Delhi District Court
State vs Mohd Shahnawaj @Shanu@Ansari And Ors on 29 November, 2023
CNR No. DLNE01-000436-2021
State v. Mohd. Shahnawaz @ Shanu etc.
SC No. 41/2021, FIR No. 95/2020, PS Gokalpuri
Judgment dated 29.11.2023
DLNE010004362021
IN THE COURT OF SH. PULASTYA PRAMACHALA
ADDITIONAL SESSIONS JUDGE-03,
NORTH-EAST DISTRICT
KARKARDOOMA COURTS: DELHI
INDEX
Sl. HEADINGS Page Nos.
No.
1 Description of Case & Memo of Parties 2-3
2 The case set up by the Prosecution 3-5
3 Charges 5-7
4 Description of Prosecution Evidence 7-17
5 Plea of accused under Section 313 Cr.P.C. 18
6 Arguments of Defence & Prosecution 18-20
APPRECIATION OF LAW, FACTS AND EVIDENCE
7 Unlawful Assembly and Riots 20-23
8 Identification of accused 23-42
9 Conclusion and Decision 42
Digitally
signed by
PULASTYA
PULASTYA PRAMACHALA
PRAMACHALA Date:
2023.11.29
10:40:39
+0530
Page 1 of 42 (Pulastya Pramachala)
ASJ-03, North-East District,
Karkardooma Courts, Delhi
CNR No. DLNE01-000436-2021
State v. Mohd. Shahnawaz @ Shanu etc.
SC No. 41/2021, FIR No. 95/2020, PS Gokalpuri
Judgment dated 29.11.2023
Sessions Case No. : 41/2021
Under Section : 147/148/149/436/454/392/452/188
/153A/427/506 IPC
Police Station : Gokalpuri
FIR No. : 95/2020
CNR No. : DLNE01-000436-2021
In the matter of: -
STATE
VERSUS
1. MOHD. SHAHNAWAZ @ SHANU
S/o. Mohd. Rashid,
R/o. H.No. A-528, Gali No.22,
Phase-10, Shiv Vihar, Delhi.
2. MOHD. SHOAIB @ CHHUTWA
S/o. Sh. Islam,
R/o. H.No. 93, Gali No.5/2,
Behind Rajdhani School,
Babu Nagar, Delhi.
3. SH. SHAHRUKH
S/o. Sh. Salauddin,
R/o. B-262, Gali No.7, Babu Nagar,
Near Shiv Mandir, Delhi.
4. SH. RASHID
S/o. Sh. Riyajuddin,
R/o. A-22, Gali No.1, Chaman Park,
Shiv Vihar Tiraha, Delhi.
5. SH. ASHRAF ALI
S/o Anisul Haq,
R/o A-18, Chaman Park, Indra Vihar,
Delhi.
6. SH. AZAD
S/o Riyasat Ali,
R/o 824, Gali no.9, old Mustafabad,
Delhi.
7. SH. PARVEZ
S/o Riyajuddin,
R/o Gali no.1, Karawal Nagar,
Delhi. Digitally signed
by PULASTYA
PULASTYA PRAMACHALA
PRAMACHALA Date:
Page 2 of 42 (Pulastya Pramachala)
2023.11.29
ASJ-03, North-East10:40:48
District, +0530
Karkardooma Courts, Delhi
CNR No. DLNE01-000436-2021
State v. Mohd. Shahnawaz @ Shanu etc.
SC No. 41/2021, FIR No. 95/2020, PS Gokalpuri
Judgment dated 29.11.2023
8. MOHD. FAISAL
S/o Raheesuddin,
R/o F-14, Gali no.1, Babu Nagar,
Main Brijpuri Road, Delhi.
9. SH. RASHID @ MONU
S/o Khalil,
R/o 259, Gali no.7, Shiv Mandir,
Shakti Vihar, Delhi.
10. MOHD. TAHIR
S/o Mohd. Umar
R/o 16, gali no.6, old Mustafabad,
Delhi.
...Accused Persons
Complainant: Sh. Jagdish Prasad Sharma, s/o late
Deepchand Sharma, r/o C-225, gali no.8,
Ganga Vihar, Delhi.
Date of Institution : 14.07.2020
Date of reserving order : 25.10.2023
Date of pronouncement : 29.11.2023
Decision : All accused acquitted.
(Section 437-A Cr.P.C. complied with by all accused persons)
JUDGMENT
THE CASE SET UP BY THE PROSECUTION: -
1. The above-named accused persons have been charge-sheeted by the police for having committed offences punishable under Section 147/148/149/436/454/392/452/188/153A/427/506 IPC.
2. Brief facts of the present case are that on 28.02.2020, FIR was registered at PS Gokalpuri pursuant to receipt of a written complaint dated 28.02.2020 from Sh. Jagdish Prasad. In his complaint, complainant alleged that his m/cycle repair shop in the name of "Shekhar Bhardwaj Auto Parts" situated at F-1, gali Digitally signed Page 3 of 42 (Pulastya byPramachala) PULASTYA PULASTYA ASJ-03, North-East District, PRAMACHALA PRAMACHALA Karkardooma Courts, Date: Delhi 2023.11.29 10:40:58 +0530 CNR No. DLNE01-000436-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 41/2021, FIR No. 95/2020, PS Gokalpuri Judgment dated 29.11.2023 no.6, main road Brijpuri, Bhagirathi Vihar, Delhi, was burnt at about 11 AM on 25.02.2020, by the rioters. Riot had started since the night of 24.02.2020 in that area. This complaint was marked to Insp. Bineet Kumar Pandey for necessary action. On
02.03.2020, Insp. Bineet Kumar Pandey endorsed the complaint to DO to register a case under Section 147/148/149/427/380 IPC and to hand over further investigation of the case to ASI Manvir Singh.
3. During investigation, on 03.03.2020, ASI Manvir Singh received the copy of present FIR and original complaint from DO alongwith certificate 65B of IE Act and prepared site plan at the instance of complainant. On 15.03.2020, he called crime team and got the spot inspected, where crime team also took several photographs. He collected inspection report as well as photographs and placed them on the record. He also collected ash of burnt articles from the shop of complainant. He examined several witnesses including eye witnesses. Thereafter, further investigation of the present case was handed over to SI Yogesh Dahiya, who after discussion with senior officers, added Section 436 IPC in the present case. During further investigation, IO examined Ct. Vipin, Ct. Sanjay and HC Hari Babu, who were also witnesses to the incident. They named accused persons. IO came to know about arrest of accused persons by crime branch and he formally arrested accused Mohd. Shahnawaz @ Shanu on 16.04.2020. On 22.04.2020, accused Azad, Shahrukh, Mohd. Shoaib, Rashid @ Raja, Ashraf Ali, Parvez and Mohd. Tahir, were formally arrested. Accused Faisal and Rashid @ Monu were Digitally signed by PULASTYA Page 4 of 42 PULASTYA (Pulastya Pramachala) PRAMACHALA PRAMACHALA ASJ-03, North-East District, Date: 2023.11.29 Karkardooma Courts, 10:41:09 Delhi +0530 CNR No. DLNE01-000436-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 41/2021, FIR No. 95/2020, PS Gokalpuri Judgment dated 29.11.2023 arrested on 25.04.2020. During further course of investigation, more witnesses including PCR callers were examined.
4. After completion of investigation, on 14.07.2020 a chargesheet was filed before Duty MM (North East), Karkardooma Courts, Delhi, against aforesaid accused persons. Thereafter, on 23.12.2020, ld. CMM (North East), Karkardooma Courts, Delhi, took cognizance of offences punishable under Section 147/148/149/392/427/436/452/454/506 IPC. Vide this order, ld. CMM (North East) declined to take cognizance of offences under Section 153-A IPC and 188 IPC, for want of sanction and complaint. Thereafter, case was committed to the sessions court on 12.01.2021.
5. On 09.01.2023, first supplementary chargesheet was filed before this court, along with a complaint under Section 195 Cr.P.C and other documents.
CHARGES
6. On 21.12.2021, charges were framed against aforesaid accused persons for offences punishable under Section 147/148/436/ 454/392/452/188/153A/427/506 IPC read with Section 149 IPC, in following terms: -
"That on 25.02.2020 at or around 11 am near the Work Shop in the name of Shekhar Bhardwaj Auto Parts, Shop, F-1, Gali No. 6, Main Brijpuri Road, Shiv Vihar, Tiraha, Bhagrithi Vihar Delhi belonging to Shekhar Bhardwaj S/o Jagdish Prasad, within the jurisdiction of PS Gokal Puri, all of you alongwith your other associates (unidentified), from a particular community formed an unlawful assembly with the common object of committing riots by carrying Stones, Sticks, petrol bombs and other weapons of rioting and to create fear & insecurity in the minds of the members of other community i.e. Hindu Community and by use of force or violence in prosecution of the common object of such assembly committed rioting and you all, being members of unlawful assembly, knew that offences were likely to be committed in Page 5 of 42 Digitally (Pulastya signed Pramachala) by PULASTYA ASJ-03, PRAMACHALA PULASTYA North-East District, PRAMACHALA Karkardooma Courts, Delhi Date: 2023.11.29 10:41:18 +0530 CNR No. DLNE01-000436-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 41/2021, FIR No. 95/2020, PS Gokalpuri Judgment dated 29.11.2023 prosecution of common object and thereby you all alongwith your other associates(unidentified) committed offences punishable under Section(s) 147/148 read with Section 149 IPC and within my cognizance.
Secondly, on the aforesaid date and time, you all being member of the said unlawful assembly, along-with your other associates (unidentified) committed mischief by fire or explosive substance be setting on fire the afore said Work Shop & Shop and the articles lying therein with intent to destroy the same and as such, committed an offence punishable U/s under section 436 read with section 149 IPC and within my cognizance.
Thirdly, on the aforesaid date and time, you all being member of the said unlawful assembly, along-with your other associates (unidentified) committed lurking house trespass in order to commit an offence in the aforesaid work shop and Shop of Shekhar Bhardwaj S/o Jagdish Prasad with intent to destroy the same and as such, committed an offence punishable under Section 454 IPC read with Section 149 IPC and within my cognizance.
Fourthly, on the aforesaid date and time, you all being member of the said unlawful assembly, along-with your other associates (unidentified) after breaking open the main gate of above said workshop committed Robbery of articles, stuff lying therein and as such committed an offence punishable under Section 392 IPC read with Section 149 IPC and within my cognizance. Fifthly, on the aforesaid date and time, you all being member of the said unlawful assembly, along-with your other associates (unidentified) had committed, house trespass after preparation for hurt, wrongful restraint, Robbery in the aforesaid work shop and as such, committed an offence punishable under Section 452 IPC read with Section 149 IPC and within my cognizance. Sixthly, on the aforesaid date and time, you all being member of the said unlawful assembly, along-with your other associates (unidentified) committed mischief by causing wrongful loss and damage in the aforesaid workshop and as such committed an offence punishable under Section 427 IPC read with Section 149 IPC and within my cognizance".
7. Thereafter, on 11.01.2023, additional charge was framed against aforesaid accused persons for offence punishable under Section 188 IPC, in the following terms: -
"That on 25.02.2020 at about 11:00 AM onwards in and around the area of F-1, Gali No.6, Main Brijpuri Road, Bhagirathi Vihar, Delhi, within the jurisdiction of PS Gokalpuri, you all accused persons being Digitally signed Page 6 of 42 by PULASTYA (Pulastya Pramachala) PULASTYAASJ-03,PRAMACHALA North-East District, PRAMACHALA Date: Courts, Delhi Karkardooma 2023.11.29 10:41:25 +0530 CNR No. DLNE01-000436-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 41/2021, FIR No. 95/2020, PS Gokalpuri Judgment dated 29.11.2023 member of an unlawful assembly alongwith your other associates (unidentified) were present at aforesaid place, in prosecution of the common object of an unlawful assembly and in violation of the proclamation issued u/s 144 Cr.PC by the competent authority/DCP, North East vide order dated 24.02.2020 bearing no.10094-170 X-1, North East, Delhi dt. 24.02.2020, which was duly announced in all the localities of District North East including area of PS Gokalpuri, thereby you all committed offence punishable under Section 188 IPC and within my cognizance."
DESCRIPTION OF PROSECUTION EVIDENCE: -
8. Several witnesses were dropped on the basis of admission of documents under Section 294 Cr.P.C. and prosecution examined 21 witnesses in support of its case, as per following descriptions:-
Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties PW1/Sh. He was eye witness of the incident. He deposed that Shekhar in the month of February 2020, he was running an Bhardwaj Automobile shop under the name and style of Bhardwaj Auto Parts at F-1, main Brijpuri Road, Bhagirathi Vihar, Delhi. On 25.02.2020, PW-1 had come to aforesaid shop at about 10 a.m. but he did not open the shop due to riots in the area. His father alongwith his two brothers namely Ram Charan Sharma, Gopi Chand Sharma and his cousin Jitender Sharma were present in a vacant plot of land on the rear side of his shop.
When he saw a mob coming towards him, he got terrified. He started his scooter and stopped at a distance of about 200 to 300 meters from his shop and his shop was not visible from that place. Thereafter his shop was set on fire by the rioters. He could see smoke rising above his shop. He did not see or identify any of the rioters, who had set ablaze his shop. He was declared hostile by the prosecution on the point of identification.
PW2/Sh. He was the complainant in the present case. He Jagdish deposed that in the month of February 2020, his son Prasad Shekhar Bhardwaj was running an Automobile Shop under the name and style of Bhardwaj Auto Parts on the front side of F-1, main Brijpuri road, Bhagirathi Page 7 of 42 (Pulastya Pramachala) Digitally signed by PULASTYA ASJ-03, North-East District, PULASTYA PRAMACHALA Karkardooma PRAMACHALA Courts, Delhi Date: 2023.11.29 10:41:33 +0530 CNR No. DLNE01-000436-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 41/2021, FIR No. 95/2020, PS Gokalpuri Judgment dated 29.11.2023 Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties Vihar, Delhi. He deposed that on 25.02.2020 at about 10-11 a.m., he alongwith his brothers namely Ram Charan Sharma, Gopi Chand Sharma and his nephew Jitender Sharma were present in the vacant space outside his room on the rear side of the shop. A violent mob reached and started pelting stones towards the shop. They also started damaging the goods kept inside the shop. They got terrified and started to leave that place and in the process of leaving that place, they heard a loud cracking sound due to which the shop caught fire. He deposed that when they returned to aforesaid shop after about 2 days, they found that the entire shop alongwith the goods lying there, were reduced to ashes. However, he was not able to identify any of the rioters, who had set ablaze his aforesaid shop. He was also declared hostile by the prosecution on the point of identification.
PW-3/Ajay He was working as Nodal Officer Ex.PW3/A and Kumar. in Bharti Airtel Ltd. since 2007. Ex.PW3/B PW3 produced certified copy of (CAF and CDR CAF & CDR in respect of mobile of mobile phone no. 9818920953 for period w.e.f no 23.02.2020 to 10.03.2020. PW-3 9818920953.) produced CAF and CDR in Ex.PW3/C and respect of mobile no. 8512856163 for period w.e.f. 23.02.2020 to Ex.PW3/D (CAF and CDR 10.03.2020. He also produced certificate u/s 65B of I.E. Act in of mobile number respect of CDR of aforesaid mobile numbers. 8512856163) PW3 identified his signature with Ex.PW3/E seal at point X on CDRs & CAFs (certificate u/s 65B of IE Act.) of abovesaid 2 mobile numbers.
PW3 identified his signature with seal at point A on the certificate u/s 65B of IE Act.
PW4/Ct. He was witness to formal arrest of Ex.PW4/A Sandeep accused Mohd. Shahnawaz @ (arrest memo of Page 8 of 42 (Pulastya Digitally Pramachala) signed by PULASTYA ASJ-03, North-East District, PULASTYA PRAMACHALA KarkardoomaDate:
PRAMACHALA Courts, Delhi
2023.11.29
10:41:43 +0530
CNR No. DLNE01-000436-2021
State v. Mohd. Shahnawaz @ Shanu etc.
SC No. 41/2021, FIR No. 95/2020, PS Gokalpuri Judgment dated 29.11.2023 Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties Shanu by IO/SI Yogesh Dahiya in accused Mohd. the present case, on 16.04.2020 at Shahnawaz) Mandoli Jail. PW4 identified his signature at point A on arrest memo of accused. He was also declared hostile by the prosecution in respect of date of arrest.
PW5/Sh. He was also eye witness of the incident. He was Jitender Kr. running pharmacist shop in the same property. He Sharma also deposed that a mob set ablaze his shop.
However, he could not identify any of the persons in the mob. He was also declared hostile by the prosecution on the point of identification. PW6/Ct. He was witness to formal arrest of Ex.PW6/A to Arvind accused Azad, Shahrukh, Mohd. Ex.PW6/G Kumar Shoaib, Rashid @ Raja, Ashraf (arrest memos Ali, Parvez and Mohd. Tahir. of accused PW6 identified his signature at Azad, point A on the arrest memos. Shahrukh, Mohd. Shoaib, Rashid @ Raja, Ashraf Ali, Parvez and Mohd. Tahir) PW7/Sh. He was working as Alternate Ex.PW7/A & Praveen Nodal Officer. PW7 produced Ex.PW7/B Kumar attested copy of CAF and CDR (CAF and CDR (for the period w.e.f 24.02.2020 to in respect of 25.02.2020) in respect of mobile mobile no.7984796920. He identified his no.7984796920.
seal and signature at point A on Ex.PW7/C and
the same. Ex.PW7/D
PW-7 also produced CAF and (CAF and CDR
CDR (for the period w.e.f in respect of
24.02.2020 to 25.02.2020) in mobile
respect of mobile no.9718825136. no.9718825136 He identified his seal and ) signature on the same. Ex.PW7/E Digitally signed Page 9 of 42 by PULASTYA PULASTYA (Pulastya Pramachala) PRAMACHALA ASJ-03, North-East District, PRAMACHALA Date: 2023.11.29 Karkardooma Courts, 10:41:50 Delhi +0530 CNR No. DLNE01-000436-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 41/2021, FIR No. 95/2020, PS Gokalpuri Judgment dated 29.11.2023 Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties PW7 also identified his seal and (certificate u/s signature on the certificate u/s 65B of IE Act) 65B of IE Act, in respect of Ex.PW7/F abovesaid 2 mobile numbers. (printout of Cell PW7 produced printout of Cell ID ID Chart) chart and he identified his seal and signature over the same at point A. PW8/Ct. On 25.02.2020 at 10-11 a.m., PW8 was on duty and Vipin was present at F block, gali no.6, Bhagirathi Vihar.
PW8 found 1000-1200 persons assembled at Brijpuri road. PW-8 witnessed vandalism, loot and arson in Shekhar Auto Parts shop situated in F block, gali no.6, Bhagirathi Vihar by around 100-150 persons. PW8 knew some persons in that mob and had identified them. They were Shoaib, Shahnawaz @ Shanu, Rashid @ Monu and Shahrukh. PW8 identified them correctly in the court.
PW9/Ct. On 25.02.2020 at about 11 a.m., PW9 was present on Sanjay duty at Shiv Vihar Tiraha. PW9 found 1500 persons present at Bhagirathi Vihar Road, who were damaging the properties and setting them on fire. PW9 knew and had identified Mohd. Faisal, Shahnawaz @ Shanu, Arshad Ali and one more person. These persons with the mob had damaged a Hardware shop in gali no.6, Brijpuri road, Bhagirathi Vihar. They damaged the articles kept therein and set the shop on fire. Police could not control them. PW9 identified Rashid @ Raja, Ashraf Ali, Shahnawaz, and Faisal before the court taking their correct names. He clarified that Ashraf was named by him as Arshad Ali.
PW10/Sh. On 25.02.2020 at about 10 AM, he was standing in Sunil Jain his Gali i.e Gali no.4 in front of his house bearing H.No. A-182, Gali No.4, Phase-I, Bhagirathi Vihar, Delhi. PW10 remained there in the Gali and at about 11/11:15 AM, he heard a noise coming from the side of main road in the terms of 'le lo maar lo'. When PW10 sneaked towards the main road, and he saw that there was a mob of around 1000 persons. PW10 Page 10 of 42 (Pulastya Pramachala) Digitally signed by PULASTYA ASJ-03, North-East District, PULASTYA PRAMACHALA Karkardooma Courts, Delhi PRAMACHALA Date: 2023.11.29 10:41:58 +0530 CNR No. DLNE01-000436-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 41/2021, FIR No. 95/2020, PS Gokalpuri Judgment dated 29.11.2023 Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties saw that mob was running towards Brijpuri pulia while carrying dandas in their hands.
PW11/Insp. On 15.03.2020 he visited F-1 and Ex.PW11/A
Manish inspected the spot and prepared (SOC report
Kumar SOC report. PW11 identified his prepared by
signature at circle X on the SOC PW11)
report.
PW12/ASI On 15.03.2020, he visited F-1 and Ex.PW12/P-1
Mahavir took 6 photographs. PW-12 had to
also prepared certificate under Ex.PW-12/P-6
Section 65-B of I.E. Act in this (photographs
respect. PW-12 identified his taken by PW12
signature at circle X on the same. at F-1) &
Ex.PW-12/A
(certificate
under Section
65-B of I.E. Act
of PW12)
PW13/ASI On 03.03.2020 further Ex.PW13/A
Manvir investigation of the present case (site plan);
was handed over to him by Insp. Ex.PW-13/B
Bineet Pandey at PS Gokalpuri. (seizure memo
PW13 visited F-1, met of ash collected
complainant Jagdish, his son from burnt Shekhar, Jitender and Gopi Chand shop); there, prepared site plan and Ex. PW-13/C obtained signature of Jagdish on (seizure memo the same. PW13 identified his of documents signature at circle X on the same. given by There were 3 shops in that complainant) & property, out of which two shops bearing no. F-1/59 and F-1/60, Ex.PW13/ being run by Shekhar, were found Article-1 in burnt condition. (transparent plastic box PW13 also recorded statement of containing ash complainant Jagdish, his son material) Shekhar, Jitender and Gopi.
On 15.03.2020, PW13 called
Page 11 of 42 Digitally
(Pulastya signed
Pramachala)
by PULASTYA
ASJ-03, North-East
PULASTYA District,
PRAMACHALA
PRAMACHALA
Karkardooma Courts, Delhi
Date: 2023.11.29
10:42:05 +0530
CNR No. DLNE01-000436-2021
State v. Mohd. Shahnawaz @ Shanu etc.
SC No. 41/2021, FIR No. 95/2020, PS Gokalpuri Judgment dated 29.11.2023 Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties crime team officials and got property No. F-1 inspected by them. On 20.03.2020, PW13 went to this property and collected ash from the burnt shop vide a seizure memo, bearing his signature at circle-X and obtained signature of Jagdish at point Y. PW13 also seized the documents given by complainant Jagdish vide a seizure memo, bearing his signature at circle X. PW13 also identified transparent plastic box containing ash material contained therein.
PW14/ASI On 25.02.2020, since 8 AM he Ex.PW14/A Hari Babu was on patrolling duty alongwith (colly. 4 sheets) Ct. Vipin and Ct. Sanjay on the (Photocopy of Brijpuri road from Shiv Vihar medical Tiraha towards Bhajanpura. At documents of about 10-11 AM near F block, his treatment, Bhagirathi Vihar, Gali no.6, from 12.01.22 PW14 found a mob of around till 21.01.22, 1000-1500 persons, which was pertaining to vandalizing the shops situated on Garg Hospital);
Brijpuri road in F Block, &
Bhagirathi Vihar. Ex.PW14/B
PW14 saw that mob was (colly. 5 sheets)
equipped with danda and such (photocopy of
material, which used to burst into medical
fire on throwing the same. The documents
mob broke open the shutter of pertaining to
shop under the name and style of treatment taken
M/s. Shekhar Bhardwaj Auto at Jain Hospital
Parts and vandalized it alongwith from 21.01.2022
a workshop adjacent to this shop up to
and also set ablaze both the shops 21.03.2022)
and workshop.
PW14 identified some rioters
Digitally signed
Page 12 of 42 (Pulastya Pramachala)
by PULASTYA
PULASTYA ASJ-03,PRAMACHALA
North-East District,
Karkardooma Courts, Delhi
PRAMACHALA
Date: 2023.11.29
10:42:13 +0530
CNR No. DLNE01-000436-2021
State v. Mohd. Shahnawaz @ Shanu etc.
SC No. 41/2021, FIR No. 95/2020, PS Gokalpuri Judgment dated 29.11.2023 Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties including accused Azad, Mohd.
Tahir, Parvez, and Shahnawaz @ Shanu, in that mob as PW14 knew them prior to this incident.
Many persons in the mob had covered their face with cloth and helmet.
PW-14 identified accused Azad, Mohd. Tahir, Parvez, and Shahnawaz @ Shanu before the court correctly.
He produced original medical documents of his treatment, which started from 12.01.2022 and continued till 21.01.2022, pertaining to Garg Hospital.
PW12 continued his treatment at Jain Hospital from 21.01.2022 up to 21.03.2022. PW12 continued taking medicines up to June 2022.
PW12 had felt dizziness on 12.01.2022, due to which he started aforesaid treatment. In the Jain hospital, he was treated by Neuro doctor.
PW15/HC On 24.02.2020 he being reader to SHO received an Pradeep order u/s. 144 Cr.P.C, issued by DCP, N/E, in the PS through Dak and he informed SHO about the same. On the direction of SHO, PW15 visited the area of PS Gokalpuri and announced aforesaid order through loud hailer.
PW16/ASI He produced office record Ex.PW16/A Naresh containing copy of complaint (colly 2 pages) under Section 195 Cr.P.C. The file (Complaint also contained note sheet in under Section respect of this complaint. PW16 195 Cr.P.C.). & compared original of this Ex.PW16/B complaint from judicial case file (OSR) (copy of with copy of this complaint, Page 13 of 42 (Pulastya Pramachala) Digitally signed by PULASTYA ASJ-03, North-East District, PULASTYA PRAMACHALA Karkardooma PRAMACHALA Courts, Delhi Date: 2023.11.29 10:42:20 +0530 CNR No. DLNE01-000436-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 41/2021, FIR No. 95/2020, PS Gokalpuri Judgment dated 29.11.2023 Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties bearing signature of Sh. Ankit order under Singh, Addl. DCP (1) NE at circle Section 144 X. PW16 identified signature of Cr.P.C.) Sh. Ankit Singh, as PW16 had worked under Sh. Ankit Singh and PW16 had seen signature of Sh. Ankit Singh during the course of his daily official duty.
PW16 had also produced original order u/s 144 Cr.P.C dt.
24.02.2020 and compared true photocopy of this order from the judicial case file with original order, bearing signature of Sh.
Ved Prakash Surya, the DCP, NE at Circle X. PW16 identified signature of Sh. Ved Prakash Surya as PW16 worked under him and seen his signature during the course of his daily official duty.
PW17/SI On 27.12.2022 on receipt of copy of main Ashish Garg chargesheet from MHC(R), PW17 visited PS Gokalpuri and recorded statement of HC Pradeep (Reader to SHO). PW17 also visited shop of complainant Jagdish Prasad and obtained certificate u/s 65B of I.E Act, which is Ex. A-28 (admitted document). PW17 also recorded his statement. PW17 prepared supplementary chargesheet and placed on record aforesaid documents as well as certified CDRs of mobile phones used by accused persons, complaint u/s 195 Cr.P.C., another certificate u/s 65B of I.E Act given by photographer to crime team. PW17 filed this supplementary chargesheet before the court.
PW18/SI On 04.04.2020 he collected file of this case from Yogesh MHC(R) for further investigation. Dahiya On 08.04.2020, PW18 recorded statement of Ct.
Vipin, Ct. Sanjay and HC Hari Babu, who were found to be on duty at the place of incident i.e. F Digitally signed Page 14 of 42 (Pulastya Pramachala) by PULASTYA PULASTYAASJ-03, North-East PRAMACHALA District, PRAMACHALA Karkardooma Date:Courts, Delhi 2023.11.29 10:42:29 +0530 CNR No. DLNE01-000436-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 41/2021, FIR No. 95/2020, PS Gokalpuri Judgment dated 29.11.2023 Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties Block, Bhagirathi Vihar on the date of incident i.e 25.02.2020. From their statement, name of 10 accused persons cropped up and PW18 discussed the matter with Insp.(investigation) and SHO. PW18 visited Mandoli Jail obtained permission from Duty Magistrate, interrogated and formally arrested accused Shehnawaz vide arrest memo EX.PW4/A on 16.04.2020; accused Shahrukh, Azad, Mohd. Shaoib @ Chutwa, Rashid @ Raja, Ashraf Ali, Mohd. Tahir, and Parvez vide separate arrest memo i.e. Ex.PW6/A, Ex.PW6/B, Ex.PW6/C, Ex.PW6/D, Ex.PW6/E, Ex.PW6/F and Ex.PW6/G, respectively on 22.04.2020; and accused Faisal and Rashid @ Monu vide separate arrest memo as Ex.A-11 and Ex.A-12 (admitted documents) on 25.04.2020. PW- 18 identified his signature at circle X on aforesaid arrest memos. PW18 also recorded statement of Ct. Arvind and Ct. Sandeep, when they visited Mandoli Jail with PW18.
On 09.07.2020 PW18 recorded statement of PCR callers namely, Sunil and Mohd. Tariq, who made PCR calls on 25.02.2020, and obtained PCR forms in respect of these calls. PW18 sent notice u/s 91 Cr.P.C to concerned service provider to provide CDRs of mobile numbers used by accused Parvez, Azad and Ashraf Ali and PW18 received uncertified CDRs vide email dated 09.07.2020. Thereafter, PW18 prepared chargesheet in this case and filed the same before CMM/NE.
PW18 identified accused persons in the court correctly except that during identification, PW18 had pointed out to accused Shahrukh taking his name as Faisal and to accused Mohd. Shoiab as Shahrukh. He pointed out to accused Faisal as Rashid @ Monu. PW19/Sh. He was authorised by Dr. Ex.PW19/A Himanshu Sangeeta Jain, Director of Jain (authority letter) Hospital, Vikas Marg, Delhi, to produce attested photocopies of medical prescription and other Digitally signed by PULASTYA Page 15 of 42 PULASTYA (Pulastya Pramachala) PRAMACHALA ASJ-03, North-East PRAMACHALA Date: District, Karkardooma Courts, Delhi 2023.11.29 10:42:36 +0530 CNR No. DLNE01-000436-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 41/2021, FIR No. 95/2020, PS Gokalpuri Judgment dated 29.11.2023 Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties medical documents of patient namely Hari Babu. PW19 identified signature of Dr. Sangeeta Jain at point X as well as of himself at point Y, on authority letter. Original of all these documents were given to the patient.
PW20/Dr. He compared original medical document with Sanjay Garg photocopies of the same i.e. Ex.PW14/A (colly 4 sheets). Those documents were prepared in Garg hospital, AGCR Enclave, Delhi. The patient was checked and treated by PW20. The documents bore his signature at circles X. As per those records, the patient had come with problem of chest infection, breathlessness, high grade fever, weakness and vertigo and was subsequently found Covid positive. All those medical documents were prepared under his instructions.
PW21/Dr. He worked as Consultant Neurologist in Jain Arun Hospital, Jagriti Enclave, Delhi, from August 2019 Kumar upto May, 2022. PW21 had prepared OPD Agrawal prescription i.e. Ex.PW14/B (colly 5 pages) from Jain Hospital. PW21 identified impression of his signature at point X on the back page of said document. PW21 used to sign his prescription at same place, as appearing in that document. The patient namely Hari Babu complained before him about chakkar and dizziness, which was episodic i.e. one, two or three episodes daily. That prescription was dated 21.01.2022. On his next visit on 31.01.2022, PW21 had prepared another prescription, wherein PW21 had recorded his diagnosis as peripheral vestibulopathy and ET (essential tremors). On both the aforesaid occasions, PW21 had prescribed medicines on prescriptions. On 07.02.2022, the patient again visited PW21 for follow up. PW21 again prepared prescription for that Digitally signed Page 16 of 42 (Pulastya Pramachala) by PULASTYA PULASTYA ASJ-03, North-East PRAMACHALADistrict, PRAMACHALA Date: 2023.11.29 Karkardooma Courts, Delhi 10:42:44 +0530 CNR No. DLNE01-000436-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 41/2021, FIR No. 95/2020, PS Gokalpuri Judgment dated 29.11.2023 Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties date, which was also part of aforesaid document. On that day, PW21 declared him fit to join his duties. There was another prescription dt.21.03.2022. The patient came for follow up, but as per his complaint his symptoms had not subsided completely. PW21 again prescribed him few medications. All those subsequent prescriptions were prepared by PW21 and were signed by PW21. PW21 identified impression of his signature appeared on all the prescriptions at point X. The problem narrated by the patient was related to Neurology.
PW21 explained that Peripheral Vestibulopathy meant disfunction of vestibular system, which was responsible for balance of the body. Disfunction could cause vertigo and imbalance. ET meant essential tremors, which caused trembling of the body parts and cause was idiopathic (not known). On 21.03.2022, PW21 had asked this patient to come after one month for follow up.
Admitted documents under Section 294 Cr.P.C. Entry in Malkhana register as Ex.A-1; FIR as Ex.A-2; Rukka as Ex.A-3; endorsement on rukka as Ex.A-4; certificate u/s 65B of I.E.Act as Ex.A-5; GD nos.151A & 159A as Ex.A-6 & A-7; entry in station daily diary as Ex.A-8; PCR form as Ex.A-9 (colly. 5 pages); PCR form as Ex.A-10 (colly. 5 pages); arrest memo of accused Mohd. Faisal as Ex.A-11; arrest memo of accused Rashid @ Monu as Ex.A-12; certificate u/s. 65-B of I.E. Act of ASI Mahabir Singh as Ex.A-12A; reply to notice u/s 92 Cr.PC as Ex.A-13; certificate u/s 65B of IE Act of Nodal Officer Vodafone Idea Limited as Ex.A-14; KYC form of Faisal as Ex.A-15; CDR related to Faisal as Ex.A-16 (colly. 4 pages); CAF of Salahuddin as Ex.A-17; CDR as Ex.A-18 (colly. 3 pages); CAF of Shahnawaz as Ex.A-19 (colly. 4 pages); CDR as Ex.A-20 (colly. 4 pages); KYC as Ex.A-21; CDR as Ex.A- 22; KYC of Mohd. Tahir as Ex.A-23; CDR as Ex.A-24; KYC of Rashid as Ex.A-25; CDR as Ex.A-26 (colly. 3 pages); Delhi Cell ID Chart as Ex.A-27 (colly. 3 pages); certificate u/s 65B of I.E. Act as Ex.A-28; certified copy of statement of PW HC Hari Babu as recorded in FIR No.40/20 and 83/20 as Ex.A-29 and Ex.A-30.
Digitally signed by PULASTYA Page 17 of 42 PRAMACHALA PULASTYA (Pulastya Pramachala) PRAMACHALA ASJ-03, North-East Date: District, 2023.11.29 Karkardooma Courts, Delhi 10:42:52 +0530 CNR No. DLNE01-000436-2021 State v. Mohd. Shahnawaz @ Shanu etc.
SC No. 41/2021, FIR No. 95/2020, PS Gokalpuri Judgment dated 29.11.2023 PLEA OF ACCUSED PERSONS UNDER SECTION 313 CR.P.C.
9. Accused persons denied all the allegations and pleaded innocence, taking plea in their statement under Section 313 Cr.P.C. that witnesses deposed falsely against them at the instance of IO, being interested to show that the case was solved. They further took plea that they were not present at the spot on the day of incident. Accused persons further took plea that they have been falsely implicated in the present case by the investigating agency. They further took plea that they were falsely arrested in this case only to work out the case. Accused persons did not opt to lead any evidence in their defence.
10. I heard ld. Special PP and ld. counsels for accused persons. I have perused the entire material on the record.
ARGUMENTS OF DEFENCE & PROSECUTION
11. Sh. Z Babar Chauhan, ld. defence counsel for accused Mohd.
Shahnawaz @ Shanu, Parvez and Azad, argued that PW1, PW2 and PW5 were relied upon by prosecution to establish identity of accused persons. But these witnesses did not support the prosecution on this point. He further submitted that PW8, PW9 and PW14 were police witnesses for identification. PW8 and PW9 did not say anything about Azad & Parvej. PW14 identified Azad, Parvej and Shahnawaz, but, testimony of PW14 as recorded in FIR 40/20 and 83/20, show that this witness could not identify same accused in 40/20. Subsequently this witness started identifying the accused persons. This shows that this witness was tutored about the identity of accused persons.
Digitally signed Page 18 of 42 (Pulastya byPramachala)PULASTYA PULASTYA ASJ-03, North-East District, PRAMACHALA PRAMACHALA Karkardooma Courts, Date: Delhi 2023.11.29 10:42:59 +0530 CNR No. DLNE01-000436-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 41/2021, FIR No. 95/2020, PS Gokalpuri Judgment dated 29.11.2023 Similarly, credibility of PW8 & PW9 was challenged, by submitting that despite being present in the briefings in the police station, none of them informed their senior officers about their knowledge of present case till their statements being recorded by IO. Ld. counsel argued that all these police witnesses were planted witness in this case.
12. In respect of PW14/ASI Hari Babu, it was also argued that he falsely took plea of suffering through illness of memory loss, to justify not identifying accused persons in FIR 40/20. Ld. counsel argued that PW21 admitted that ASI Hari Babu did not complain about memory loss before him. PW20 also admitted this fact. Ld. counsel referred to judgment passed in the case of Harbeer Singh vs. Sheeshpal & ors. (Crl. Appeal 1624-1625 of 2003 decided on 20.10.2016), to challenge the credibility of prosecution evidence, on the grounds of delay in recording statement of alleged eye witnesses.
13. Sh. Salim Malik, ld. counsel for accused Rashid @ Raja, Shahrukh, Mohd. Tahir and Shoaib @ Chhutwa, argued that accused Rashid was identified by PW9 only. Similarly accused Shoaib was identified by PW8 only and accused Mohd. Tahir was identified by PW14 only. Though in other cases PW14 identified other accused also. PW9 had identified Rashid in FIR 40/20 as Shahnawaz. Therefore, identification by these police witnesses is not beyond doubt. He also referred to the judgment passed in the case of Masalti v. State of U.P., AIR 1965 SC 202, submitting that only one witness could identify each accused.
Digitally signed by PULASTYA PULASTYA PRAMACHALA
PRAMACHALA Date:
Page 19 of 42 (Pulastya Pramachala)
2023.11.29
ASJ-03, North-East
10:43:07District,
+0530
Karkardooma Courts, Delhi
CNR No. DLNE01-000436-2021
State v. Mohd. Shahnawaz @ Shanu etc.
SC No. 41/2021, FIR No. 95/2020, PS Gokalpuri Judgment dated 29.11.2023
14. Sh. Abdul Gaffar, ld. counsel for accused Mohd. Faisal, Ashraf Ali and Rashid @ Monu, adopted aforesaid arguments. He added that IO/PW18 could not identify all accused correctly.
15. Per-contra, Sh. Nitin Rai Sharma, ld. Special PP for State argued that public-witnesses gave details of the incident and proved the factum of incident taking place. These witnesses also proved presence of police personnel at that place. He further argued that police witnesses are no lesser credible witnesses. They had no inimical relations with any accused. PW14 was witness in 10 cases of riots and he could not recollect face of some of the accused persons correctly once. However, recollection is done by every person and so was done by this witness subsequently. Therefore, correct identification of accused persons by this witness subsequent to FIR 40/20, should not be discarded. Ld. S.P.P. further argued that these police witnesses were not chance witnesses. Their presence at the spot was natural, being on duty due to riots. They were Beat Officers, so they were aware of identity of accused persons. He further argued that facts and circumstances of case of Sheeshpal (supra) were different, therefore, any observation made therein are not applicable to this case.
APPRECIATION OF FACTS AND EVIDENCE UNLAWFUL ASSEMBLY & RIOTS
16. As per testimony of son of complainant namely Sh. Shekhar Bhardwaj/PW1, in the month of February 2020, he was running an Automobile shop under the name and style of Bhardwaj Auto Parts at F-1, Main Brijpuri Road, Bhagirathi Vihar, Delhi. On Digitally signed by PULASTYA Page 20 of 42 (Pulastya PULASTYA Pramachala) PRAMACHALA ASJ-03, North-East PRAMACHALA Date: District, Karkardooma Courts, Delhi 2023.11.29 10:43:14 +0530 CNR No. DLNE01-000436-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 41/2021, FIR No. 95/2020, PS Gokalpuri Judgment dated 29.11.2023 25.02.2020, PW-1 had come to aforesaid shop at about 10 a.m. but he did not open the shop due to riots in the area. His father alongwith his two uncles namely Ram Charan Sharma, Gopi Chand Sharma and his cousin Jitender Sharma were present in a vacant plot of land on the rear side of his shop. When PW1 saw a mob coming towards him, he got terrified. He started his scooter and stopped at a distance of about 200 to 300 meters away from his shop and his shop was not visible from that place. Thereafter his shop was set on fire by the rioters. He could see smoke rising above his shop. He did not see or identify any of the rioters, who had set ablaze his shop.
17. In his complaint, complainant/PW2 alleged that his m/cycle repair shop in the name of "Shekhar Bhardwaj Auto Parts"
situated at F-1, gali no.6, main road Brijpuri, Bhagirathi Vihar, Delhi, was burnt at about 11 AM on 25.02.2020, by the rioters. As per his testimony, his son Shekhar Bhardwaj was running an Automobile Shop under the name and style of Bhardwaj Auto Parts in the front side of F-1, main Brijpuri road, Bhagirathi Vihar, Delhi. He deposed that on 25.02.2020 at about 10-11 a.m., he alongwith his brothers namely Ram Charan Sharma, Gopi Chand Sharma and his nephew Jitender Sharma were present in the vacant space outside his room on the rear side of the shop. A violent mob reached and started pelting stones towards the shop. They also started damaging the goods kept inside the shop. They got terrified and started to leave that place and in the process of leaving that place, they heard a loud cracking sound due to which the shop caught fire. He deposed that when they returned to Digitally signed Page 21 of 42 by PULASTYA (Pulastya Pramachala) PULASTYA PRAMACHALA ASJ-03, PRAMACHALA Date:North-East District, 2023.11.29 Karkardooma Courts, Delhi 10:43:22 +0530 CNR No. DLNE01-000436-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 41/2021, FIR No. 95/2020, PS Gokalpuri Judgment dated 29.11.2023 aforesaid shop after about 2 days, they found that the entire shop alongwith the goods lying there, were reduced to ashes. However, he was not able to identify any of the rioters, who had set ablaze his aforesaid shop.
18. As per testimony of PW5/Sh. Jitender Kr. Sharma, on a Tuesday in the month of February, 2020 at about 10:30 AM, he was standing outside his pharmacist shop situated at F-1, Main Brijpuri Road, Bhagirathi Vihar, Delhi. He deposed that he saw a mob present outside his aforesaid shop, which broke open the shutter of his shop and set it ablaze. However, he could not identify any of the persons in the mob.
19. PW12/ASI Mahavir was photographer in crime team, who deposed about visiting this property with PW11/IC Crime team. He proved 6 photographs stating that same were taken by him. He also proved certificate under Section 65-B of I.E. Act in respect of these photographs. The photographs Ex.PW12/P-1 to P6, do show a shop big in size, with burn marks. These photographs leave no doubt that this shop and the property was ransacked and set on fire by the rioters. During cross- examination of PW12, defence suggested that the photographs did not pertain to F-1. However, the witness stated that he was given information of address by IO and complainant. Questions were also asked from PW11 as to whether he had verified document of this property from the complainant or from other sources and the response of witness was that he did not do so. For such reasons, defence challenged taking of these photographs of this place by PW12.
Digitally signed by PULASTYA Page 22 of 42 PRAMACHALAPULASTYA (Pulastya Pramachala) PRAMACHALA Date:
ASJ-03, North-East District, 2023.11.29 Karkardooma Courts, Delhi 10:43:29 +0530 CNR No. DLNE01-000436-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 41/2021, FIR No. 95/2020, PS Gokalpuri Judgment dated 29.11.2023
20. I do not find any need for these witnesses to verify the address of scene of crime from other sources. They were called there by the IO and particular of the place was to be furnished by the IO. Secondly, the photographs show that address of this place was written in bold font on the top of entry point. Neither is there any suggestion that such address was falsely mentioned there, nor do I find any material on the record to show that photograph of a different place was taken by PW4. PW11 and PW12 even otherwise gave description of this shop, which was consonant with the given description of this shop. They also deposed that this shop was in burnt condition. PW12 also deposed that complainant also met them at this address, which was found in burnt condition during his visit on 15.03.2020.
21. On the other hand, 1st IO/PW13 also deposed that he visited this place on 03.03.2020. He also gave description of this property. He had also found the shop of complainant in burnt condition. On the appreciation of all these evidences, I come to the conclusion that there was an unlawful assembly, which vandalized and set on fire the shop in property bearing no. F-1, Bhagirathi Vihar.
IDENTIFICATION OF ACCUSED
22. In respect of identification of the members of responsible mob, besides PW1, PW2 and PW5, prosecution relied upon the evidence of PW8, PW9 and PW14. As already noted herein above, complainant PW2, his son PW1 and his nephew PW5 did not support the prosecution on the point of identification of accused persons. The relevant part of their examination in chief Digitally signed Page 23 of 42 by Pramachala) (Pulastya PULASTYA PULASTYA PRAMACHALA ASJ-03, North-East District, PRAMACHALA Date:
Karkardooma Courts, Delhi 2023.11.29 10:43:36 +0530 CNR No. DLNE01-000436-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 41/2021, FIR No. 95/2020, PS Gokalpuri Judgment dated 29.11.2023 have already been mentioned in the description of prosecution evidence. The testimony of police witnesses during cross- examination by defence, are reproduced herein-after for the purpose of ready reference.
(a) Testimony in cross-examination of PW8/Ct. Vipin: -
"XXXX by Sh. Z. Babar Chauhan, ld.counsel for accused Md. Shahnawaz, Azad and Parvez and XXXX by Sh.Parvez Hasan, ld.counsel for accused Ashraf Ali, Rashid @ Monu and Md. Faisal.
6. I had made departure entry in PS before going to the aforesaid area. The houses in Chaman Park area are there upto Shiv Vihar Tiraha. I am witness in about 10-12 cases of riots. I am not confirmed as to in which particular FIR, my statement u/s 161 Cr.PC was recorded first. I had not made any call at 100 number or at my PS regarding aforesaid incident because my seniors were already present at the spot.
7. My statement was first of all was recorded on 08.04.2020. I did not meet IO of this case prior to 08.04.2020. I myself had gone to the IO for recording of my statement and he did not come to me. My statement was not recorded before 08.04.2020 because the case was registered only after the victim made his complaint and on the basis of same, FIR was registered and thereafter, my statement was recorded. I am not confirmed if this FIR was registered before any complaint being made by a victim, hence I can not admit or deny the suggestion that this FIR was registered prior to complaint being made by any victim. I do not know when did this FIR was registered.
8. My statement was recorded at PS during evening hours at about 3-4 p.m. in this case on 08.04.2020. My distance with rioters was not constant. Sometimes we used to go near to them and on pelting of stones, we also used to take back step. I had gone upto about 40-50 metres near to that mob. In my knowledge, no police men was injured during pelting of stones.
9. I knew Shahnawaz @ Shanu since about 10-11 months prior to aforesaid incident. I did not take beetle from his shop as I do not take beetle. He also used to sell bidi, cigarette etc.
10. I do not remember as to what exact time I went back to PS from aforesaid place, but I went back during night. Thereafter, I did not go back again on that day to the same place. I do not know residential address of any of aforementioned four accused persons. I am not sure if I had informed IO about damages caused to the adjacent workshop.
11. It is wrong to suggest that I was not present at F block, Gali no.6, Bhagirathi Vihar on 25.02.2020, as stated by me or that I did not see any incident of riot or that I had identified accused persons at Page 24 of 42 (Pulastya DigitallyPramachala) signed byNorth-East PULASTYADistrict, PULASTYA ASJ-03, PRAMACHALA Karkardooma Courts, Delhi PRAMACHALA Date: 2023.11.29 10:43:44 +0530 CNR No. DLNE01-000436-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 41/2021, FIR No. 95/2020, PS Gokalpuri Judgment dated 29.11.2023 the instance of IO or that I had falsely deposed in this case, as a planted witness at the instance of IO.
XXXX by Sh.Salim Malik, ld.counsel for accused Md. Tahir, Md. Shoiab, Shahrukh and Rashid @ Raja.
12. I had seen other shops and houses also being damaged and set on fire on 25.02.2020. All those shops and houses were located at aforesaid F block, Gali no.6, Bhagirathi Vihar itself. I do not know house/property number of those properties.
13. I had verbally informed my SHO that I had identified four persons among the rioters on 25.02.2020. I had not taken any steps for getting registered FIR in respect of aforesaid incident of 25.02.2020. I do not know if any such step was taken by any other police official, who was with me. I did not inform other senior officers like DCP etc. about identifying abovesaid four rioters.
14. Whenever I went near to rioters, they did not listen to me so as to pacify. When their activities slowed down, only then we could reach near to them. I do not remember as to when did I last meet Shoaib or Shahrukh prior to aforesaid incident. There is no counting of times I met these persons while petrolling/roaming around that area, prior to aforesaid incident. I cannot point out any particular day, month or year of meeting aforesaid persons.
15. It is wrong to suggest that I identified aforesaid persons today in the court as I was shown these accused persons outside this court room and I was told about their names, on the basis of which I identified them. I had come to the court for the purpose of giving evidence in FIR no.40/20 of PS Gokalpuri on 02.05.2022. My statement was recorded in the court on that day in aforesaid case. It is correct to suggest that on that day, I had pointed out to one Faisal as Shahrukh. Vol. this mistake happened because that person Faisal was wearing mask and I did not get his mask removed before identifying him. I do not remember if Shahrukh was wearing mask on that day or not.
16. I had not seen any public person getting injured in aforesaid incident. I had identified aforesaid four accused persons before IO, but I do not remember the date or month of the same. It was done in the year 2020 itself. I had identified them in the PS itself. All aforesaid accused persons were together, when I had identified them. It is wrong to suggest that I did not identify the said accused persons before the IO in the PS."
(b) Testimony in cross-examination of PW9/Ct. Sanjay: -
"XXXX by Ms.Shavana, ld.counsel for accused Md. Tahir, Md. Shoiab, Shahrukh and Rashid @ Raja.
1. I do not remember the exact time, but it was night time when I returned back to the PS on 25.02.2020. I cannot tell the number of persons in the mob having covered face and the number of persons without any cover over face. The mob as a group had been Page 25 of 42 (Pulastya Pramachala) Digitally signed ASJ-03, North-East PULASTYA by PULASTYA District, PRAMACHALA Karkardooma Courts, Delhi PRAMACHALA Date: 2023.11.29 10:43:53 +0530 CNR No. DLNE01-000436-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 41/2021, FIR No. 95/2020, PS Gokalpuri Judgment dated 29.11.2023 stopping the fire brigade vehicles from reaching that place, but I cannot point out the particular persons being part of that mob. When I left the spot for the PS, the outer force remained at the spot.
2. I cannot tell the property number of the hardware shop, but it was having name as 'Shekhar Bhardwaj'. I did not see accused Rashid @ Raja after his arrest in this case. It is wrong to suggest that accused Rashid @ Raja was not present in the mob or that I had falsely identified him as member of that mob. XXXX by Sh. Z. Babar Chauhan, ld.counsel for accused Md. Shahnawaz, Azad and Parvez and XXXXX by Sh.Parvez Hasan, ld.counsel for accused Ashraf Ali, Rashid @ Monu and Md. Faisal.
3. I had made departure entry while leaving PS on 25.02.2020. I had also made arrival entry after coming back to PS, but I do not remember the exact time. I do not remember in how many cases of riot, I am a witness. I am witness in other riot cases also. I did not make any call at 100 number or at PS after seeing the aforesaid incident of damage and setting the properties on fire. I do not remember as to in which case for the first time, I was examined by IO of any riot case. I do not remember the date when for the first time my statement was recorded by the IO of any riot case.
4. My statement in this case was recorded on 08.03.2020. I had gone to IO in the PS for this purpose, but I do not remember the time. Again said, I had given my statement on 08.04.2020 rather than 08.03.2020. I knew Shahnawaz, Ashraf Ali & Faisal since about 7 months prior to the aforesaid incident as I was in that beat area. I was in the beat area of Johripur and Chaman park. I had seen the aforesaid accused persons in the area of Chaman Park. I do not know their residential addresses.
5. It is wrong to suggest that I am a planted witness and I had not seen any incident of riot or that I have identified four accused persons today in the court at the instance of IO. It is wrong to suggest that I had not seen any damage in the workshop or in the hardware shop or that I admit the suggestion of Ld.Special PP blindly."
(c) Testimony in cross-examination of PW14/ASI Hari Babu dated 11.01.2023 : -
"XXXXX by Sh. Salim Malik and Ms. Shavana, ld.counsels for accused Mohd. Tahir, Md. Shoiab, Shahrukh and Rashid @ Raja;XXXX by Mohd. Dilshad, ld. counsel for accused Md. Shahnawaz, Azad and Parvez; and XXXXX by Mohd. Nazim, ld. counsel for accused Ashraf Ali, Rashid @ Monu and Mohd.Faisal.
5. We did not use to make departure and arrival entry at that time and we were simply sent in the area. There were 3-4 other security force officials also in that area. At the time of incident at aforesaid shop, we were standing at a distance of about 100 meters on the side of Mustafabad. I have seen site plan Ex. PW 13/A. I can understand the site plan. At the time of incident, we were present at Page 26 of 42 Digitally (Pulastya signed Pramachala) by PULASTYA PULASTYA ASJ-03, North-East District, PRAMACHALA Karkardooma Courts, Delhi PRAMACHALA Date: 2023.11.29 10:44:24 +0530 CNR No. DLNE01-000436-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 41/2021, FIR No. 95/2020, PS Gokalpuri Judgment dated 29.11.2023 point B, as being shown on this site plan. We kept moving and therefore, we used to be on the side of Bhagirathi Vihar and sometimes on the side of Mustafabad. It is wrong to suggest that faces of rioters were not towards us. I had made call to Addl. SHO to inform about worsening condition and incident at the aforesaid shop. Other security force had reached there by 12 p.m. After arrival of other security force, we started patrolling again and moved away from the aforesaid place. On this day, we came back to PS at about 10.30 p.m. I did not ask DO to make any entry about aforesaid incident. I did not again inform any senior officer after coming back to PS about aforesaid incident. I did not inform about having seen anyone in the aforesaid incident on my own to anyone, because during those days, we were not getting so much of time. After registration of the case, when it was asked from us that if we had seen and identified anyone, then I gave my statement before IO of this case. I would be witness in about 14-15 riot cases. I do not know the date, when for the first time my statement was recorded in any riot case. I was not given any notice by the IO in this case or in any other riot case. I do not remember, if any public notice was pasted outside the PS, so as to seek information about riots. I did not proceed on leave from 25.02.2020 to 08.04.2020. We did not have any conversation with DCP or ACP. I met SI Yogesh Dahiya during briefing of SHO, prior to 08.04.2020. When my statement was recorded by IO in this case i.e. on 08.04.2020, on that day itself for the first time I came to know about registration of FIR in respect of aforesaid incident. I remained in PS Gokalpuri for next 8-9 months after the riots. I also used to go on patrolling during this period and lock-down was also enforced during such period. During such patrolling, I had seen 1 or 2 more persons, who were involved in the riots. Neither I apprehended them nor did I say anything to them. I did not apprehend him, because I did not know, if any FIR was registered against him. I knew that because of riots, many FIRs were registered in the PS. Those 1-2 persons, who were seen by me subsequently during patrolling were involved in the riots taken place on 24.02.2020, as well as on 25.02.2020. I had seen those 2 persons in the riots taken place on the road going from Shiv Vihar Tiraha to Brijpuri, as well as on the road going from Shiv Vihar Tiraha towards Johripur. There was prohibition on me to seek information in respect of registration of case regarding riot taken place on aforesaid roads, on 24.02.2020 and 25.02.2020, either from SHO or DO in the PS. Still I did not apprehend aforesaid persons subsequently identified by me.
2. It is wrong to suggest that I was not present at the place near aforesaid shop on 25.02.2020 at any time; or that I did not see any incident at aforesaid shop; or that I did not see any rioter in the incident at the aforesaid shop; or that I mentioned name of 4 accused persons, before IO on 08.04.2020, as well as before this court on this day, merely on the basis of tutoring by the IO; or that I gave false Digitally signed by Page 27 of 42 PULASTYA (Pulastya PULASTYA Pramachala) PRAMACHALA ASJ-03, North-East District, PRAMACHALA Date: 2023.11.29 Karkardooma Courts, Delhi 10:44:33 +0530 CNR No. DLNE01-000436-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 41/2021, FIR No. 95/2020, PS Gokalpuri Judgment dated 29.11.2023 statement at the instance of my senior officers, in order to solve the case.
3. (Against court query:- I had seen those 2 persons subsequently in the court in a case, wherein I was also summoned as a witness, but I do not remember the no. of that FIR. However, I remember name of one person as Rashid @ Raja. I knew this Rashid @ Raja since prior to riots. I had not seen this Rashid @ Raja in the incident taken place in the aforesaid shop, as pertaining to this case. )
4. It is correct to suggest that I did not identify accused Shahnawaz, Azad and Parvez, before the court during my testimony recorded in FIR no.40/20. It is wrong to suggest that at that time, I stated before the court that due to lapse of long time, I could not identify them. I had stated that I was not well and I was taking medicine of mind. I have all the medical documents with me and I can produce the same, if so desired.
5. I knew Shahnawaz for last 4-5 months prior to riots. It is wrong to suggest that I did not know Shahnawaz or Azad or Parvez at all, prior to the riots."
(d) Testimony in cross-examination of PW14 dated 03.08.2023 : -
"XXXXX by Sh. Mehmood Pracha, ld. counsel for accused Mohd. Tahir.
4. After my last examination in this case before the court, I did not have any talk with IO of this case. I did not have any meeting also with him after my last examination in this case. I had paid fees in both the hospitals. In Garg Hospital, I had paid only Rs.50/- and in Jain Hospital, Rs.150/- was paid by me on each visit. It is correct to suggest that I was not satisfied with the treatment given at Garg Hospital. I had not seen the complete Jain Hospital, hence I can not state, if it was a bigger hospital than Garg Hospital. In Garg Hospital, there used to be one doctor sitting in the room, where I was checked by the doctor and in Jain Hospital, 4 doctors used to sit in that room (On pointing out of ld. defence counsel, doctor with other staff from Garg Hospital have been asked to leave the court room till examination of this witness). Jain Hospital was also on the panel of Delhi Police. It is correct to suggest that I was satisfied with the treatment and medicine prescribed in Jain Hospital. It is also correct to suggest that doctor at Jain Hospital had declared me fit to join duties from 07.02.2022 and that I had not opted to take additional opinion from any other doctor or hospital, after treatment at Jain Hospital. It is correct to suggest that after treatment at Jain Hospital, I was feeling completely fit and, therefore, I did not take additional opinion from any other doctor. Vol. After taking medicines as prescribed in Jain Hospital, I was feeling fit.
5. I had visited Jain Hospital after 07.02.2022. The evidence of the same can be found in the medical documents i.e. prescription dt. 21.03.2022 (part of Ex.PW14/B). I did not visit Jain Hospital Digitally signed Page 28 of 42 (Pulastya Pramachala) by PULASTYA PULASTYA ASJ-03, North-East District, PRAMACHALA PRAMACHALA Karkardooma Courts, Delhi Date: 2023.11.29 10:44:41 +0530 CNR No. DLNE01-000436-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 41/2021, FIR No. 95/2020, PS Gokalpuri Judgment dated 29.11.2023 between 07.02.2022 and 21.03.2022. I visited Jain Hospital once after 21.03.2022, but I do not have any document related to this visit. During this visit, I met the doctor and no fresh prescription was prepared by him. He asked me to continue taking the medicine already prescribed. I did not take advise from any doctor before stopping to take those medicines. I have the receipt of the fees paid by me in aforesaid 2 hospitals, but I have not brought them today. I can produce them. I had received summons through WhatsApp for my appearance today in this court (Ld. defence counsel has demanded to show that summons and witness has shown the same in his mobile phone, which has photo/scanned copy of summons in FIR no.140/20, 113/20, 65/20 and this case). Apart from aforesaid treatment, I did not take treatment of any other problem either at Garg Hospital or at Jain Hospital at any other point of time. I used to visit Panchsheel Hospital in Yamuna Vihar in case of other problems like fever etc. I did not read the prescriptions given by doctors as they were written in English and I did not know reading English. Doctors at Garg Hospital and Jain Hospital did not explain the contents of prescription before me. During my first visit before doctor at Jain Hospital itself, I had mentioned before him about my problem of forgetting the things. Prior to Jain Hospital, I did not mention this problem before any other doctor. After first visit at Jain Hospital, during my subsequent visits, doctor used to ask about my improvement and I used to respond that there was improvement. I did not tell any doctor that I was not able to identify accused in the court during my evidence, in any case. I had informed doctor at Jain Hospital on 21.01.2022 that my mind used to remain disturbed. Thereafter I did not mention these problems as doctor used to ask about improvement and I used to respond accordingly and therefore, there was no need to tell it again (jararut nahi padi). I was given showcause notice by DCP (5 th battalion), after I did not identify accused in FIR no.40/20 on 28.03.2022, during my statement before the court, wherein prosecutor had even cross examined me on this point. I gave reply to that showcause notice alongwith my medical papers and thereafter I have not received further response. This showcause notice was received by me in the month of June, 2023.
6. It is wrong to suggest that I have started identifying accused persons in my subsequent evidence in the court, after my examination in FIR no.40/20, because of receiving showcause notice from DCP. It is wrong to suggest that after my examination in FIR no.40/20, my senior officers had reprimanded me (dant fatkar lagayi thi); or that due to such reprimand, I changed my subsequent statement to identify the accused persons; or that I was tutored regarding identification of every accused by IO, during my examination in FIR no.40/20 and thereafter; or that I never complained about forgetting the things before any doctor; or that I am deposing falsely, at the behest of IO and senior officers.Digitally signed by PULASTYA Page 29 of 42 PULASTYA (Pulastya Pramachala) PRAMACHALA
ASJ-03, PRAMACHALA Date: North-East District, Karkardooma 2023.11.29 Courts, Delhi 10:44:48 +0530 CNR No. DLNE01-000436-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 41/2021, FIR No. 95/2020, PS Gokalpuri Judgment dated 29.11.2023 XXX by Sh. Salim Malik and Ms. Shavana, ld.counsels for accused Md. Shoiab, Shahrukh and Rashid @ Raja;XXXX by Sh. Z. Babar Chauhan and Mohd. Dilshad, ld. counsels for accused Md. Shahnawaz, Azad and Parvez; and XXXXX by Sh. Abdul Gaffar and Mohd. Nazim, ld. counsels for accused Ashraf Ali, Rashid @ Monu and Mohd.Faisal.
7. It is wrong to suggest that I never had problem of forgetting the things. I had joined duties from 07.02.2022.
8. I did not demand lighter job from my seniors after joining duties from 07.02.2022. I had made departure entry on 21.03.2022, to visit the hospital. I did not tell prosecutor before my examination on 28.03.2022 in FIR no.40/20 about having any problem with my memory."
23. Defence counsel had referred to the test mentioned in the case of Masalti (Supra). I shall first deal with this argument that test referred in the judgment passed in the case of Masalti (supra), applies to the facts and circumstances of this case. In the case of Masalti (supra), hon'ble Supreme Court dealt with a case of multiple murder by an unlawful assembly. The court while dealing with the aspect of identification of members of that mob, made certain observations regarding test of consistent testimony by four witnesses as applied by High Court. The relevant part of the same is as follows: -
"16. Mr. Sawhney also urged that the test applied by the High Court in convicting the appellants is mechanical. He argues that under the Indian Evidence Act, trustworthy evidence given by a single witness would be enough to convict an accused person, whereas evidence given by half a dozen witnesses which is not trustworthy would not be enough to sustain the conviction. That, no doubt is true; but where a criminal court has to deal with evidence pertaining to the commission of an offence involving a large number of offenders and a large number of victims, it is usual to adopt the test that the conviction could be sustained only if it is supported by two or three or more witnesses who give a consistent account of the incident. In a sense, the test may be described as mechanical; but it is difficult to see how it can be treated as irrational or unreasonable. Therefore, we do not think any grievance can be made by the appellants against the adoption of this test. If at all the prosecution may be entitled to say that the seven accused persons were acquitted because their cases did Digitally signed by PULASTYA Page 30 of 42 PULASTYA (Pulastya Pramachala) PRAMACHALA ASJ-03, PRAMACHALA North-East District, Date:
Karkardooma 2023.11.29Courts, Delhi 10:44:54 +0530 CNR No. DLNE01-000436-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 41/2021, FIR No. 95/2020, PS Gokalpuri Judgment dated 29.11.2023 not satisfy the mechanical test of four witnesses, and if the said test had not been applied, they might as well have been convicted. It is, no doubt, the quality of the evidence that matters and not the number of witnesses who give such evidence. But sometimes it is useful to adopt a test like the one which the High Court has adopted in dealing with the present case."
24. The test mentioned in the case of Masalti (supra), was deliberated upon by Supreme Court in the case of State of Maharashtra v. Ramlal Devappa Rathod, (2015) 15 SCC 77, and the court made following observations: -
"24. The liability of those members of the unlawful assembly who actually committed the offence would depend upon the nature and acceptability of the evidence on record. The difficulty may however arise, while considering the liability and extent of culpability of those who may not have actually committed the offence but were members of that assembly. What binds them and makes them vicariously liable is the common object in prosecution of which the offence was committed by other members of the unlawful assembly. Existence of common object can be ascertained from the attending facts and circumstances. For example, if more than five persons storm into the house of the victim where only few of them are armed while the others are not and the armed persons open an assault, even unarmed persons are vicariously liable for the acts committed by those armed persons. In such a situation it may not be difficult to ascertain the existence of common object as all the persons had stormed into the house of the victim and it could be assessed with certainty that all were guided by the common object, making every one of them liable. Thus, when the persons forming the assembly are shown to be having same interest in pursuance of which some of them come armed, while others may not be so armed, such unarmed persons if they share the same common object, are liable for the acts committed by the armed persons. But in a situation where assault is opened by a mob of fairly large number of people, it may at times be difficult to ascertain whether those who had not committed any overt act were guided by the common object. There can be room for entertaining a doubt whether those persons who are not attributed of having done any specific overt act, were innocent bystanders or were actually members of the unlawful assembly. It is for this reason that in Masalti [Masalti v. State of U.P., AIR 1965 SC 202 : (1965) 1 Cri LJ 226 : (1964) 8 SCR 133] this Court was cautious and cognizant that no particular part in respect of an overt act was assigned to any of the assailants except Laxmi Prasad. It is in this backdrop and in order to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle Page 31 of 42 Digitally Pramachala) (Pulastya signed by PULASTYA PULASTYA ASJ-03, PRAMACHALADistrict, North-East PRAMACHALA Karkardooma Courts, Delhi Date: 2023.11.29 10:45:01 +0530 CNR No. DLNE01-000436-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 41/2021, FIR No. 95/2020, PS Gokalpuri Judgment dated 29.11.2023 curiosity without intending to entertain the common object of the assembly", this Court at SCR pp. 148-49 in Masalti [Masalti v. State of U.P., AIR 1965 SC 202 observed that his participation as a member of the unlawful assembly ought to be spoken by more than one witness in order to lend corroboration. The test so adopted in Masalti [Masalti v. State of U.P., AIR 1965 SC 202 was only to determine liability of those accused against whom there was no clear allegation of having committed any overt act but what was alleged against them was about their presence as members of the unlawful assembly. The test so adopted was not to apply to cases where specific allegations and overt acts constituting the offence are alleged or ascribed to certain named assailants. If such test is to be adopted even where there are specific allegations and overt acts attributed to certain named assailants, it would directly run counter to the well-known maxim that "evidence has to be weighed and not counted" as statutorily recognised in Section 134 of the Evidence Act."
25. In the same case, Supreme Court explained the nature of cases wherein test mentioned in the case of Masalti (supra), can be applied, while making following observations: - "26. We do not find anything in Masalti [Masalti v. State of U.P., AIR 1965 SC 202 : (1965) 1 Cri LJ 226 : (1964) 8 SCR 133] which in any way qualifies the well-settled principle that the conviction can be founded upon the testimony of even a single witness if it establishes in clear and precise terms, the overt acts constituting the offence as committed by certain named assailants and if such testimony is otherwise reliable. The test adopted in Masalti [Masalti v. State of U.P., AIR 1965 SC 202 : (1965) 1 Cri LJ 226 : (1964) 8 SCR 133] is required to be applied while dealing with cases of those accused who are sought to be made vicariously responsible for the acts committed by others, only by virtue of their alleged presence as members of the unlawful assembly without any specific allegations of overt acts committed by them, or where, given the nature of assault by the mob, the Court comes to the conclusion that it would have been impossible for any particular witness to have witnessed the relevant facets constituting the offence. The test adopted in Masalti [Masalti v. State of U.P., AIR 1965 SC 202 : (1965) 1 Cri LJ 226 : (1964) 8 SCR 133] as a rule of prudence cannot mean that in every case of mob violence there must be more than one eyewitness."
26. The above-mentioned observations of Supreme Court, make it clear that for inviting liability by virtue of Section 149 IPC, it is not required to prove overt act on the part of every member of the mob. However, a rule of prudence has been spoken about, for Page 32 of 42 Digitally (Pulastya signed Pramachala) by PULASTYA ASJ-03, North-East PULASTYA PRAMACHALADistrict, Karkardooma Courts, Delhi PRAMACHALA Date: 2023.11.29 10:45:08 +0530 CNR No. DLNE01-000436-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 41/2021, FIR No. 95/2020, PS Gokalpuri Judgment dated 29.11.2023 fastening vicarious liability with aid of S.149 IPC. That rule of prudence is the genesis of test mentioned in the case of Masalti (supra). In that case also, it was approved as a mark of precaution, rather than laying it down as a hard and fast rule. Therefore, it shall depend upon the quality of evidence of PW8, PW9 and PW14, before taking any decision in this case, so as to apply this rule of prudence.
27. Defence took plea that PW8, PW9 and PW14 had though knowledge of the names and particulars of the accused persons, but they did not take any steps to formally get this information recorded, before 08.04.2020. Defence claimed that PW8, PW9 and PW14 were planted and tutored witnesses and hence, there was delay in recording their statements by IO. In respect of delayed examination of PW8, PW9 and PW14 by IO in this case, Mr. Babar referred to judgment passed in the case of Harbeer Singh (supra). Relevant observations made in that judgment, are as follows: -
"17. However, Ganesh Bhavan Patel Vs. State Of Maharashtra, (1978) 4 SCC 371, is an authority for the proposition that delay in recording of statements of the prosecution witnesses under Section 161Cr.P.C., although those witnesses were or could be available for examination when the Investigating Officer visited the scene of occurrence or soon thereafter, would cast a doubt upon the prosecution case. [See also Balakrushna Swain Vs. State Of Orissa, (1971) 3 SCC 192; Maruti Rama Naik Vs. State of Mahrashtra, (2003) 10 SCC 670 and Jagjit Singh Vs. State of Punjab, (2005) 3 SCC 68]. Thus, we see no reason to interfere with the observations of the High Court on the point of delay and its corresponding impact on the prosecution case.
18. Further, the High Court has also concluded that these witnesses were interested witnesses and their testimony were not corroborated by independent witnesses. We are fully in agreement with the reasons recorded by the High Court in coming to this conclusion.
19. In Darya Singh Vs. State of Punjab, AIR 1965 SC 328 = 1964 (7) Page 33 of 42 Digitally (Pulastya signed Pramachala) by PULASTYA ASJ-03, North-East PULASTYA PRAMACHALA District, PRAMACHALA Karkardooma Date:Courts, Delhi 2023.11.29 10:45:15 +0530 CNR No. DLNE01-000436-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 41/2021, FIR No. 95/2020, PS Gokalpuri Judgment dated 29.11.2023 SCR 397, this Court was of the opinion that a related or interested witness may not be hostile to the assailant, but if he is, then his evidence must be examined very carefully and all the infirmities must be taken into account. This is what this Court said:
"There can be no doubt that in a murder case when evidence is given by near relatives of the victim and the murder is alleged to have been committed by the enemy of the family, criminal courts must examine the evidence of the interested witnesses, like the relatives of the victim, very carefully........But where the witness is a close relation of the victim and is shown to share the victim's hostility to his assailant, that naturally makes it necessary for the criminal courts examine the evidence given by such witness very carefully and scrutinise all the infirmities in that evidence before deciding to act upon it. In dealing with such evidence, Courts naturally begin with the enquiry as to whether the said witnesses were chance witnesses or whether they were really present on the scene of the offence...... If the criminal Court is satisfied that the witness who is related to the victim was not a chance-witness, then his evidence has to be examined from the point of view of probabilities and the account given by him as to the assault has to be carefully scrutinised.""
28. It is true that in normal circumstances delayed examination of an eyewitness would give rise to a reason to be suspicious against statement of such eyewitness. However, it depends upon case to case and facts and circumstances of each case, to look into the credibility of given reasons behind such delay. It is not the ratio of aforesaid judgment that in all the cases delayed examination of any eyewitness would result into rejection of his evidence in toto. In the case of John Pandian v. State, (2010) 14 SCC 129, on the point of effect of delayed examination of witnesses, hon'ble Supreme Court observed that statement of eyewitnesses should be recorded immediately or with least possible delay. Early recording of statement gives credibility to evidence of witnesses, but it is not an absolute rule that where statement is recorded late, witness is a false or a trumped-up witness. Supreme Court held that it will depend upon the quality of evidence of the witness.
Digitally signed Page 34 of 42 by PULASTYA(Pulastya Pramachala) PULASTYA PRAMACHALA ASJ-03, North-East District, PRAMACHALA Date: 2023.11.29 Karkardooma Courts, Delhi 10:45:22 +0530 CNR No. DLNE01-000436-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 41/2021, FIR No. 95/2020, PS Gokalpuri Judgment dated 29.11.2023
29. In the present case, it is matter of common knowledge that on account of unexpected riots, which rocked North-East part of Delhi for about four days, there had been huge pressure upon the police agency. Large number of complaints were bound to pour in and it so happened. It is matter of common knowledge that huge damage was done in this riot, affecting a large number of victims. Police was having task to tackle such grave situation. It is well within knowledge of everyone that year 2020 was also rocked on account of unexpected pandemic of Covid-19. There had been cases since beginning of the year and because of highly accelerated increase in the positive cases of Covid-19, even Government of India was compelled to take a hard decision for complete lock-down in the whole country since 24.03.2020. It does not mean that prior to 24.03.2020, the situation was normal. On account of everyday reporting of positive cases of Covid-19, there had been advise and guidelines issued for all for least interaction, to avoid physical contact and to maintain physical distance etc. Therefore, there was impact on the functioning of every organization. Police organization could not be exception to this impact. Police in Delhi would have been recovering from the impact of riots taken place during concluding days of February 2020, when they were also expected to enforce the directions of government given on account of Covid-19. For such reasons, I find that the delay in recording statement of witnesses, was much probable in the given scenario, hence, same cannot be a reason to discard the evidence of PW8, PW9 and PW14.
Digitally signed by PULASTYA PULASTYA PRAMACHALA
Page 35 of 42 PRAMACHALA(Pulastya Pramachala)
Date:
ASJ-03, North-East
2023.11.29District,
Karkardooma Courts, Delhi
10:45:29 +0530
CNR No. DLNE01-000436-2021
State v. Mohd. Shahnawaz @ Shanu etc.
SC No. 41/2021, FIR No. 95/2020, PS Gokalpuri Judgment dated 29.11.2023
30. Defence challenged the credibility of PW14/ASI Hari Babu on the basis of his previous testimony recorded in FIR No.40/20 and 83/20, PS Goklapuri on 28.03.2022. Certified copy of those testimonies are Ex.A-29 and Ex.A-30. Defence also challenged the credibility of PW9/Ct. Sanjay on the basis of his previous testimony recorded in FIR No.40/20, PS Goklapuri on 28.03.2022. Certified copy of those testimonies is Ex.A-31. At that time PW14 could not identify the accused persons in FIR 40/20, taking plea of lapse of long time. However, PW14 had stated that he had seen some persons in the mob and identified them. PW14 had disclosed names of those persons as Shahrukh, Parvez and Azad. In that case, PW14 was talking about the riotous act of the mob as taken place on Main Brijpuri Road on 25.02.2020 at about 01-02 PM. PW14 was cross-examined by ld. Special PP at that time also and in that process, he admitted that the person identified by him was Shahnawaz and not Shahrukh. Ld. defence counsel made contentions that PW14 identified the accused persons in FIR 83/20, subsequent to his examination in FIR No.40/20 only because of tutoring. His other argument was that since PW14 had not seen any accused, therefore, he could not identify any accused during his examination in FIR No.40/20, but subsequently this witness identified same accused persons in other cases. In this respect, ld. Special PP submitted that at the time of examination in FIR No.40/20, PW14 was not in fit condition.
31. PW14 was again examined on application u/s 311 Cr.P.C. and then he stated that he took medicine from Garg hospital and Jain Digitally signed by PULASTYA Page 36 of 42 PRAMACHALA PULASTYA(Pulastya Pramachala) PRAMACHALA Date:
ASJ-03, North-East District, 2023.11.29 Karkardooma Courts, Delhi 10:45:36 +0530 CNR No. DLNE01-000436-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 41/2021, FIR No. 95/2020, PS Gokalpuri Judgment dated 29.11.2023 Hospital, Anand Vihar. He produced original medical documents, copies of which were proved on the record. PW20 was the treating doctor at Garg hospital and PW21 was the treating doctor at Jain hospital. Both of them confirmed that these medical prescriptions were authored by them and that this patient was treated as per complaint made by him. The defence counsels took plea that these medical documents do not show any mental illness of the witness. Hence, the plea of memory loss due to medical problems as taken by PW14, is not sustainable.
32. It is correct that medical documents of Garg Hospital show that PW14 was suffering from problem related to his ear, which included the problem of vertigo. However, medical documents of Jain Hospital show treatment being given by Neurologist. For the purpose of not being able to recollect any fact or face of a person correctly, it is not necessary that the person concerned would be suffering from some sort of mental illness. In fact, even without suffering from any particular illness, it is a normal tendency of any person that he does not recollect an incident taken place in the past completely and very accurately. If I compare the condition of PW14 with such normal person, then apparently his condition was worse than others. As per alleged history mentioned in his medical documents, he was admitted in Garg hospital on 12.01.2022 with complaint of high-grade fever with vertigo. He was discharged on 15.01.2022 and was found suffering from acute vertigo with cervical spondylosis with Covid-19. Thereafter also he remained under treatment in Garg hospital. On 21.01.2022, he visited Jain hospital with complaint Digitally signed by PULASTYA Page 37 of 42 PULASTYA (Pulastya PRAMACHALA Pramachala) PRAMACHALA ASJ-03, North-East District, Date: 2023.11.29 Karkardooma Courts,+0530 10:45:42 Delhi CNR No. DLNE01-000436-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 41/2021, FIR No. 95/2020, PS Gokalpuri Judgment dated 29.11.2023 of dizziness, nousea and his sleep was also reported to be disturbed. His medical prescriptions show that he continued taking medical advice and the last prescription is dated 21.03.2022, wherein again complaint of dizziness was reported. As per common knowledge of medical science, the problem of vertigo does make a person unstable and very uncomfortable because of severe giddiness etc. In that state of mind, it can be possible with anyone that he does not recollect all the things very correctly and accurately.
33. Moreover, testimony of PW21 is very relevant in respect of condition of this witness at that time period. PW21 was cross examined at length by the defence counsels and he came up with very natural answers to the questions put to him. His cross examination rather made it very clear that this witness was actually having severe physical problem at that time, which was defined as Peripheral Vestibulopathy. He explained that this symptom meant dis-function of vestibular system, which is responsible for balance of the body. Dis-function can cause vertigo and imbalance. PW21 further affirmed that the complaint made by ASI Hari Babu was relating to brain and that he had made complaint of dizziness before him. Thus, the problem of PW14 was not a simple problem. His problem must have acted as aggravating factor to make him confused, being in uncomfortable physical condition. Therefore, forgetting the things or mixing up several faces in the memory, was very much possible for this witness during that period.
Digitally signed by PULASTYA PULASTYA PRAMACHALA
Page 38 of 42 PRAMACHALA(Pulastya Pramachala)
Date:
2023.11.29
ASJ-03, North-East District,
10:45:49
Karkardooma +0530
Courts, Delhi
CNR No. DLNE01-000436-2021
State v. Mohd. Shahnawaz @ Shanu etc.
SC No. 41/2021, FIR No. 95/2020, PS Gokalpuri Judgment dated 29.11.2023
34. Ld. Special PP argued that just because of mishappening taken place in one case, the testimony of same witness as given in other cases should not be seen with suspicion and rejected. After having the aforesaid medical documents on the record and appreciating the probable mental state of this witness during his examination in FIR No.40/20, I am now in agreement with such contention of ld. Special PP. It is also worth to mention here that after his examination in FIR No.40/20, this witness was examined in another FIR No.83/20 on same day, wherein he had identified some of the accused persons and at that time the court had recorded its observations about failure of this witness to identify those accused in FIR No.40/20 and his subsequent identification in FIR No. 83/20. However, at that time the court could not and did not assess the reasons behind such conduct of this witness and therefore, those observations cannot be given much weightage. The subsequent identification could be because the witness would have occasion to recollect the faces during his cross examination in the previous case i.e. FIR No. 40/20. Therefore, testimony of PW14 in this case cannot be discarded merely on account of nature of his testimony as recorded in FIR No. 40/20 and 83/20. Having said so, I do not mean to say that evidence of PW14 is found credible in this case. That question is to be dealt with herein-after.
35. PW14 deposed that the mob had set ablaze two shops in F-1. 1 st IO/PW13 also deposed that he found only two shops in this property, in burnt condition. Though, PW13 also mentioned about a third shop of medicine being run in the same property by Digitally signed by PULASTYA PULASTYA PRAMACHALA Page 39 of 42 (Pulastya PRAMACHALA Date: Pramachala) ASJ-03, North-East District, 2023.11.29 Karkardooma Courts,+0530 10:45:57 Delhi CNR No. DLNE01-000436-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 41/2021, FIR No. 95/2020, PS Gokalpuri Judgment dated 29.11.2023 PW5. PW8 also deposed about arson in two shops only. On the other hand, PW9 deposed only about one hardware shop being vandalized and set ablaze, by the mob. However, PW5 in his testimony claimed that even his medical shop was also set ablaze by the same riotous mob. PW5 was though cross examined by ld. prosecutor on the aspect of non-identification of accused persons, but the factum of his medical shop being also burnt by the mob, was not disputed by the prosecutor. If the above-mentioned three eye witnesses had actually seen the incident, then they would have also seen the setting ablaze of medicine shop in same property as well. When they gave description of this incident, then there could not have been any reason to omit to mention about medicine shop. This omission assumes importance, because even PW13/IO also omitted to mention about this medicine shop. This consistency in the omission in the testimony of these police witnesses, indicate towards a possibility of fixed line of statement to be made by them. The fixed or predetermined line of statement could have basis in the fact that complaint mentioned about only shop of PW1. That situation indicates towards a possibility of artificial claim of witnessing the incident at F-1, by aforesaid three alleged eye witnesses.
36. PW14 had been examined in several cases against same accused persons, before his evidence was recorded in this case. Despite that, this witness in FIR no. 65/20 of same police station (decided by this court itself on 25.11.2023), stated that he did not know name of other accused persons except Shahnawaz, Azad and Ashraf. According to him, he knew name of Shahnawaz and Digitally signed by PULASTYA Page 40 of 42 PULASTYA (Pulastya Pramachala) PRAMACHALA ASJ-03, North-East PRAMACHALA Date: District, Karkardooma Courts, Delhi 2023.11.29 10:46:04 +0530 CNR No. DLNE01-000436-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 41/2021, FIR No. 95/2020, PS Gokalpuri Judgment dated 29.11.2023 Azad since prior to the alleged incident. He came to know name of Ashraf during his evidence being recorded in other cases. However, in his cross examination in this case, he deposed that he knew Rashid @ Raja since prior to the incident, but he had not seen Rashid @ Raja in the incident at F-1. On the other hand, PW9 claimed that Rashid @ Raja was also present in this incident. PW8 in his cross examination admitted that in FIR 40/20, he had identified accused Faisal as Shahrukh. Thus, there had been mixing up of identification by these witnesses. Such mixing up may be on account of genuine confusion or on account of pre-determined line of giving statement.
37. Forgetting a fact is much different from wrongly asserting a fact. Without having knowledge of a fact, one cannot assert it. On the other hand, despite having knowledge of a fact, one can forget it or may come up with wrong description of such fact. Therefore, it is improbable that a person would know name of someone at one point of time, but at subsequent point of time he would not know his name. He can forget such name, but it cannot be said by that person that he did not know such names at all. PW14 herein on the previous occasion had claimed knowing Shahrukh, Parvez and Azad (in FIR No. 40/20), who all are also accused in this case also. In the present case also, he claimed knowing Parvez since prior to the riots. In that situation, PW14 could not have said validly that he did not know the name of accused Parvez, during his testimony in FIR 65/20. This fluctuating stand taken by PW14 does have its adverse effect on his claim of having seen any of the accused persons in the mob, during the alleged Digitally signed by PULASTYA Page 41 of 42 PULASTYA (Pulastya Pramachala) PRAMACHALA ASJ-03, PRAMACHALA North-East District, Date:
Karkardooma Courts, Delhi 2023.11.29 10:46:11 +0530 CNR No. DLNE01-000436-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 41/2021, FIR No. 95/2020, PS Gokalpuri Judgment dated 29.11.2023 incident in this case. Thus, on the basis of above-mentioned flip flop in the identification of same accused persons at different times and a possibility going in favor of the accused persons, I find accused persons to be entitled for benefit of doubt. CONCLUSION & DECISION
38. In view of my foregoing discussions, observations and findings, I find that charges levelled against all the accused persons in this case are not proved beyond reasonable doubts. Hence, accused Mohd. Shahnawaz @ Shanu, Mohd. Shoaib @ Chhutwa, Shahrukh, Rashid @ Raja, Azad, Ashraf Ali, Parvez, Md. Faisal, Rashid @ Monu and Mohd. Tahir, are acquitted of all the charges levelled against them in this case.
Digitally signed by PULASTYA PRAMACHALAPULASTYA PRAMACHALA Date:
2023.11.29 10:46:20 +0530 Announced in the open court (PULASTYA PRAMACHALA) today on 29.11.2023 ASJ-03 (North- East) (Judgment contains 42 pages) Karkardooma Courts/Delhi Page 42 of 42 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi