PW20 identified accused Pankaj in the display screen, while taking his name as Lokesh.
PW21/Dr. On 06.03.2020, PW21 alongwith Ex.PW21/A Vinod Dr. Tejasvi and Dr. Abhishek (postmortem Kumar K.N. Sharma, conducted post mortem report);
examination of one unknown dead Ex.PW21/B
body and prepared report of their and
findings. Police had furnished Ex.PW21/C
inquest papers and MLC.
(Opinion of
Subsequently, on receipt of request PW21 letter from police on 11.06.2020, alongwith other the afore-said persons gave members of opinion in respect of probable medical nature of weapon used for causing Board.) injuries upon the dead body.
On 11.03.2021, the police requested for opinion while submitting two sealed pullandas.
After examining the exhibits taken out from those pullandas, they prepared another report, opining that most of the injuries sustained by the deceased could be caused by any of weapons i.e. two wooden planks or a base-ball bat (kept in two sealed pullandas).
PW22/Sh. PW22 was working as Scientist, Ex.PW22/A Arun Cyber Forensic Lab, CERT-In, (true Kumar Ministry of Electronics, photocopy of Sahani Government of India, New Delhi. the original Page 25 of 62 (Pulastya Pramachala) District Judge (Commercial Court)-01, Patiala House Court, New Delhi CNR No. DLNE01-002730-2020 State v. Lokesh Solanki etc. SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri Sl. No. & Role of Witness & Description of Proved Name of Testimony documents/ Witness case properties On 17.04.2020, he received report prepared request letter from Crime branch in by PW22 in FIR No.35/20, PS Gokalpuri, respect of alongwith 5 sealed packets and extracted data other documents. These exhibits from digital were assigned to PW22 and his exhibits); Incharge Lt. Colonel Santosh Ex.PW22/B Khadsare.
(true PW22 extracted data from the photocopy of digital exhibits i.e. mobile phones, original SIM cards and memory cards as certificate u/s contained in those 5 sealed 65B of IE Act packets. The extracted data were copied/stored in a pendrive and a was issued in certificate u/s 65-B of IE Act was respect of issued in respect of the same. retrieved data); PW22 again received another Ex.PW22/D request letter dated 07.09.2020 in (true FIR No.35/20, alongwith sealed photocopy of packets of exhibits as sent back by original this witness to the police. This extracted data time, PW22 examined exhibits A1- from pen-
MOB, A2-MOB and A3-MOB, drive);
alongwith their related SIMs and
Ex.PW22/E
memory cards. PW22 extracted
(true
data from the same in another
photocopy of
pendrive vide report and issued a
original
fresh certificate, in respect of the certificate u/s.
same. PW22 had prepared two 65-B of I.E. copies of that pendrive and all Act);
these exhibits and pendrives were
sealed and sent back. He identified Ex.PW22/H
afore-said pendrive with its (certificate u/s
contents. 63 BSA in
respect of
Page 26 of 62 (Pulastya Pramachala)
District Judge (Commercial Court)-01, Patiala House Court, New Delhi CNR No. DLNE01-002730-2020 State v. Lokesh Solanki etc. SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri Sl. No. & Role of Witness & Description of Proved Name of Testimony documents/ Witness case properties mirror copy of extracted data);
Ex.PW22/ Article-1 (pen-
drive with its contents) PW23/Sh. PW23 was working as Deputy Ex.PW23/A L.K. Secretary (Home), GNCT, Delhi. (sanction Gautam PW23 deposed that Lt. Governor orders dated of GNCT of Delhi, approved for 16.12.2020) according sanction u/s. 196 Cr.P.C for offences u/s 153A/505 IPC against accused Lokesh Solanki, Pankaj Sharma, Sumit Chaudhary, Ankit Chaudhary, Prince, Rishabh Chaudhary, Jatin Sharma, Vivek Panchal and Himanshu Thakur, in this case.
PW23 being competent officer to sign the sanction order on behalf of LG, signed said sanction order.
Similar sanction was accorded by LG against accused Sandeep, Sahil and Tinku in this case.
PW24/ASI On 08.02.2021, PW24 alongwith Ex.PW24/A
Satender IO/Insp.Vinod Ahlawat, HC (Arrest memo
Pankaj and Ct. Rajender, went to of accused
Mandoli Jail. PW24 witnessed Sandeep @
arrest of accused Sandeep @ Mogli)
Mogli.
PW25/Insp. On 01.05.2020, PW25 witnessed Ex.PW25/A to Deepak retrieval of data from the Ex.PW25/F Page 27 of 62 (Pulastya Pramachala) District Judge (Commercial Court)-01, Patiala House Court, New Delhi CNR No. DLNE01-002730-2020 State v. Lokesh Solanki etc. SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri Sl. No. & Role of Witness & Description of Proved Name of Testimony documents/ Witness case properties Pandey WhatsApp group namely 'Self (seizure memo Defence' in paginated form from of mobile no.1 to 116 from the mobile phone phones of 6 of Neelu Jain and seizure of said persons);
mobile phone by PW32/Insp. Ex.PW25/G,
Vinod Ahlawat. Ex.PW25/H,
Ex. PW25/J
PW25 also witnessed seizure of
mobile phones of Anuj, Piyush, (arrest memos Shubham, Abhishek and Aniket by of Pankaj, IO on 15.05.2020. Lokesh Solanki and PW25 also witnessed arrest of Himanshu); Ankit Chaudhary, Sumit, Prince, Ex.PW25/I Pankaj, Lokesh, Himanshu, by IO.
(pointing out PW25 also witnessed the pointing memo at the out memo at the instance of instance of Lokesh. Lokesh) PW25 identified accused Sumit, Prince, Himanshu and Ankit, in the court. He also identified accused Pankaj and Lokesh (both appearing on the display screen) in the court.
PW26/Insp. On 09.04.2020, PW26 was posted Ex.PW26A Dinesh as Insp. in Crime Branch, (OSR) & Kumar Shakarpur, Delhi. He had arrested Ex.PW26/B accused Jatin and Vivek in FIR no. (OSR) (true 36/20 PS Gokalpuri, being IO of photocopies of that case. seizure memos of danda On 11.04.2020, PW26 had recovered at recovered and seized one danda the instance of each at the instance of both these Jatin and Vivek accused persons in FIR No. Page 28 of 62 (Pulastya Pramachala) District Judge (Commercial Court)-01, Patiala House Court, New Delhi CNR No. DLNE01-002730-2020 State v. Lokesh Solanki etc. SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri Sl. No. & Role of Witness & Description of Proved Name of Testimony documents/ Witness case properties 36/2020. On that day, both these pertaining to accused persons were on police FIR No. remand. PW26 alongwith both 36/20); these accused persons and Rishabh as well as SI Arun, SI Ravinder, Ex.PW26/C & ASI Om Prakash, ASI Vikal, HC Ex.PW26/D Dinesh, had gone to Bhagrirathi (True Vihar pulia. PW26 had recovered photocopy of one danda each at the instance of site plans at the Vivek and Jatin, from that place instance of near that pulia and a pilkhan tree.
Jatin and Vivek PW26 had prepared cloth pullanda pertaining to of both these dandas and had FIR no.36/20);
seized them vide separate seizure
memos. PW26 had provided copy Ex.PW26/E to
of aforesaid seizure memos to Ex.PW26/G
Insp. Vinod Ahlawat. (True
PW26 correctly identified accused photocopies of Jatin, Vivek and Rishabh, before arrest memos the court. of accused Jatin, Vivek and Rishabh pertaining to FIR no.36/20.) PW27/Sh. PW27 was not sure about the date. He had seen a Amber dead body floating in the drain and going towards Bhardwaj direction of Ganga Vihar. He called at 100 number. PW28/Retd PW28 being IO of FIR no.35/20 Ex.PW28/A to Insp. Vinay and 37/20, had arrested accused Ex.PW28/E Tyagi Lokesh, Pankaj, Sumit, Ankit, (True Prince, Jatin Sharma, Rishabh, photocopies of Vivek and Himanshu. PW28 seizure memo provided photocopies of of mobile documents related to arrest of phones aforesaid accused persons in Page 29 of 62 (Pulastya Pramachala) District Judge (Commercial Court)-01, Patiala House Court, New Delhi CNR No. DLNE01-002730-2020 State v. Lokesh Solanki etc. SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri Sl. No. & Role of Witness & Description of Proved Name of Testimony documents/ Witness case properties aforesaid FIR numbers, to pertaining to PW32/Insp. Vinod Ahlawat. FIR no.35/20.) PW28 had seized mobile phone of Lokesh, Shivam, Dimple, Mohit on 08.03.2020 and that of mobile phone of accused Pankaj on 10.03.2020, in FIR no.35/20. He had provided photocopies of seizure memo of these mobile phones to Insp. Vinod Ahlawat/PW32. PW28 had retrieved WhatsApp chats of the group from the mobile phone of Mohit, Shivam and Dimple. He had also provided photocopies of those retrieved chats to Insp. Vinod Ahlawat.
PW29/HC PW29 witnessed preparation of Ex.PW29/A & Pankaj pointing out memos at the instance Ex.PW29/B of accused Pankaj and Prince and (pointing out arrest of accused Pankaj by IO on memos at the 23.05.2020. instance of PW29 also witnessed seizure of accused Pankaj DVD of postmortem of deceased and Prince) Aas Mohammad, which was handed over by Ankit Shrivastava Ex.PW29/C with certificate u/s 65B of IE Act, (seizure memo to IO on 24.06.2020. of DVD and PW29 witnessed pointing out certificate); memos at the instance of Jatin, Ex.PW29/D prepared by IO on 05.08.2020.
(Pointing out On 12.03.2021 on the direction of memos at the PW32/IO/Insp. Vinod Ahlawat, instance of PW29 collected 2 dandas, seized Page 30 of 62 (Pulastya Pramachala) District Judge (Commercial Court)-01, Patiala House Court, New Delhi CNR No. DLNE01-002730-2020 State v. Lokesh Solanki etc. SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri Sl. No. & Role of Witness & Description of Proved Name of Testimony documents/ Witness case properties in FIR No.36/20 and one danda Jatin) seized in FIR no.156/20 in sealed Ex.PW29/E condition, from malkhana PS and F Gokalpuri and handed over the (Pointing out same with request letter, in memos at department of Forensic Medicine instance of in RML hospital.
Sandeep and On 22.03.2021, PW29 took an Sahil.); authority letter given by IO to RML hospital. PW29 collected danda and subsequent opinion from RML hosptial. PW29 handed over sealed dandas alongwith one copy of this opinion to MHC(M) in PS Gokulpuri. He handed over original opinion to IO.
PW29 was part of investigation of this case on 08.02.2021, 10.02.2021, 27.04.2021 and 30.04.2021, with IO/PW32 and other staff.
PW29 witnessed arrest of accused Tinku Arora and Sandeep @ Mogli, by IO on 08.02.2021 at CJ-13, Mandoli. On same day, PW2/Nisar Ahmed joined investigation of the present case and PW2 identified both these accused persons to be involved in the riot on 24/25/26.02.2020.
PW29 also witnessed arrest of accused Sahil on 27.04.2021 by IO at CJ-12, Mandoli Jail. One witness namely Shehzad was Page 31 of 62 (Pulastya Pramachala) District Judge (Commercial Court)-01, Patiala House Court, New Delhi CNR No. DLNE01-002730-2020 State v. Lokesh Solanki etc. SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri Sl. No. & Role of Witness & Description of Proved Name of Testimony documents/ Witness case properties passing by and he was also joined in the investigation on 30.04.2021. Shehzad identified Sahil.
PW30/HC On 05.08.2020, PW30 witnessed Ex.PW30/A Vivek preparation of pointing out memo (pointing out Tomar at the instance of Vivek Panchal. memo at the PW30 correctly identified accused instance of Vivek Panchal in the court. Vivek Panchal) PW31/Insp. PW31 deposed on the same lines Ex.PW31/A Bineet of PW18/ASI Manvir Singh. (seizure memo Pandey PW31 witnessed preparation of of clothes of site plan at the instance of ASI deceased Aas Manvir Singh. On 11.03.2020, Mohammad) PW31 had sent the exhibits i.e. teeth and blood sample of deceased, to FSL Rohini through SI Ashish.
On 22.03.2020, PW31 witnessed
preparation of seizure memo of
clothes of deceased Aas
Mohammad.
PW32/Insp. PW32 was the last IO of the Ex.PW32/A
Vinod present case. On 07.04.2020, he(pointing out
Ahlawat was marked further investigation
memo at the
of the present case. instance of
PW32 deposed on the lines of accused Tinku) PW6 in respect of Ex.PW6/A and Ex.PW6/B. PW32 deposed on the lines of PW15, PW16, PW18, PW20, PW24, PW25, PW29, PW30 in respect of proceedings conducted leading to preparation of Ex.PW15/A, Ex.PW15/B, Page 32 of 62 (Pulastya Pramachala) District Judge (Commercial Court)-01, Patiala House Court, New Delhi CNR No. DLNE01-002730-2020 State v. Lokesh Solanki etc. SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri Sl. No. & Role of Witness & Description of Proved Name of Testimony documents/ Witness case properties Ex.PW16/A, Ex.PW16/B, Ex.PW18/G, Ex.PW20/B, Ex.PW20/C, Ex.PW20/D, Ex.PW20/E, Ex.PW20/F, Ex.PW20/PD-1, Ex.PW24/A, Ex.PW25/A, Ex.PW25/G, Ex.PW25/H, Ex.PW25/I, Ex.PW25/J, Ex.PW29/A, Ex.PW29/B, Ex.PW29/C, Ex.PW29/D, Ex.PW29/E, Ex.PW29/F and Ex.PW30/A. On 08.02.2021, he along with other Police Officials, including PW29/HC Pankaj went to Mandoli Jail and after obtaining permission PW32 interrogated and arrested accused Tinku Arora vide arrest memo Ex.A-37. Thereafter, on 09.02.2021 accused Tinku were taken by police team including PW32 to Johripur Pulia and at the instance of PW32 prepared a pointing out memo of place of offence.
PW32 correctly identified all 12 accused persons before the court.
Admitted documents under Section 294 Cr.P.C/330 BNSS Particulars of R/C of vehicle no. DL 5S BA 7168 as Ex. A-1 & A2, respectively; certificate u/s. 65/B of I.E. Act as Ex. A-3; MLC no.758 as Ex.A-4; postmortem report no.358/220 as Ex.A-5; death certificate as Ex.A-6; emergency registration card as Ex.A-7; opinion regarding weapon of offence as Ex.A-8; Copy of FIR no.41/20 as Ex.A-9 (colly 3 pages); copy of arrest memo of Ankit Chaudhary as Ex.A-10; copy of arrest memo of Sumit @ Badshah Page 33 of 62 (Pulastya Pramachala) District Judge (Commercial Court)-01, Patiala House Court, New Delhi CNR No. DLNE01-002730-2020 State v. Lokesh Solanki etc. SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri Sl. No. & Role of Witness & Description of Proved Name of Testimony documents/ Witness case properties Ex.A-11; copy of p/search memo of Ankit Chaudhary as Ex.A-12; copy of p/search memo of Sumit @ Badshah as Ex.A-13; copy of FIR no.50/20 as Ex.A-14; copy of arrest memo and p/search memo of accused Prince Ex.A-15 & A-16 respectively; R/C. No. 17/21/20 as Ex.A-17; CDRs and CAFs as Ex.A-18 to Ex.A-58, respectively.
PLEA OF ACCUSED UNDER SECTION 351 BNSS
20. For the purpose of recording statement of accused persons under Section 351 BNSS, prosecution was asked to file synopsis of incriminating evidence. It was so filed by ld. Special Public Prosecutor.
ARGUMENTS OF DEFENCE & PROSECUTION ON THE POINT OF INCRIMINATING EVIDENCE
21. I heard ld. Special PP as well as ld. counsels for accused persons and I perused the entire material on the record.
22. Ms. Anita Seth, Adv. and Sh. Shubham Arora, Adv. authorised by Sh. Nishant Kumar Tyagi, ld. counsel for accused Lokesh Solanki, Rishabh Chaudhary, Jatin Sharma, Vivek Panchal and Sahil @ Babu; Sh. Rakshpal Singh and Sh. Hari Krishan, ld. counsels for accused Pankaj Sharma, Prince, Sumit @ Badshah, Ankit Chaudhary @ Fauji, Sandeep @ Mogli and Tinku Arora; and Sh. Rajan Sisodia, ld. counsel for accused Himanshu Thakur; took plea that the alleged eye witnesses of prosecution, did not support the case of prosecution and they were declared hostile by the prosecutor. None of the witnesses of prosecution identified any of the accused persons, as part of the mob of rioters which killed the victim in this case. Hence, judgment of acquittal should Page 34 of 62 (Pulastya Pramachala) District Judge (Commercial Court)-01, Patiala House Court, New Delhi CNR No. DLNE01-002730-2020 State v. Lokesh Solanki etc. SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri be passed in the case.
23. However, Sh. Saleem Ahmed, ld. Special P.P. argued that though the witnesses cited as eye witness of the incident did not support the case of prosecution against all accused persons, but there are circumstantial evidences on the record, which point out to accused persons. Hence, those circumstantial evidences should be put to the accused persons, for their response under Section 351 BNSS.
24. Ld. Special PP further argued that PW6/Shehzad is eyewitness, who identified accused Tinku. PW2/Nisar Ahmad corroborates evidence of PW6, as he had also seen Tinku in the same morning. It was further argued that site plan Ex.PW6/A shows place of incident and position of PW6. Same was basis of preparing scale site plan Ex. A-44. Photo of deceased Ex.PW6/B was identified by PW6. Description of clothes was also corroborated by photo. It was further argued that PW8/Sh. Zahid Alvi corroborates presence of PW6 at the spot. It was further argued that address of PW6 and accused Tinku pertained to E-Block, Bhagirathi Vihar. There is no evidence of ill motive of PW6 to identify accused Tinku. PW12/Ms. Sahiba also described clothes worn by deceased, when he had left home.
SECTION 255 BNSS & 351 BNSS
25. Section 255 BNSS (erstwhile S.232 Cr.P.C.) provides as under: -
"Acquittal- If, after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed the offence, the judge shall record an order of acquittal."Page 35 of 62 (Pulastya Pramachala)
District Judge (Commercial Court)-01, Patiala House Court, New Delhi CNR No. DLNE01-002730-2020 State v. Lokesh Solanki etc. SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri Section 256 BNSS (erstwhile 233 Cr.P.C.) provides as under: -
"Entering upon defence. - (1) Where the accused is not acquitted under section 255, he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof. (2) If the accused puts in any written statement, the Judge shall file it with the record. (3) If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice."
Section 257 BNSS further provides that when examination of the witness of accused, (if any) is complete, the prosecutor shall sum up his case and thereafter the accused shall be entitled to respond to the arguments of the prosecutor. Section 258 BNSS further provides that after hearing arguments and points of law (if any), the judge shall give a judgment in the case.
26. On the other hand, Section 351 BNSS (erstwhile S.313 Cr.P.C.) provides as under: -
"Power to examine the accused - (1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court- (a) may at any stage, without previously warning the accused, put such questions to him as the Court considers necessary; (b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case: ......"
27. As it is evident from the language used in Section 351 BNSS, this provision talks about "any circumstance appearing in the evidence against the accused". On the basis of such language, practically the courts have been using the term of "incriminating Page 36 of 62 (Pulastya Pramachala) District Judge (Commercial Court)-01, Patiala House Court, New Delhi CNR No. DLNE01-002730-2020 State v. Lokesh Solanki etc. SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri evidence". The purpose or objective behind the provision under section 351 BNSS is also evident from the language of the provision, wherein it is mentioned that 'for the purpose of enabling the accused personally to explain'. Hon'ble High Court of Delhi in the case of Ranjan Dwivedi & Anr. v. CBI, 2008 Cri.L.J. 1440 (DHC), was examining the scope and content of Section 313 Cr.P.C. and in that process, Delhi High Court referred to following observations made by hon'ble Supreme Court in the case of Jai Dev v. State of Punjab, AIR 1963 SC 612: "the ultimate test in determining whether or not the accused has been fairly examined under Section 342 Cr.P.C. (similar provision under old Act), would be to enquire whether, having regard to all the question put to him, he did get an opportunity to say what he wanted to say in respect of prosecution case against him. If it appears that the examination of the accused person was defective and thereby a prejudice has been caused to him, that would no doubt be a serious infirmity.". Taking view of object behind Section 313 Cr.P.C., Delhi High Court observed that " 19. Thus, it is well settled that the provision is mainly intended to benefit the accused and as it's corollary to benefit the court in reaching the final conclusion. 20. At the same time, it should be borne in mind that the provision is not intended to nail him to any position, but to comply with the most salutary principle of natural justice enshrined in the maxim 'audi alteram partem'."
28. Delhi High Court further made observations in the same case in the following terms: -
Page 37 of 62 (Pulastya Pramachala)District Judge (Commercial Court)-01, Patiala House Court, New Delhi CNR No. DLNE01-002730-2020 State v. Lokesh Solanki etc. SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri "24. We think that a pragmatic and humanistic approach is warranted in regard to such special exigencies. The word 'Shall' in clause b to Section 313 (1) of the code is to be interpreted as obligatory on the court and it should be complied with when it is for the benefit of the accused."
29. Delhi High Court was dealing with a different situation in the concerned case, however, in that process, the court did come up with clear cut observations that the principle underlying Section 313 Cr.P.C. was "audi alteram partem" i.e. to afford an opportunity to the accused to explain adverse material or circumstances. The court further made it clear that the said provision was intended for the benefit of the accused, to explain circumstances, which might appear adverse to him, so that accused could explain them.
30. In the case of Sivamani & Anr. v. State of Kerala, 1993 Cri.L.J. 23 (Kerala), while examining the scope of section 232 Cr.P.C., hon'ble Kerala High Court observed that an accused can be acquitted u/s 232 only when there is no evidence that he committed the offence. In that case, Kerala High Court dealt with the term of 'there is no evidence' and in that process the court referred to observations made by Division Bench of same court in the case of State of Kerala v. Mundan, 1981 Cri.L.J. 1795 (Kerala), to the effect that where there is some evidence connecting the accused with the commission of crime, it is the duty of the judge to pass on to Section 233 and not to appreciate that evidence and find out whether it was reliable or not, so as to pass an order u/s 232 of the Code. In the case of Mundan (supra), Kerala High Court had further observed that the words 'no Page 38 of 62 (Pulastya Pramachala) District Judge (Commercial Court)-01, Patiala House Court, New Delhi CNR No. DLNE01-002730-2020 State v. Lokesh Solanki etc. SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri evidence' in Section 232 Cr.P.C. cannot be construed and interpreted to mean absence of sufficient evidence for conviction or absence of satisfactory or trustworthy or conclusive evidence in support of the charge. The judge has to see whether any evidence has been let in on behalf of the prosecution in support of their case that the accused committed the offence alleged, and whether that evidence is legal and relevant. It is not the quality or quantity of the evidence that has to be considered at this stage. If there is any evidence to show that the accused has committed the offence, then the judge has to pass on to the next stage. It is not open to him to evaluate and consider the reliability of the evidence at that stage.
31. In the case of Madan Mohan Jagga v. The State, 1984 Cri.L.J. 681 (Himachal Pradesh), even High Court of Himachal Pradesh examined the scope of 'no evidence' as appearing in Section 232 Cr.P.C. to observe that "this term neither means total absence of evidence, nor does it mean absence of cogent, convincing, reliable and trustworthy evidence. All that it means is that there is no inculpatory evidence against the accused in the sense that even if the prosecution evidence adduced is accepted at it's face value, it would not amount to legal proof of the evidence, charged against the accused. In such a case, the court is not required to marshal the evidence with a view to find out if it would be safe to act upon it or not."
32. In view of above-mentioned observations made by higher courts, it had to be seen if at all examination of an accused u/s 351 BNSS was necessary in all the circumstances. As per S.351 Page 39 of 62 (Pulastya Pramachala) District Judge (Commercial Court)-01, Patiala House Court, New Delhi CNR No. DLNE01-002730-2020 State v. Lokesh Solanki etc. SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri BNSS, the inculpatory evidence appearing against the accused is to be put to him, so as to enable the accused to give his explanation. As per Section 255 BNSS, if the judge considers that there is no evidence that the accused committed the offence, the judge shall record an order of acquittal. On conjoint reading of Section 255 and Section 351 BNSS, it becomes amply clear that the focus of the court has to be on inculpatory evidence. However, the expression 'no evidence' as mentioned in Section 255 BNSS has an important role to decide if examination u/s 351 BNSS is mandatory in all circumstances. If there is no admissible evidence on the record, so as to indicate towards the accused for commission of alleged offence, then there remains no occasion to seek any kind of explanation from the accused. In absence of inculpatory evidence on the record, examination u/s 351 BNSS is useless exercise, because accused is otherwise not required to explain evidence of any such fact, which does not connect him with the offences charged against him. Section 255 BNSS becomes relevant for such situation only.
33. On analysing the evidence on the record, on the above-mentioned parameters, I did not find any incriminating evidence against the accused persons except Tinku, which could connect them with the alleged riotous incident of killing of victim Aas Mohammad. Hence, statement of accused persons except Tinku /s 351 BNSS was dispensed with, vis a vis the charges u/s 147/148/302 IPC read with 149 IPC. Statement of Tinku was recorded in respect of aforesaid charges, as per evidence appearing on the record. Statement of accused Lokesh was recorded for charges under Page 40 of 62 (Pulastya Pramachala) District Judge (Commercial Court)-01, Patiala House Court, New Delhi CNR No. DLNE01-002730-2020 State v. Lokesh Solanki etc. SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri Section 153-A/505 IPC, as per evidence appearing regarding this charge.
PLEA OF ACCUSED LOKESH
34. Accused Lokesh took plea that he did not know about the WhatsApp Chat retrieved from the phone of witness Shivam. He further took plea that he had not posted any message against any community. He did not deny that a mobile phone make Redmi Y-2 with dual SIM facility having SIM of mobile number 7557497409 was taken from his possession by IO, with WhatsApp group in the name of "Kattar Hindut Ekta" and that there were messages from his afore-said mobile number in afore- said WhatsApp group. He also did not deny the correctness of CDR and CAF of mobile no. 7557497409, which was issued in his name. He took further plea that he was not an active member in afore-said WhatsApp group and he was added in this WhatsApp group by someone without his consent. He pleaded innocence.
PLEA OF ACCUSED TINKU
35. Accused Tinku denied correctness of testimony of PW6 and pleaded that PW6 falsely identified him at the instance of IO. He pleaded innocence and stated that he was falsely implicated in this case.
FINAL ARGUMENTS OF DEFENCE & PROSECUTION
36. Sh. Nishant Tyagi, ld. counsel for accused Lokesh Solanki argued that in the present case the ingredients of S.153-A IPC are not proved and satisfied. He submitted that the allegations against accused Lokesh could be covered under Clause (a) only and there Page 41 of 62 (Pulastya Pramachala) District Judge (Commercial Court)-01, Patiala House Court, New Delhi CNR No. DLNE01-002730-2020 State v. Lokesh Solanki etc. SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri are no allegations to invoke Clause (b) & (c) at all. According to him, for invoking Clause (a) malicious intent is very important and there must be consequences of the words spoken or written by the accused, to result into creating disharmony or riots etc. Ld. counsel submitted that accused Lokesh through his messages did not ask anyone to join him or to kill anyone. Accused rather offered his help to the others. It was further argued that the other members of that group were not before accused Lokesh in his physical presence and there is no evidence that any of those members joined this accused for subsequent action. There is no evidence to show that any disturbance was created because of messages of accused Lokesh. Accused Lokesh did not hold any position of responsibility so that his messages could be given importance by anyone else. Thus, no one had listened to him and no one was influenced by his messages.
37. Per contra, Sh. Saleem Ahmed, ld. Special Public Prosecutor for State, argued that there is no requirement in law that there should be some consequence as outcome of the hatred messages. He submitted that if all the messages posted by Lokesh in the WhatsApp group are read together, then there cannot be doubt about satisfying the ingredients of S.153-A (a) IPC. He submitted that a sanction under S. 196 Cr.P.C regarding this offence was also duly proved. He also submitted that Lokesh had posted messages on 25.02.2020 as well as on 26.02.2020, and he is liable for each instance of posting such messages.
38. Sh. Rakshpal Singh and Sh. Hari Krishan, ld. counsels for Tinku argued that PW6 and PW8 gave contradictory statement Page 42 of 62 (Pulastya Pramachala) District Judge (Commercial Court)-01, Patiala House Court, New Delhi CNR No. DLNE01-002730-2020 State v. Lokesh Solanki etc. SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri regarding place of their visit. PW8 referred to a different place i.e. Tikona rather than Toll Tax. PW2 deposed about incident at his house, rather than incident at the given place of incident. PW8 was with PW6 and he knew Tinku, but he denied having seen Tinku in the mob. It was further argued that regarding cloth worn by deceased, PW6 referred to a green colour jacket, but PW8 referred to a green colour T-shirt. PW8 said that he had made complaint to police on 26.02.2020, but PW6 denied having made any complaint to police. PW6 deposed falsely on tutoring of IO, against Tinku, as they resided in same locality. It was further argued that before coming to court, PW6 had not identified any accused.
39. I have given due consideration to the rival contentions and perused the record.
APPRECIATION OF FACTS AND EVIDENCE UNLAWFUL ASSEMBLY & RIOT
40. Though the first charge refers to a wide range of period from 25.02.2020 to 26.02.2020, but it has to be appreciated that FIR in this case was registered for murder of an unidentified person presumably by a mob. Subsequently, said dead person was identified as Aas Mohammad. On the basis of investigation, prosecution alleged in the chargesheet that this victim was killed on 25.02.2020 at about 7-7.30 PM, by the rioters and thrown in the drain (nala) near Bhagirathi Vihar/Johripur pulia. Therefore, talking about any unlawful assembly at any other place and at any other time, is irrelevant in this case. In the present case, I have to look for evidence of unlawful assembly at Bhagirathi Page 43 of 62 (Pulastya Pramachala) District Judge (Commercial Court)-01, Patiala House Court, New Delhi CNR No. DLNE01-002730-2020 State v. Lokesh Solanki etc. SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri Vihar/Johripur Pulia at around 7-7.30 PM on 25.02.2020 and their alleged acts.
41. PW1/Narottam deposed that he did not see any incident at all, except vehicles in burnt condition. Thus, testimony of PW1 does not lead to any concrete situation, to confirm the incident taking place in his presence, as alleged in this case. This witness was examined by prosecution in other cases also, including FIR 35/20 of same police station which related to murder of Hashim. However, prosecution did not take support from the statement made by this witness in other case. Thus, evidence of this witness on the record of this case, does not depict any incriminating circumstance against any accused.
42. PW18/ASI Manvir and PW19/SI Ashish Garg were the police officials, who deposed about recovering a dead body from drain near Ganga Public School and Gokalpuri Metro Station. PW11/Nazim was brother of deceased and according to him deceased Aas Mohd. had left home for Johripur on 25.02.2020 at about 8-8.30 A.M. PW11 had identified the dead body of deceased. PW12/Sahiba was widow of deceased, who deposed that deceased had left home on 25.02.2020 at about 10-11 A.M. and he was wearing black color jeans, parrot green color jacket with check shirt. Deceased did not come back home. Subsequently she had met police Manveer and had shown photograph of her husband. Thereafter, she had seen dead body of her husband in GTB Hospital, where dead body was handed over to them. She had given photograph of her husband to Manveer, and she identified that photograph on the record i.e. Page 44 of 62 (Pulastya Pramachala) District Judge (Commercial Court)-01, Patiala House Court, New Delhi CNR No. DLNE01-002730-2020 State v. Lokesh Solanki etc. SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri Mark PW8/A.
43. PW6 and PW8 claimed to be eye witnesses of the incident of beating of a boy. PW8 claimed having seen face of that boy/victim. PW6 identified photograph Ex.PW6/A, and PW8 identified photograph Mark PW8/A, as pertaining to that victim. Both photographs i.e. Ex. PW6/A and Mark PW8/A show picture of same person. Though, these photographs were not proved in accordance with law of Evidence, but testimony of PW6, PW8 and PW12 to identify deceased in these photographs cannot be ignored. Their evidence show that deceased was same person, whom PW6 and PW8 claimed to have seen on 25.02.2020 near Johripur Pulia, being beaten by a mob.
44. The postmortem examination report of Aas Mohammad Ex.
PW21/A, shows that he had been inflicted several injuries including injury on his head. Cause of his death was opined as head injury and its complication.
45. Thus, there is no doubt to the fact that deceased Aas Mohd. was beaten to death, which might be done by a mob. I shall discuss credibility of evidence of PW6 and PW8 under next heading.
IDENTIFICATION OF ACCUSED PERSONS
46. Next question is that whether there is any evidence to show that accused persons prosecuted in this case, were behind killing of Aas Mohammad? Ld. Prosecutor submitted that the circumstantial evidence on the record, point out to the accused persons.
47. Before I proceed further, it shall be beneficial to have an idea of Page 45 of 62 (Pulastya Pramachala) District Judge (Commercial Court)-01, Patiala House Court, New Delhi CNR No. DLNE01-002730-2020 State v. Lokesh Solanki etc. SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri legal principles related to circumstantial evidence. In K.T. Palanisamy Vs. State of Tamil Nadu, 2008 (1) RCR (Criminal) 870, Supreme Court held that: -
"When the offence is said to have been committed and the circumstantial evidence is made the basis for establishing the charge against the appellant, indisputably all the links must be completed to form the basis for his conviction. It is now well settled that in a case where an offence is said to have been established on circumstantial evidence alone, indisputably all the links in the chain must be found to be complete."
48. Hon'ble Supreme Court has dealt with the conditions, which need to be satisfied, before circumstantial evidence can be made the basis of conviction. In Shambhu Nath Mehra Vs. State of Ajmer AIR 1956 SC 404; Shivaji Shohib Rao Bobade Vs. State AIR 1973 SC 2622; Birdhi Chand Sarda Vs. State of Maharashtra AIR 1984 SC 1622; Pandala Veera Reddy Vs. State of A.P and Other AIR 1990 SC 79; C. Chenga Reddy and Others Vs. State of A.P 1996 (3) 10 SCC 193; Bodh Raj @ Bodha Vs. State of J & K AIR 2002 SC 3164; Trimukh Murty Kirka Vs. State of Maharashtra 2007 (Crl.); Vithal Eknath Adilinge Vs. State of Maharashtra 2009(3) RCR (Crl.) 161, Hon'ble Supreme Court had the occasion to deal with the circumstantial evidence based cases. The principles for use of circumstantial evidence to arrive at the finding of guilt, as laid down by the Hon'ble Apex court, can be summarized as: -
i) The circumstances from which the conclusion of guilt is to be drawn, should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established;
ii) The facts so established should be consistent only with the hypothesis of guilt of accused, i.e. to say, they should not be explainable on any other hypothesis except that the Page 46 of 62 (Pulastya Pramachala) District Judge (Commercial Court)-01, Patiala House Court, New Delhi CNR No. DLNE01-002730-2020 State v. Lokesh Solanki etc. SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri accused is guilty;
iii) The circumstances should be of a conclusive nature & tendency;
iv) They should exclude every possible hypothesis except the one to be proved, and there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
49. In the present case, the circumstantial evidence has been relied upon by ld. Prosecutor, for the reasons that the cited eye witnesses, did not support the prosecution on the aspect of identifying all accused persons except Tinku, as member of the mob, which had allegedly intercepted deceased. In fact, except for PW6 and PW8, no other witness claimed having seen any incident at the given place and time of alleged incident. The circumstantial evidence has to be looked into, to see if a chain of facts is so established, as to lead to inference that accused persons except Tinku, were part of a mob which was responsible for killing of Aas Mohammad. I shall discuss evidence related to Tinku separately.
50. Ld. Prosecutor heavily relied upon the WhatsApp chats from above-mentioned group, to raise fingers against accused Lokesh Solanki and some others. For the purpose of charge of murder, these chats were proved to show extra judicial confessions made therein by accused Lokesh. The relevant part of those chats is as follows: -
"2/26/20, 9:45 AM - Binni: sare taiyaar rho 2/26/20, 8:29 PM - Binni: Bhai taiyaar rho kaam start hone vala hai 2/26/20, 8:29 PM - Binni: taiyaar rho sare Page 47 of 62 (Pulastya Pramachala) District Judge (Commercial Court)-01, Patiala House Court, New Delhi CNR No. DLNE01-002730-2020 State v. Lokesh Solanki etc. SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri 2/26/20, 8:30 PM - Binni: puliya se pipeline ki trf aarge hai suer 2/26/20, 8:44 PM - +91 97168 29847: Aane du in mullo ka suar bna denge 2/26/20, 10:22 PM - +91 70539 44604: Bhaio ye danga q ho raha h nale par abhi jo hua tha 2/26/20, 10:22 PM - +91 70539 44604: Jhoripur nale par 2/26/20, 10:24 PM - +91 96435 06209: Dikat lag rhi he 6 no me sab ready rhena 2/26/20, 11:39 PM - +91 75574 97409: Bhai Mai Ganga Vihar se lokesh Solanki hu agr kisi ko koi problem ho or wha log Kam pde to bta dena Mai apni Puri Ganga Vihar ki team k sath aayunga Sara Saman hai humare pass goli bandook sab kuch 2/26/20, 11:40 PM - +91 75574 97409: Bhai Pura support hai abhi Hindu bhaiyo ko 2/26/20, 11:40 PM - +91 75574 97409: Bilkul bhai Ganga Vihar gokulpuri jhoripur sb sath hai tumhare 2/26/20, 11:41 PM - +91 97739 29196: 15 k Dane h kya 2/26/20, 11:41 PM - +91 97739 29196: Kisi Bhai k pass 2/26/20, 11:41 PM - +91 95992 45196: Monty Nagar.vcf (file attached) 2/26/20, 11:41 PM - +91 95992 45196: Bahi ad kro bhai ktr hindu h 2/26/20, 11:41 PM - +91 95992 45196: Yeh 2/26/20, 11:41 PM - +91 75574 97409: Pistol hai 2/26/20, 11:42 PM - +91 75574 97409: Humare pass 2/26/20, 11:42 PM - +91 97739 29196: Faltu h kya 2/26/20, 11:42 PM - +91 97739 29196: Bhai goli h Kya 315 ki 2/26/20, 11:44 PM - +91 75574 97409: Tumhare Bhai ne abhi 9 bje k krib b.vihar m 2 mulla mare hai 2/26/20, 11:44 PM - +91 75574 97409: Or nale m feka hai 2/26/20, 11:44 PM - +91 97168 29847: Bilkul Lokesh bhai 2/26/20, 11:44 PM - +91 75574 97409: Apni team k sath 2/26/20, 11:44 PM - +91 70539 44604: Haa bhai 2/26/20, 11:45 PM - +91 97168 29847: Ha 2/26/20, 11:45 PM - +91 75032 34804: Rajput bhai bhagirath vihar me bande bhej do 2/26/20, 11:45 PM - +91 75574 97409: Bhai abhi thodi aarhe hai hum sab raily lekr Page 48 of 62 (Pulastya Pramachala) District Judge (Commercial Court)-01, Patiala House Court, New Delhi CNR No. DLNE01-002730-2020 State v. Lokesh Solanki etc. SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri 2/26/20, 11:45 PM - +91 75574 97409: B.vihar m 2/26/20, 11:45 PM - +91 97739 29196: Koi dikkt na h Bhaiyo 2/26/20, 11:49 PM - +91 75574 97409: Vinay tumhe pta hai na tumhara Bhai sbse aage rhta hai aise kamo m"
51. Such posts/messages were posted a day after the alleged incident. Therefore, they cannot have any link with the alleged incident. Even otherwise, they cannot form the sole basis for conviction due to their inherent weaknesses and they must be supported by independent & reliable evidence. The Supreme Court has emphasized for voluntariness, truthfulness, and corroboration, reflecting safeguards under Article 20(3) of the Constitution (protection against self-incrimination).
52. In the facts and circumstances of this case, the relied upon confessional chats, cannot be substantive evidence to show that accused Lokesh had actually killed any muslim person. Above- mentioned chats, at the most could be used as corroborative piece of evidence, so as to support the substantive evidence. But there is no substantive evidence showing complicity of Lokesh in the alleged incident. Moreover, they cannot be read, as confession of killing Aas Mohammad. Prosecution has used same confession for killings of nine persons in different cases. Thus, even prosecution used it only as circumstantial evidence, without being sure as to for which particular victim, this particular chat related to. The argument of ld. Prosecutor that the chats show that Lokesh and other accused persons who were member of that group, were involved in the riots. However, I find that this plea refers to a general situation, without support of substantive evidence qua incident in question, and has no bearing in this Page 49 of 62 (Pulastya Pramachala) District Judge (Commercial Court)-01, Patiala House Court, New Delhi CNR No. DLNE01-002730-2020 State v. Lokesh Solanki etc. SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri case. It shall be matter of analysis of other piece of circumstantial evidence, to see if the chain of all circumstances has been connected, to show involvement of Lokesh and others in the incident leading to death of Aas Mohammad.
53. Ld. Prosecutor also relied upon testimony of PW2/Nisar to seek corroboration to evidence of PW6. PW2 claimed having seen and identified several persons including some accused persons, in the mob present near Bhagirathi Nala or Johripur Pulia at different points of time than the alleged time of incident in this case. In that situation, any name being mentioned by PW2, becomes worthless.
54. Ld. Prosecutor argued that evidence of PW2 shows a pattern of presence in the mob during the period since 24.02.2020 upto 26.02.2020. Before I deal with this plea, it is worth to refer to some part of the evidence of PW2. In his cross examination by prosecutor, PW2/Nisar deposed that he had subsequently come to know from police that murders had taken place at Johripur Pulia. This goes on to show that he had not seen any incident of murder himself. PW2/Nisar admitted suggestion of the prosecutor that he had told name of some persons to police, who were part of the mob seen by him and who continued rioting for whole day of 25.02.2020 and they used to kill muslim persons.
55. First of all, such admission of suggestion does not become evidence of the stated facts, because what was told by PW2/Nisar before police, does not become substantive evidence. What was deposed by him before the court, is the substantive evidence. Secondly, even this statement does not show if PW2/Nisar had Page 50 of 62 (Pulastya Pramachala) District Judge (Commercial Court)-01, Patiala House Court, New Delhi CNR No. DLNE01-002730-2020 State v. Lokesh Solanki etc. SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri seen any particular incident of murder. This was a generalized statement, perhaps based on hearsay, which does not help in the trial of a particular incident. Therefore, even without going into question of credibility of evidence of PW2/Nisar, I find that his evidence does not help the case of prosecution in any manner, to prove involvement of any accused in the alleged incident or to connect any chain of circumstances.
56. As far as pattern of presence in the mob for three days, is concerned, it cannot be forgotten that prosecution has chargesheeted the accused persons, for murder of Aas Mohammad with aid of S.149 IPC. Unless, it is shown that there was a mob, which killed Aas Mohammad and unless the identity of members of the culprit mob is established, vicarious liability cannot be fastened upon anyone else. In absence of some concrete evidence laying down the foundation, no presumption can be raised that some persons identified as part of some mob at some place at some other time period, would also have been part of a mob, and such mob was involved in the incident of murder of Aas Mohammad.
57. Ld. Prosecutor further referred to evidence of PW9/Ct. Vipin, submitting that this witness also had heard names of some accused, being taken by the members of a mob. As per testimony of this witness, on 25.02.2020 he was on duty. On that day at about 4 P.M., he came towards Johripur Pulia (bridge) from the side of Bhagirathi Vihar and he saw a mob near that Pulia. On seeing police, that mob started dispersing away and while running away from that place, they took names of Rishabh, Page 51 of 62 (Pulastya Pramachala) District Judge (Commercial Court)-01, Patiala House Court, New Delhi CNR No. DLNE01-002730-2020 State v. Lokesh Solanki etc. SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri Pankaj, Prince, Lokesh, Badshah, Ankit and some other names. All of them fled away from that place and this witness could not see any person. This witness could not remember other names heard by him but, when ld. Prosecutor suggested names of Himanshu, Jatin, Avadhesh Mishra, Vivek and Shekhar, then this witness admitted having heard these names as well.
58. The aforesaid evidence of PW9 does not even indicate to alleged incident in this case. There is a time gap between 4 P.M. and 7- 7.30 P.M. and once again it is presumption only that same mob would have been there at the alleged time, which is not sustainable. Even otherwise, aforesaid kind of statement of hearing names, without being able to see anyone, does not establish presence of accused. Therefore, whatever was heard by PW9, cannot be connected with the alleged incident, nor on the basis of the same it can be inferred that any of the accused persons were part of a mob, which could be behind the killings of Aas Mohammad.
59. Other circumstance relied by ld Prosecutor, was recovery of a stick (Danda) each from Himanshu, Jatin and Vivek in other cases. Those sticks were sent to Forensic Department of GTB Hospital. The Board of Doctors, who had conducted postmortem examination, gave opinion that the injuries found on the body of Aas Mohammad, could be caused by those sticks. However, at the same time nothing more was found on any of those sticks, so as to say that same sticks were used to inflict injuries upon Aas Mohammad. Hence, such general opinion does not help much, so as to infer anything against these three accused persons in the Page 52 of 62 (Pulastya Pramachala) District Judge (Commercial Court)-01, Patiala House Court, New Delhi CNR No. DLNE01-002730-2020 State v. Lokesh Solanki etc. SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri present case.
60. Thus, in the name of circumstantial evidence, there are some fragments and pieces of evidence, which fall much short to point out towards accused persons except Tinku, as culprit for killing of Aas Mohammad.
61. Now I shall deal with the question of credibility of evidence of PW6. PW6 and PW8 are brothers. Both of them claimed that they had come out of their residence in E block, Bhagirathi Vihar and had come near Johripur Pulia, where they had seen incident taking place with deceased in this case. PW6 deposed that he and PW8 went to Toll Tax on the main road, when he saw deceased coming from the side of Loni. He saw mob intercepting that boy and beating him and then throwing him in the drain. PW6 also claimed that he made call at 100 number and informed police about riot taking place. PW8 also claimed having made a call to police.
62. Prosecution did not prove any such PCR form to show if PW6 or PW8 had actually made such call and to show as to what information was given by PW6 or PW8, to police. PW6 also deposed that he had seen some persons in that mob, but he did not know any person. However, at the same time contradicting his aforesaid stand, PW6 deposed that he had informed police about name of some members of that mob. PW6 mentioned names of four persons, which were told by him to the police. But these names did not include name of any of the accused persons in this case. Before the court, PW6 identified Tinku as one of the members of aforesaid mob.
Page 53 of 62 (Pulastya Pramachala)District Judge (Commercial Court)-01, Patiala House Court, New Delhi CNR No. DLNE01-002730-2020 State v. Lokesh Solanki etc. SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri
63. In his cross examination by ld. prosecutor, PW6 changed his version and deposed that he had mentioned name of Tinku before the police. However, he again changed this version during his cross examination by defence, and he further deposed that he had not informed name of Tinku before police and had so stated earlier mistakenly. This time he deposed that he had come to know name of Tinku on the day of his examination before the court itself. This flip flop in the statement of PW6, is significant in nature.
64. On the other hand, brother of PW6 i.e. PW8 deposed that he had seen face of some persons in the mob. PW8 at one time deposed that there were local persons in that mob, but immediately thereafter he disowned such statement. PW8 identified accused Prince, Mogli and Pankaj by taking their names, stating that they were residents of his locality. PW8 also pointed out to Tinku and Babu, as residents of his locality, but he did not know their names. PW8 denied having seen any of the accused persons, including above-mentioned accused, in that mob.
65. It is worth to mention here that PW8 was examined before the court on 18.04.2023, while PW6 was examined in the court on 17.02.2023. This is relevant to take note of, because both these witnesses were residing together. One brother (PW6) claimed having seen Tinku, but at the same time he had been giving fluctuating statements regarding knowing Tinku and telling name of Tinku before police. Prosecution had projected that both these witnesses had been knowing all accused persons and that they had seen all accused persons in the mob. Prosecution also Page 54 of 62 (Pulastya Pramachala) District Judge (Commercial Court)-01, Patiala House Court, New Delhi CNR No. DLNE01-002730-2020 State v. Lokesh Solanki etc. SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri projected that both these witnesses had mentioned names of all accused persons before IO. If PW6 had actually seen Tinku in the mob of rioters on 25.02.2020, it is but natural that he would have told his brother PW8 about it instantly. PW8 had been knowing Tinku, being resident of same locality. But, PW8 could not see Tinku, though PW6 had seen him in the mob. This scenario is very abrupt and unnatural and cannot be believed upon.
66. Moreover, PW6 vouched that site plan Ex.PW6/A was prepared at the same place, where he had taken the police. In this site plan, IO showed position of PW6 at point D, which is nearer to E block. However, PW6 deposed that he was present at point A. Point A has been shown by IO, as the place where allegedly deceased was beaten by the mob. Both these points are much apart from each other. If this site plan was prepared by IO at the instance of PW6, then there was no occasion for aforesaid kind of confusion.
67. Next aspect is the place allegedly visited by PW6 and PW8. PW6 deposed about being at a Toll Tax, when he had seen aforesaid incident. Site plan Ex.PW6/A shows a Toll Tax of MCD. However, location of this Toll Tax is just opposite in direction to aforesaid point D. In order to reach that Toll Tax, one had to cross Johripur Pulia, if going from the side of E block, Bhagirathi Vihar (wherein house of PW6 and PW8 was situated). That is another improbable situation, because according to PW6 mob was situated near Johripur Pulia and Toll Tax and it could not be possible for PW6 and PW8 to reach that place from their house. PW8 did not talk about Toll Tax, rather he mentioned about a Page 55 of 62 (Pulastya Pramachala) District Judge (Commercial Court)-01, Patiala House Court, New Delhi CNR No. DLNE01-002730-2020 State v. Lokesh Solanki etc. SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri Tikona i.e. a corner. Thus, there is no consistency and clarity about position of both these witnesses.
68. Therefore, I find that deposition of PW6 and identification of accused by PW6, is not beyond questions. In view of the contradiction in the evidence of both these brothers and above- mentioned improbable situations, I do not find it safe to rely upon evidence of PW6 to presume presence of Tinku in aforesaid mob.
SECTION 153-A/505 IPC
69. It is relevant to mention here that accused Lokesh neither denied the fact that his mobile phone was seized by PW28/Insp. Vinay Tyagi in FIR 35/20, nor did he deny that mobile number 7557497409 was obtained in his name. He took contradictory plea in his statement recorded u/s 351 BNSS. At one time he denied having posted any message in the alleged WhatsApp group, but subsequently he took plea that he was added in that group by someone without his consent and he had not posted any message against any community. It is well proved on the record that chats from aforesaid group were retrieved by expert in CERT-In i.e. by PW22, which was provided in a pen-drive. I have seen messages contained in that pen-drive. There are various messages posted from aforesaid mobile number of accused Lokesh in the alleged group. Lokesh did not take plea that he was not using aforesaid mobile number. Hence, there is no doubt that those messages were posted by accused Lokesh.
70. Now, I shall reproduce the provisions u/s 153-A and 505 IPC, which are as follows:
Page 56 of 62 (Pulastya Pramachala)District Judge (Commercial Court)-01, Patiala House Court, New Delhi CNR No. DLNE01-002730-2020 State v. Lokesh Solanki etc. SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri S.153-A. Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony. -- (1) Whoever-- (a) by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, or (b) commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquility, or (c) organizes any exercise, movement, drill or other similar activity intending that the participants in such activity shall use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, or participates in such activity intending to use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, against any religious, racial, language or regional group or caste or community and such activity for any reason whatsoever causes or is likely to cause fear or alarm or a feeling of insecurity amongst members of such religious, racial, language or regional group or caste or community, shall be punished with imprisonment which may extend to three years, or with fine, or with both. Offence Page 57 of 62 (Pulastya Pramachala) District Judge (Commercial Court)-01, Patiala House Court, New Delhi CNR No. DLNE01-002730-2020 State v. Lokesh Solanki etc. SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri committed in place of worship, etc.--
(2) Whoever commits an offence specified in sub-section (1) in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment which may extend to five years and shall also be liable to fine.
S.505. Statements conducing to public mischief. -- (1) Whoever makes, publishes or circulates any statement, rumour or report, with intent to incite, or which is likely to incite, any class or community of persons to commit any offence against any other class or community, shall be punished with imprisonment which may extend to three years, or with fine, or with both.
71. In the case of Patricia Mukhim v. State of Meghalaya, (2021) 15 SCC 35, hon'ble Supreme Court while dealing with aforesaid legal provisions, made following observations: -
"9. Only where the written or spoken words have the tendency of creating public disorder or disturbance of law and order or affecting public tranquility, the law needs to step in to prevent such an activity. The intention to cause disorder or incite people to violence is the sine-qua-non of the offence under Section 153 A IPC and the prosecution has to prove the existence of mens rea in order to succeed.1
10. The gist of the offence under Section 153 A IPC is the intention to promote feelings of enmity or hatred between different classes of people. The intention has to be judged primarily by the language of the piece of writing and the circumstances in which it was written and published. The matter complained of within the ambit of Section 153A must be read as a whole. One cannot rely on strongly worded and isolated passages for proving the charge nor indeed can one take a sentence here and a sentence there and connect them by a Page 58 of 62 (Pulastya Pramachala) District Judge (Commercial Court)-01, Patiala House Court, New Delhi CNR No. DLNE01-002730-2020 State v. Lokesh Solanki etc. SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri meticulous process of inferential reasoning.
11. In Bilal Ahmed Kaloo v. State of A.P.3, this Court analysed the ingredients of Sections 153 A and 505 (2) IPC. It was held that Section 153 A covers a case where a person by "words, either spoken or written, or by signs or by visible representations", promotes or attempts to promote feeling of enmity, hatred or ill will. Under Section 505 (2) promotion of such feeling should have been done by making a publication or circulating any statement or report containing rumour or alarming news. Mens rea was held to be a necessary ingredient for the offence under Section 153 A and Section 505 (2). The common factor of both the sections being promotion of feelings of enmity, hatred or ill will between different religious or racial or linguistics or religious groups or castes or communities, it is necessary that at least two such groups or communities should be involved. It was further held in Bilal Ahmed Kaloo (supra) that merely inciting the feelings of one community or group without any reference to any other community or group cannot attract any of the two sections. The Court went on to highlight the distinction between the two offences, holding that publication of words or representation is sine qua non under Section 505."
72. This charge is based on the chats posted in the aforesaid WhatsApp group on 25.02.2020. This group was created on 24.02.2020 at 19:19:42 hours. Accused Lokesh was member of this group since beginning. Some of the messages posted by him in this group, are already reproduced in this judgment. I have gone through the messages posted in this group by different members. As the name suggests, the central focus of messages in this group have been to unite the persons from Hindu community. However, on that pretext, messages started pouring in to the effect of abusing the muslims. Messages were posted to call upon the members to assemble together, so as to counter the muslims.
Page 59 of 62 (Pulastya Pramachala)District Judge (Commercial Court)-01, Patiala House Court, New Delhi CNR No. DLNE01-002730-2020 State v. Lokesh Solanki etc. SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri
73. In the given scenario of riots which started from 24.02.2020, any communication only for the purpose of being united or to come together to counter any attack from rival group, can be understandable. However, messages in the aforesaid group were not limited to this extent only. There were abuses in some messages for muslims. There were instigations against the community of muslim. For example, some of such messages are reproduced herein below: -
"9mullo ko maar diya gya hai.
brijpuri puliya pr.
himmat bnaye rkho or inki bajaye rkho."
74. Among such kind of messages, accused Lokesh also posted messages like mentioned herein below: -
"Are inki MAA ki ch--
Jo krna hai kro Are sbki maa cho--
Dekha jayega Group m bakchodi krne se kya hoga Agar Kuch krna hai to Bahar road pr aao na"
75. I have deliberately skipped to reproduce some of the messages containing abuses and only a few of them have been mentioned here. Thus, in the background of messages posted earlier in the aforesaid group and the kind of participation shown by accused Lokesh therein, the messages posted by him on 25.02.2020 leave no doubt that theme of all those messages was to mobilize the members against muslim persons. It is also well apparent that intent of the messages posted by accused Lokesh, was to instigate the others against muslim persons. This act was in fact alike spreading hatred for muslim persons and to instigate others to Page 60 of 62 (Pulastya Pramachala) District Judge (Commercial Court)-01, Patiala House Court, New Delhi CNR No. DLNE01-002730-2020 State v. Lokesh Solanki etc. SC No. 136/2020, FIR No. 149/2020, PS Gokalpuri resort to violence against them.
76. I am in agreement with the arguments of ld. Prosecutor and ld. counsel for victim, that there is no requirement of evidence of consequent action taking place, on the basis of messages posted by accused Lokesh. Thus, I do find that accused Lokesh through his messages attempted to promote disharmony, feeling of enmity and hatred for muslim persons and he committed offence defined and punishable under S.153-A IPC.
77. Accused Lokesh offered to others to help with weapons etc., which was to incite others to commit offences against muslim persons, because no person without authority of law can use weapon or force against any person. If force or weapons were to be used by any member of this group against muslim persons, then it had to be an offence. Thus, messages posted by accused Lokesh are also found to be with intent to cause alarm to other members of the group and to induce them to commit offence against muslim persons and against public tranquility, being punishable under S.505 IPC.
CONCLUSION & DECISION
78. In view of my foregoing discussions, observations and findings, I find that charges under Sections 144/147/148/302/201/432/34 IPC read with Section 149 IPC, are not proved at all, against accused namely (1) Lokesh Kumar Solanki @ Rajput, (2) Pankaj Sharma, (3) Sumit Chaudhary @ Badshah, (4) Ankit Chaudhary @ Fauzi, (5) Prince, (6) Jatin Sharma, (7) Rishabh Chaudhary @ Tapash, (8) Vivek Panchal @ Nandu, (9) Himanshu Thakur, (10) Sandeep @ Mogli and (11) Sahil @ Babu.
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79. I also find that evidence on the record for aforesaid charges, is not beyond reasonable doubt against accused (12) Tinku Arora. Hence, they are acquitted of such charges.
80. Accused Pankaj Sharma, Sumit Chaudhary @ Badshah, Ankit Chaudhary @ Fauzi, Prince, Jatin Sharma, Rishabh Chaudhary @ Tapash, Vivek Panchal @ Nandu, Himanshu Thakur, Sandeep @ Mogli, Sahil @ Babu and Tinku Arora, are also acquitted for charges under Sections 153-A/505 IPC.
81. Charges under Sections 153-A/505 IPC stand proved against accused Lokesh Solanki @ Rajput and he is held guilty and convicted under both these provisions.
(Announced today on 05.06.2025, from the court as per new posting, though the judgment was reserved being posted as ASJ-03 (North-East District), Karkardooma Courts, Delhi.) Digitally signed by PULASTYA PULASTYA PRAMACHALA PRAMACHALA Date: 2025.06.05 11:05:00 +0530 (PULASTYA PRAMACHALA) District Judge (Commercial Court)-01, Patiala House Court, New Delhi (This order contains 62 pages) Page 62 of 62 (Pulastya Pramachala) District Judge (Commercial Court)-01, Patiala House Court, New Delhi