Delhi District Court
State vs ) Shabir Pradhan on 27 September, 2010
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IN THE COURT OF SMT. BIMLA KUMARI
ADDITIONAL SESSIONS JUDGE (NORTH) : DELHI
S.C. No. 30/2000
ID No. 02401R0181502001
State
Vs.
1) Shabir Pradhan
S/o Yusuf
R/o C-59, Dholak Basti
Yamuna Pushta, Delhi
2) Mohd. Alam
S/o Shamrul Sheikh
R/o C-24A/357,
Indira Colony, Yamuna Pushta,
Delhi
3) Mohd. Shamim
S/o Mohd. Shafiq
R/o 798,Indira Colony,
Yamuna Pushta,Delhi
4) Anwar
S/o Mohd. Aziz
R/o 474, Nav Ka Pul
Indira Colony, Yamuna Pushta,
Delhi
Sessions Case No. 30/2000 Page 1/ 40
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5) Mohd. Salim (Dead)
S/o Deen Mohd.
R/o Jhuggi opposite Sabina Dhobi
Vijay Ghat, Yamuna Pushta,
Delhi
6) Mohd. Saidul (P.O.)
S/o Mohd. Kasim
R/o Jhuggi Data Ram Basti
Yamuna Pushta, Delhi
7) Mohd. Aslam (P.O.)
S/o Mohd. Illiyas
R/o Sattar Jhuggi near Dr. Shahnawaj
Indira Colony, Yamuna Pushta,Delhi
8) Sattar
S/o Fateh Mohd.
R/o Jhuggi Choudhary Basti,
Indira Colony, Yamuna Pushta,
Delhi
9) Mohd. Zahirul Haq (P.O.)
S/o Mohd. Iliyas
R/o Jhuggi Sattar, Chaudhary Basti
Indira Colony, Yamuna Pushta,Delhi
10) Babul
S/o Hasimuddin
R/o C-24B/260
Indira Colony, Yamuna Pushta,Delhi
Sessions Case No. 30/2000 Page 2/ 40
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11) Sanwar (Dead)
S/o Mehar Ali
R/o Jhuggi Nav Pul Data Ram Basti,
Jagdish Ka Khet, Yamuna Pushta, Delhi
12) Abdul Qudus (P.O.)
S/o Mohd. Alauddin
R/o Jhuggi Ram Jaini Ki, Bihari Basti
Yamuna Pushta, Delhi
13) Zuber Alam (P.O.)
S/o Lal Mohd.
R/o Jhuggi Sattar Ki, Chaudhary Basti
Yamuna Pushta, Delhi
14) Mohd. Shamshad (P.O.)
S/o Mohd. Hazrat
R/o Jhuggi Near Abrar Pradhan
Indira Colony, Yamuna Pushta,
Delhi
15) Mohd. Gayas
S/o Mohd. Attaul
R/o C-24/B/151
Indira Colony, Yamuna Pushta,Delhi
16) Jatan (P.O.)
S/o Amiloo
R/o JhuggiNo. C-24B/691
Indira Colony, Yamuna Pushta,
Delhi
Sessions Case No. 30/2000 Page 3/ 40
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17) Babu
S/o Rattan
R/o C-19B/524
Indira Colony, Yamuna Pushta,
Delhi
18) Mansoor (Juvenile)
S/o Yusuf
R/o C-24A/101
Indira Colony, Yamuna Pushta,
Delhi
19) Yameen
S/o Yusuf Khan
R/o C-24A/136
Indira Colony, Yamuna Pushta,
Delhi
20) Akram
S/o Mohd. Aslam
R/o Bakery, Chaudhary Basti
Indira Colony, Yamuna Pushta,
Delhi
21) Kala (Juvenile)
S/o Farooq
R/o Indira Chowk Bakery
Indira Colony, Yamuna Pushta,
Delhi
Sessions Case No. 30/2000 Page 4/ 40
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22) Hasimuddin
S/o Mohinuddin
R/o Indira Colony, Yamuna Pushta,
Delhi
23) Hatim
S/o Mohd. Kamruddin
R/o C-19B, Jhuggi Dholak Basti
Yamuna Pushta, Delhi
24) Izazul (P.O.)
S/o Mohd. Shifayat
R/o 554,Indira Colony, Yamuna Pushta,
Delhi
25) Yadul Sheikh
S/o Saleem
R/o 356, Nav Ka Pul,
Vijay Ghat, Yamuna Pushta,
Delhi
26) Mohd. Jameel Akhtar (Juvenile)
S/o Shifayat
R/o 248, Nav Ka Pul
Indira Colony, Yamuna Pushta,
Delhi
27) Ainool
S/o Mohd. Habib
R/o 252, Meena Bazar
Delhi
Sessions Case No. 30/2000 Page 5/ 40
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28) Hasmuddin
S/o Chhiddu
R/o C-24B/260
Indira Colony, Yamuna Pushta,
Delhi
29) Shahnawaz (Juvenile)
S/o Shamshul
R/o Jhuggi Kailash Barber shop
Dholak Basti, Yamuna Pushta,
Delhi
30) Pappu Khan
S/o Kasim
R/o C-24B/246,
Indira Colony, Yamuna Pushta,
Delhi
31) Mohd. Kaleem (P.O.)
S/o Sultan
R/o C-24B/206,
Indira Colony, Yamuna Pushta,
Delhi
32) Mazrool Pradhan
S/o Intaz
R/o C-9C/163, Upper Pushta
Sanjay Amar Colony, Yamuna Pushta,
Delhi
Sessions Case No. 30/2000 Page 6/ 40
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33) Zahida Khatoon
W/o Parvez Ahmed
R/o C-24A/203, Indira Colony, Yamuna Pushta,
Delhi
34) Abrar Ahmed
S/o Mohd. Aizaz
R/o C-24A/519, Indira Colony, Yamuna Pushta,
Delhi
35) Dr. Shakeel
S/o Abdul Sattar
R/o C-24A/391,Indira Colony,
Yamuna Pushta, Delhi
36) Mohd. Kabir (P.O.)
S/o Majid
R/o C-9C/303, Bangali Basti
Sanjay Amar Colony, Yamuna Pushta,
Delhi
37) Sirajul Khan
S/o Intaj
R/o C-9C/163
Upper Yamuna Pushta, Delhi
38) Imam Jafeer Alam
S/o Abdul Gaffar C/o Mohd. Saeed Imam
R/o C-24E/877, Bagichi Tejpul
Yamuna Pushta, Delhi
Sessions Case No. 30/2000 Page 7/ 40
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39) Saira Bano
W/o Sirajul Haq
R/o C-19A/125s, Bihari Basti
Sanjay Amar Colony, Yamuna Pushta,
Delhi
40) Shabbo
W/o Mohd. Musafir
R/o C-9B/474, Sanjay Amar Colony
Yamuna Pushta, Delhi
41) Shabbir Hussain Noori (Dead)
S/o Mohd. Sadiq
R/o C-9A/378, Sanjay Amar Colony
Yamuna Pushta, Delhi
42) Ahmed Hussain Noori
S/o Shabbir Hussain Noori
R/o C-9A/378, Sanjay Amar Colony,
Yamuna Pushta, Delhi
43) Imam Niaz Ahmed alias Akhtar Pradhan
S/o Mafin Ahmed
R/o C-24E/324, Bagichi Tejpul
Yamuna Pushta, Delhi
44) Nasir
S/o Abdul Aziz
R/o 474, Nav Ka Pul,
Indira Colony, Yamuna Pushta,
Delhi
Sessions Case No. 30/2000 Page 8/ 40
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FIR No. 327/2000
P.S. Kotwali
U/S 147/148/149/332/353/186/307/308 IPC and 25 Arms Act
Date of Institution: 21.07.2000
Date of reserving judgment: 14.09.10
Date of pronouncement: 27.09.10
JUDGMENT
Brief facts of the case are that on 21.09.02, a chargesheet was submitted in the court of Ld. MM by the police of P.S. Kotwali against 31 accused persons in respect of offences U/S 147/148/149/332/353/186/427/435/436/440/151/152/153/307/308 and 342 IPC and U/S 3/4 of Prevention of Damage to Public Property Act and U/S 27 Arms Act. Ld. MM took cognizance of the offences against 13 more accused, who were not arrested by the police. 2 Four accused namely, Mansoor, Mohd. Jameel Akhtar, Shahnawaz and Kala were found to be juvenile and they were sent to Juvenile Court. After supplying the copies to accused by Ld. MM, case was committed to Ld. Sessions Court on 17.01.2001. Two accused namely Mohd. Salim and Shabbir Hussain Noori died during pendency of trial. Two accused namely, Izazul and Mohd. Kabir were declared P.O by Ld. Predecessor before framing of charge. 3 A charge was framed by Ld. Predecessor on 22.09.03 against 36 accused persons in respect of offences U/S 149 /147 r/w Section Sessions Case No. 30/2000 Page 9/ 40 10 149/148 r/w Section 149/186 r/w Section 149/332 r/w Section 149/353 r/w Section 149/307 r/w Section 149/435 r/w Section 149, 436 r/w Section 149, 440 r/w Section 149, 151, 152 r/w Section 149/307/308 IPC. It was alleged against all the accused that they alongwith co- accused Mohd. Kabir[P.O], Izazul[P.O], Shabir Hussain Noori[dead], Mohd. Salim[dead], Mansoor[trial by Juvenile court], Kala[trial by Juvenile court], Zameel Akhtar[trial by Juvenile court], Shahnawaj[trial by Juvenile court] were the members of an unlawful assembly in prosecution of common object of brick-bating, arson, assault, rioting, causing hurt and attempt to commit murder, which they knew to be likely to be committed in prosecution of the common object. It was also alleged that accused committed rioting while they were armed with deadly weapons and obstructed police officials in discharge of their functions' that they [accused] voluntarily caused hurt to several police officials with intention to prevent them from discharging their duty; that they assaulted and used criminal force upon the police officials; that they fired at the police party with an intention to kill them; that they committed mischief and burnt government gypsy, motorcycle; that they set the police post Yamuna Pushta on fire; that they [accused persons] committed the offence of mischief after having made preparation to cause hurt and death of police officials; that they caused disturbance to the public peace Sessions Case No. 30/2000 Page 10/ 40 11 despite their knowing that said assembly had been lawfully commanded to disperse and that they assaulted the police officials, when they were endeavouring to disperse the unlawful assembly. 4 All the accused pleaded not guilty to said charges and claimed trial.
5 After framing of charge, eight accused namely, Mohd. Saidul, Mohd. Aslam, Mohd. Zahirul Haq, Zuber Alam, Mohd. Shamshad, Jatan, Mohd. Kaleem and Abdul Qudus remained absent and they were also declared P.O. One accused namely, Sanwar also died after framing of charge.
6 Now, the case remains to be decided against 27 accused persons.
7 To prove its case, prosecution has examined 37 witnesses. They are Mohd. Sharif(PW-1), Dr. Anil Kumar Mittal(PW-2), SI Ram Chander(PW-3), Dr. M.S. Chopra(PW-4) Dr. Sumit Batra(PW-5), HC Dev Dutt(PW-6), Dr. P.K. Jain(PW-7), Mohan Lal(PW-8) Dr. P.K. Jain(PW-9) SI Naresh Kumar(PW-10) Constable Sahib Singh(PW-11) SI Satpal Singh(PW-12) Constable Yogender Kumar(PW-13) Constable Rajpal(PW-14) Constable Devki Nandan(PW-15) ASI Ramnath(PW-16) Constable Ramesh Kumar(PW-17) Constable Vikram(PW-18) Harish Kumar(PW-19) Constable Surender Singh(PW-20) Inspector Pradeep Kumar(PW-21) Constable Sessions Case No. 30/2000 Page 11/ 40 12 Ghanshyam(PW-22) Constable Satbir(PW-23) Gurnam Singh(PW-24) HC Neja Nand(PW-25) HC Jai Singh(PW-26) Constable Anil Kumar(PW-27) K.V. Singh(PW-28) ACP Rajpal Singh(PW-29) Inspector Suresh Kumar(PW-30) HC Megh Singh(PW-31) Inspector Sunder Singh(PW-32) Constable Vinod Kumar(PW-33), Dr. Himanshu Shekhar Mahapatra(PW-34), ASI Narender Singh(PW-35), Dr. Ajay Singh(PW-36) and Inspector Mahender Singh(PW-37). 8 Statements of accused U/S 313 CrPC have been recorded, wherein all the accused persons have denied the allegations of prosecution. They have stated that the present case is made against them by the police in order to cover the custodial death of innocent person Mohd. Mujahid at police post, as Inspector Pradeep Kumar had killed him [Mohd. Mujahid]. All the witnesses are police officials and are interested witnesses. True facts of the case have been deposed by PW-1 Mohd. Sharif, father of deceased Mohd. Mujahid. 9 Accused Dr. Shakeel has examined one witness in his defence. He is Mohd. Hashim [DW-1]. Accused Abrar Ahmed has examined Satto Yadav [DW-2]. Accused Shabbo has examined Mohd. Phool Hasan [DW-3]. Accused Siraj Khan has examined Rajender Kumar [DW-4]. Accused Ratan has examined Rajiv Kumar [DW-5]. Accused Ahmed Hasan Noori has examined Mohd. Siddiqui [DW-6]. Accused Hasimuddin has examined Gautam Sahai [DW-7]. Accused Sessions Case No. 30/2000 Page 12/ 40 13 Akram has examined Mohd. Mushir [DW-8] and accused Saira Bano has examined Suresh Kumar [DW-9] in her defence.
10 I have heard arguments from the ld. counsel for accused and ld. Addl. PP for State. I have also perused the case file. 11 In the present case, out of 37 witnesses PW-21 Inspector Pradeep Kumar is the star/material witness being the complainant. He is also the first I.O of the case. He has deposed that on 23.06.2000 at about 10:35 PM, he received a secret information from informer that two persons namely, Shah Alam and Ishaq Mullah were staying in a room in front of Mosque,Yamuna Pushta. Whenever these persons were seen, some untoward incident had taken place and these two persons might have connection with the bomb blast, which took place at Red Fort on 18.6.2000. He [PW21] recorded this information vide DD No. 27. He [PW-31] alongwith two constables namely, Constable Ramesh and Constable Surender and the informer, proceeded towards that room. On reaching that room, Ishaq Mulla was found present. It was revealed by Ishaq Mullah that his associate Shah Alam had gone outside. They interrogated him and searched the room. On checking, there were certain magazines and documents in the suitcase. They brought Ishaq to the police post for further verification. While he was making inquiry from Ishaq Mullah, about 50-60 persons collected outside the chowki. In the said crowd, accused Nazrul, Zahida Sessions Case No. 30/2000 Page 13/ 40 14 Khatoon, Sabir Pradhan, Abrar Pradhan, Dr. Shakeel and Kabir Pradhan were among those persons. These persons started raising alarm that police officials had done the Masjid Napak by entering in the Masjid while wearing shoes. He tried to make them understand that nothing like that had happened and they[the police] had only brought Ishaq Mullah from the room opposite mosque. In the meantime, Nazrul, Zahida Khatoon and Sabir Pradhan stated that announcement be got done from the mosque that police officials had done the Mosque Napak by entering wearing shoes and they made appeal to other Muslims to get collected and teach a lesson to police officials .The announcement was made accordingly from the three mosques of upper Yamuna Pushta, Dholak Basti and Indira Colony. It was appealed to surround the police chowki. Within 15-20 minutes about 500-600 persons collected with stones, bottles, kerosene oil etc. The abovesaid six persons were leading them. They shouted to take revenge. He [PW-21] informed SHO Kotwali through wireless message regarding the situation. At about 12.30 AM Inspector Suresh Sharma, who was looking after the work of SHO Kotwali, reached alongwith the staff. Inspector Suresh Sharma announced on the loud hailer and tried to control the situation. But, on the directions of abovesaid persons, the crowd started throwing stones. Inspector Suresh Sharma announced on the loud hailer that the assembly had Sessions Case No. 30/2000 Page 14/ 40 15 been declared unlawful and asked the mob to disperse otherwise the tear shells would be used. There was no effect of that announcement, on the crowd. Accordingly, Inspector Suresh directed Constable Rajpal to use small tear gas shells. Constable Rajpal used eight round of tear gas shells to disperse the mob. Upon that, the mob divided in two parts i.e.North and South side of the chowki. In the meantime, they [police] received information that more public persons had joined them. The abovesaid six persons again led the crowd and directed to put the chowki on fire. Accordingly, the crowd burnt one govt. gypsy, one govt. Enfield motorcycle and one govt. Hero Honda motorcycle. They also looted the articles of the chowki and also burnt the furniture lying in the chowki. In the meantime, sound of firing from the crowd was noticed. Inspector Sahab again announced on loud hailer regarding the assembly being unlawful and asked the crowd to disperse otherwise fire would be opened, but the crowd had no effect. Inspector Sahab fired four rounds from his service revolver one by one. On his [PW21's] direction, Constable Ranbir also fired four rounds. Upon that, the public started dispersing. 31 rioters out of the aggravated crowd were apprehended. The other SHOs alongwith staff and force had also reached the spot. The crowd again gathered. To control the crowd, SHO Subzi Mandi used three long range tear gas shells. ACP Kotwali also used three long Sessions Case No. 30/2000 Page 15/ 40 16 range tear gas shells and the situation was got controlled. The injured were removed to LNJP hospital. The injured police persons were also removed to different hospitals. On the spot, stones, bottles, dandas, weapons were lying. He [PW-21] deputed SI Ram Chander to safeguard the spot. He alongwith Inspector Suresh Sharma proceeded to LNJP hospital and collected MLCs of the injured persons. One unknown person was declared brought dead. He came back to the spot. The crime team and the photographer inspected the scene of the crime. He [PW-21] prepared Rukka Ex. PW1/A consisting of seven pages and handed over same to SI Ram Chander for registration of case. After the registration of the case, further investigation was assigned to SHO Inspector Suresh Sharma of PS Kotwali, who prepared the site plan ExPW2/B at his instance. The IO took into possession the damaged and burnt govt. vehicles and other articles, vide seizure memo Ex.PW21/C. The I.O also took into possession the burnt furniture comprising of the chair, table and other furniture vide seizure memo Ex.PW21/D. While running from the spot, the accused persons had left behind one .315 bore katta. On checking, the katta was found to contain one fired cartridge. The IO prepared the sketch of the katta and cartridge. The same is Ex.PW21/E. By the side of that katta, one dagger was also lying. The IO prepared the sketch of the dagger Ex. PW21/F. On further inspection of the spot, one more Sessions Case No. 30/2000 Page 16/ 40 17 katta was found lying by the side of the wall of the office of Flood Control, adjoining the police chowki. On checking the said katta, one mis-fired cartridge was found. The IO prepared the sketch of the second katta and cartridge. The same is Ex. PW21/G. The IO took into possession the pullandas, kattas, cartridges and dagger. The seizure memo of katta and fired cartridges is EX.PW21/H, the seizure memo of dagger is Ex.PW21/I and the seizure memo of katta and misfired and cartridge is Ex.PW21/J. The IO also picked up the pieces of the glass and the bricks alongwith the dandas from the spot and kept the same in gunny bags, which were sealed with the seal of SK and was seized by the IO vide memo Ex.PW21/K. From the rioters, 31 accused persons namely, Anwar, Mohd. Zamir Akhtar, Mansoor, Kalla, Babul, Ashamuddin, Nasir, Mohd. Shamim, Jattan, Mohd. Zahirulhaq, Modh. Qalim, Annul, Hakim, Hasimuddin, Mohd. Alam, Aklam, Sanwar Ali, Mohd. Shamshad, Ejjaul, Shah Nawar, Zuber Alam, Babul, Sattar, Yamin, Pappu, Yadul Shaikh Mohd Rias, Abdul Kadoos, Mohd. Saidul, Mohd. Saleem and Mohd. Aslam were apprehended on 24.06.2000 vide arrest memos Ex. PW21/L1 to Ex. PW21/L31. Their personal searches were conducted vide memos Ex. PW21/M1 to PW21/M31. The deceased was, later on, identified as Mohd. Mujahid. The IO got conducted the autopsy on the body of Mohd. Mujahid. The doctor of MAM College handed over to the IO Sessions Case No. 30/2000 Page 17/ 40 18 the blood sample of deceased, duly sealed with the seal of hospital alongwith the sample seal, which were taken into possession vide memo Ex.PW21/N. ASI Bhopal Singh produced one sealed pullanda, containing the clothes of the deceased, which were given to him in the hospital. The IO seized the same vide memo Ex.PW21/O. The IO deposited the case property and the exhibits in the malkhana and put the accused persons behind the bar. Thereafter, the accused persons were produced before the Ld. M. M. PW-21 has further deposed that on 25.6.2000 one private photographer Sh. Mohan had produced one video cassette. The IO seized the same vide memo Ex.PW8/A. PW- 21 has identified the case property i.e. cassette as Ex.P-1, kattas as Ex. P2 & Ex. P3, cartridges as Ex.P4 and & P5, dagger as Ex.P6, the pieces of glass and bricks as Ex.P7, five dandas as Ex. P8 to Ex. P12 [collectively], one burnt wireless set, burnt Quilt and other burnt articles as Ex.P13 [collectively], the chair, hard bed and cooler as Ex.P14 [collectively], Govt. gypsy as Ex. P-16 and Govt. Motorcycles as Ex. P17 and Ex. P18.
12 In the cross-examination by Sh. M. D. Jarjish and Sh. Rajat Srivastava, ld. counsels for all accused except accused Shabir Pradhan, Ainual, Alam Shamim and Sattar, PW-21 Inspector Pradeep Kumar has deposed that the information received by him was of serious nature. He had not sent that information to any senior Sessions Case No. 30/2000 Page 18/ 40 19 officer. The mosque upper Yamuna Pustha is located at the distance of 150 paces from the police post. The road adjoining the police post is a busy road and the passersby were coming and going. Many people were there when he reached in front of the room, opposite the mosque. He knew many respectable persons of the locality. He has denied that many people gathered, when he was going to Masjid alongwith constables. Nobody inquired from him as to why they were going to that room. He has admitted that he made no efforts to join a respectable person before raiding the room. The door was closed, when he reached the room. He knocked the door. It was opened by Ishaq Mullah. He brought Ishaq Mullah to police post. He made no DD entry after bringing the Ishaq Mullah to police post. He cannot tell where Ishaq Mulla is, at present. During the rioting, Ishaq Mullah was taken by the rioters. No separate FIR, regarding the escaping of Ishaq Mullah from our custody, was lodged. At about 11.00-11.15 PM, on 23.6.2000, the crowd gathered near the police post. At that time 50-60 persons were collected at the spot. At about 11.30 PM he heard the crowd regarding the making of announcement from different Masjid. After 5/7 minutes the said announcement was made from three different Masjids. At about 12.15 AM, SHO PS Kotwali, Sh. Suresh Yadav, reached at the spot. He briefed him regarding the situation in the police post. He [PW-21] himself had seen the crowd burning Sessions Case No. 30/2000 Page 19/ 40 20 the vehicles. The vehicles were lying near the chowki. The vehicles were burnt before the tear gas was used. After the use of tear gas, the mob was dispersed. Thereafter, the mob gathered again after 15-20 minutes. At about 1.00-1.15 AM police opened fire, and thereafter, the crowd was dispersed. PW-21 has further deposed that he cannot tell exactly, as to when the injured were taken to hospital from the spot. The injured including public persons were taken to hospital. He cannot tell their exact number. He collected MLCs of injured public persons. At about 6.30 AM in the morning, he prepared Rukka. It took him about 30-45 minutes in writing the rukka. Kattas and dagger were also recovered from the spot. No finger prints were taken from the recovered Kattas and dagger by him. He cannot say as to whether crime team took any finger prints. He cannot say, whether videography was of the live incident or it was taken afterwards. One of the injured person in the incident was declared brought dead in the hospital. PW-21 has further deposed that he has not seen any postmortem report or inquest report regarding the death of said person. The name of dead person was Mohd. Mujahid. He never saw deceased Mujahid at any point of time before the incident. PW-21 has further deposed that he cannot tell as to when accused Najrul, Zahida, Abrar and Dr. Shakil were arrested. He has Sessions Case No. 30/2000 Page 20/ 40 21 denied that aforesaid persons were not present at the spot or that they have been named in the present case being known to him [PW-21]. He has denied that there is no person with the name of Ishaq Mullah and therefore, there is no DD entry in that regard. He has further denied that the people had gathered outside the PP only to inquire about the death of innocent Mujahid, who was killed in police custody. He has denied that innocent Mujahid was killed in the custody while he [PW-21] was Incharge in the police post. PW-21 has denied that senior officers of the police had also gathered to inquire about the death of the innocent person. He has denied that crowd was shouting as to why he [PW-21] had killed an innocent person. He has also denied that in order to escape himself from law, he [PW-21] concocted a false story by misusing the situation, created by the public. PW-21 has also denied that senior police officers scolded him for killing innocent Mujahid. He has denied that senior police officers conceded to his plan in order to avoid embarrassment to the police force. He has denied that police burnt the vehicles to give a proper look of rioting. He also denied that the injuries upon police personnels were either self inflicted or occurred when they forcibly removed the peaceful people gathered at the spot to inquire about the death of innocent Sessions Case No. 30/2000 Page 21/ 40 22 person.
13 After going through the testimonies of other PWs examined by prosecution, I am of the considered view that PW-21 Inspector Pradeep Kumar is not trustworthy and reliable. The testimony of PW- 21 is not corroborated with the testimonies of other PWs on material particulars.
14 From the testimony of PWs it is not proved on record as to how many government gypsy and motorcycle were set on fire by the accused persons. PW-21 Inspector Pradeep has deposed that crowd had burnt one government gypsy and two government motorcycles. But PW-14 Constable Rajpal, who was present in the police post Yamuna Pushta on the relevant date, has deposed that at about 11:50 PM, 50-60 persons assembled in front of P.P Yamuna Pushta and started raising slogans against the police. He has further deposed that they [accused persons] had set a motorcycle of police and two police gypsy on fire.
15 From the testimony of PWs it is not proved on record as to what was the make of motorcycles allegedly burnt by the accused. PW-21 Inspector Pradeep Kumar has deposed that government motorcycles were of 'Enfield' and 'Hero Honda' make. But, PW-11 Constable Sahib Singh has deposed that motorcycles were of 'Hero Honda' and 'Bullet' make. Whereas, PW-16 ASI Ram Nath Sessions Case No. 30/2000 Page 22/ 40 23 has deposed in examination-in-chief that the agitating mob set on fire the government motorcycle of 'Rajdoot' make.
16 From the testimony of PWs it is not proved on record as to what were the registration numbers of motorcycle, which were allegedly burnt by the accused. PW-21 Inspector Pradeep has deposed that two Govt. Motorcycles bearing registration No.DL1SJ 8288 and DL1S 4867 were burnt. But PW-27 constable Anil Kumar has deposed that the rioters set on fire two government motorcycles bearing No. 8288 and 4866.
17 From the testimonies of PWs, it is not proved on record as to who set the government vehicles on fire. PW-1 Mohd. Sharif has deposed that he saw that some policemen were setting on fire one Bullet motorcycle, one gypsy and 2-4 other vehicles including rickshaw. The gypsy and motorcycles belonged to the police. But PW-21 Inspector Pradeep has deposed in cross-examination by ld. counsels Sh. M.D. Jarjish and Sh. Rajat Srivastava that he himself had seen the crowd burning the vehicles. Whereas, PW-23 Constable Satbir has denied that the mob had burnt the govt. vehicles or pelted stones and committed any riot. Similarly, PW-27 Constable Anil Kumar has also denied in cross-examination by ld. counsels Sh. M.D. Jarjish and Sh. Rajat Srivastava that the mob burnt the govt.
Sessions Case No. 30/2000 Page 23/ 40 24vehicles or pelted stones and committed any riot. 18 From the testimony of PWs it is not proved on record as to when Ishaq Mulla was allegedly brought in the police post by PW-21 for making enquiry. PW-21 Inspector Pradeep Kumar has deposed that on 23.06.00 at about 10:35 PM he received a secret information that two persons namely,Shah Alam and Ishaq Mulla were staying in a room in front of Mosque Yamuna Pushta. He recorded that information vide DD No. 27. He alongwith two Constables namely Constable Ramesh and Constable Surender and informer proceeded towards that room. On reaching that room, Ishaq Mulla was found present and it was revealed by Ishaq Mullah that his associate Shah Alam had gone outside. They brought Ishaq to the police post for further verification. In other words, as per the testimony of PW-21, it was only after 10:35 PM when he brought Ishaq Mulla in the police post for verification. But PW-22 Constable Ghanshyam, who was posted in police post Yamuna Pushta, has deposed in cross-examination by ld. counsel Sh. M.D. Jarjish and Rajat Srivastava that on 23.06.2000 his duty was from 8:00 AM to 8:00 AM. At about 4:00 PM on 23.06.00 he saw Ishaq Mulla in the chowki. He cannot tell whether Ishaq Mulla was arrested or not but, he had seen him in the police post. In other words, as per the testimony of PW-22, Ishaq Mulla was already present in the police Sessions Case No. 30/2000 Page 24/ 40 25 post Yamuna Pushta at about 4:00 PM and was not brought by PW-21. It is significant to note that PW-21 has received the secret information at 10:35 PM on 23.06.2000. The abovesaid contradiction is material one and thus, fatal to prosecution case. 19 From the testimony of PWs it is not proved on record as to how many accused persons were apprehended from the spot. PW-21 Inspector Pradeep Kumar has deposed that 31 rioters from the crowd were apprehended. But PW-12 SI Satpal has deposed in examination-in-chief that about 30 persons from the crowd were apprehended at the spot.
20 From the testimony of PWs it is not proved on record as to why the public had gathered on the relevant date outside the police post Yamuna Pushta. PW-1 Mohd. Sharif, who is the only public witness, examined by prosecution and the father of deceased Mujahid, has deposed that Mujahid was his son. On 24.06.00 at about 11:00/11:30 PM, he heard the noise, which was coming from the side of police post. He rushed towards the spot. He found 40-50 people collected there near the Masjid. People were shouting and raising slogans as to why innocent boy was beaten by police. He [PW-1] proceeded towards police post but was caught by the people. He [PW- 1] was told that his son had been killed and if he [PW1] proceeded further, he would also be killed. A police gypsy came in which Sessions Case No. 30/2000 Page 25/ 40 26 some senior officers were travelling. He [PW-1] saw that some policemen were setting on fire one Bullet motorcycle and one gypsy and two-four other vehicles including rickshaw. The said gypsy and Bullet motorcycle belonged to police. The gypsy in which some senior police officials were travelling, took his son to Kasturba Gandhi hospital. He wanted to rush to the hospital but was caught by people, who stated that police ahead was beating people. He [PW-1] did not believe those people and went to hospital alongwith his nephew Mohd. Imtiyaz. His nephew Parvez was also with him. He reached Kasturba Gandhi hospital and entered the Emergency. Police was there all around. Police tried to stop him but he forcibly entered and saw that his son's body was being wrapped in cloth by hospital staff. On seeing the face of dead body of his son, he cried. The police took his nephew Imtiaz. He [PW-1] asked senior police official as to why his nephew Imtiaz was taken away. The police officer promised him that they would release Imtiaz very soon. At about 2:00 PM he started making hue and cry for release of his nephew Imtiaz. Then, policemen made a telephone call and he [PW-1] was taken to P.S. Kotwali in a gypsy, where ACP Sehgal consoled him. After sometime, Imtiaz was brought. At that time, Imtiaz was limping. ACP had administered medicine to Imtiaz. At 4:00 AM, he [PW-1] went to hospital with Imtiaz, where Abdul Hasan, maternal Sessions Case No. 30/2000 Page 26/ 40 27 grandfather of his son met him. On receipt of telephonic message, he alongwith Imtiaz and Abdul Hasan reached P.S Kotwali, where his signatures were obtained on 2-3 papers. He identified the dead body of his son vide Ex. PW1/A. He received dead body of his son vide Ex. PW1/B. 21 In cross-examination by ld. counsel Sh. Mahipal, PW-1 has deposed that police firing had taken place near his house. His son Mujahid was taken away by police from front of his house. 22 In cross-examination by ld. counsel Sh. Rishi Pal Singh, PW-1 has deposed that senior police officials had come at the spot and rebuked SI Pradeep Kumar that he [SI Pradeep] had killed an innocent person. In other words, as per testimony of PW-1, the public had gathered at the spot to make enquiry about his son, Mujahid, who was killed by the police in the police post. 23 It is significant to note that the testimony of PW-1 is corroborated with the testimony of PW-2. He is Dr. Anil Kumar Mittal, who has conducted the postmortem on the dead body of Mohd. Mujahid, son of PW-1 on 24.06.2000. PW-2 has deposed that on 24.06.2000, he conducted postmortem on the dead body of Mohd. Mujahid son of Mohd. Sharif. The dead body was brought by Inspector Suresh Kumar P.S. Kotwali. The dead body was identified by Mohd. Sharif, father of deceased and Abdul Hasan, grandfather of Sessions Case No. 30/2000 Page 27/ 40 28 deceased. The detail postmortem report, running in five pages, is Ex. PW2/A. 24 As per the opinion given by PW-2, the deceased had died due to injuries No. 1 and 2. It is worth noting that injury No. 1 is a firearm entry wound 1.3 x 1.2 cm, which was present over the inner end of the right eyebrow and injury No. 2 was another firearm exit wound 2.0 x 1.8cm, which was present on the back of the head. A perusal of postmortem report Ex. PW2/A shows that rigor mortis was present all over the body of deceased Mohd. Mujahid. The probable time since death was about 12 hours. 25 It is significant to note that the presence of rigor mortis on all over the dead body of deceased Mujahid and the fact that the time since death about 12 hours, show that the deceased cannot be said to have died in the alleged incident. It can be stated with certainty that deceased Mujahid had died in the noon of 23.06.2000 because it takes time to develop the 'rigor mortis' on the dead body of a person and 'rigor mortis' do not occur instantly after the death of a person. 26 In the present case, it is the case of prosecution that PW-21 Inspector Pradeep Kumar brought one Ishaq Mulla, suspect of Bomb Blast at Red Fort, into chowki and was making enquiry from him. No explanation has been furnished by PW-21 Inspector Pradeep Kumar as to how the deceased Mohd. Mujahid had received firearm injury on his Sessions Case No. 30/2000 Page 28/ 40 29 body. He has simply deposed in his examination-in-chief that one unknown person was declared dead. The deceased was identified as Mohd. Mujahid. I.O got conducted the autopsy on the dead body of Mohd. Mujahid. In cross-examination by ld. counsel Sh. M.D. Jarjish and Sh. Rajat Srivastava, PW-21 has denied that the people had gathered outside the police post only to enquire about the death of innocent Mujahid, who was killed in police custody. 27 After going through the evidence on record, I am of the considered view that prosecution has miserably failed to prove that the accused, who were part of the mob, had gathered to lodge the protest as the police had made the Masjid Napak.
28 It is significant to note that PWs, examined by the prosecution have deposed differently as to how the Masjid was made Napak. PW-21 Inspector Pradeep Kumar has deposed that 50-60 persons, who had collected outside the police post Yamuna Pushta, started raising slogans that police officials had done the Masjid Napak by entering in the Masjid while wearing shoes. In other words, as per the testimony of PW-21, Masjid got napak as the police officials had entered the Masjid while wearing shoes. But PW-17 Constable Ramesh and PW-20 Constable Surender Singh, who were with PW-21, at the time of allegedly entering the Masjid, have deposed that the agitating mob was alleging that police officials Sessions Case No. 30/2000 Page 29/ 40 30 entered the mosque and mishandled the Quran with dirty hands. In other words, as per the testimony of PW-17 and PW-20, Masjid/Mosque got napak as police officials mishandled the holy 'Quran' with dirty hands. But PW-16 ASI Ramnath has deposed that on 23.06.2000 at about 10:30 PM, 200/250 persons came to police post. They were raising slogans 'hai-hai'. They [police] requested the people gathered there that if the police had done something wrong, they [police] would seek pardon in the morning and asked them to come in the morning but they[mob] said that the police persons have kicked the holy 'Quran'. In other words, as per the testimony of PW- 16, the persons who had collected outside the chowki had agitated on account of kicking of holy 'Quran' by the police persons and not for entering the Masjid wearing shoes or mishandling of Holy Quran with dirty hands.
29 On the other hand, it is proved on record by the prosecution that deceased Mujahid was brought by the police in the chowki. PW- 17 Constable Ramesh, who had allegedly gone with I.O PW-21 Inspector Pradeep Kumar on 23.06.2000 to the room, where Ishaq Mullah was present, has deposed in cross-examination by ld. legal aid counsel Sh. A.S. Rajput that the police had apprehended one person from jhuggi on that day and brought him to police post. Besides this, PW-18 Constable Vikram has also deposed in cross-examination Sessions Case No. 30/2000 Page 30/ 40 31 by counsel Sh. A.S. Rajput that on the day of occurrence, he was present at police chowki as he used to live in police chowki. He has categorically admitted that SI Pradeep Kumar had brought Mujahid for investigation. SI Pradeep Kumar was interrogating Mujahid in his office which is situated in police chowki itself. Thus, from the testimonies of PW-17 and PW-20, it is proved that deceased Mujahid was brought to police chowki by SI Pradeep Kumar and was interrogated. Therefore, the possibility of the death of deceased Mujahid while in police custody, cannot be ruled out, as time since the death of deceased was also about 12 hours as per postmortem report Ex. PW2/A as 'Rigor mortis' were also present all over the body of deceased.
30 It is significant to note that besides the aforesaid infirmities in the prosecution case, the accused have not been identified in the court by the PWs. PW-11 Constable Sahib Singh has deposed in examination-in-chief that there were 1000 public persons in the mob. He cannot say, if the accused persons, present in the court, were among those persons. PW-12 SI Satpal Singh has only identified accused Zahida Khatun, Dr. Shakeel, Shabir Pradhan, Abrar and Nazrul. Rest of the accused have not been identified by him. Similarly, PW-15 Constable Devki Nandan has identified only two accused persons i.e. Mazrul and Zahida Khatoon and rest of the Sessions Case No. 30/2000 Page 31/ 40 32 accused persons were not identified by him. PW-16 ASI Ramnath also could not specifically identify the accused persons. Even in cross-examination by ld. Addl. PP for State, PW-16 has failed to identify accused Mazrul Pradhan, Zahida Khatoon and Shabbir Pradhan by deposing that he cannot identify these accused persons as much time has elapsed to the occurrence. PW-17 Constable Ramesh Kumar has identified only accused Zahida Khatoon, Shabbir Pradhan, Shabbo, Ibrar Pradhan but, he could not tell the names of other accused. PW-25 HC Neja Nand has also not identified all the accused and identified only accused Zahida Khatoon and Mazrul Pradhan and Shabir. He has deposed that he cannot tell the names of other accused persons present in the court. PW-26 HC Jai Singh also could not tell the names of accused persons and only told the name of accused Zahida Khatoon only. It is worth noting that even the subsequent I.O. PW-30 Inspector Suresh Kumar has not been able to identify other accused except accused Shabbir Pradhan, Babul, Zahida Khatoon, Saira Bano, Shabbo, Abrar and Shakeel.
31 It is significant to note that prosecution has miserably failed to prove on record that kattas Ex. P-2 and Ex. P-3 and dagger Ex. P-6, allegedly left by the accused, were used by them in the commission of Sessions Case No. 30/2000 Page 32/ 40 33 offences. PW-30 Inspector Suresh Kumar has deposed that accused persons had left one katta while running away from the spot. The katta was containing one fired and one mis-fired cartridge. He prepared sketch of katta and cartridge vide Ex. PW21/E. He has further deposed that by the side of that katta, one dagger was also lying. He prepared the sketch of that dagger vide Ex. PW21/F. He has further deposed that on further inspection, one more katta was found lying by the side of the wall of the Office of Flood Control, adjoining the police chowki. He also prepared the sketch of that katta and cartridge vide Ex. PW21/G. He took into possession the pulandas,kattas, cartridges and dagger vide seizure memo Ex. PW21/H. In cross-examination by ld. counsel Sh. M.D. Jarjish and Sh. Rajat Srivastava, PW-30 has deposed that no finger prints or chance prints were taken from the revolver, dagger and kattas, recovered from the spot. It is worth noting that no explanation has been furnished by PW-30 as to why he did not take the finger prints and chance prints from the dagger, revolver and kattas recovered from the spot. No explanation on the part of I.O, casts a serious doubt about the truth in the prosecution story that accused have used those kattas and dagger on the police officials on the relevant date.
32 In the present case, prosecution has examined Mohan Lal[PW-8]. He is photographer by profession. He has prepared one Sessions Case No. 30/2000 Page 33/ 40 34 video cassette to cover the incident in question. PW-8 Mohan Lal has deposed that on the intervening night of 23/24.06.2000 a police vehicle came to his house and took him to Yamuna Pushta. He went to the spot. On the direction of police, he made videography of the scene of crime through his video camera. He handed over video cassette to the police, which was taken into possession by police vide memo Ex. PW8/A. 33 PW-30, Inspector Suresh Kumar who is the second I.O of this case has deposed that photographer Mohan lal was called at the spot after the incident. In cross-examination by ld. counsel Sh. A.S. Rajput, PW-30 has deposed that he [PW-30] had called the photographer for covering the incident when it was over. 34 PW-13 Constable Yogender Kumar has also taken 31 photographs of the scene of crime from different angles. The photographs are Ex. PW13/1 to Ex. PW13/31. In cross-examination by ld. counsel for accused, PW-13 has deposed that he reached police post Yamuna Pushta at about 1:30 AM and remained there for about one hour. He did not see public persons committing riot. 35 Since PW-8 Mohan Lal and PW-13 Constable Yogender have done the photography and videography of the scene of crime after the incident was over, I am of the considered view that video cassette seized by the I.O vide seizure memo Ex. PW8/A and Sessions Case No. 30/2000 Page 34/ 40 35 photographs Ex. PW13/1 to Ex. PW13/31 are of no avail to the prosecution.
36 In the present case, some of the accused have also received injury in the incident and they were medically examined at the hospital. PW-7 Dr. P.K. Jain, Hindu Rao Hospital has identified the writing and signature of Dr. V. Sharma, who prepared the X-Ray reports of Mohd. Qudus, Babul and Kala. X-Ray reports are Ex. PW7/A to Ex. PW7/C. 37 PW-9 Dr. P.K. Jain has also identified the signature and handwriting of Dr. Vimal Sharma, who has prepared the X-Ray reports of accused Shanawaz, Zamil Akhtar and accused Pappu Khan. The X- Ray reports of accused are Ex. PW9/A to Ex. PW9/C respectively. 38 In the present case, two gunny bags were produced in an unsealed condition during trial. The said bags were containing pieces of glasses and bricks, which are collectively exhibited as Ex. P7. Five dandas were produced by MHC[M] in an unsealed condition during statement of PW-30. Dandas are collectively exhibited as Ex. P8 to Ex. P12.
39 In Mobin Fathu Mulani V. NCB, 2001 [1] JCC {Delhi} 337, it was observed that the case property was tied with only a string and the possibility of tampering the case property cannot be ruled out. It was demonstrated before the special court that the Sessions Case No. 30/2000 Page 35/ 40 36 seized substance preserved in the cardboard box could be taken out from the box without disturbing the paper slip and seals affixed on the box. In this view of the matter, the possibility of tampering with the recovered substance cannot be ruled out. It is difficult to conclude with certainty that what has been examined by CFSL is the one which was recovered from the accused. 40 Since case property Ex. P-7 and Ex. P-8 to Ex. P-12 has been produced in court in an unsealed condition, I am of the considered view that possibility of tampering with the case property cannot be ruled out in this case also, in view of the judgment of Hon'ble Delhi High Court in the above referred case.
41 It is worth noting that PW-21 Inspector Pradeep Kumar did not carry any weapon, when he went to conduct the raid in the room in front of Mosque, Yamuna Pushta after receiving the information from secret informer, despite the fact that the information received by him was of serious nature. He [PW-21] did not prefer to join any respectable person of the locality before conducting the raid at the room of Ishaq Mullah despite the fact that many people were present there as he has categorically admitted in the cross- examination that he made no efforts to join the respectable person before conducting the raid on the room. He did not make any DD entry after bringing Ishaq Mullah to police post. No explanation Sessions Case No. 30/2000 Page 36/ 40 37 has been furnished by PW-21 for not making an entry, when he brought Ishaq Mullah to police post, who was alleged to be the suspect of bomb blast, which had taken place at Red Fort on 18.06.2000. All these infirmities in prosecution case are material ones and cannot be ignored while appreciating evidence. 42 In the present case, the allegations against the accused persons are that they were the members of unlawful assembly .
The term 'unlawful assembly' has been defined in Section 141 of Indian Penal Code, which interalia is reproduced here for ready reference:-
"An assembly of five or more persons is designated an "unlawful assembly" if the common object of the persons composing that assembly is--
First.--To overawe by criminal force, or show of criminal force, the Central or any State government or Parliament or the Legislature of any State, or any public servant in the exercise of the lawful power of such public servant; or Second.--To resist the execution of any law or of any legal process Thirdly.- to commit any mischief or criminal trespass, or other offence; or Sessions Case No. 30/2000 Page 37/ 40 38 Fourthly.-- By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or Fifthly.-- By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.
In Kashi Ram V. State of M.P. 2002 (II) Criminal Reporter Judgments 432 (SC) it was inter-alia held that assembly of persons, acting in exercise of right of private defence, cannot be unlawful assembly.
In K. Neelakantha V. State of A.P. AIR 1978 S.C 1021 it was held that where the assembly exercises the right of private defence, the object is not unlawful.
43 In the present case, after going through the above mentioned contradictions in the testimonies of PWs and several infirmities and pitfalls in the prosecution case, I am of the considered view that the prosecution has miserably failed to prove beyond reasonable doubt that the accused were the members of unlawful assembly. It is also not Sessions Case No. 30/2000 Page 38/ 40 39 proved on record that as to what law or legal process or power the police party was exercising on the relevant day as public servant. 44 Prosecution has to prove its case beyond reasonable doubt.
In Harcharan Singh and another V. State of Haryana, AIR 1974 SC 344, it was held that the function of the court in a criminal trial is to find whether the person arraigned before it, as the accused is guilty of the offence with which he is charged. For this purpose, the court scans the material on record to find whether there is any reliable and trustworthy evidence upon the basis of which it is possible to find the conviction of the accused and to hold that he is guilty of the offence, with which he is charged. If in a case, the prosecution leads two sets of evidence each one of which contradicts and strikes at the other and shows it to be unreliable, the result would necessarily be that the court would be left with no reliable and trust worthy evidence upon which the conviction of accused might be based. Inevitably the accused would have the benefit of such a situation.
In Jagdish Prasad V. State of M.P, AIR 1994 SC 1251:
1994, Cr.L. J 1106, it was held that when testimony of eye witness is doubted with grave suspicion and discrepant in material particulars, recording of conviction on that basis is not proper.Sessions Case No. 30/2000 Page 39/ 40 40
45 In view of the above discussion, I am of the considered view that prosecution has miserably failed to prove its case beyond reasonable doubt against the accused persons. Accordingly, all accused are acquitted of offences, they were charged with. 46 In this case, all accused are on bail. Their personal bonds and surety bonds are cancelled. Their sureties are discharged.
File be consigned to Record Room Announced in the open court today on 27.09.10 (Smt. Bimla Kumari) Additional Sessions Judge(North) Tis Hazari Courts, Delhi.
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