Delhi District Court
State vs Akram And Ors on 23 January, 2024
CNR No. DLNE01-000980-2021
State v. Akram etc.
SC No. 142/21, FIR No. 132/20, PS Dayalpur
DLNE010009802021
IN THE COURT OF SH. PULASTYA PRAMACHALA
ADDITIONAL SESSIONS JUDGE-03,
NORTH-EAST DISTRICT
KARKARDOOMA COURTS: DELHI
INDEX
Sl. HEADINGS Page Nos.
No.
1 Description of Case & Memo of Parties 2
2 The case set up by the Prosecution 2-4
3 Charges 4-5
4 Description of Prosecution Evidence 6-20
5 Plea of accused under Section 313 Cr.P.C. 21
6 Arguments of Prosecution & Defence 21-29
APPRECIATION OF LAW, FACTS AND EVIDENCE
7 Unlawful Assembly and Riots 29-30
8 Identification of accused persons 30-33
9 Conclusion and Decision 34
Digitally signed
by PULASTYA
PULASTYA PRAMACHALA
Page 1 of 34 (Pulastya
PRAMACHALA Pramachala)
Date:
2024.01.23
ASJ-03, North-East District,
16:10:38 +0530
Karkardooma Courts, Delhi
CNR No. DLNE01-000980-2021
State v. Akram etc.
SC No. 142/21, FIR No. 132/20, PS Dayalpur
Sessions Case No. : 142/2021
Under Section : 143/147/148/436 read with 120-B
and 149 IPC & 188 IPC
Police Station : Dayalpur
FIR No. : 132/2020
CNR No. : DLNE01-000980-2021
In the matter of: -
STATE
VERSUS
1. Akram
S/o. Sh. Toshif,
R/o. H.No. 366, Gali No. 3,
Old Mustafabad, Delhi.
2. Mohd. Furkan
S/o. Sh. Mohd. Yamin,
R/o. H.No. B-15, Gali No. 8,
Near Hussaini Masjid, Babu Nagar, Delhi.
3. Mohd. Irshad
S/o. Sh. Mohd. Ibrahim,
R/o. H.No. A-71, Gali No. 1,
Chaman Park, Mustafabad, Delhi.
...Accused Persons
Case registered on the SH. GULSHAN KUMAR
complaint of: S/o. Late Sh. Bhagwan Dass,
R/o. H.No. C-1/2, Khasra No.30/5/1,
Mahalaxmi Enclave, Karawal Nagar,
New Delhi.
Date of Institution : 17.06.2020
Date of reserving order : 16.01.2024
Date of pronouncement : 23.01.2024
Decision : All accused acquitted.
(Section 437-A Cr.P.C. complied with by all accused.)
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 Page 2 of 34 (Pulastya Pramachala) Digitally signed ASJ-03, North-East District, by PULASTYA PULASTYA Karkardooma Courts, Delhi PRAMACHALA PRAMACHALA Date: 2024.01.23 16:10:47 +0530 CNR No. DLNE01-000980-2021 State v. Akram etc. SC No. 142/21, FIR No. 132/20, PS Dayalpur Section 147/148/149/427/435/436/120-B IPC.
2. Brief facts of the present case are that in the present case FIR was registered on 04.03.2020, on the basis of written complaint (received vide DD No. 28-B and Dy. No. 53 dated 03.03.2020) dated 01.03.2020 given by one Gulshan Kumar. In his complaint, Sh. Gulshan Kumar alleged that on 24.02.2020 his 20 years' old shop under the name and style of "Chawla Book Center", situated in property bearing C-1/2, Mahalakshmi Enclave, Khasra No. 30/5/1, near Rajdhani Secondary School, Shiv Vihar Tiraha, Delhi-94, was set on fire during riot. Complainant further alleged that all the articles of his aforesaid shop were burnt and he suffered loss of approximately Rs.8-10 lacs.
3. On the basis of rukka received on the direction of SHO, DO/ASI Ram Mehar registered this FIR No. 132/20 u/s. 147/148/149/427/ 436 IPC, which was assigned to SI Shiv Charan Meena for investigation.
4. As per charge sheet, crime team was called on the spot for examination of crime scene and the photographs of the crime scene was taken. IO prepared site plan. IO added Section 120-B IPC in the present case. IO received a video of riot from SI Rajiv, which was played before the police staff of the police station and in that process, two police officials identified the accused persons. IO recorded their statements. Accused persons were arrested in this case.
5. After completion of investigation, on 17.06.2020 a charge sheet was filed against accused Akram, Mohd. Furkan and Mohd.
Irshad for offences punishable under Section 147/148/149/427/ Page 3 of 34 (Pulastya Pramachala) ASJ-03, North-East DigitallyDistrict, signed by PULASTYA Karkardooma PULASTYA Courts, Delhi PRAMACHALA PRAMACHALA Date: 2024.01.23 16:10:57 +0530 CNR No. DLNE01-000980-2021 State v. Akram etc. SC No. 142/21, FIR No. 132/20, PS Dayalpur 435/436/120-B IPC. This chargesheet was filed before ld. Duty MM (North-East), Karkardooma Courts, Delhi. Thereafter, on 11.01.2021 ld. CMM (North East), Karkardooma Courts, Delhi, took cognizance of offences punishable under Section 147/148/149/427/435/436/120-B IPC. Thereafter, case was committed to the court of sessions on 15.02.2021.
6. On 22.11.2021 first supplementary chargesheet along with complaint under Section 195 Cr.P.C. with addition of section 188 IPC, was filed before ld. CMM (N/E). Ld. CMM (N/E) sent this supplementary charge sheet to the court of sessions vide order dated 29.11.2021. Subsequently, on 02.09.2023 second supplementary charge sheet alongwith 4 sealed parcels containing relied upon videos in this case, certain documents pertaining to preparation of mirror copy of relied upon videos and certificate under Section 65-B of I.E. Act, was directly filed before this court.
CHARGES: -
7. On 06.08.2021, charges were framed against accused Akram, Mohd. Furakan and Mohd. Irshad for offences punishable under Section 120-B IPC read with Section 143/147/148/149 IPC and 143/147/148/436 IPC read with Section 120-B IPC and 149 IPC, to which they pleaded not guilty and claimed trial. The charges were framed in following terms: -
"That on 24.02.2020 at or around 2.00 PM in the area of Mahalaxmi Enclave, main Brijpuri Road, near Rajdhani Public School, Shiv Vihar Tiraha, Karawal Nagar, Delhi-94 within the jurisdiction of PS Dayalpur, all of you being from a particular community alongwith your other associates (unidentified) entered into criminal conspiracy and formed an unlawful assembly, the object whereof was to cause maximum damage to the property and persons belonging to the other community by the use of force, violence, arson Page 4 of 34 (Pulastya Pramachala) Digitally signed ASJ-03,byNorth-East PULASTYADistrict, PULASTYA PRAMACHALA Karkardooma Courts, Delhi PRAMACHALA Date: 2024.01.23 16:11:07 +0530 CNR No. DLNE01-000980-2021 State v. Akram etc. SC No. 142/21, FIR No. 132/20, PS Dayalpur and explosive substance in prosecution of the common object of such assembly and thereby committed offences punishable under Section 120-B IPC read with Section(s) 143/147/148/149 IPC and within my cognizance.
Secondly, on the aforesaid date, time and place under a criminal conspiracy you all being from a particular community alongwith your other associates (unidentified) formed an unlawful assembly and used force, violence, arson and explosive substance in prosecution of the common object, committee rioting and you all knew being members of the aforesaid unlawful assembly that offences were likely to be committed in prosecution of that common object and thereby committed offences punishable under Section(s) 143/147/148 IPC read with Section 120-B IPC and Section 149 IPC and within my cognizance.
Thirdly, on the aforesaid date, time and place under the aforesaid criminal conspiracy, you all being members of said unlawful assembly in furtherance of your common object alongwith your other associates (unidentified) committed mischief by fire or explosive substance with the intent to destroy the shop (being run under the name and style of "Chawla Book Centre"), situated at C-1/2, Mahalaxmi Enclave, Khasra No.30/5/1, near Rajdhani Public School, Shiv Vihar Tiraha, Delhi, belonging to complainant Gulshan Kumar and thereby committed an offence punishable under Section 436 IPC read with Section 120-B IPC and Section 149 IPC and within my cognizance."
8. Thereafter on 16.07.2022, additional charge was framed against aforesaid accused persons for offence punishable under Section 188 IPC, to which also they pleaded not guilty and claimed trial. The charge was framed in following terms: -
"That, on 24.02.2020 at around 2.00 p.m. in the area of Mahalaxmi Enclave, Main Brijpuri Road, near Rajdhani Public School, Shiv Vihar Tiraha, Karawal Nagar, Delhi-94, within the jurisdiction of PS Dayalpur, all of you three accused persons being members of an unlawful assembly alongwith your other associates (unidentified) were present at aforesaid place, in prosecution of the common object of an unlawful assembly and in violation of the proclamation issued u/s 144 Cr. PC by the competent authority/DCP, North East vide order dated 24.02.2020 bearing no.10094-170 X-1, North East, Delhi dt. 24.02.2020, which was duly announced in all the localities of District North East and, thereby you all committed offence punishable under Section 188 IPC and within my cognizance."Digitally signed by PULASTYA
PULASTYA PRAMACHALA Page 5 of 34 (Pulastya PRAMACHALA Date:Pramachala) ASJ-03, North-East 2024.01.23 District, 16:11:17 +0530 Karkardooma Courts, Delhi CNR No. DLNE01-000980-2021 State v. Akram etc. SC No. 142/21, FIR No. 132/20, PS Dayalpur DESCRIPTION OF PROSECUTION EVIDENCE: -
9. Several witnesses were dropped on the basis of admission of documents under Section 294 Cr.P.C. and prosecution examined 15 witnesses in support of its case, as per following descriptions:-
Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties PW1/Sh. He was the complainant. On Ex.PW1/A Gulshan 24.02.2020, he was present at his (written Kumar stationery shop under the name of complaint of 'Chawla Book Centre'. This shop was PW1); situated at C-1/2, Khasra no.30/5/1, Ex.PW1/B Mahalaxmi Enclave, Karawal Nagar, (colly) (6 Delhi. At about 2 PM, PW1 saw a photographs); large number of rioters creating ruckus in the area. PW1 put the shutter of his Ex.PW1/C(site shop down and waited outside for plan); & some time. PW1 went to a friend's Ex.PW1/D house, which was in the gali and (colly) (7 more stationed himself at 3rd floor thereof. photographs At about 5 PM, PW1 saw smoke taken by police coming out of his shop. at the spot) On 01.03.2020 PW1 reported the matter to the police by way of his written complaint, bearing his name at point A. PW1 identified 6 photographs depicting his shop.
Police came to his shop in his presence and made inquiry about gutting of his shop and prepared site plan, bearing his signature at point A. PW1 identified 7 more photographs taken by police at the spot.
PW1 had not identified anyone in the mob.
PW2/Ct. On 06.03.2020 he was posted in PS Ex.PW2/A Pawan Dayalpur as constable. Duty of PW2 (arrest memo Kumar used to be in patrolling team. On that of Irshad); & day, IO of the case SI Shiv Charan Page 6 of 34 (Pulastya Pramachala) Digitally signed ASJ-03, North-East District, PULASTYA by PULASTYA PRAMACHALA Karkardooma Date:
PRAMACHALA Courts, Delhi
2024.01.23
16:11:26 +0530
CNR No. DLNE01-000980-2021
State v. Akram etc.
SC No. 142/21, FIR No. 132/20, PS Dayalpur Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties Meena collected the beat staff as well Ex.PW2/B as other constables, who were there in (arrest memo patrolling duty on 24.02.2020 in the of Furkan) area of Shiv Vihar Tihraha, and showed a clip of CCTV footage from a pen-drive on his laptop.
PW2 identified accused Furkan and Irshad therefrom. PW2 knew both aforesaid accused by their name and their place of residence.
PW2 told IO that out of the mob of about 400-450 persons, he had identified accused Furkan and Irshad, who were carrying some combustible substance and had put a shop by the name of Chawla Book Centre on fire. On 02.04.2020 PW2, Ct. Gyan Singh and Ct. Ashok were taken to Karkardooma Courts by IO, where accused Irshad and Furkan had been produced. PW2 identified accused Irshad and Furkan as per his earlier statement. IO arrested accused Irshad and Furkan vide arrest memos, bearing signature of PW2 at point A. PW2 identified accused Furkan and Irshad in the court also, when they were appearing through VC in J/C. PW3/ On 04.03.2020, being Duty Officer at Ex.PW3/A ASI Ram PS Dayalpur from 4 PM till 12 (FIR); Prakash midnight, he registered FIR in the Ex.PW3/B present case on the basis of rukka (endorsement received on the direction of SHO Insp. of HC Brahm Tarkeshwar. Singh on the PW3 identified endorsement of HC rukka); & Brahm Singh from points X to X and Ex.PW3/C his signature at point Y on the rukka. (certificate u/s.
Page 7 of 34 (PulastyaDigitally
Pramachala)
signed
by PULASTYA
ASJ-03, North-East
PULASTYA District,
PRAMACHALA
PRAMACHALA
Karkardooma Courts, Delhi
Date: 2024.01.23
16:11:36 +0530
CNR No. DLNE01-000980-2021
State v. Akram etc.
SC No. 142/21, FIR No. 132/20, PS Dayalpur Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties PW3 identified his signature at point A 65-B of I.E. on the FIR and on certificate u/s. 65-B Act) of I.E. Act in support of FIR.
On the directions of SHO, PW3 handed over the FIR to SI Shiv Charan for investigation.
PW4/Ct. On 02.04.2020, he alongwith the IO/SI Shiv Charan Gyan reached Karkardooma Court where accused Irshad and Singh Furkan were produced by the Crime Branch officials before the concerned Magistrate. IO made enquiries from accused Irshad and Furkan and arrested them in this case. PW4 identified his signatures at point B on Ex.PW2/A and Ex.PW2/B. Thereafter, both of accused were sent to JC.
PW5/ASI On 20.03.2020, he alongwith IO/SI Ex.PW5/A Ravinder Shiv Charan, Ct. Amit and secret (arrest memo informer reached near Rajdhani Public of Akram) School, Shiv Vihar Tiraha. Upon reaching there, the secret informer pointed towards accused Akram stating that he was involved in setting Chawla Book Shop on fire on 24.02.2020. Accused Akram was apprehended by them.
Thereafter, IO made enquiries from accused Akram and arrested him vide memo, bearing signature of PW5 at point A. Thereafter, they brought accused Akram to the police station. PW5 identified accused Akram before the court.
PW6/Ct. On 19.03.2020, he was posted as Photographer in the Mohit Mobile Crime Team, North-East District, Delhi. On that day, PW6 alongwith ASI Mahavir Singh (Finger Print Proficient) and IO SI/Shiv Charan visited C-1/2, Mahalaxmi Enclave. Upon reaching there, PW6 examined the spot and took its photographs. After Page 8 of 34 (Pulastya Pramachala) Digitally signed ASJ-03, North-East District, PULASTYA by PULASTYA PRAMACHALA Karkardooma PRAMACHALA Courts, Delhi Date: 2024.01.23 16:11:47 +0530 CNR No. DLNE01-000980-2021 State v. Akram etc. SC No. 142/21, FIR No. 132/20, PS Dayalpur Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties developing the photographs, PW6 handed over those photographs i.e. Ex.PW1/D (Colly.) (Seven in number) to IO.
PW7/Ct. On 06.03.2020, IO SI Shiv Charan showed him a video Amit footage related to the riots that had taken place on 24.02.2020 at Shiv Vihar Tiraha. PW7 identified accused Akram as one of the rioters in the footage. Accused Akram was having a scrap shop on Brijpuri Road near Shiv Vihar Tiraha. On 24.02.2020, PW7 was present at Shiv Vihar Tiraha alongwith the SHO, to control the riots. A mob consisting of about 500 to 700 persons, was there at that time. PW7 had seen accused Akram in the mob, who was waiving hands and was calling other members of the mob. Accused Akram threw a petrol bomb on the Chawla Book Shop which caught fire. PW7 could not do anything due to large number of rioters. On 20.03.2020, PW7 alongwith IO/SI Shiv Charan, ASI Ravinder and other staff reached near Rajdhani Public School, Shiv Vihar Tiraha. Upon reaching there, the secret informer pointed towards accused Akram stating that accused Akram was involved in setting on fire Chawla Book Shop on 24.02.2020. PW7 recognized accused Akram. They apprehended accused Akram. Thereafter, IO made enquiries from accused Akram and arrested accused Akram in this case. PW7 identified his signature at point B on Ex.PW5/A i.e. arrest memo of accused Akram. Thereafter, accused Akram was brought to the police station.
PW7 identified accused Akram before the court. PW8/Ct. On 28.08.2020, MHC(M) handed over copy of a Umesh document in the nature of deposit receipt of case property in this case in FSL, Rohini. MHC(M) asked PW8 to bring the report from FSL, Rohini and PW8 done the same. PW8 was accordingly, given a sealed envelope with seal of CP Singh. PW8 brought that Page 9 of 34 (Pulastya Pramachala) Digitally signed by PULASTYA ASJ-03, North-East PULASTYA District, PRAMACHALA PRAMACHALA Karkardooma Courts, Delhi Date: 2024.01.23 16:11:57 +0530 CNR No. DLNE01-000980-2021 State v. Akram etc. SC No. 142/21, FIR No. 132/20, PS Dayalpur Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties envelope and handed over the same to SI Shiv Charan/IO.
PW9/Ct. On 19.06.2020, MHC(M) directed him to visit Malkhana Piyush (case property). PW9 went there. HC Pankaj met PW9 there, who handed over one sealed white pouch (stated to be containing DVR) with seal of SCM, road certificate and a forwarding letter. PW9 was asked to deliver these items in FSL, Rohini. Accordingly, PW9 went to FSL, Rohini and handed over all the aforesaid things. The FSL official gave acknowledgment on the road certificate and handed it back to PW9. PW9 deposited the same in malkhana (CP). PW10/SI On 06.03.2020, he joined SI Shiv Ex.PW10/A Rajeev Charan alongwith ASI Mahipal and (OSR) HC K.P. Singh in the investigation of (Photocopy of the case bearing FIR no.134/20 of seizure memo same PS. PW10 was IO in FIR No. as placed in 134/20. They all went to Rajdhani FIR No. Public School on Brijpuri Road for 134/20, PS investigation in aforesaid case. During Dayalpur); search in the school building, they found 7 DVRs in the room of the Ex.PW10/B Principal and PW10 brought the same (seizure memo to the PS. of DVD and pen-drive); & In the PS, PW10 checked video in all 7 DVRs through computer. The video Ex.PW10/C clip related to riots were copied in one (certificate u/s. pen-drive and one DVD through that 65-B of I.E. computer. Thereafter, PW10 sealed all Act) 7 DVRs in FIR no.134/20 and deposited the same in the malkhana. PW10 handed over aforesaid pen-drive and DVD to SI Shiv Charan for the purposes of his investigation in the present case. PW10 seized aforesaid 7 DVRs in FIR no.134/20 vide a seizure memo and PW10 handed over copy of the same to SI Shiv Charan.
Digitally signed Page 10 of 34 (Pulastya Pramachala) by PULASTYAPULASTYA ASJ-03, North-East PRAMACHALADistrict, PRAMACHALA Karkardooma Date:Courts, Delhi 2024.01.23 16:12:20 +0530 CNR No. DLNE01-000980-2021 State v. Akram etc. SC No. 142/21, FIR No. 132/20, PS Dayalpur Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties Ahlmad produced judicial case file of FIR no.134/20, PS Dayalpur. PW10 compared seizure memo prepared by him in respect of 7 DVRs with its photocopy placed in the file of present case. PW10 found the photocopy placed in the present case as true copy of seizure memo placed in FIR No. 134/20, PS Dayalpur. PW10 identified his signature at circle X on the photocopy of the same.
When PW10 handed over DVD and pen-drive to SI Shiv Charan, at that time SI Shiv Charan had taken them in his possession, vide a seizure memo and PW10 had also signed over that seizure memo. PW10 also handed over a certificate u/s 65B of IE Act, to SI Shiv Charan. PW10 also identified his signature at circle X on aforesaid seizure memo and certificate.
PW10 also identified one video file in DVD Ex.PW11/Article-1 having particulars as NVR_ch3_main_20200 224150000_20200224155058 of total time duration 50:59 minutes, which was given by him to SI Shiv Charan in DVD and pen-drive.
PW11/Dr. On 19.06.2020, one sealed envelope Ex.PW11/A C.P. alongwith FSL form/ forwarding letter (examination Singh and other documents were received in report of FSL, which was assigned to him for PW11); examination. PW11 also received Ex.PW11/B specimen seal and he checked the seal on the envelope with specimen. The (forwarding letter of PW11 seal on envelope was intact and similar to specimen. PW11 opened the to SHO); & envelope and one DVD-R (make Ex.PW11/ Writex) was taken out from the same.
Page 11 of 34 (Pulastya Pramachala) Digitally signed ASJ-03, North-East District, by PULASTYA PULASTYA Karkardooma PRAMACHALA Courts, Delhi PRAMACHALA Date: 2024.01.23 16:12:30 +0530 CNR No. DLNE01-000980-2021 State v. Akram etc.
SC No. 142/21, FIR No. 132/20, PS Dayalpur Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties It was given mark as Exhibit 1. This Article-1 DVD contained one CCTV video file (DVD which in '.asf' format. PW11 examined that was examined video on frame-by-frame parameters, by PW11 in using video analyst system and this case) thereafter PW11 concluded the same with forming opinion that there was no indication of alteration in the continuous video footage of CCTV in that DVD. PW11 prepared his report, bearing his signature at circle X. After examination, PW11 put that DVD in another parcel and sealed with seal of 'Dr. C.P. SINGH FSL DELHI'. PW11 also put his initial on the aforesaid exhibit as well as the parcel. MHC(M) produced one sealed parcel with endorsement of parcel 1 and SFSL DLH/3563/PHY (AV) 137/20/P(AV)/170/20 with particulars of this case. PW11 identified his seal and signature appearing at point X on the back side of that parcel. Parcel was opened. One DVD-R in open white envelope was taken out from that parcel. PW11 identified his signature on that DVD-R at point X. Same FSL number was also endorsed on that DVD as well as on the back side of open white envelope. The white envelope otherwise contained seal of 'SCM'. PW11 stated that he had examined that DVD.
PW11 deposited aforesaid DVD and his report in the 'K' section of FSL. PW11 had also sent a forwarding letter in the name of SHO and specimen of his seal was also put thereon. PW11 Digitally signed Page 12 of 34 (Pulastyaby Pramachala) PULASTYA PULASTYA PRAMACHALA ASJ-03, North-East District, PRAMACHALA Date:
Karkardooma Courts, Delhi 2024.01.23 16:12:38 +0530 CNR No. DLNE01-000980-2021 State v. Akram etc. SC No. 142/21, FIR No. 132/20, PS Dayalpur Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties identified his signature at circle X and his specimen seal at point Y on the said forwarding letter.
PW12/ On 21.03.2023, he was working as Ex.PW12/A Sh. Junior Forensic/Assistant Chemical (forwarding Kailash Examiner (Cyber Forensic Division), letter); Kumar FSL Rohini, Delhi. On that day, PW12 received a request letter from ld. Addl. Ex.PW12/B (certificate u/s.
DCP (N/E), Delhi dated 21.03.2023 along with copy of order dated 65-B of I.E. 10.02.2023 as passed in this case by Act issued by this court. Vide aforesaid request letter, PW12 in respect of a demand was made to prepare mirror copy of exhibit/DVR deposited for mirror copy);
examination in FSL in FIR No. Ex.PW12/ 134/20, PS Dayalpur, for the purpose Article-1 of five other FIRs i.e. 131/20, 114/20, (Colly 4) (4 132/20, 135/20 and 112/20, all PS hard disks) Dayalpur. It was requested to provide four mirror copies for the purpose of each of aforesaid five FIRs. The aforesaid exhibit in FIR No.134/20 was already examined by that time and the exhibit was already sealed in the year 2020 in his division.
Thereafter, the extracted data from that exhibit was forwarded to other division for further examination. In his division an office copy of the extract of the aforesaid DVR was maintained. On receipt of aforesaid request letter, PW12 took permission from Director FSL for all 5 FIRs as mentioned in the request letter and used the office copy of the extract of aforesaid DVR to prepare 20 mirror copies of the same. The mirror copies were prepared in separate hard drives/external portable hard drives, which were provided by Page 13 of 34 (Pulastya Pramachala) Digitally signed ASJ-03, North-East District, by PULASTYA PULASTYA PRAMACHALA Karkardooma Courts, Delhi PRAMACHALA Date: 2024.01.23 16:12:49 +0530 CNR No. DLNE01-000980-2021 State v. Akram etc. SC No. 142/21, FIR No. 132/20, PS Dayalpur Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties Delhi Police. PW12 also issued certificate u/s. 65-B I.E. Act in respect of preparation of the mirror copy. The mirror copy was handed over along with a forwarding letter and certificate u/s. 65-B of I.E. Act in each of the aforesaid five FIRs. PW12 identified signature of Supervising Officer Dr. Jagjeet Singh at point X on forwarding letter for this FIR. Dr. Jagjeet Singh was Supervising Officer of PW12 and PW12 had seen his signature in the course of his official duty. PW12 identified his signature at point X on the certificate u/s. 65-B of I.E. Act. PW12 had put his initial with details of this case on the mirror copy and with reference of the same. There were 4 separate parcels containing one hard drive each and all the parcels were sealed by PW12 with seal of 'FSL CFD DELHI'.
Four sealed parcels as placed on the record were seen by PW12 and he identified seal of "FSL CFD Delhi" on four sealed parcels, which was applied by him. Parcels were bearing endorsement of "SFSL (DLH)/2452/ CO/357/20" with FIR No. 132/20, PS Dayalpur. Same were opened.
A hard disk make Toshiba with a data cord was taken out from the same.
There was endorsement of same FSL and this FIR with one initial on each hard disk. PW12 identified his Initial at point X on them. PW12 stated that the initial and endorsement were under his handwriting.
Page 14 of 34 (PulastyaDigitally
Pramachala)
signed
by PULASTYA
ASJ-03, North-East
PULASTYA District,
PRAMACHALA
PRAMACHALA Date: 2024.01.23
Karkardooma Courts, Delhi
16:13:00 +0530
CNR No. DLNE01-000980-2021
State v. Akram etc.
SC No. 142/21, FIR No. 132/20, PS Dayalpur Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties In FIR No.134/20, PS Dayalpur, one request was received on 23.04.2020 from ACP SOS-II, Crime Branch, Delhi, to provide the CCTV footages from exhibit DVRs on urgent basis for investigation purpose. Along with that request letter, blank hard disk was sent. 7 DVRs were already deposited in FSL with reference to same FIR, in the past. PW12 had done the job of extracting the contents of those 7 DVRs somewhere around April, 2020.
Delhi police had asked for data pertaining to 24.02.2020 and 25.02.2020 in those DVRs. In one DVR there was no data pertaining to those two dates. In another DVR there was no hard disk at all. Thus, the data was extracted for 24.02.2020 and 25.02.2020 from five DVRs/ NVRs. PW12 had kept extracted data from all five DVRs in one hard drive and that hard drive was given mark of "SHDD- 1". The mirror copy was prepared of SHDD-1 itself.
PW13/ On 04.08.2023, SHO PS Dayalpur handed over a HC forwarding letter to PW13 and sent him to FSL Rohini to Rahul collect certain exhibits. Accordingly, PW13 went to FSL Rohini and received four sealed envelope, one certificate u/s. 65-B of I.E. Act and one covering letter. PW13 handed over all aforesaid materials to IO/SI Rocky in police station. PW13 had not opened and tempered with the sealed envelope, while the same were with him. PW14/ On 05.03.2020, DO handed over one Insp. complaint of Gulshan Kumar with Shiv copy of FIR, certificate u/s 65B of IE Charan Act, copy of Aadhar card and electricity bill of Gulshan Kumar, in this case for further investigation, to Page 15 of 34 (Pulastya Pramachala) Digitally signed by ASJ-03, PULASTYA North-East PULASTYADistrict, PRAMACHALA Karkardooma PRAMACHALA Courts, Delhi Date: 2024.01.23 16:13:11 +0530 CNR No. DLNE01-000980-2021 State v. Akram etc. SC No. 142/21, FIR No. 132/20, PS Dayalpur Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties PW14.
PW14 went to gali no.1, Mahalaxmi Enclave. There was Chawla Book Centre at the corner of gali no.1. PW14 called Gulshan Kumar at that place telephonically. He pointed out to his shop i.e. Chawla Book Centre. That shop was in burnt condition. PW14 prepared site plan i.e. Ex.PW1/C, of that place and obtained signature of Gulshan Kumar on the same. PW14 identified his signature at circle X on the same. PW14 came back to PS alongwith Gulshan Kumar. On 06.03.2020, PW14 visited room of SI Rajeev, where Ct. Pawan, Ct. Amit, Ct. Vineet Malik were also present. Other officials were also present there and they all were seeing videos captured by CCTV cameras installed at Rajdhani Public School. PW14 also saw those videos. PW14 obtained those videos in pen-drive and DVD from SI Rajeev alongwith a certificate u/s 65B of IE Act. DVD was sealed by PW14 by putting it in white envelope and the envelope was sealed with his seal of 'SCM'. PW14 prepared a seizure memo i.e. Ex.PW10/B, in respect of this DVD, bearing his signature at circle Y. PW14 obtained signature of SI Rajeev also on the same.
PW14 played video footage through pen-drive in his laptop before Ct. Amit, Ct. Pawan and Ct. Vineet Malik. Ct. Pawan identified accused Irshad and Furkan in that video. Accused Page 16 of 34 Digitally (Pulastya signed Pramachala) by PULASTYA ASJ-03, North-East PULASTYA District, PRAMACHALA PRAMACHALA Karkardooma Courts, Date: Delhi 2024.01.23 16:13:22 +0530 CNR No. DLNE01-000980-2021 State v. Akram etc. SC No. 142/21, FIR No. 132/20, PS Dayalpur Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties Irshad and Furkan were appearing in that video indulging into riots in front of Rajdhani Public School. Ct. Amit identified accused Akram in that video and accused Akram was also appearing as part of that mob. PW14 recorded statement of Ct. Pawan and Ct. Amit in this case.
On 19.03.2020, PW14 called mobile crime team at aforesaid shop for its inspection. He got the same inspected and photographed by crime team officials namely ASI Mahavir and Ct. Mohit. ASI Mahavir had handed over one inspection report to PW14 on same day. On same day, Ct. Mohit handed over print of 7 photographs as taken by him. Thereafter, PW14 came back to PS. On 20.03.2020 at about 6 PM, PW14 was present in the PS. One secret informer came to PW14 and informed about presence of accused Akram at Shiv Vihar Tiraha. PW14 informed SHO about this information and he provided ASI Ravinder Malik and Ct. Amit to PW14. They three police officials with secret informer went to Shiv Vihar Tiraha. Secret informer pointed out to accused Akram at some distance and he was discharged. They apprehended accused Akram from that place. PW14 interrogated accused Akram and thereafter arrested accused Akram in the present case. PW14 prepared arrest memo and personal search memo of accused Akram.
Thereafter, they all came back to PS and accused Akram were lodged in the Page 17 of 34 (Pulastya Pramachala) Digitally signed ASJ-03, North-East District, PULASTYA by PULASTYA PRAMACHALA Karkardooma PRAMACHALA Courts, Delhi Date: 2024.01.23 16:13:31 +0530 CNR No. DLNE01-000980-2021 State v. Akram etc. SC No. 142/21, FIR No. 132/20, PS Dayalpur Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties lock-up. PW14 recorded statement of Ct. Amit, who again identified accused Akram. PW14 also recorded statement of ASI Ravinder Malik. On 21.03.2020, PW14 produced accused Akram before the court and sent him to J/C. On 26.05.2020, PW14 deposited the seized DVD of video as taken from SI Rajeev, into malkhana. On 02.04.2020, PW14 had come to know that officials of crime branch had arrested accused Irshad and Furkan in FIR no.75/20, PS Crime Branch. PW14 alongwith Ct. Pawan, Ct. Gyan and Ct. Ashok came to Karkardooma Courts as accused Irshad and Furkan were to be produced in the court. In the court, PW14 took permission to interrogate accused Irshad and Furkan and on such permission, PW14 interrogated both accused persons. Thereafter, PW14 arrested accused Irshad and Furkan, vide arrest memo. PW14 also prepared age memo of accused Furkan. Ct.
Pawan identified accused Irshad and Furkan being part of rioters. PW14 obtained JC for both accused persons in this case. PW14 came back to PS alongwith all 3 Constables and recorded their statement. PW14 identified his signature at circle X on the arrest memo of accused Irshad, Furkan and Akram, which are Ex.PW2/A, Ex.PW2/B and Ex.PW5/A, respectively. PW14 also identified his signature at circle X on the personal search memo of accused Akram, which is Ex. A-6 (admitted Digitally signed by Page 18 of 34 (Pulastya Pramachala) PULASTYA ASJ-03,PULASTYA North-East District, PRAMACHALA PRAMACHALA Karkardooma Courts, Delhi Date: 2024.01.23 16:13:40 +0530 CNR No. DLNE01-000980-2021 State v. Akram etc. SC No. 142/21, FIR No. 132/20, PS Dayalpur Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties document).
On 17.06.2020, PW14 filed charge- sheet against those three accused persons before the court.
On 19.06.2020, PW14 sent Ct. Piyush to FSL Rohini to deposit the DVD for examination. PW14 had given a forwarding letter to him. In the evening, Ct. Piyush handed over acknowledgment/receipt from FSL to PW14. PW14 recorded his statement and discharged him.
On 28.08.2020, Ct. Umesh handed over a sealed envelope to PW14. This was sealed with seal of 'CP SINGH'. He also handed over one report of FSL to PW14. PW14 placed that report in the file. The sealed envelope was deposited in malkhana. PW14 recorded statement of Ct. Umesh. On 15.11.2021, PW14 sent a notice u/s 91 Cr.P.C. to the complainant and complainant came to PS next day. He handed over bank statement to PW14, to inform that he had received compensation of Rs.2 lacs from the government.
On 17.11.2021, PW14 obtained complaint u/s 195 Cr.P.C. from the office of DCP/NE and thereafter PW14 invoked Section 188 IPC in the case. On 18.11.2021, PW14 filed 1st supplementary charge-sheet with aforesaid complaint in the court. Thereafter, PW14 was transferred from this PS on 23.03.2022 and PW14 had already handed over case file to Digitally signed Page 19 of 34 (PulastyabyPramachala) PULASTYA ASJ-03, North-East PULASTYA District, PRAMACHALA PRAMACHALA Karkardooma Courts, Delhi Date:
2024.01.23 16:13:51 +0530 CNR No. DLNE01-000980-2021 State v. Akram etc. SC No. 142/21, FIR No. 132/20, PS Dayalpur Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties SHO PS Dayalpur on 19.01.2023.
PW14 had also placed copy of Order u/s 144 Cr.P.C. in supplementary charge-sheet. PW14 identified accused Akram, Irshad and Furkan before the court.
PW15/SI In first week August 2023, on the Rocky verbal directions of SHO PS Dayalpur, he took file of this case for further investigation.
On 04.08.2023, HC Rahul handed over 4 sealed envelops and one covering letter alongwith certificate u/s 65B of IE Act, which were brought by him from FSL Rohini. PW15 received copies of one road certificate with acknowledgment from FSL, which related to deposit of DVR in FSL in FIR no.134/20 of same PS. Thereafter, PW15 prepared a supplementary charge-sheet on the basis of aforesaid materials. PW15 recorded statement of HC Rahul u/s 161 Cr. PC on 04.08.2023 itself. After preparing supplementary charge-sheet, PW15 filed the same before the court.
Admitted documents under Section 294 Cr.P.C. Finger print report as Ex.A-1; DD no. 50B as Ex.A-2; GD 74A as Ex.A-3; DD 15B as Ex.A-4; GD 50A as Ex.A-5; personal search memo of accused Akram as Ex.A-6; age memo of accused Furkan as Ex.A-7; FIR as Ex.A-8; complaint u/s 195 Cr.PC as Ex.A-9; prohibitory order u/s 144 Cr.PC as Ex.A-10; GD no. 297A as Ex.A- 11; GD no. 402A as Ex.A-12; GD no.614A as Ex.A-13; GD no.300A as Ex.A-14; PCR form (running in 10 pages) as Ex.A-15 (colly); copy of relevant page of register no.19 as Ex.A-16; copy of R/C as Ex.A-16; copy of acknowledgment from FSL as Ex.A-17 and copy of relevant entry in register no.19 as Ex.A-18.
Page 20 of 34 Digitally (Pulastya signed
Pramachala)
by PULASTYA
ASJ-03, North-East
PULASTYA PRAMACHALA District,
PRAMACHALA
Karkardooma
Date:Courts, Delhi
2024.01.23
16:14:02 +0530
CNR No. DLNE01-000980-2021
State v. Akram etc.
SC No. 142/21, FIR No. 132/20, PS Dayalpur PLEA OF ACCUSED PERSONS U/S. 313 CR.P.C.
10. All accused persons denied all the allegations and pleaded innocence, taking plea that they were not present in any mob and they have been falsely implicated in this case. They also took plea that their name was implicated in this case, just to work out the case and witnesses falsely deposed against them at the instance of IO. Accused persons did not opt to lead any evidence in their defence.
ARGUMENTS OF PROSECUTION & DEFENCE
11. I heard ld. Special PP and ld. counsel for accused persons. Separate written arguments were filed for prosecution and accused Mohd. Furkan. I have perused the written submissions and entire material on the record.
12. Sh. Abdul Gaffar, ld. counsel for accused Akram, argued that complaint Ex.PW1/A did not mention time of incident, but he mentioned time in his testimony of about 5 PM. This time was mentioned as after thought. Ld. counsel further argued that PW2/Ct. Pawan Kumar and PW7/Ct. Amit are police officials, who identified accused persons and they said about identifying accused in videos. PW7 in his statement under Section 161 Cr.P.C. mentioned about a shop of Akram, but no raid was conducted at that place prior to 20.03.2020 though, such statement was already recorded on 06.03.2020. Ld. counsel further argued that all the statements were manufactured. Ld. counsel further argued that PW2 mentioned about four (4) officials being together, but none of them made any DD entry or complaint about the incident or sent any message on wireless.
Digitally signed by PULASTYA Page 21 of 34 PULASTYA (Pulastya Pramachala) PRAMACHALA ASJ-03, North-East PRAMACHALA Date: District, 2024.01.23 Karkardooma Courts, Delhi 16:14:13 +0530 CNR No. DLNE01-000980-2021 State v. Akram etc.
SC No. 142/21, FIR No. 132/20, PS Dayalpur Ld. counsel further argued that since police officials were planted as eyewitnesses, therefore, they were shown to have identified accused in video, which is not of the incident. It was further argued that evasive reply was given to most of the questions and nothing was recovered from the possession of accused.
13. Sh. A.A. Khan, ld. counsel filed written submissions on behalf of accused Mohd. Furkan, submitting that complainant Gulshan Kumar alleged in his complaint dated 03.03.2020 that his shop had been put fire on 24.02.2020, by some unknown persons, but he did not disclose even a single word against Mohd. Furkan. It was further submitted that complainant is not an eye witness of the incident. Ld. counsel further submitted that PW1/Gulshan Kumar did not identify any of the accused during his testimony. He further submitted that in his cross-examination, PW2/Ct. Pawan Kumar admitted that he was witness in 4-5 in riot cases, where as he denied having any recording of the incident recorded from his mobile phone or that on 24.02.2020 he made any D.D. entry in the police station to the effect that he had identified two persons namely Irshad and Furkan in the violent mob or that he made any such DD entry till 06.03.2020 or that he submitted any complaint regarding the incident to his senior officer till 06.03.2020. In respect of PW7/Ct. Amit, ld. counsel submitted that as per cross-examination of PW7, on 24.02.2020 he did not identify any other person in the mob except accused Akram. It was further submitted that nothing incriminating was recovered from the possession of Mohd. Furkan. Ld. counsel further submitted that nothing incriminating had been recovered from Page 22 of 34 (PulastyaDigitally Pramachala) signed by PULASTYA ASJ-03, North-East District, PULASTYA PRAMACHALA Karkardooma PRAMACHALA Courts, Date: Delhi 2024.01.23 16:14:22 +0530 CNR No. DLNE01-000980-2021 State v. Akram etc. SC No. 142/21, FIR No. 132/20, PS Dayalpur accused Furkan and no public independent witness was cited to prove the case. Only one witness PW2/Ct. Pawan Kumar was planted, who did not prove his presence at the spot. Ld. counsel further submitted that neither PW2 is reliable nor is he credible witness. It was further submitted that there was 9 day's unexplained delay in registration of FIR dated 04.03.2020. Ld. counsel further submitted that neither accused Furkan was named in the FIR nor any specific role was imputed to him. It was further submitted that there was no identification of accused Furkan in this case by any public witness. Ld. counsel further submitted that accused Furkan never shared any "common object" with unlawful assembly. Accused Furkan was local resident, therefore, he could not be fastened with liability of riots with aid of the section 149 IPC. Ld. counsel further submitted that PW2 was a planted witness and if he had witnessed the incident, then why did not he report the matter at the police station on 24.02.2020 itself and why did he wait till his alleged statement was recorded by the IO on 06.03.2020. Even PW2/Ct. Pawan did not make any PCR call on the date of alleged incident and as such same casts a serious doubt on the credibility of this witness. Ld. counsel further submitted that no independent CCTV footage/video clip of this case was available on record. The CCTV relied upon by the prosecution might be useful in FIR No. 134/20 P.S Dayalpur. It was further submitted that there was no CDR location of the accused on the spot and the prosecution could not prove its case and there was no material evidence against accused Furkan and the prosecution story is very Digitally signed by PULASTYA Page 23 of 34 PULASTYA (Pulastya Pramachala) PRAMACHALA ASJ-03, North-East PRAMACHALA Date: District, Karkardooma Courts, Delhi 2024.01.23 16:14:31 +0530 CNR No. DLNE01-000980-2021 State v. Akram etc. SC No. 142/21, FIR No. 132/20, PS Dayalpur doubtful. Ld. counsel prayed for acquittal of accused Furkan.
14. Per contra, Sh. Madhukar Pandey, ld. Special PP for State argued that this was one of the biggest riot, which had taken place in Delhi. Job of Delhi Police was multifaceted. Ld. Special PP further argued that it was unrealistic to make any DD entry of everything during the period of riot, as it was abnormal time and police was busy in law and order arrangements as well as for care and rehabilitation of riot victims. He further argued that more than 700 cases were registered and every IO was heavily burdened. IO could not have recorded statement of all witnesses in Corona time, together. Ld. Special PP further argued that PW2/Ct. Pawan Kumar mentioned colour of Kurta of accused Irshad, during his cross-examination. In hostile atmosphere of rioting, it was not natural for police to leave their job and to make video of incidents. Police was not YouTuber. He further argued that in cross examination, both eyewitnesses could not be shaken regarding their presence. Ld. Special PP further argued that mirror image of video duly proved to be examined and the video was of same time, but did not cover the spot. He further argued that video/DVD i.e. Ex.PW11/Article -1 was examined by the FSL.
15. In his written submissions filed on behalf of prosecution, Sh. Madhukar Pandey, ld. Special PP strongly placed reliance upon both the police witnesses i.e. PW2/Ct. Pawan and PW7/Ct. Amit, in support of this case. It was further submitted that both of them were posted as Beat Officers in the area/locality in question at the relevant time. They had been shown video footage on 06.03.2020 Page 24 of 34 Digitally signed (Pulastya Pramachala) by PULASTYA ASJ-03, North-East PULASTYA District, PRAMACHALA Karkardooma Courts, PRAMACHALA Date: Delhi 2024.01.23 16:14:41 +0530 CNR No. DLNE01-000980-2021 State v. Akram etc. SC No. 142/21, FIR No. 132/20, PS Dayalpur relating to riots, which had taken place on 24.02.2020 at Shiv Vihar Tiraha, by IO/SI Shiv Charan Meena at PS Dayalpur. It was further submitted that PW2 identified accused Furkan and Irshad in the said rioting video as well in the court during his testimony being recorded and that PW2 was the witness to arrest of accused Furkan and Irshad. It was further submitted that PW7/Ct. Amit identified accused Akram in the said rioting video as well, in the court during his testimony and he was the witness to arrest of accused Akram. Ld. Special PP further placed reliance on their testimony for them being the eyewitness to the incident pertaining to the present case.
16. Reliance was placed on the case of Pramod Kumar v. State (Government of NCT of Delhi), (2013) 6 SCC 588 wherein, the Hon'ble Apex Court held that: -
"12. ...The witnesses from the Department of Police cannot per se be said to be untruthful or unreliable. It would depend upon the veracity, credibility and unimpeachability of their testimony.
13. This Court, after referring to State of U.P. v. Anil Singh [1988 Supp SCC 686: 1989 SCC (Cri) 48], State (Govt. of NCT of Delhi) v. Sunil [(2001) 1 SCC 652: 2001 SCC (Cri) 248] and Ramjee Rai v. State of Bihar [(2006) 13 SCC 229: (2007) 2 SCC (Cri) 626] has laid down recently in Kashmiri Lal v. State of Haryana [(2013) 6 SCC 595: 2013 AIR SCW 3102] that there is no absolute command of law that the police officers cannot be cited as witnesses and their testimony should always be treated with suspicion. Ordinarily, the public at large show their disinclination to come forward to become witnesses. If the testimony of the police officer is found to be reliable and trustworthy, the court can definitely act upon the same. If, in the course of scrutinising the evidence, the court finds the evidence of the police officer as unreliable and untrustworthy, the court may disbelieve him but it should not do so solely on the presumption that a witness from the Department of Police should be viewed with distrust. This is also based on the principle that quality of the evidence weighs over the quantity of evidence."Digitally signed Page 25 of 34 PULASTYA (Pulastya Pramachala) by PULASTYA
PRAMACHALA ASJ-03, PRAMACHALA North-East District, Date: 2024.01.23 Karkardooma Courts, Delhi 16:14:53 +0530 CNR No. DLNE01-000980-2021 State v. Akram etc. SC No. 142/21, FIR No. 132/20, PS Dayalpur
17. Ld. Special PP further submitted that the testimony of PW2/Ct. Pawan Kumar is reliable, trust-worthy and confidence inspiring, as the said witness not only was an eye-witness to the rioting incident which took place at the time of his duty at Mahalaxmi Enclave near Shiv Vihar Tiraha on 24.02.2020, but the witness had in his testimony confirmed that he knew both the accused person i.e. Furkan and Irshad by their name and their place of residence. It was further submitted that PW2 had also stated about having told IO that out of mob of about 400-450 persons he identified the two accused person. The said witness in his testimony also precisely stated that the accused persons were carrying some combustible substance and that they had put a shop by the name of Chawla Book Centre on fire. It was further submitted that the said witness correctly identified both the accused persons who were seen by him in the video of riots, which had taken place on 24.02.2020 at Shiv Vihar Tiraha as shown to him by IO on 06.03.2020 at PS Dayalpur. This witness also identified both the accused persons during his testimony. Therefore, testimony of PW2/Ct. Pawan cannot be said to be unreliable or untrustworthy.
18. Ld. Special PP further submitted that PW7/Ct. Amit is also reliable, trust-worthy and confidence inspiring, as the said witness was also an eye-witness to the rioting incident which took place at the time of his duty at Mahalaxmi Enclave near Shiv Vihar Tiraha on 24.02.2020. This witness had also in his testimony confirmed that he identified accused Akram who was seen by him in the video of riots that had taken place on Digitally signed by PULASTYA Page 26 of 34 PULASTYA (Pulastya Pramachala) PRAMACHALA PRAMACHALA ASJ-03,Date:
North-East District, 2024.01.23 Karkardooma Courts, 16:15:01 +0530Delhi CNR No. DLNE01-000980-2021 State v. Akram etc. SC No. 142/21, FIR No. 132/20, PS Dayalpur 24.02.2020 at Shiv Vihar Tiraha as shown to him by IO on 06.03.2020 at PS Dayalpur. It was further submitted that this witness having identified accused Akram had stated that "Akram was having a scrap shop on Brijpuri Road at Shiv Vihar Tiraha".
It is further submitted that the witness had also confirmed in his testimony of his own presence at Shiv Vihar Tiraha along with SHO on 24.02.2020 to control the riots stating that a mob consisting of 500 to 700 was there at that time. This witness had also in clear terms confirmed the presence of accused Akram in the said rioting mob stating that- "I had seen the accused Akram in the mob. He was waiving hands and was calling the other members of the mob." Ld. Special PP further submitted that PW7 in his testimony had also stated and gave in detail the specific role played by accused Akram stating that "he had thrown a petrol bomb on the Chawla Book Shop which caught fire." It was further submitted that PW7 had also identified accused Akram in the court during his testimony, therefore his testimony cannot be said to be unreliable or untrustworthy.
19. Ld. Special PP further submitted that it was the quality and not quantity of the evidence which was necessary for proving or disproving a fact. To buttress for the evidence of PW2/Ct. Pawan and PW7Ct. Amit being cogent, credible and trustworthy, ld. Special PP placed reliance upon the case of Mohd. Nasim v. State, 2023 SCC OnLine Del 7073, wherein Hon'ble High Court of Delhi observed that: -
"12.
....
It was observed in Kuna @ Sanjaya Behera v. State of Odisha, Digitally signed by Page 27 of 34 PULASTYA (Pulastya Pramachala) PULASTYA PRAMACHALA ASJ-03, North-East District, PRAMACHALA Date: 2024.01.23 Karkardooma 16:15:10Courts, +0530 Delhi CNR No. DLNE01-000980-2021 State v. Akram etc. SC No. 142/21, FIR No. 132/20, PS Dayalpur 2017 SCC OnLine SC 1336 that the conviction can be based on the testimony of single eyewitness if he or she passes the test of reliability and that is not the number of witnesses but the quality of evidence that is important. The Supreme Court in Veer Singh v State of UP, (2014) 2 SCC 455 observed as under: -
Legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is not the number of witnesses but quality of their evidence which is important as there is no requirement under the Law of Evidence that any particular number of witnesses is to be examined to prove/disprove a fact. Evidence must be weighed and not counted. It is quality and not quantity which determines the adequacy of evidence as has been provided Under Section 134 of the Evidence Act. As a general rule the Court can and may act on the testimony of a single witness provided he is wholly reliable."
20. Ld. Special PP further submitted that the prosecution did not require number of eyewitnesses to prove its case beyond reasonable doubt. Even if there is one eyewitness and his testimony is up to the mark, the conviction can be based upon the same. Ld. Special PP placed reliance upon the case of Namdeo v. State of Maharashtra, (2007) 14 SCC 150, wherein Hon'ble Supreme Court observed that: -
"In the leading case of Shivaji Sahebrao Bobade v. State of Maharashtra, (1973) 2 SCC 793, this Court held that even where a case hangs on the evidence of a single eye witness it may be enough to sustain the conviction given sterling testimony of a competent, honest man although as a rule of prudence courts call for corroboration. "It is a platitude to say that witnesses have to be weighed and not counted since quality matters more than quantity in human affairs." In Anil Phukan v. State of Assam, (1993) 3 SCC 282: JT (1993) 2 SC 290, the Court observed; "Indeed, conviction can be based on the testimony of a single eye witness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability. So long as the single eyewitness is a wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone. However, where the single eyewitness is not found to be a wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest in the prosecution, then the courts generally insist upon some independent Page 28 of 34 (Pulastya Digitally Pramachala) signed by PULASTYA PULASTYA ASJ-03, North-East District, PRAMACHALA Karkardooma PRAMACHALA Courts, Delhi Date: 2024.01.23 16:15:20 +0530 CNR No. DLNE01-000980-2021 State v. Akram etc. SC No. 142/21, FIR No. 132/20, PS Dayalpur corroboration of his testimony, in material particulars, before recording conviction. It is only when the courts find that the single eyewitness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure that defect."
APPRECIATION OF FACTS AND EVIDENCE UNLAWFUL ASSEMBLY & RIOTS
21. As far as gathering of unlawful assembly and riot, is concerned, PW1 in his testimony deposed that on 24.02.2020 at about 2 pm, he was present at his shop at C-1/2, Mahalaxmi Enclave, Karawal Nagar. He saw a large number of rioters creating ruckus in the area. He put down shutter of his shop and later on, went to his friend's place. In his complaint Ex.PW1/A, PW1 had alleged that on 24.02.2020 rioters set ablaze his shop. Defence argued that time of incident and visit to friend's place, was not mentioned in the complaint and such facts were added by PW1 in his statement before the court as after thought story. Statement of PW1 as recorded u/s 161 Cr.P.C. was confronted to him, which is Ex.PW1/DX-1. It is true that in this statement, there is no reference of visit to friend's place by PW1. However, even in this statement, there is mention of time of 2 pm, when PW1 closed his shop. It is also mentioned that PW1 was seeing the ongoing riots from a distance. I do not find that absence of the reference of going to friend's place, is very material omission. PW1 in aforesaid statement Ex.PW1/DX-1 also mentioned the time of 5 pm, when rioters vandalized and set ablaze the shops and houses. In his testimony before the court, PW1 deposed that he saw smoke rising up from his shop, from the 3rd floor of his friend's place situated in the same gali.
Digitally signed by PULASTYA PULASTYA PRAMACHALA
Page 29 of 34 (Pulastya
PRAMACHALA Pramachala)
Date: 2024.01.23
ASJ-03, North-East
16:15:29 District,
+0530
Karkardooma Courts, Delhi
CNR No. DLNE01-000980-2021
State v. Akram etc.
SC No. 142/21, FIR No. 132/20, PS Dayalpur
22. IO/PW14 deposed that at the time of his visit to this shop on 05.03.2020, he found this property in burnt condition. Prosecution proved certain photographs of this property as Ex.PW1/B and Ex.PW1/D, which were identified by PW1 as pertaining to his shop. However, these were prints of digital photographs and certificate u/s 65-B I.E. Act was required to be proved with these photographs, which were not so produced and proved by prosecution. Therefore, I do not intend to rely upon these photographs. Still, on the basis of testimony of PW1 itself, I find sufficient and reliable evidence, to conclude that an unlawful assembly was formed at the place near shop of PW1 and that this riotous mob indulged into riotous acts of vandalism and arson, wherein they set ablaze the shop of PW1 as well. IDENTIFICATION OF ACCUSED PERSONS
23. Now the important question is that whether accused persons herein, were part of that mob which set ablaze the shop of PW1? PW1 deposed that he was at such distance from his shop during the incident, that he could not see anyone in that mob in order to identify anyone. Prosecution relied upon evidence of PW2/Ct. Pawan and PW7/Ct. Amit, to prove that all accused herein were part of this mob. Defence counsels challenged credibility of these two police witnesses, while ld. Prosecutor argued for reliability of these witnesses. Their respective arguments have already been mentioned herein above, hence I am not repeating the same. I shall analyse their evidence on the parameters of credibility.
24. As per testimony of PW2, on 24.02.2020 he was on patrolling duty in the area of Shiv Vihar and he had identified accused Digitally signed Page 30 of 34 PULASTYA (Pulastya Pramachala) by PULASTYA PRAMACHALA ASJ-03, North-East District, PRAMACHALA Date: 2024.01.23 Karkardooma Courts, 16:15:38 Delhi +0530 CNR No. DLNE01-000980-2021 State v. Akram etc. SC No. 142/21, FIR No. 132/20, PS Dayalpur Furkan and Irshad in the mob of 400-450 persons. These accused were carrying combustible substance and had put the shop by the name of Chawla Book Centre (shop of PW1) on fire. Similarly, as per testimony of PW7, on 24.02.2020 he was present at Shiv Vihar Tiraha along-with SHO, to control the riots. He had seen accused Akram in the mob, who had thrown a petrol bomb on Chawla Book Shop, which caught fire. Both of these police witnesses were officials of PS Dayalpur at the relevant time. On 06.03.2020, IO of this case showed a video footage of riots to both these officials with other staff in the police station. In that video footage, these two witnesses identified aforesaid accused persons. According to PW2, accused Irshad was wearing blackish kurta at that time. He did not know any other person except Irshad and Furkan. On the other hand in the cross-examination of PW7, he deposed that he knew accused Akram for about 6-7 months prior to 24.02.2020 and that on 24.02.2020 he did not identify any other person in the mob, except accused Akram.
25. None of aforesaid two witnesses had given any statement or made any DD entry regarding identifying the accused persons in the mob on 24.02.2020, prior to 06.03.2020. On 06.03.2020 also, they identified the accused persons in a video footage. If both of these witnesses were on duty at the given area, then this fact could be ascertained from duty roster itself. IO could have examined these two witnesses, to ascertain if they had seen and identified anyone involved in the incident in question. But, it did not happen that way.
26. As per testimony of PW10/SI Rajiv and IO/PW14, said video Digitally signed by PULASTYA Page 31 of 34 PRAMACHALA (Pulastya Pramachala) PULASTYA PRAMACHALA Date:
ASJ-03, North-East District, 2024.01.23 Karkardooma Courts, Delhi 16:15:48 +0530 CNR No. DLNE01-000980-2021 State v. Akram etc. SC No. 142/21, FIR No. 132/20, PS Dayalpur footage was part of the video footage copied from DVR installed in Rajdhani Public School. PW10 had seized those DVRs in FIR No. 134/20 and had copied video in DVD and pen-drive, which were handed over to IO of this case i.e. PW14. PW10 also handed over a certificate under Section 65-B of I.E Act in respect of DVD of video prepared by him and that was also proved on the record. PW10 identified one video before the court from that DVD, saying that same was given by him to PW14 in DVD and pen-drive. This DVD was examined by PW11/Dr. C.P. Singh in FSL Delhi and he found video in this DVD without any indication of alteration. But, the video of this DVD was not played before PW2 and PW7 to confirm, if they had identified the accused persons in the same video. As per case of prosecution, IO/PW14 had shown them video from the pen-drive. However, it is not confirmed, if these two witnesses had seen the same video which was copied in the DVD/Ex.PW11/Article-1.
27. PW2 and PW7 simply deposed that they had identified the respective accused persons in the mob and their involvement in the incident at Chawla Book Store. They did not mention the time as to when did the incident at this shop had taken place. Both of them claimed to be at that place since morning, but they did not find this shop open at any point of time. In his cross- examination, PW2 deposed that shop of the complainant was closed on 24.02.2020 and he did not see the complainant. However, as per complainant/PW1 he had closed this shop at about 2 PM, which means that prior to 2 PM, his shop was open. Thus, there is no consistency regarding the actual scenario in Digitally signed Page 32 of 34 PULASTYA (Pulastya Pramachala) by PULASTYA PRAMACHALA ASJ-03, North-East District, PRAMACHALA Date: 2024.01.23 Karkardooma Courts, Delhi 16:15:56 +0530 CNR No. DLNE01-000980-2021 State v. Akram etc. SC No. 142/21, FIR No. 132/20, PS Dayalpur respect of this shop in the testimony of complainant and PW2. One liner statement to mention that these two witnesses had seen the accused persons in the incident at the shop, is not sufficient to inspire confidence. At the same time, as already mentioned herein above there is a gap in the evidence of prosecution to show as to which particular video was seen by these two witnesses to identify the accused persons.
28. Moreover, both these witnesses vouched that they knew the accused persons and their work place, since prior to the incident. However, even after giving their statement before IO, they did not lead IO to the respective places of these accused persons. In normal circumstances, IO was to conduct raid in search of these identified accused persons, at their given places. But, IO admitted that he did not conduct any such raid. If one analyses testimony of PW7 regarding arrest of Akram on 20.03.2020, it gives impression as if Akram was identified by secret informer as culprit and involved in the incident in question. However, PW7 had already claimed on 06.03.2020 that he knew Akram and he had seen him in the incident. In that situation, on 20.03.2020 there was no occasion for IO to need identification/pointing out to accused Akram by secret informer. This scenario probabilize claim of PW7 regarding identifying Akram on 24.02.2020 to be artificial.
29. On the basis of foregoing discussion on evidence, I find that it is not safe to rely upon testimony of PW2 and PW7 to assume presence of all the accused persons herein in the mob, which was behind the incident at the shop of PW1.
Digitally signed by PULASTYA PRAMACHALAPULASTYA (Pulastya Page 33 of 34 Pramachala) PRAMACHALA Date:
ASJ-03, North-East 2024.01.23 District, Karkardooma Courts, 16:16:06 +0530Delhi CNR No. DLNE01-000980-2021 State v. Akram etc. SC No. 142/21, FIR No. 132/20, PS Dayalpur CONCLUSION & DECISION
30. In view of my foregoing discussions, observations and findings, I find that charges levelled against all the three (3) accused persons in this case are not proved beyond reasonable doubts. Hence, accused 1. Akram, 2. Mohd. Furkan, and 3. Mohd. Irshad, are acquitted of the charges in respect of incident at the shop namely "Chawla Book Center", situated in property bearing C-1/2, Mahalakshmi Enclave, Khasra No. 30/5/1, near Rajdhani Secondary School, Shiv Vihar Tiraha, Delhi-94. Digitally signed by PULASTYA PRAMACHALA PULASTYA PRAMACHALA Date:
2024.01.23 16:16:19 +0530 Announced in the open court (PULASTYA PRAMACHALA) today on 23.01.2024 ASJ-03 (North- East) (This order contains 34 pages) Karkardooma Courts/Delhi Page 34 of 34 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi