Delhi District Court
State vs Babu @ Sahil And Others on 20 November, 2023
CNR No. DLNE01-000477-2021
State v. Babu @ Sahil etc.
SC No.52/21, FIR No. 82/20, PS Gokalpuri
Judgment dated 20.11.2023
DLNE010004772021
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 3-6
3 Charges 7
4 Description of Prosecution Evidence 8-20
5 Plea of accused under Section 313 Cr.P.C. 21
6 Arguments of Defence 21
7 Arguments of Prosecution 22
APPRECIATION OF FACTS AND EVIDENCE
8 Unlawful Assembly and Riot 22-24
9 Identification of accused 25-28
10 Conclusion and Decision 28
Digitally signed
by PULASTYA
PULASTYA PRAMACHALA
PRAMACHALA Date:
Page 1 of 28 (Pulastya Pramachala)
2023.11.20
13:22:05 +0530
ASJ-03, North-East District,
Karkardooma Courts, Delhi
CNR No. DLNE01-000477-2021
State v. Babu @ Sahil etc.
SC No.52/21, FIR No. 82/20, PS Gokalpuri
Judgment dated 20.11.2023
Sessions Case No. : 52/2021
Under Section : 143/147/148/380/436/454 IPC read with
Section 149 IPC as well as Section 188
IPC.
Police Station : Gokalpuri
FIR No. : 82/2020
CNR No. : DLNE010004772021
In the matter of: -
STATE
VERSUS
1. BABU @ SAHIL
S/o. Sh. Rakesh Sharma,
R/o. H.No. D-138, Gali No.11,
Bhagirathi Vihar, Delhi;
2. DINESH YADAV @ MICHAEL
S/o. Sh. Jagannath Yadav,
R/o. H.No. E-22, Gali No.3,
Bhagirathi Vihar, Delhi;
3. TINKU
S/o. Sh. Ashok Kumar,
R/o. H.No. E-51/2, 1st Floor,
10 Feet Gali, Bhagirathi Vihar, Delhi;
4. SANDEEP @ MOGLI
S/o. Late Dalveer Singh,
R/o. H.No. E-24, Gali no.3,
Bhagirathi Vihar, Delhi;
5. GOLU KASHYAP @ SONU
S/o. Late Sh. Chanderpal,
R/o. H.No. E-87, Main Nala Road,
Bhagirathi Vihar, Delhi;
6. VIKAS KASHYAP,
S/o. Late Sh. Chanderpal,
R/o. H.No. E-87, Main Nala Road,
Bhagirathi Vihar, Delhi; &
Digitally signed
by PULASTYA
Page 2 of 28 PULASTYA
(Pulastya Pramachala)
PRAMACHALA
PRAMACHALA Date: 2023.11.20
ASJ-03, North-East District,
13:22:20 +0530
Karkardooma Courts, Delhi
CNR No. DLNE01-000477-2021
State v. Babu @ Sahil etc.
SC No.52/21, FIR No. 82/20, PS Gokalpuri
Judgment dated 20.11.2023
7. ASHOK @ TIKKI WALE KA LADKA,
S/o. Sh. Rajendra,
R/o. H.No. E-87/4, Gali No.4,
Bhagirathi Vihar, Delhi.
...Accused persons
Complainant: SH. SALMAN MALIK
S/o. Sh. Iliyas,
R/o. A-175, Gali No.3,
Gurunanak Nagar, Mustafabad,
Delhi-94.
Having his Shop at E-78, Main
Nala Road, Bhagirathi Vihar,
Delhi.
Date of Institution : 15.06.2020
Date of reserving judgment : 07.11.2023
Date of pronouncement : 20.11.2023
Decision : Acquitted.
(Section 437-A Cr.P.C. complied with by 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 147/148/149/380/427/452/457/436/188 IPC.
2. Brief facts of the present case are that on 02.03.2020 present FIR was registered at PS Gokalpuri, pursuant to receipt of a written complaint dated 29.02.2020 (received vide DD No.8-A) from one Salman Malik, S/o. Sh. Iliyas, R/o. A-175, Gali No.3, Gurunanak Nagar, Mustafabad, Delhi-94. This complaint was given in respect of loot, vandalism and arson. In his complaint, complainant Salman Malik alleged that he was running his shop Digitally signed Page 3 of 28 by PULASTYA (Pulastya Pramachala) PULASTYA PRAMACHALA ASJ-03, North-East District, PRAMACHALA Date: 2023.11.20 Karkardooma Courts, 13:22:31 Delhi +0530 CNR No. DLNE01-000477-2021 State v. Babu @ Sahil etc. SC No.52/21, FIR No. 82/20, PS Gokalpuri Judgment dated 20.11.2023 meant for selling and purchase of old TV, LED, LCD and old water geyser, which was situated at E-78, Main Nala Road, Bhagirathi Vihar, Delhi. It was further alleged that on 23.02.2020, due to bad situation in the area, he closed his aforesaid shop and returned back to home. Complainant Salman Malik further alleged that in the evening of 25.02.2020, rioters looted and set ablaze his aforesaid shop and he suffered loss up to Rs.4-5 lakh. Complainant Salman Malik further alleged that he was also having clip of video recording and photo.
3. Thereafter, aforesaid complaint was marked to Insp. Bineet Kumar Pandey for necessary action on 29.02.2020. Insp. Bineet Kumar Pandey endorsed the complaint on 01.03.2020 to Duty Officer to register a case u/s.147/148/149/380/427 IPC and to hand over the further investigation of the present case to SI Ashish Garg.
4. During the course of investigation, on 02.03.2020 after receipt of copy of FIR and original complaint from the Duty Officer along with certificate under Section 65-B of I.E. Act, IO/SI Ashish Garg prepared site plan and recorded statement under Section 161 Cr.P.C. of complainant Salman Malik. On 13.03.2020, IO along with Ct. Vipin visited E-78, Main Nala Road, Bhagirathi Vihar, Delhi-94, where District Mobile Crime Team came on his information. Scene of crime/spot of incident was inspected by ASI Mahaveer (Finger Print Proficient) and Ct. Vikas Tomar.
Finger prints were searched and photographs of scene of crime were taken from all angles by Ct. Vikas Tomar. The ash was seized vide a seizure memo and taken into police possession.
Digitally signed by PULASTYA Page 4 of 28 PULASTYA (Pulastya Pramachala) PRAMACHALAASJ-03, North-East PRAMACHALA Date: District, Karkardooma Courts, Delhi 2023.11.20 13:22:43 +0530 CNR No. DLNE01-000477-2021 State v. Babu @ Sahil etc. SC No.52/21, FIR No. 82/20, PS Gokalpuri Judgment dated 20.11.2023 During further investigation on 15.03.2020, IO visited aforesaid spot and conducted enquiry from the neighbours of complainant Salman Malik. During enquiry a person namely Nisar Ahmad stated that he was present at his house bearing E-61/1, Bhagirathi Vihar, Main Nala Road, and had seen the persons, who had burnt the house and shop of Iliyas and his son Salman and other shops. Nisar Ahmad also told IO that he had made the video of the rioters in his mobile phone. He mailed the video to IO from email [email protected]. Nisar Ahmad named accused Sahil @ Babu, Vikas Kashyap, Golu Kashyap, Michael, Mogli, Tinku, Ashok and others. IO recorded statement under Section 161 Cr.P.C of Nisar Ahmad. IO circulated that video to secret informers.
5. During further investigation on 19.03.2020, IO interrogated and formally arrested accused Babu @ Sahil in the present case. This accused was already arrested on 18.03.2020 by IO in FIR No.106/20, PS Gokalpuri and this accused had confessed his involvement in the incident of the present case. IO obtained copy of his age verification report and CDR report in respect of mobile phone of this accused.
6. During further investigation, IO with discussion and permission with senior officer, interrogated and formally arrested accused Dinesh Yadav @ Michael in the present case. This accused was arrested on 03.06.2020 in FIR No.78/20, PS Gokalpuri.
7. After completion of investigation, on 15.06.2020 a chargesheet was filed by IO before Duty MM (North East), Karkardooma Courts, Delhi, against accused Sahil @ Babu and Dinesh Yadav Digitally signed by PULASTYA Page 5 of 28 PULASTYA (Pulastya Pramachala) PRAMACHALA PRAMACHALA ASJ-03, North-East District, Date: 2023.11.20 13:22:55 Karkardooma +0530 Courts, Delhi CNR No. DLNE01-000477-2021 State v. Babu @ Sahil etc. SC No.52/21, FIR No. 82/20, PS Gokalpuri Judgment dated 20.11.2023 @ Micheal, for offences punishable under Section 147/148/149/380/427/436 IPC. On 09.11.2020 a supplementary chargesheet along with complaint under Section 195 Cr.P.C. and other documents, was filed by IO before ld. CMM (N/E). In this supplementary chargesheet, IO impleaded additional accused persons namely Tinku and Sandeep @ Mogli for aforesaid offences. He also added Section 188/452/457 IPC. Thereafter, ld. CMM (N/E) took cognizance of offences punishable under Section 147/148/149/188/436/427/452/457/ 380 IPC vide order dated 07.12.2020. Thereafter, case along with first supplementary chargesheet was committed to the court of sessions on 06.01.2021.
8. On 08.06.2022 another supplementary chargesheet impleading two additional accused persons namely Golu Kashyap @ Sonu and Vikash Kashyap, alongwith other documents as well as CD containing footage of riots downloaded through email, with certificate u/s. 65-B of I.E. Act, was filed before ld. CMM, North East District, Karkardooma Court, Delhi. This supplementary chargesheet was sent to the court of sessions vide order dated 04.08.2022.
9. On 13.10.2022 subsequent supplementary chargesheet along with copy of prohibitory order u/s. 144 Cr.P.C, another complaint u/s. 195 Cr.P.C. as well as other documents, was filed directly before this court. Thereafter, subsequent supplementary chargesheets impleading one additional accused namely Ashok along with other documents, were filed before ld. CMM (N/E), which were also sent to the court of sessions.
Digitally signed by PULASTYA PULASTYA PRAMACHALA
Page 6 of 28 PRAMACHALA
(Pulastya
Date: Pramachala)
2023.11.20
ASJ-03,13:23:06
North-East District,
+0530
Karkardooma Courts, Delhi
CNR No. DLNE01-000477-2021
State v. Babu @ Sahil etc.
SC No.52/21, FIR No. 82/20, PS Gokalpuri Judgment dated 20.11.2023 CHARGES: -
10. On 26.08.2021, charges were framed against accused Dinesh Yadav @ Michael, Sahil @ Babu, Sandeep @ Mogli and Tinku for offences punishable under Section 143/147/148 IPC read with Section 149 and 188 IPC as well as for offences punishable under Section 454/380/436 IPC read with Section 149 IPC, to which they pleaded not guilty and claimed trial. Thereafter, on application u/s 216 Cr.P.C. as moved by ld. S.P.P., amended charges were framed against accused Sahil, Dinesh, Sandeep @ Mogli, Tinku, Sonu @ Golu Kashyap, Vikas Kashyap and Ashok, for offences punishable under Section 143/147/148/454/380/436 read with Section 149 IPC as well as 188 IPC. The amended charges were framed in following terms: -
"That during the intervening night of 24/25.02.2020 and onwards, in and around the area of Nala road, Bhagirathi Vihar, Delhi-94 within the jurisdiction of PS Gokalpuri, all of you alongwith your other associates (unidentified) from Hindu community formed an unlawful assembly, the object whereof was to commit robbery and arson in the shops, houses and other properties of the persons from Muslim community, by the use of force or violence in prosecution of the common object of such assembly and in violation of the Proclamation issued under Section 144 Cr.P.C by the competent authority; and you all committed rioting and you all knew being members of the aforesaid unlawful assembly that an offence was likely to be committed in prosecution of that common object; and thus, you all committed offences punishable under Section(s) 143/147/148 IPC read with Section 149 IPC and Section 188 IPC and within my cognizance.
Secondly, during the intervening night of 24/25.02.2020, at Shop No.E-78, main Nala Road, Bhagirathi Vihar, Delhi-94, this mob including you all accused persons committed lurking house-trespass in the aforesaid shop, belonging to complainant Salman Malik, S/o Shri Illiyas to commit offences; and the mob committed theft of various articles lying therein and thereafter also committed mischief by fire or explosive substance with the intent to destroy the aforesaid shop of said complainant; and thereby you all committed offences punishable under Section (s) 454/380/436 IPC read with Section 149 IPC and within my cognizance."Digitally signed by PULASTYA Page 7 of 28 PRAMACHALA
PULASTYA (Pulastya Pramachala) PRAMACHALA ASJ-03,Date:
North-East District, 2023.11.20 Karkardooma 13:23:17Courts, +0530 Delhi CNR No. DLNE01-000477-2021 State v. Babu @ Sahil etc. SC No.52/21, FIR No. 82/20, PS Gokalpuri Judgment dated 20.11.2023 DESCRIPTION OF PROSECUTION EVIDENCE: -
11. Several witnesses were dropped on the basis of admission of documents under Section 294 Cr.P.C. and prosecution examined 9 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/ASI On 02.03.2020, being Duty Officer Ex.PW1/A Rakesh from 12 o'clock midnight up to 8 AM (FIR); & Kumar at PS Gokalpuri, he registered FIR in Ex.PW1/B the present case, on the basis of rukka (Endorsement received from Insp. Bineet Pandey at of PW1 on about 06:25 AM. Thereafter, PW1 the back side handed over original rukka and copy of of tehrir/ the FIR to SI Ashish Garg. rukka). PW1 identified his endorsement on rukka from point X to X, bearing his signature at point Y. PW1 identified his signature at point A on the FIR.
PW2/ASI On 13.03.2020, he was posted as ASI Ex.PW2/A Mahavir in Mobile Crime Team, North East (Inspection District, Delhi. On that day, on receipt report of an instruction from control room, prepared by PW2 reached E-78, Main Nala Road, PW2) Bhagirathi Vihar in the area of Gokalpuri, Delhi and met PSI Ashish Garg at that place. PW2 was also accompanied by Ct.Vikas Tomar, a photographer, who took photographs. During that night at his office, PW2 prepared his report regarding inspection of aforesaid place and subsequently same was handed over to PSI Ashish Garg. PW2 identified his signature at point X on his report. No chance prints were lifted from the shop. PW3/ He was complainant of the present case and was Salman resident of A-175, Gali No.3, Mustafabad, Delhi.
Malik On 24.02.2020, at 02:00 PM, PW3 had closed his shop
Page 8 of 28 (PulastyaDigitally signed
Pramachala)
by PULASTYA
ASJ-03, North-East
PULASTYA District,
PRAMACHALA
PRAMACHALA
Karkardooma Courts,
Date: Delhi
2023.11.20
13:23:29 +0530
CNR No. DLNE01-000477-2021
State v. Babu @ Sahil etc.
SC No.52/21, FIR No. 82/20, PS Gokalpuri Judgment dated 20.11.2023 Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties of TV repair, sale and purchase of old TV etc., which was situated at E-78, Bhagirathi Vihar, Main Nala Road, and went back to his aforesaid home. On 25.02.2020, at about 10-11 AM, PW3 had received a telephonic call from one Nisar that aforesaid shop of PW3 was being looted and was burnt after the loot. PW3 had also made call at 100 number. Nisar was neighbour to aforesaid shop of PW3. Nisar had also informed PW3 that he had video of vandalism and arson of the shop of PW3. After about 2-3 days, PW3 came to his aforesaid shop and found that all the articles of his shop were damaged and burnt along with his shop. After about 3-4 days, PW3 visited PS Gokalpuri and made his oral complaint, which was recorded by police. Younger brother of PW3, namely Jishan had taken photographs of aforesaid shop through his mobile phone, after 2-3 days from 25.02.2020, in his presence. PW3 had given a written complaint to police, which was written by his brother Imran. PW4/Illyas He was father of complainant Salman Malik (PW3) and was resident of A-175, Gali No.25/3, Guru Nanak Nagar, Mustafabad, Delhi.
On 24.02.2020, due to atmosphere of tension, PW4 made telephonic call to his son Salman to call him back. When call was not connecting PW4 sent his younger son Zishan to the shop of Salman situated in E- Block, Main Nala Road, Bhagirathi Vihar. Thereafter, Salman and Zishan came back to home till about 5-6 PM.
On 25.02.2020 at about 10 AM, Zishan received a telephonic call from some boy, who informed that shop of Salman was being looted and Zishan informed PW4 about the same.
On 28.02.2020, PW4 visited shop of Salman alone and found articles of his shop lying in burnt condition on the road and his shop was also in burnt condition. PW4 took photographs of his shop through his mobile phone make Samsung and got the print of the same through a Digitally signed Page 9 of 28 by PULASTYA (Pulastya Pramachala) PULASTYA PRAMACHALA ASJ-03, North-East District, PRAMACHALA Date: Courts, Delhi Karkardooma 2023.11.20 13:23:38 +0530 CNR No. DLNE01-000477-2021 State v. Babu @ Sahil etc. SC No.52/21, FIR No. 82/20, PS Gokalpuri Judgment dated 20.11.2023 Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties shop and handed over the same to Ashish Garg, IO of this case.
PW5/ He was residing at A-175, Gali no.3, Guru Nanak Zishan Nagar, Mustafabad for about last 8 years. His brother Salman was running a shop of repair of TV, fridge, A/C etc. and their sale/purchase, which was situated at E-78, main nala road, Bhagirathi Vihar, Delhi. That shop was looted and set ablaze during the riots taken place in Delhi on 25.02.2020.
On 25.02.2020 at about 10-11 AM, when PW5 was present at his home, he received a telephonic call on his mobile no. 8447583577 from Nisar Ahmed. Salman was also present at home. Mr. Nisar Ahmed was neighbour to aforesaid shop. On receipt of aforesaid call, PW5 had given phone to his father and his father had conversation with Nisar Ahmed. Thereafter, his father informed that aforesaid shop of Salman was being vandalized and set ablaze. Using phone of PW5 itself, his father made call to police at 100 number. PW6/ On 24.02.2020, PW6 was at his home Ex.PW6/A Nisar bearing E-61/1, main Nala Road, (certificate Ahmed Bhagirathi Vihar, Delhi, since morning u/s.65-B of till evening. PW6 had come out of his I.E. Act of home on that day at about 3 PM and PW6); came back in 20 minutes and thereafter, Ex.PW6/ PW6 did not come out of his home. Article-1 PW6 had recorded one video from (CD balcony of his house on the 1st floor, on containing 24.02.2020 somewhere between 6-7 aforesaid PM. PW6 had recorded video of video); & persons assembling near his house on main nala road at that time. They were Ex.PW6/V-1 intercepting passersby and were (video file assaulting them. PW6 had recorded 2 having videos at that time and thereafter, PW6 particulars as had prepared another video on 'VID 25.02.2020 at about 9-10 AM. PW6 20200226-
had given all those 3 videos to the WA0033 of police on their demand subsequently, total time Digitally signed Page 10 of 28 (Pulastya Pramachala) by PULASTYA PULASTYA ASJ-03, North-East PRAMACHALADistrict, PRAMACHALA Karkardooma Date:Courts, Delhi 2023.11.20 13:24:01 +0530 CNR No. DLNE01-000477-2021 State v. Babu @ Sahil etc. SC No.52/21, FIR No. 82/20, PS Gokalpuri Judgment dated 20.11.2023 Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties through E.mail to Ashish Garg. PW6 duration 41 had recorded those videos through his seconds) mobile phone make Realme. There were shops near his aforesaid house, including a shop of manufacturing scissor, TV repair shop and one scrap dealer. Salman used to sit in TV repair shop and PW6 knew him and his family. PW6 had seen incident taking place in the shop of Salman on 25.02.2020 during morning hours. On 25.02.2020 at about 9-10 AM, a mob of around 100-200 persons, was looting the articles from the shop of Salman. They were also vandalizing the shop. PW6 was present in the balcony of his house and asked them not to do so and he had also recorded video of that incident, which was also sent to Ashish Garg. The persons in the mob did not listen to PW6, rather they came to home of PW6 also and broke open the gate and shutter of his house. PW6 had, therefore, gone inside his house and made call at 100 number. PW6 had made call to father of Salman also and informed him about incident at aforesaid shop. By that time, shop of Salman was being vandalized only and it was not set ablaze. However, when part of that mob broke open shutter of house PW6, thereafter, that mob set fire in the house of PW6 as well as in the shop of Salman. PW6 had gone to the terrace of his house and was seeing such things. He knew about 10-12 persons in the aforesaid mob, which indulged into incident at the shop of Salman and thereafter, in his house.
Digitally signed by PULASTYA Page 11 of 28 PULASTYA(Pulastya Pramachala) PRAMACHALAASJ-03, North-East PRAMACHALA Date: District, Karkardooma Courts, Delhi 2023.11.20 13:24:13 +0530 CNR No. DLNE01-000477-2021 State v. Babu @ Sahil etc. SC No.52/21, FIR No. 82/20, PS Gokalpuri Judgment dated 20.11.2023 Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties PW6 identified accused Michael, Mogli, Tinku, Babu and Ashok by their names, in the court.
On 15.03.2020, PW6 had gone to PS Gokalpuri and he was being shown video by the police, which was recorded by PW6 and PW6 pointed out to accused Michael, Mogli, Tinku, Babu and Sonu, except Gaurav who was not appearing in the video. PW6 had been told about name of accused Ashok by police in that video and PW6 told police that he knew accused Ashok by face.
PW6 was called by police 2-3 times. Shop of Salman was situated in E-78, main nala road, Bhagirathi Vihar. The persons in aforesaid mob were carrying iron rod, danda etc. The aforesaid video sent through email by his son, was sent using email ID created by his son and it had number 562 therein. PW6 had not made any tampering in that video after recording the same before sending it to Ashish Garg. PW6 also identified accused Vikas, but he stated that accused Vikas was not in the video of the mob at the time of incident in the shop of Salman, though he was present in that mob. PW6 knew accused Vikas by his name, since prior to riots. PW6 had told his name before police, as member of the mob at the time of incident in the shop of Salman. PW6 had also seen accused Golu in the mob at the time of incident at the shop of Salman and identified accused Golu before the court.
PW6 identified his signature at circle X Digitally signed Page 12 of 28 by Pramachala) (Pulastya PULASTYA PULASTYA PRAMACHALA ASJ-03, North-East District, PRAMACHALA Date:
Karkardooma Courts, Delhi 2023.11.20 13:24:23 +0530 CNR No. DLNE01-000477-2021 State v. Babu @ Sahil etc. SC No.52/21, FIR No. 82/20, PS Gokalpuri Judgment dated 20.11.2023 Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties on certificate u/s 65B of IE Act.
During his examination a parcel bearing endorsement of FSL No. 'SFSLDLH/13208/CO/2171/22' and annexure CD-1 was taken out from the record. The parcel was sealed with seal of 'FSL DELHI CFD'. One CD was taken out from the same bearing same FSL number. Video file having particulars as 'VID 20200226-WA0033 was played before PW6. Total time duration of this video was 41 seconds. PW6 identified that video to be the same, which was recorded by him during incident taken place in the shop of Salman.
PW6 had pointed out to accused Ashok at the time line of 00.06 wearing red colour Sweat shirt and black colour pant, accused Michael at the time line of 00.21 wearing grey/black colour Sweat shirt with lower, accused Mogli at the time line of 00.21 wearing dark red colour shirt with white pant, accused Ashok at the time line of 00.34 wearing red colour sweat shirt with black pant, accused Mogli at the time line of 00.34 wearing dark red colour shirt with white pant, accused Tinku at the time line of 00.40 wearing black colour half T-shirt with blue jeans and a danda in hand.
PW7/HC On 13.03.2020, he was posted as Ex.PW7/A Vikas Constable and photographer in mobile (certificate Tomar crime team (NE), Delhi and had u/e. 65-B of accompanied I/C ASI Mahavir to E-78, I.E. Act); & main nala road, Bhagirathi Vihar, Ex.PW7/P-1 Delhi. There was a shop in this to property. At the instance of IO/PSI Digitally signed Page 13 of 28 (Pulastya Pramachala) by PULASTYA PULASTYA PRAMACHALA ASJ-03, North-East District, PRAMACHALA Karkardooma Date:Courts, Delhi 2023.11.20 13:24:33 +0530 CNR No. DLNE01-000477-2021 State v. Babu @ Sahil etc. SC No.52/21, FIR No. 82/20, PS Gokalpuri Judgment dated 20.11.2023 Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties Ashish Garg, PW7 took 6 photographs Ex.PW7/P-6 of the shop and prints of those (photographs photographs were prepared through clicked by Private Lab. PW7) PW7 prepared a certificate regarding those photographs, bearing his signature at circle X. PW8/HC On 24.02.2020, an order passed by DCP, North East u/s Pradeep 144 Cr.PC was received through Dak in the morning.
PW8 being Reader to SHO, showed that order to SHO. Thereafter, on the directions of SHO, PW8 obtained loud hailer from malkhana and announced the proclamation u/s. 144 Cr.P.C. in the jurisdictional area of PS Gokalpuri i.e. Johripur Extension, Ganga Vihar, Chaman Park, Indira Vihar, Bhagirathi Vihar, Sanjay Colony, Gokalpuri and Gokalpuri Village. PW9/SI He was IO of the present case. Ex.PW9/A Ashish On 02.03.2020, DO handed over copy (Seizure Garg of FIR with complaint of Salman s/o memo of ash Illiyas for investigation. PW9 went material lifed through the same and visited E-78 and by PW9 from prepared site plan of burnt shop of the the burnt complainant. PW9 made further shop in a enquiry from Salman as well as from polybag); local persons about the incident. PW9 Ex.PW9/B called Salman at PS on same day and (site plan recorded his statement u/s 161 Cr.P.C., prepared by wherein Salman clarified that he had PW9 at E- closed and left his shop on 24.02.2020, 78); rather than 23.02.2020. Ex.PW9/C On 13.03.2020, he called district crime (certificate team at the spot and got it inspected prepared by and photographed. PW9 lifted ash PW9 u/s. 65- material from the burnt shop in a B of IE Act in polybag and seized the same, vide a respect of CD memo in the presence of Ct. Vipin. containing PW9 identified his signature at Circle video X and that of Ct. Vipin at point Y on Digitally signed by PULASTYA Page 14 of 28 (Pulastya PULASTYA Pramachala) PRAMACHALA ASJ-03, North-East PRAMACHALA Date: District, Karkardooma Courts, Delhi 2023.11.20 13:24:43 +0530 CNR No. DLNE01-000477-2021 State v. Babu @ Sahil etc. SC No.52/21, FIR No. 82/20, PS Gokalpuri Judgment dated 20.11.2023 Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties the said seizure memo. PW9 also footage); identified his signature at circle X on Ex.PW9/D the site plan. PW9 deposited aforesaid (certificate ash material in the malkhana of his PS. u/s 65B of IE On the same day in PS, PW9 recorded Act of PW9 statement of Ct. Vipin, ASI Mahavir & in respect of Ct. Vikas. ASI Mahavir also handed print of over his report to PW9. screenshots) On 15.03.2020, when PW9 went to & area of Bhagirathi Vihar in search of Ex.PW9/P-1 culprits, one eye witness Nisar Ahmed to met PW9 near E-78 and he claimed Ex.PW9/P-4 having seen the incident at this shop. (print of He also informed PW9 about having screenshots) video footage of riots. PW9 brought him to the PS and checked the video footage in his mobile phone. Nisar sent his video footage through his Email ID i.e. [email protected] to Email ID of PW9 i.e. ashishgarg266@gmail. com. PW9 recorded his statement u/s 161 Cr.P.C. He told PW9 that the video footage pertained to morning hours of 25.02.2020 and from that footage, he pointed out to accused Sahil, Dinesh, Mogli, Tinku and Ashok, stating that they were involved in the incident at aforesaid shop on 24.02.2020 night.
On 18.03.2020, PW9 went to the area of Bhagirathi Vihar falling into the jurisdiction of PS Gokalpuri. One secret informer met PW9 near Bhagirathi Vihar nala and pointed out to accused Sahil @ Babu stating that he was involved in the riots. Ct. Vipin was also present with PW9. PW9 interrogated accused Sahil @ Babu and he confessed his involvement in the incident related to FIR No.106/20 of Digitally signed by PULASTYA Page 15 of 28 PULASTYA (Pulastya Pramachala) PRAMACHALA ASJ-03, North-East PRAMACHALA Date: District, Karkardooma Courts, Delhi 2023.11.20 13:24:52 +0530 CNR No. DLNE01-000477-2021 State v. Babu @ Sahil etc. SC No.52/21, FIR No. 82/20, PS Gokalpuri Judgment dated 20.11.2023 Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties PS Gokalpuri. PW9 brought Sahil @ Babu to PS and thereafter, accused Sahil @ Babu were subjected to sustained interrogation. Accused Sahil @ Babu confessed his involvement in the incident of FIR no.82/20, PS Gokalpuri (i.e. present case).
Thereafter, PW9 arrested accused Sahil @ Babu in the present case.
On 27.05.2020, he obtained NBWs against accused Sandeep, Michael and Tinku in this case, as they were not traceable and were evading their arrest. On 03.06.2020, in FIR no.78/20 of PS Gokalpuri, ASI Manvir arrested accused Dinesh @ Michael. PW9 was given information of arrest of accused Dinesh @ Michael and PW9 arrested accused Michael in this case also on the same day. PW9 prepared a charge- sheet against accused Sahil @ Babu and Michael and filed it in the court on 13.06.2020.
On 28.08.2020, ASI Ram Dass arrested accused Sandeep @ Mogli in FIR no.133/20 of PS Gokalpuri. On getting information of the same, PW9 interrogated accused Sandeep and arrested him in this case. Thereafter, accused Sandeep was also sent to J/C. On 31.08.2020, PW9 received information that accused Tinku was surrendering in Mandoli Jail on that day. PW9 alongwith ASI Ram Dass went to Mandoli Jail. They interrogated accused Tinku after obtaining permission from the court in the jail. They arrested accused Tinku in their Digitally signed by PULASTYA Page 16 of 28 PRAMACHALA PULASTYA (Pulastya Pramachala) PRAMACHALA ASJ-03, North-East Date: District, 2023.11.20 Karkardooma Courts, Delhi 13:25:03 +0530 CNR No. DLNE01-000477-2021 State v. Babu @ Sahil etc. SC No.52/21, FIR No. 82/20, PS Gokalpuri Judgment dated 20.11.2023 Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties respective cases. PW9 arrested accused Tinku in this case. P/C remand of accused Tinku was granted in FIR no.133/20 and accused Tinku was brought to PS. PW9 obtained CDR of mobile numbers of all four accused persons. PW9 prepared a supplementary charge-sheet against accused Sandeep and Tinku and filed it in the court on 09.11.2020. Thereafter, PW9 was transferred to office of DCP (NE) in April, 2021.
PW9 was again transferred back to same PS in December 2021. On 31.05.2022, PW9 received information that other 2 accused i.e. accused Vikas Kashyap and Golu Kashyap were lodged in Mandoli Jail in other case. After obtaining permission from the court, PW9 interrogated accused in Mandoli Jail on 01.06.2022. PW9 bound down both accused persons u/s 170(1) Cr.P.C. PW9 filed supplementary charge-sheet against accused Vikas Kashyap and Golu Kashyap on 08.06.2022. PW9 obtained complaint u/s 195 Cr.P.C. against six accused persons. PW9 recorded statement of HC Pradeep, who had pronounced Order u/s 144 Cr.P.C.
Thereafter, PW9 filed another supplementary charge-sheet with this complaint and statement.
On 17.10.2022, PW9 called Nisar Ahmed in the PS and Nisar Ahmed identified accused Ashok in the video footage, which was sent by Nisar Ahmed. PW9 recorded statement of Nisar Ahmed accordingly. PW9 made Digitally signed by PULASTYA Page 17 of 28 (PulastyaPRAMACHALA Pramachala) PULASTYA ASJ-03, North-East District, PRAMACHALA Date:
Karkardooma2023.11.20 Courts, Delhi 13:25:12 +0530 CNR No. DLNE01-000477-2021 State v. Babu @ Sahil etc. SC No.52/21, FIR No. 82/20, PS Gokalpuri Judgment dated 20.11.2023 Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties enquiry about accused Ashok in the local area and found out his address. Thereafter, PW9 visited house of accused Ashok in Bhagirathi Vihar and served notice for accused Ashok upon his family member, so as to direct accused Ashok to join the investigation on 18.10.2022. Accused Ashok joined investigation in PS on 18.10.2022 and he was also bound down u/s. 170(1) Cr.P.C.
PW9 called complainant Salman to PS to make enquiry about photographs, which were furnished by him alongwith his complaint. Salman informed that those photographs were taken by his father through his own mobile phone and PW9 obtained certificate u/s 65B of IE Act from Illiyas, father of Salman accordingly. PW9 recorded statement of Salman, his brother Zishan and Illiyas on 19.10.2022.
Nisar Ahmed had deposited his mobile phone in FIR no.78/20, PS Gokalpuri and that mobile phone was examined in FSL. Result was also received back from FSL in FIR no.78/20. PW9 again sent that mobile phone to FSL in this case for taking result in this case in October/November, 2022 and result was received back in this case also in November, 2022.
PW9 had transferred video footage sent by Nisar Ahmed to him through Email, in a CD and PW9 had placed that CD on the record with charge-sheet in the past itself. PW9 prepared a certificate u/s 65B of IE Act in respect of that CD.
Digitally signed by PULASTYA Page 18 of 28 (Pulastya Pramachala) PRAMACHALAASJ-03,PULASTYA North-East District, PRAMACHALA Date:
2023.11.20 Karkardooma Courts, Delhi 13:25:23 +0530 CNR No. DLNE01-000477-2021 State v. Babu @ Sahil etc. SC No.52/21, FIR No. 82/20, PS Gokalpuri Judgment dated 20.11.2023 Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties PW9 prepared another supplementary charge-sheet and filed it in the court on 16.11.2022 with supplementary statement of aforesaid persons, certificate u/s 65B of IE Act, report received from FSL regarding mobile phone of Nisar Ahmed, complaint u/s 195 Cr.P.C. in respect of accused Ashok.
PW9 further obtained a certificate u/s. 65B of IE Act from Nisar Ahmed in respect of non-tampering of video footage furnished by him. Thereafter, PW9 filed another supplementary charge-sheet alongwith aforesaid certificate and interrogation report on 21.11.2022. PW9 had prepared arrest memo of accused Sahil @ Babu, Dinesh @ Michael, Sandeep @ Mogli and Tinku, at the time of their arrest. PW9 identified his signature at circle X on arrest memo of accused Sahil @ Babu, Dinesh @ Michael, Sandeep @ Mogli & Tinku i.e. Ex.A-1, Ex.A-2, Ex.A-8 & Ex.A-9 (admitted documents).
PW9 identified his signature at circle X on the certificate prepared by him u/s. 65-B of IE Act in respect of CD containing video footage.
When Nisar Ahmed had seen video footage before IO and pointed out to the accused persons, thereafter, PW9 took screenshot of the portion of the video, wherein accused persons were visible and PW9 took print of that screenshot. PW9 got identified accused persons from Nisar in that print of the screenshots. PW9 had prepared a Digitally signed Page 19 of 28 (Pulastyaby Pramachala) PULASTYA ASJ-03, North-East PULASTYA District, PRAMACHALA KarkardoomaDate:
PRAMACHALA Courts, Delhi
2023.11.20
13:25:33 +0530
CNR No. DLNE01-000477-2021
State v. Babu @ Sahil etc.
SC No.52/21, FIR No. 82/20, PS Gokalpuri Judgment dated 20.11.2023 Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties certificate u/s 65B of IE Act in respect of print of these screenshots, which bears his signature at circle X. PW9 identified accused Sahil @ Babu, Dinesh @ Michael, Sandeep @ Mogli, Tinku, Ashok, Vikas Kashyap and Golu Kashyap, before the court by taking their correct names. PW9 had filed copy of malkhana entry related to case property of this case with supplementary charge-sheet.
PW9 identified Ex.PW6/V-1 i.e. Video file having particulars as 'VID 20200226-WA0033 of total time duration 41 seconds, to be the same, which was handed over to him by Nisar Ahmed through Email. That video showed the place in front of shop no.E- 78, main nala road, Bhagirathi Vihar. PW9 had seen the same video in the mobile phone of Nisar Ahmed.
Admitted documents under Section 294 Cr.P.C. Arrest memo of accused Babu @ Sahil and Dinesh @ Michael as Ex.A-1 & Ex.A-2, respectively; personal search memo of accused Dinesh @ Michael as Ex.A-3; age memo of accused Babu @ Sahil as Ex.A-4; copy of age verification of accused Sahil Kumar Sharma from S.D. Memorial Public School, as Ex.A-5; copy of birth certificate of acccused Babu @ Sahil as Ex.A-6; copy of age certificate of accused Sahil Kumar Sharma from S.D. Memorial Public School as Ex.A-7; arrest memo of accused Sandeep @ Mogli as Ex.A-8; arrest memo of accused Tinku as Ex.A-9; personal search memo of accused Tinku as Ex.A-10; complaint u/s. 195 Cr.P.C. as Ex.A-11; copy of prohibitory order as Ex.A-12; complaints u/s 195 Cr.P.C. dated 22.08.2022 and 12.11.2022 as Ex.A-13 & Ex.A-14, respectively; copy of entry from register no.19 as Ex.A-15; acknowledgment letter as Ex.A-16; FSL report as Ex.A-17 (colly 3 pages); and PCR form u/s. 294 Cr.P.C. as Ex.A-18 (colly 5 pages).
Digitally signed by PULASTYA PULASTYA PRAMACHALA
Page 20 of 28 (Pulastya
PRAMACHALA Pramachala)
Date: 2023.11.20
ASJ-03, North-East District,
13:25:44
Karkardooma +0530
Courts, Delhi
CNR No. DLNE01-000477-2021
State v. Babu @ Sahil etc.
SC No.52/21, FIR No. 82/20, PS Gokalpuri Judgment dated 20.11.2023 PLEA OF ACCUSED PERSONS UNDER SECTION 313 CR.P.C.
12. Accused persons denied all the allegations and pleaded innocence taking plea that they were falsely implicated in this case by the investigating agency. They also took plea that they were falsely arrested in this case only to work out this case. They also took plea that they were not present at the spot on the day of incident. Accused persons did not opt to lead any evidence in their defence.
ARGUMENTS OF DEFENCE
13. I heard ld. Special PP, ld. Amicus Curiae and ld. counsel for accused persons. I have perused the entire material on the record.
14. Sh. Rakshpal Singh, ld. counsel for accused Sandeep @ Mogli and Babu @ Sahil and Amicus Curiae for accused Dinesh and Tinku, argued that charges were framed for incident in the intervening night of 24/25, but there is no evidence for that period and prosecution produced evidence in respect of morning of 25.02.2020. He further argued that video does not show attack on the shop of complainant Salman Malik (PW3). Complaint mentioned time of incident in the evening of 25.02.2020. Ld. counsel further argued that PW6/Nisar Ahmad had taken name of accused in a number of cases, being neighbour of accused. He had left his house on 25.02.2020 after 10:30 AM. It was further argued that incident might have taken place after 10:30 AM and prosecution failed to bring concrete evidence in respect of charges framed.
Digitally signed by PULASTYA PULASTYA PRAMACHALA
PRAMACHALA Date:
2023.11.20
Page 21 of 28 13:25:53
(Pulastya +0530
Pramachala)
ASJ-03, North-East District,
Karkardooma Courts, Delhi
CNR No. DLNE01-000477-2021
State v. Babu @ Sahil etc.
SC No.52/21, FIR No. 82/20, PS Gokalpuri Judgment dated 20.11.2023 ARGUMENTS OF PROSECUTION
15. Per contra, Sh. Nitin Rai Sharma, ld. Special PP for State argued that FIR in the present case was registered on the basis of complaint of PW3/Salman Malik. Ld. Special PP further argued that PW6/Nisar Ahmad was eyewitness, who informed complainant's father about this incident. Ld. Special PP further argued that PW4/Iliyas is father and PW5/Zeeshan is brother, of complainant Salman and both confirmed receiving information from PW6. PW6 was residing near shop of complainant Salman (PW3) and he made a video from his balcony on 25.02.2020. He had seen the accused persons. Ld. Special PP further argued that no suggestion was given by defence that accused persons are not appearing in video Ex.PW6/V-1. Ld. Special PP further argued that PW9/SI Ashish Garg was IO of the present case and he took screenshots from video, which show accused persons. Those screenshots are Ex.PW9/P-1 to Ex.PW9/P-4. Ld. Special PP further argued that case is proved through video and eyewitness. Ld. Special PP further argued that even if IO or prosecution has committed any mistake, complainant should not suffer for that. Ld. Special PP further argued that there is no dispute that video is of same place in front of shop.
APPRECIATION OF FACTS AND EVIDENCE UNLAWFUL ASSEMBLY & RIOT
16. In respect of vandalism and arson in the shop of complainant Salman Malik, the relevant evidence can be found from the testimony of PW3/Salman Malik, PW4/Iliyas PW5/Zishan and Digitally signed Page 22 of 28 by PULASTYA (Pulastya Pramachala) PULASTYA PRAMACHALA ASJ-03, North-East District, PRAMACHALA Date:
Karkardooma Courts, Delhi 2023.11.20 13:26:03 +0530 CNR No. DLNE01-000477-2021 State v. Babu @ Sahil etc. SC No.52/21, FIR No. 82/20, PS Gokalpuri Judgment dated 20.11.2023 PW6/Nisar Ahmad. PW4/Iliyas was father of PW3 and PW5. According to testimony of all these witnesses, PW3/Salman Malik was running a shop of T.V. repair, sell and purchase at E- 78, Bhagirathi Vihar situated at Main Nala Road. PW3/Salman Malik deposed that he had closed his shop on 24.02.2020 at about 2 PM and thereafter, on 25.02.2020 at about 10-11 AM, he received telephonic call from PW6 about loot and arson in his aforesaid shop. Same is the testimony of PW4. PW4 did not remember the property number of this shop, but he stated that it was in E-Block, Main Nala Road, Bhagirathi Vihar. He also deposed about getting information of loot in the shop of Salman through his son Zishan on 25.02.2020 at about 10 AM. PW5/Zishan deposed that on 25.02.2020 at about 10-11 AM, he received a call from Nisar Ahmad (PW6) on his mobile phone. Thereafter, he gave his phone to his father (PW4) and after having conversations with Nisar Ahmad, his father informed that shop of Salman was being vandalized and set ablaze. PW6/Nisar Ahmad also deposed that on 25.02.2020 at about 9-10 AM a mob of around 100-200 persons, was looting the articles from the shop of Salman. They were also vandalising that shop. PW6 was present in the balcony of his house at that time and he also recorded video of this incident. PW6 asked that mob not to do so, but that mob did not listen to him rather they came to the house of PW6 also and broke upon the gate and shutter of his house. House of PW6 was near the aforesaid shop of Salman. PW6 made call at 100 number and he also made call to father of Salman and informed him about aforesaid incidents at the shop of Salman. By this time shop of Salman was vandalized only and Digitally signed Page 23 of 28 (Pulastya Pramachala) by PULASTYA PULASTYA PRAMACHALA ASJ-03, North-East District, Karkardooma PRAMACHALA Date:Courts, Delhi 2023.11.20 13:26:11 +0530 CNR No. DLNE01-000477-2021 State v. Babu @ Sahil etc. SC No.52/21, FIR No. 82/20, PS Gokalpuri Judgment dated 20.11.2023 that shop was set on fire subsequently when that mob set fire in his house as well.
17. Salman had made his complaint before police on 29.02.2020 and in that complaint it was mentioned that rioters had looted his shop in the evening of 25.02.2020 and had set it on fire. Salman had also furnished photographs of his burnt shop. On the other hand, photographer of crime team i.e. PW7/Ct. Vikas Tomar had also taken photographs of this shop. According to Salman the photographs were taken by his brother through a mobile phone. Though prosecution had taken stand that photographs were taken by father of Salman i.e. PW4. The photographs were marked on the identification of PW4, but he denied giving any certificate under Section 65-B of I.E. Act in respect of these photographs, due to which same were not exhibited. However, PW7 proved the photographs taken by him with support of certificate under Section 65-B of I.E. Act, which are Ex.PW7/P-1 to Ex.PW7/P-
6. These photographs corroborate version of complainant and his family members that the aforesaid shop was vandalized and burnt.
18. Riot was going on at that time and in view of the same, it is not difficult to rely upon the version of these witnesses to assume that this shop was actually vandalized and set ablaze by a mob of rioters. Hence, it is well established on the record that the shop of Salman bearing no.E-78, Main Nala Road, Bhagirathi Vihar was vandalized and set ablaze by the rioters and some articles therefrom were also taken away by this mob.
Digitally signed by PULASTYA PULASTYA PRAMACHALA
PRAMACHALA Date:
2023.11.20
Page 24 of 28 13:26:20
(Pulastya +0530
Pramachala)
ASJ-03, North-East District,
Karkardooma Courts, Delhi
CNR No. DLNE01-000477-2021
State v. Babu @ Sahil etc.
SC No.52/21, FIR No. 82/20, PS Gokalpuri Judgment dated 20.11.2023 IDENTIFICATION OF ACCUSED PERSONS
19. However, it is more important to ascertain as to who were there in that mob? In respect of identity of the accused persons being part and parcel of aforesaid mob of rioters, the sole witness of the prosecution is PW6. According to PW6 on 25.02.2020 at about 9- 10 AM he had seen this incident from the balcony of his house, when the shop of Salman was being vandalized. When PW6 asked that mob not to indulge into such act, that mob attacked upon his house also. Then PW6 went upstairs to the terrace of his house. That mob broke open the shutter of his house and set fire in his house also. At that moment this mob also set the shop of Salman on fire. PW6 deposed that he knew about 10-12 persons in that mob, which was involved in the incident at the shop of Salman and thereafter, in his house. PW6 had also recorded one video of that mob. He identified accused Michael, Mogli, Tinku, Babu, Sonu @ Vikas, Golu and Ashok as members of aforesaid mob. The video recorded by PW6 was sent by him to IO/PSI Ashish Garg (PW9) through e-mail. Subsequently, he had seen that video before police several times to point out the accused, who were known to him. He deposed that accused Vikas was not in the video, however, he also added that Vikas was present in the mob. He pointed out to accused Ashok, Michael, Mogli and Tinku in the video which was played before the court also and which is Ex.PW6/V-1. This video was transferred into a CD by IO/PW9 and he proved a certificate under Section 65-B of I.E. Act in support of this video, which is Ex.PW-9/D. Digitally signed by PULASTYA PULASTYA PRAMACHALA PRAMACHALA Date:
2023.11.20 13:26:28 +0530 Page 25 of 28 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000477-2021 State v. Babu @ Sahil etc. SC No.52/21, FIR No. 82/20, PS Gokalpuri Judgment dated 20.11.2023
20. According to IO/PW9, the video was sent to FSL for examination, however, on the record there is no FSL report of examination of this video. Rather there is a FSL report Ex. A-17 bearing no. SFSL DLH/13208/CO/217/22 dated 31.10.2022. This is the report regarding retrieving data from mobile phone and a SIM card, which were sent to FSL in FIR No.106/20 of same PS. FSL had stored this retrieved data in a CD, which was marked as CD-1 and FSL sent back that CD to the police. This report does not show that this video was actually examined to test any kind of manipulation or tempering in the aforesaid video, as recorded by PW6. Video seen by PW6 before the court was contained in CD-1, which was taken out from a sealed parcel received from FSL, Delhi with endorsement of above-mentioned FSL number.
Though, PW6 claimed that it was same video, which was recorded by him, but as already mentioned hereinabove there is no report from FSL regarding examination of this video on the record of this case. Prosecution probably overlooked this fact and presumed that the above mentioned FSL report was the report of examination. If IO or prosecutor would have seen into the contents of aforesaid report, then they would have realised the exact nature of this report. This video for want of examination on the parameters of test of tempering, cannot be looked into as a piece of evidence.
21. In the case of Ram Singh v. Col. Ram Singh, 1985 Supp SCC 611, Supreme Court had laid down certain precautionary guidelines for making a recorded conversation to be admissible in a case. The above-mentioned video is also covered under that Digitally signed by PULASTYA PULASTYA PRAMACHALA Page 26 of 28 (Pulastya Pramachala) PRAMACHALA Date: 2023.11.20 ASJ-03, North-East District, 13:26:52 Karkardooma +0530 Courts, Delhi CNR No. DLNE01-000477-2021 State v. Babu @ Sahil etc. SC No.52/21, FIR No. 82/20, PS Gokalpuri Judgment dated 20.11.2023 genre of the evidence, which was dealt with by Hon'ble Supreme Court in the above-mentioned case. Hence, clause (c) of those precautionary guidelines are relevant for such video as well, which are as follows:-
(a) The voice of the speaker must be duly identified by the maker of the record or by others who recognise his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker.
(b) The accuracy of the tape-recorded statement has to be proved by the maker of the record by satisfactory evidence- direct or circumstantial.
(c) Every possibility of tampering with or erasure of a part of a tape- recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.
(d) The statement must be relevant according to the rules of the Evidence Act.
(e) The recorded cassette must be carefully sealed and kept in safe or official custody.
(f) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances."
22. There is another contradiction in the case of prosecution. Prosecution did not explain as to why and under what circumstances Salman mentioned the time of evening of 25.02.2020 for incident at his shop. Similarly, IO and prosecution presented a case before the court that PW6 had stated before IO on 15.03.2020 in his statement under Section 161 Cr.P.C. that the incident in the shop of Salman had taken place in the evening of 24.02.2020 and he had seen that incident at that time and had also recorded video of the same. IO reiterated this stand in his testimony also. Apparently, before the court a different time was Digitally signed by PULASTYA Page 27 of 28 PULASTYA (Pulastya Pramachala) PRAMACHALA PRAMACHALA ASJ-03,Date:
North-East District, 2023.11.20 Karkardooma Courts, 13:27:00 +0530Delhi CNR No. DLNE01-000477-2021 State v. Babu @ Sahil etc. SC No.52/21, FIR No. 82/20, PS Gokalpuri Judgment dated 20.11.2023 mentioned by PW6 i.e. time of 25.02.2020 between 9-10 AM. PW6 denied giving time of evening of 24.02.2020 before the IO. Charges were framed in this case, referring to the time of incident on 24.02.2020 during the evening period. In that situation, I find that there is a big mishap in the case of prosecution and evidence brought on the record, in respect of time of the incident. The benefit of such contradictions in the story of prosecution has to go in favour of the accused persons. The video of the incident as mentioned by complainant in his complaint, was also not placed before the court. The video placed here did not show the incident. Thus, there is also unexplained claim as made in the complaint and the testimony of PW6. In these circumstances, it is not safe to rely upon ocular evidence of PW6, to assume involvement of accused persons in the incident at the shop of Salman. Accordingly, I find that prosecution has failed to prove presence of accused persons in the mob, which was responsible for incident at the shop of Salman, beyond reasonable doubts. CONCLUSION & DECISION
23. In view of my foregoing discussions, observations and findings, I find that all the accused persons are acquitted of all the charges alleged against them in this case. Digitally signed by PULASTYA PULASTYA PRAMACHALA PRAMACHALA Date:
2023.11.20 13:27:09 +0530 Announced in the open court (PULASTYA PRAMACHALA) today on 20.11.2023 ASJ-03 (North- East) (Judgment contains 28 pages) Karkardooma Courts/Delhi Page 28 of 28 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi