Delhi District Court
State vs Lokesh Kumar Solanki @Rajput And Ors on 13 May, 2025
CNR No. DLNE01-002398-2020
State v. Lokesh Solanki etc.
SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri
DLNE010023982020
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 Case set up by the Prosecution 4-8
3 Charges 8-10
4 Description of Prosecution Evidence 10-36
5 Plea of accused under Section 351 BNSS 37
6 Arguments of Defence & Prosecution on the
point of Incriminating Evidence 37
7 Section 255 BNSS & 351 BNSS 38-43
8 Plea of accused Lokesh and Pawan 43-44
FINAL ARGUMENT OF DEFENCE AND PROSECUTION
9 Section 153-A/505 IPC 44-46
10 Section 412/201 IPC 46-47
APPRECIATION OF FACTS AND EVIDENCE
11 Unlawful Assembly & Riot 47-50
12 Identification of accused persons 50-58
13 Section 153-A/505 IPC 59-63
14 Section 412/201 IPC 64-67
15 Conclusion and Decision 67-68
Digitally signed by
Page 1 of 68 PULASTYA (Pulastya Pramachala)
PULASTYA PRAMACHALA ASJ-03, North-East District,
PRAMACHALA Date: 2025.05.13 Karkardooma Courts, Delhi
16:27:28 +0530
CNR No. DLNE01-002398-2020
State v. Lokesh Solanki etc.
SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri
Sessions Case No. : 117/2020
Under Section : 144/147/148/149/153-A/188/505/302/201/
427/395/396/432/435/412/120-B/34 IPC.
Police Station : Gokalpuri
FIR No. : 37/2020
CNR No. : DLNE01-002398-2020
In the matter of: -
STATE
VERSUS
1. Lokesh Kumar Solanki @ Rajput
S/o. Sh. Yogender Kumar,
R/o. H.No. C-5/47, 4th Floor,
Yamuna Vihar, Delhi-53.
2. Pankaj Sharma
S/o. Late Sh. Rajveer Sharma,
R/o. H.No. C-162, Gali No.3,
Bhagirathi Vihar, Delhi-94.
3. Sumit Chaudhary @ Badshah
S/o. Late. Sh. Om Prakash,
R/o. H.No. A-367, Gokalpuri, Delhi.
4. Ankit Chaudhary @ Fouzi
S/o. Sh. Rajkumar,
R/o. H.No. G-14, Gali No. 2, G-Block,
Ganga Vihar, Gokalpuri, Delhi-94.
5. Prince @ D.J. Wala
S/o. Sh. Mahender Singh,
R/o. H.No. C-33, Gali No.2,
Bhagirathi Vihar, Delhi-94.
6. Pawan Kumar @ Lokesh
S/o. Sh. Moji Lal,
R/o. A-69, GF-3, SLF Ved Vihar,
Ankur Vihar, Ghaziabad, U.P
7. Lalit Kumar @ Rahul Chaudhary
S/o. Sh. Rajesh,
R/o. H.No. B-622, Sanjay Camp,
Dakshinpuri, Ambedkar Nagar, Delhi.
8. Rishabh Chaudhary @ Tapas
S/o. Sh. Yogender Singh,
R/o. H.No. F-53, Gali No.1,
Ganga Vihar, Gokalpuri, Delhi-94.
Page 2 of 68 (Pulastya Pramachala)
ASJ-03, North-East District,
Karkardooma Courts, Delhi
CNR No. DLNE01-002398-2020
State v. Lokesh Solanki etc.
SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri
9. Jatin Sharma @ Rohit
S/o. Sh. Gouri Shankar Sharma,
R/o. H.No. C-101, DLF,
Dilshad Extension-II, Ghaziabad,
Sahibabad, U.P.-201005.
10. Vivek Panchal @ Nandu
S/o. Sh. Pramod Kumar Panchal,
R/o. H.No. D-106, Gali No.4,
Ganga Vihar, Delhi-94.
11. Himanshu Thakur
S/o. Sh. Harender,
R/o. H.No. F-19, 1st Floor, Flat No.1,
Ekta Society, DLF-Ankur Vihar,
Loni, Ghaziabad, U.P.
12. Tinku Arora
S/o. Sh. Ashok Kumar,
R/o. H.No. E-51, Gali No.2,
Bhagirathi Vihar, Delhi-94.
13. Sandeep Kumar @ Mogli
S/o. Late Sh. Dalveer Singh,
R/o. H.No. E-24, Gali No.3,
Bhagirati Vihar, Delhi-94.
14. Sahil @ Babu
S/o. Late Sh. Rakesh Sharma,
R/o. H.No. D-138, Gali No.11,
Bhagirathi Vihar, Delhi-94. ...Accused persons
Complainant: ASI Ram Dass
Date of Institution : 04.06.2020
Date of reserving Judgment : 05.05.2025
Date of pronouncement : 13.05.2025
Decisions: -
1. Accused Lokesh Kumar Solanki is convicted of offences punishable
u/s. 153-A/505 IPC. He is acquitted of remaining charges levelled
against him in the present case.
2. Remaining accused persons are acquitted of all the charges
levelled against them in the present case.
(Section 481 BNSS complied with by all the accused persons)
Page 3 of 68 (Pulastya Pramachala)
ASJ-03, North-East District,
Karkardooma Courts, Delhi
CNR No. DLNE01-002398-2020
State v. Lokesh Solanki etc.
SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri
JUDGMENT
CASE SET UP BY THE PROSECUTION: -
1. The above-named accused persons have been chargesheeted by the police for offences punishable under Section 144/147/148/149/153-A/188/505/302/201/427/395/396/432/435/ 412/120-B/34 IPC.
2. As per the case of the prosecution, on 27.02.2020 SHO, PS Gokulpuri informed Duty Officer vide DD No. 24-B that dead body had been found in the Bhagirathi Vihar Drain (Nala) near Pulia. Police staff visited that place and three dead bodies were taken out, which were given Mark A, B, and C. This case related to dead body Mark C. Some injury marks were found present on its face. Accordingly, this case vide FIR No. 37/2020 dated 27.02.2020 U/s 147/148/149/201/302/427 IPC, was registered at police station Gokalpuri.
3. After the registration of FIR, the investigation of the case was taken up by the local police. During the course of investigation, on 28.02.2020 the dead body was identified that of Aamir and post mortem of the body was conducted at GTB Hospital on 29.02.2020 vide PM No.356/2020 by a Board of Doctors.
Subsequently, investigation of the case was transferred to the SIT of Crime Branch.
4. During the course of further investigation, eleven (11) accused persons namely, (1) Lokesh Kumar Solanki @ Rajput (2) Pankaj Sharma (3) Sumit Chaudhary @ Badshah (4) Ankit Chaudhary @ Fauzi (5) Prince @ DJ wala, (6) Pawan Kumar @ Lokesh, (7) Lalit Kumar @ Rohit Chaudhary, (8) Rishabh Chaudhary @ Page 4 of 68 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri Tapash, (9) Jatin Sharma @ Rohit, (10) Vivek Panchal @ Nandu and (11) Himanshu Thakur were arrested in this case.
5. Accused Pawan Kumar was arrested on the allegation that from his possession, a phone set with IMEI No. 911552250231690 was recovered. This phone set was used with SIM card with mobile no. 9313118035 for some time after killing of Aamir, and this SIM card was issued to and used by deceased Aamir. The other SIM card which was used in this mobile phone set make Intex, was found to be in the name of father of accused Pawan. On the basis of disclosure statement made by Pawan, a mobile phone set (VIVO) was recovered from the possession of accused Lalit Kumar @ Rohit Chaudhary. This mobile phone (VIVO) belonged to deceased Aamir.
6. The statements of eye witnesses were recorded u/s 161 CrPC and the witnesses stated about the specific role of above-mentioned accused persons except Pawan and Lalit, inter alia that on 26.02.2020 they were present at Bhagirathi Vihar Nala Pulia, carrying stones, cudgel, sticks, swords and iron rods etc. and were shouting slogans like "Jai Sri Ram" and "Har Har Mahadev". All the accused were leading the mob and giving directions to their associates by calling each other by their names. The above said accused persons are alleged to have been involved in killing of nine muslim persons, after checking their identity. Public witnesses also witnessed the incident of murder of Aamir Ali. They stated that a mob stopped two persons riding Apache bike and after ascertaining their identity as muslims, the mob killed both the persons with stones, cudgel, sticks, swords Page 5 of 68 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri and iron rods and threw their body in the drain (nala) along with the bike.
7. During further course of investigation, mobile phones of Mohit Sharma and Shivam Bhardwaj were looked into and it revealed that they were members of WhatsApp group namely " KATTAR HINDUT EKTA". Further investigation of this group was carried out, which revealed that aforesaid group was created on 25.02.2020 for taking revenge from Muslim Community. As per prosecution the accused persons, already arrested in FIR No.35/20 PS Gokalpuri, along with other rioters had become active in Ganga Vihar/Bhagirathi Vihar area. They conspired to teach Muslims a lesson for attacking the Hindus, equipped themselves with lathis, danda, sticks, swards, fire arms etc. and killed many innocent persons including Hashim Ali and his brother Aamir (deceased in this case).
8. After completion of investigation, on 04.06.2020 main chargesheet was filed against eleven (11) accused persons namely Lokesh Kumar Solanki @ Rajput, Pankaj Sharma, Sumit Chaudhary @ Badshah, Ankit Chaudhary @ Fauzi, Prince @ D.J. Wala, Pawan Kumar @ Lokesh, Lalit Kumar @ Rahul Chaudhary, Rishabh Chaudhary @ Tapas, Jatin Sharma @ Rohit, Vivek Panchal @ Nandu and Himanshu Thakur, for offences punishable under Section 144/147/148/149/302/201/427/395/396/432/435/412/120-B/34 IPC. This chargesheet was filed before ld. Duty MM (North- East), Karkardooma Courts, Delhi. On 20.07.2020, ld. CMM/NE took cognizance of offences under Section Page 6 of 68 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri 302/144/147/148/149/201/395/396/427/432/435/120-B/34 IPC against nine (9) accused persons. Vide this order, ld. CMM/NE also took cognizance of offence punishable under Section 412/201 IPC against accused Pawan Kumar @ Lokesh and under Section 412 IPC against accused Lalit Kumar @ Rahul Chaudhary. Thereafter, case was committed to the court of sessions vide order dated 30.09.2020.
9. On 06.11.2020, first supplementary chargesheet along with additional documents, was filed before ld. CMM (North-East), Karkardooma Courts, Delhi. Section 153-A/505 IPC were also added in the present case through this supplementary charge- sheet. This supplementary chargesheet was sent by ld. CMM/NE to the court of sessions vide order dated 11.12.2020.
10. On 24.01.2021, second supplementary chargesheet along with copy of sanction under Section 196 Cr.P.C., certified copy of CDRs and CAFs of mobile numbers of three accused persons and Shivam and Mohit, FSL reports and other additional documents and impleading three additional accused persons namely Sahil @ Babu, Sandeep @ Mogli and Tinku Arora, was filed before Duty MM/NE, Karkardooma Court, Delhi. Section 188 IPC was also added in the present case. This supplementary chargesheet was sent by ld. CMM/NE to the court of sessions vide order dated 15.02.2021.
11. On 01.10.2020, third supplementary chargesheet along with complaint u/s. 195 Cr.P.C. and another sanction under Section 196 Cr.P.C. accorded against accused Sahil @ Babu, Sandeep @ Mogli and Tinku Arora, was filed before ld. CMM/NE. This Page 7 of 68 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri supplementary chargesheet was sent by ld. CMM/NE to the court of sessions vide order dated 26.10.2021.
12. Thereafter, on 10.10.2022 fourth supplementary chargesheet was filed directly before this court. On 07.11.2024, fifth supplementary chargesheet in respect of mirror image of the WhatsApp Chats, was filed directly before this court.
CHARGES
13. On 04.04.2022, charges were framed against twelve (12) accused persons namely 1. Lokesh Kumar Solanki @ Rajput 2. Pankaj Sharma, 3. Ankit Chaudhary @ Fauzi, 4. Prince @ D.J Wala, 5. Jatin Sharma @ Rohit, 6. Himanshu Thakur, 7. Vivek Panchal @ Nandu, 8. Rishabh Chaudhary @ Tapash 9. Sumit Chaudhary @ Badshah, 10. Tinku Arora, 11. Sandeep @ Mogli and 12. Sahil @ Babu for offences punishable under Section 144/147/148/188/302/201/427/432/435/395/396/153A/505/34 IPC read with Section 149 IPC, to which they pleaded not guilty and claimed trial. The charges were framed in following terms: -
"That from the early morning of 25.02.2020 till the late night of 26.02.2020, in the area at or around main Ganda Nala Road, near C-Block, Bhagirathi Vihar, Delhi, within the jurisdiction of PS Gokalpuri, all of you being members of unlawful assembly along with your other associates(identified & unidentified) formed an unlawful assembly carrying deadly weapons like lathis, sticks(danda), stones, swords and other arms, used force or violence in prosecution of a common object i.e. committed rioting and you all knew being members of the aforesaid unlawful assembly that offences were likely to be committed in prosecution of that common object and thereby committed offences punishable under Section(s)144/147/148 IPC read with Section 149 IPC and within my cognizance.Page 8 of 68 (Pulastya Pramachala)
ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri Secondly, in the night of 26/02/2020, exact time unknown, at or around main Ganda Nala Road, near C-Block, Bhagirathi Vihar, Delhi, , you all being members of said unlawful assembly along with your other associates (identified and unidentified) used force or violence in prosecution of a common object and in furtherance of common intention committed murder of Aamir Khan, S/o Shri Babu Khan, merely on account of the fact that he belonged to the other community and thereafter threw his dead body in the Bhagirathi Vihar ganda nala with a view to conceal/destroy his identity and also committed mischief by fire or explosive substance by setting on fire Apache Motorcycle bearing Regn. No.DL- 5SBA-7168 upon which deceased Aamir Khan along with his brother Hashim Ali were heading to their residence and thereby you all along with your other associates (identified and unidentified) committed offences punishable under Section(s) 302/201/427/432/435/34 IPC read with Section 149 IPC and within my cognizance.
Thirdly, that on the aforesaid date, time and place, you all being members of the said unlawful assembly, along with your other associates (identified and unidentified), while committing the murder of deceased Aamir Khan robbed him of his mobile phone instrument of make VIVO model 1610 with IMEI No. 8646550877115 and 864655038771107 and having number 9313118035, committed offences punishable under Section(s) 395/396 IPC read with Section 149 IPC and within my cognizance.
Fourthly, that on the aforesaid dates, time and place, you all being members of said unlawful assembly along with your other associates (identified and unidentified) raised religious slogans in furtherance of common intention and common object to incite and promote enmity between different groups on the ground of religion and acted in a way that are prejudicial to the ways of harmony and thereby you all along with your associates (identified and unidentified) committed offences punishable under Section(s) 153A/505 IPC read with Section 149 IPC and within my cognizance.Page 9 of 68 (Pulastya Pramachala)
ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri Fifthly, on the aforesaid dates, time and place you all being members of the said unlawful assembly along with your other associates (identified and unidentified) violated the proclamation issued under Section 144 Cr.P.C. by the competent authority and hence committed offence punishable under Section 188 IPC read with Section 149 IPC and within my cognizance."
14. On 04.04.2022 itself charges were framed against accused Pawan Kumar @ Lokesh and Lalit Kumar @ Rahul Chaudhary, in the following terms, to which they pleaded not guilty.
" That the deceased Aamir Khan was having/using phone instrument of make VIVO model 1610 with IMEI numbers 864655038771115 and 864655038771107 with mobile number 9313118035 and he was robbed of this mobile phone on 26/02/2020 at the time of his murder. You accused Pawan Kumar @ Lokesh S/o Shri Moji Lal, knowing this fact, took the said mobile phone instrument of deceased Aamir and gave the instrument to Lalit S/o Shri Rajesh and used the SIM of the said mobile number in the instrument with IMEI number 911552250231690 since 02/03/2020. Later on, you destroyed the said SIM of mobile number 9313118035 and committed the offences punishable under Section(s) 201/412 IPC and within my cognizance.
Secondly, that you accused Lalit S/o Shri Rajesh took and used the mobile phone instrument to make VIVO model 1610, from Pawan with IMEI no. 864655038771115 and 864655038771107 with dual SIM slots, well knowing the fact that the same, was robbed from the deceased Aamir Khan as mentioned above and the same was recovered from you at your instance and thereby you committed offence punishable underSection 412 IPC and within my cognizance."
DESCRIPTION OF PROSECUTION EVIDENCE
15. Several witnesses were dropped on the basis of admission of documents under Section 294 Cr.P.C./330 BNSS and prosecution examined 39 witnesses in support of its case, as per following Page 10 of 68 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri description: -
Sl. No. & Role of Witness & Description of Proved Name of Testimony documents/ Witness case properties PW1/Sh. PW1 was residing at E-61/1, main nala road, near Nisar Johripur pulia, Bhagirathi Vihar alongwith his family. Ahmed On 26.02.2020, in the morning, he was at the home of his brother-in-law Anwar. His brother Esh Mohammad was stuck at the house of his sister Ameena situated near Johripur pulia. PW1 requested one Avdhesh Mishra to lock his home and to rescue his brother from the house of Ameena. Niece of PW1 namely Sitara, who resided near his house, requested him to rescue her. When PW1 reached Bhagirathi nala, he did not go ahead as he was hearing noise of hue and cry but he had not personally seen assault to any person. PW1 also did not see and identify any person in the mob of rioters on 26.02.2020 at the alleged place of incident. Though, PW1 named and identified some accused persons as part of mob of rioters at different points of time and date.
Thus, PW1 did not support the case of prosecution and was declared hostile by ld. SPP on the aspect of identification of some accused during incident of this case.
PW2/ Sh. PW2 was resident of C-129, Bhagirathi Vihar, Delhi. Shivam He was using a mobile phone make Realme using no. Bhardwaj 7217779080 of Jio company, during period between 24.02.2020 to 26.02.2020. He was member of certain WhatsApp group during that period. His afore-said mobile phone was taken from him in the Crime Branch Office. He identified his signature at circle X on the seizure memo of WhatsApp Chat dated 08.03.2020 with print of chats (39 pages) pertaining to FIR No.35/20. PW2 identified his said mobile phone (Ex.PW3/Article-1 pertaining to FIR No.35/20) before the court.Page 11 of 68 (Pulastya Pramachala)
ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri Sl. No. & Role of Witness & Description of Proved Name of Testimony documents/ Witness case properties PW2 did not support the case of prosecution and he was also declared hostile on the point of knowing some accused and about confession made by Lokesh for killing muslim persons, alongwith other accused persons.
PW3/Sh. PW3 was working in Khaibar Pas Metro Depot as Mohit technician. Crime branch officials had taken him Sharma alongwith Shivam and Dimple, to their office and had taken mobile phones of all three of them. PW3 was added in a WhatsApp group namely Kattar Hindut and crime branch officials had checked contents of all three mobile phones, which were seized. He identified his mobile phone (Ex.PW4/Article-1 pertaining to FIR No.35/20) before the court.
PW3 also did not support the case of prosecution and he was also declared hostile on the point of knowing some accused and about confession made by Lokesh for killing muslim persons, alongwith other accused persons and about knowing the chats in the Whats App group.
PW4/Sh. In February 2020, PW4 was residing at B-55/1, gali Amit Kumar no.1, Bhagirathi Vihar, Delhi. In the month of February 2020, riots had taken place in this locality. On 26.02.2020, PW4 remained inside his home and he did not see any mob at any place on that day.
Thus, PW4 did not support the case of prosecution and he was declared hostile on the point of identifying accused persons in a mob at Nala Road, Bhagirathi Vihar on 26.02.2020 at 9.15 P.M. and for having seen beating of a muslim boy at that time by this mob. PW5/ PW6 was user of mobile phone no.9873723713, which Dimple was registered in his name and he was also using another number from the same phone set i.e. Page 12 of 68 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri Sl. No. & Role of Witness & Description of Proved Name of Testimony documents/ Witness case properties 8383847939.
PW5 did not support the case of prosecution and he was also declared hostile on the point of being member of a WhatsApp group namely "Kattar Hindut Ekta". PW6/Sh. PW6 was running a private parking at A-1/1, Gali Shalu No.1, Bhagirathi Vihar, Delhi. Riots had taken place in his area between 24.02.2020 and 26.02.2020. On 26.02.2020, he had opened his afore-said parking at 10 AM and after closing the same at around 03:30 PM, he was going back to his house situated at A-83, Gali No.2, Bhagirathi Vihar, Delhi. At that time, a mob had started assembling in his gali no.1, Bhagirathi Vihar and the number of persons in that mob was increasing, wherein persons from both communities were there. PW6 deposed that during his presence there, the afore- said mob in gali no.1 was assembling only and they were not doing anything. He immediately left that place for his home and therefore, he did not know that what was done by that mob.
Thus, PW6 did not support the case of prosecution and he was also declared hostile on the point of identification of the accused persons. PW7/Sh. PW7 was resident of B-99, gali No.1, Bhagirathi Vihar, Paras Delhi and he was working in Kosmos Hospital. He deposed about making a call to police at 100 number on 25.02.2020 regarding situation of riots. PW8/Sh. PW8 was father of deceased Amir Ali. On 26.02.2020, Babu Khan he was present at his home bearing no. D-222, Gali No.16, Old Mustafabad, Delhi. His other son namely Nasir was also present at home with him. Since evening time of 26.02.2020, his son Nasir was in regular telephonic touch with Hashim Ali, who was returning back to Delhi along with his brother Aamir Page 13 of 68 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri Sl. No. & Role of Witness & Description of Proved Name of Testimony documents/ Witness case properties on a motorcycle make Apache, from Pasonda, Ghaziabad. In the last conversation taken place at 9:30 PM, it was informed to Nasir that Hashim and Aamir had reached Gokalpuri and they were expected to reach home in next 5-10 minutes. However, none of them reached home and mobile phone of Aamir was also switched off.
On 27.02.2020, PW8 came to know that his two sons were no more. He had sent his son Sheruddin and his relative Rehmat for the purpose of identification of dead bodies of Hashim and Aamir at GTB hospital. On 10.03.2020, his nephew Mohsin made telephonic call to PW8 and told that someone was making calls to his sisters using mobile phone number of Aamir i.e. 9313118035. PW8 visited PS Gokalpuri and informed SHO about this fact.
PW9/Ct. On 26.02.2020, vide DD No.16-B, PW9 was deputed Vipin for law-and-order duty in the area of Bhagirathi Vihar.
On that day, his duty hours were from 9 a.m. onwards, which continued for whole night of 26.02.2020. At about 10 p.m., PW9 was near ganda nala pulia (known as Ganga Vihar pulia). He was coming towards this pulia from the side of Ganga Vihar and he saw a mob of around 100-150 persons near this pulia. On seeing PW9 with other police staff, that mob started running away, while taking name of Rishabh, Pankaj, Prince, Avdhesh and Ankit.
PW9 was witness to taking colour print of photographs of some persons including accused Prince DJ wala and Pankaj, by Insp. Vinay Tyagi in the present case and in FIR No.35/20. These photographs were shown by accused Lokesh by opening his Facebook account, on the laptop of SHO PS Gokalpuri.
Page 14 of 68 (Pulastya Pramachala)ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri Sl. No. & Role of Witness & Description of Proved Name of Testimony documents/ Witness case properties On 10.03.2020, Insp. Dinesh from crime branch had made similar enquiry from PW9 in FIR no. 36/20 and had recorded his similar statement therein. PW9 was cross-examined by ld. Special PP and he admitted the suggestion that he had also mentioned the names of accused Himanshu, Lokesh Rajput, Jatin, Monty Nagar, Pawan, Monu and Sumit, as being taken by the persons in the mob at Ganga Vihar pulia, and that PW9 had mentioned name of Ankit as Ankit Fauzi at that time; and that PW9 had also mentioned name of accused Rishabh Jaat and Jatin, as being told by accused Lokesh, while pointing out photograph on his facebook page.
PW10/Sh. PW10 was brother of Aamir Ali (deceased in this case). Nasir Ali On 26.02.2020, PW10 was present at his house bearing H.No. D-222, gali no.17, main 25 foota road, Old Mustafabad, Delhi. On this day at about 9.30 p.m., PW10 had received a call from mobile phone no. 7291882903 of Hashim Ali and during this call, PW10 had conversation with his brother Aamir Ali (deceased in this case). During this conversation, Aamir had told PW10 that he was somewhere near the canal and was about to reach home in 5 minutes.
His brothers Aamir and Hashim were coming on Apache motorcycle, but they did not come back to home by night of 26.02.2020. On 28.02.2020, PW10 came to know that his both aforesaid brothers had died and their dead bodies were recovered from drain. PW11/HC On 24.02.2020, an order passed by DCP, North-East Pradeep u/s. 144 Cr.P.C., was received through Dak in the morning and on the directions of SHO, PW11 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, Page 15 of 68 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri Sl. No. & Role of Witness & Description of Proved Name of Testimony documents/ Witness case properties Chaman Park, Indira Vihar, Bhagirathi Vihar, Sanjay Colony, Gokalpuri and Gokalpuri Village. PW12/ASI PW12 was working in Record Ex.PW12/A Naresh Pal Branch, North East District, Delhi (true copy of Police. He produced office record order u/s. 144 with original order u/s 144 Cr.P.C. Cr.P.C.) & dated 24.02.2020 as passed by Sh.
Ex.PW12/B Ved Prakash Surya, the then (original DCP/NE. PW12 identified signature complaint u/s of Mr. Surya at circle X and true 195 Cr.P.C) copy of that order.
PW12 also produced office record of complaint u/s 195 Cr.P.C. PW12 identified signature of Sh. Sanjay Kumar Sain on the same.
PW13/ASI On 27.02.2020, PW13 along with Ex.PW13/A Manvir ASI Ram Dass went to E-Block, (seizure memo Bhagirathi Vihar Nala, on a call of clothes of recorded vide DD No.24-B. PW13 deceased) witnessed recovery of three dead bodies and one motorcycle bearing DL-5SBA-7168, from the drain.
PW13 also deposed that all three dead bodies were sent in TATA 407 to GTB hospital alongwith ASI Manvir and Ct. Karamveer.
On that day, ASI Ram Dass prepared rukka on DD No.24-B and got registered two FIRs bearing 35/20 and 37/20.
FIR in the present case was registered concerning to the dead body of Aamir with reference to Page 16 of 68 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri Sl. No. & Role of Witness & Description of Proved Name of Testimony documents/ Witness case properties MLC bearing no. 760/03/20. All three dead bodies were declared brought dead and were preserved in the mortuary, GTB hospital.
PW13 witnessed (i) recording statement of father and other relatives of deceased Aamir, at GTB hospital; (ii) identification of both dead bodies; (iii) seizure of wearing clothes of deceased with blood on gauze, by ASI Ram Dass and (iv) seizure of mobile phone make TECHNO, which was found in the pocket of dead body identified as Hashim (deceased in FIR No.35/20).
On 10.08.2020, PW13 had seized one mobile phone and one pen-drive in FIR No.78/20 of same PS, from one Nisar Ahmed. On 18.01.2021, Insp. Dinesh from Crime Branch visited PS Gokalpuri and he made inquiry from PW13 about afore-said mobile phone and pen-drive.
PW14/HC PW14 was photographer in mobile Ex.PW14/A Javed Khan crime team/NE District. On the (certificate u/s.
direction of I/C ASI Mahavir, PW14 65-B of I.E. took 7 photographs near pipeline, Act); main nala, Bhagirathi Vihar, Delhi, Ex.PW14/P1 to on 02.03.2020. Ex.PW14/P-7 (seven photographs) PW15/SI PW15 was Duty Officer in PS Ex.PW15/A Yashpal Gokalpuri. He registered FIR in the (endorsement present case on the basis of rukka of PW15 on the Page 17 of 68 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri Sl. No. & Role of Witness & Description of Proved Name of Testimony documents/ Witness case properties handed over by ASI Ram Dass. back side of Thereafter, he also made rukka); & endorsement on the back side of Ex.PW15/B rukka. (FIR) PW15 handed over copy of FIR with original rukka to Insp. Pramod Joshi/SHO for further investigation. PW16/ASI PW16 participated in the Ex.PW16/A & Shyam Lal investigation of the present case on Ex.PW16/B 17.03.2020, along with IO/Insp. (arrest and Vinay Tyagi, SI Hava Singh, SI personal search Arjun Singh, ASI Salim Khan, ASI memos of Sunil Kumar, ASI Ramesh Kumar, accused Pawan, HC Shashikant, HC Babu Ram and respectively); Ct. Kuldeep. PW16 witnessed arrest Ex.PW16/C and personal search of accused (seizure memo Pawan on the pointing out of secret of Intech informer. PW16 also witnessed mobile phone); recovery and seizure of mobile Ex.PW16/D & phone make Intech (Intex), from Ex.PW16/E possession of this accused.
(arrest and PW16 also witnessed confession of personal search accused Pawan regarding golden memos of colour mobile phone make Vivo of Rishabh deceased, which was lying with Chaudhary, accused Lalit. PW16 also witnessed respectively); arrest and personal search of accused Ex.PW16/F Lalit and recovery and seizure of said and mobile phone at the instance of Ex.PW16/G accused Lalit.
(arrest and PW16 deposed that on 09.04.2020, personal search Insp. Dinesh had brought three memo of accused Rishabh Chaudhary, Jatin accused Vivek Sharma and Vivek Panchal, in the Panchal, Page 18 of 68 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri Sl. No. & Role of Witness & Description of Proved Name of Testimony documents/ Witness case properties office and interrogated them. respectively) Thereafter, Insp. Vinay Tyagi arrested all three of them, in the present case. Insp. Vinay Tyagi prepared their separate arrest and personal search memos and recorded their disclosure statement. PW16 identified his signature at circle X on arrest and personal search memos of accused Rishabh Chaudhary and Vivek Panchal.
PW16 took sealed pullanda from PS Gokalpuri, to CERT Technology Information at CGO complex, Lodhi Road and deposited the same there, on 08.09.2020, in FIR No.35/20.
On 24.09.2020, Insp. Tyagi handed over one authority letter to PW16, in order to bring the result from CERT, CGO complex. PW16 went to CERT and handed over the authority letter. In CERT, PW16 was handed over 4 sealed pullandas and documents running into 8 pages. PW16 took all these materials to malkhana PS Gokalpuri and handed over the same to MHC(M). MHC(M) handed back 2 sealed pullandas out of 4 pullandas, alongwith some papers out of aforesaid 8 pages, to PW16, so as to hand over the same to the IO and he did the same.
PW16 did not support the case of prosecution and he was also declared Page 19 of 68 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri Sl. No. & Role of Witness & Description of Proved Name of Testimony documents/ Witness case properties hostile on the point of colour of VIVO mobile phone as recovered from accused Lalit on 17.03.2020.
PW17/ASI PW17 deposed on the lines of Ex.PW17/A Ram Dass & PW13/ASI Manvir, in respect of: - (i) (rukka); PW18/ recovery of dead bodies; (ii) Ex.PW17/B RetdACP recovery and seizure of one (site plan);
Mahesh motorcycle bearing no.
Ex.PW17/C DL-5SBA-7168; (iii) sending those (identification three dead bodies in TATA 407 to statement of GTB hospital along with ASI Manvir Babu Khan);
and Ct. Karamveer; (iv) preparing of rukka by PW17; (v) recording Ex.PW17/D & statement of father of deceased and Ex.PW17/E identification of dead body of Aamir; (Request form and (vi) seizure of one cloth pullanda to conduct with blood on gauze vide memo postmortem Ex.PW13/A. examination alongwith form PW17 witnessed preparation of site 25.35); & plan by SHO at his instance, in the present case. Ex.PW18/A (scaled site PW17 prepared inquest papers for plan) conducting postmortem on the dead bodies in FIR Nos.35/20 and 37/20 i.e. deceased Hashim Ali and Aamir, respectively. PW17 also identified his signature at circle X on request- form to conduct postmortem examination alongwith form 25.35.
On 06.05.2020, PW17 had pointed out the place of recovery of dead bodies to PW18/Retd. ACP Mahesh, who was draughtsman from Crime branch. PW18 had taken his Page 20 of 68 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri Sl. No. & Role of Witness & Description of Proved Name of Testimony documents/ Witness case properties measurements. On the basis of said measurements, PW18 prepared scaled site plan on 26.05.2020 and thereafter handed over the same to the IO/Insp. Vinay Tyagi on same day.
PW19/ASI PW19 was working as MHC(M) in Ex.PW19/A
Mahesh PS Gokalpuri. (OSR) (copy of
R/C no.
PW19 deposed that IO of this case 59/21/20) deposited 2 sealed pullandas in the malkhana. PW19 handed over those two sealed pullandas to ASI Satbir for depositing the same in FSL Rohini. PW19 had issued road certificate no.59/21/20 to ASI Satbir. After depositing the aforesaid pullandas in FSL Rohini, ASI Satbir handed over 3 documents i.e. copy of acknowledgement, receipt as issued by FSL and copy of R/C. The copy of road certificate was pasted in the register no.21.
Till the time the pullandas remained in his custody, they were not tampered with.
PW19 declared hostile by the prosecution on the point of one name of Satish Patil, which was wrongly mentioned by PW19 as Satbir, in his evidence.
PW20/SI He joined investigation of the present Ex.PW20/A Sunil case on 10.04.2020, along with IO/ (pointing out Insp. Vinay Tyagi, SI Hava Singh, memo at the ASI Mohd. Salim, ASI Satish Patil, instance of Page 21 of 68 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri Sl. No. & Role of Witness & Description of Proved Name of Testimony documents/ Witness case properties HC Shashikant, HC Shyam Lal, HC accused Jatin Babu Ram, Ct. Kuldeep and Ct. Sharma) Puneet.
He witnessed preparation of pointing out memo at the instance of accused Jatin Sharma, Vivek Panchal and Rishabh Chaudhary.
PW20 correctly identified accused Jatin Sharma, before the court.
PW21/ASI He joined investigation of the present Ex.PW21/A Ramesh case on 08.03.2020, along with (arrest memo Kumar & IO/Insp. Vinay Tyagi, PW22/SI Hava of accused PW22/SI Singh and other staff. PW21 and Lokesh);
Hava Singh PW22 witnessed seizure of mobile Ex.PW21/B
phones from witnesses Shivam, (arrest memo
Mohit and Dimpal Paul. PW21 and of accused
PW22 also witnessed arrest and Ankit
personal search of accused Lokesh Chaudhary);
Solanki, in the present case.
Ex.PW21/C
PW22 witnessed seizure of three (pointing out
print outs of WhatsApp messages memo at the
related to riots, by IO/Insp. Vinay instance of
Tyagi. These messages were found in accused Ankit);
the mobile phones of witnesses
Ex.PW21/D &
Shivam, Mohit and Dimpal.
Ex.PW21/E
PW21 and PW22 also joined (arrest and
investigation of the present case on personal search
11.03.2020, along with IO/Insp. memo of
Vinay Tyagi, ASI Mohd. Salim, ASI accused Jatin).
Satish Patil, ASI Sunil, HC Shyam
Ex.PW22/A to
Lal, HC Babu Ram, Ct. Kuldeep &
Ex.PW22/C
Ct. Puneet. PW21 and PW22
(print outs of
witnessed arrest of accused Ankit
WhatsApp
Chaudhary and Sumit @ Badshah
Page 22 of 68 (Pulastya Pramachala)
ASJ-03, North-East District,
Karkardooma Courts, Delhi
CNR No. DLNE01-002398-2020
State v. Lokesh Solanki etc.
SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri Sl. No. & Role of Witness & Description of Proved Name of Testimony documents/ Witness case properties and pointing out memo. chats found in PW21 also joined investigation of mobile phones the present case on 09.04.2020. He of witnesses witnessed arrest and personal search Shivam, Mohit of accused Pankaj Sharma. and Dimple, respectively);
PW22 witnessed arrest of accused Himanshu by IO on 22.04.2020, at Ex.PW22/D to Tihar Jail. Ex.PW22/F (true copy of PW21 correctly identified accused seizure memo Ankit, Pankaj & Badshah, before the of mobile court.
phones of During his cross-examination by ld. witnesses Special PP, PW21 admitted Shivam, Mohit suggestion of ld. SPP in respect of and Dimple, identification of his signature on respectively); arrest and personal search memo of Ex.PW22/G accused Jatin Sharma. PW21 also (true copy of admitted the suggestion of ld. SPP in seizure memo respect of identification of accused of mobile Jatin Sharma.
phone of During his cross-examination by ld. Lokesh) Special PP, PW22 admitted Ex.PW22/H suggestion of ld. SPP in respect of (personal identification of accused Himanshu, search memo Rishabh Chaudhary, Sandeep @ of accused Mogli, Sahil @ Babu and Lokesh Lokesh);
Solanki.
Ex.PW22/I (arrest memo of Sumit);
Ex.PW22/J (pointing out memo at the instance of Page 23 of 68 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri Sl. No. & Role of Witness & Description of Proved Name of Testimony documents/ Witness case properties accused Ankit and Sumit);
Ex.PW22/L (arrest memo of Himanshu) PW23/Insp. PW23 was posted as SHO in PS Gokalpuri. Pramod During patrolling on 27.02.2020, he found three dead Joshi bodies near Johripur pulia in Bhagirathi Vihar nala.
PW23 passed on this information to DO. ASI Ram Dass along with ASI Manvir Singh came to this place and PW23 pointed out those bodies to these two officials.
After registration of FIR in this case, PW23 had taken up investigation of this case on same day. He was handed over original tehrir and copy of FIR by ASI Ram Dass.
PW23 deposed on the lines of PW17 in respect of: - (i) site plan Ex.PW17/B prepared by him; (ii) sending dead body to GTB hospital mortuary on 27.02.2020;
(iii) direction given to PW17/ASI Ram Dass on 29.02.2020, to get postmortem examination done on this dead body.
Thereafter, further investigation of this case transferred to Crime branch and PW23 sent the case file to Crime branch through road certificate.
On 06.05.2020 on the call of Insp. Vinay from Crime branch, PW23 reached the place of recovery of dead body in this case. Insp. Mahesh was already called by IO/Insp. Vinay for the purpose of preparing scaled site plan. PW23 pointed out the place of recovery of dead body to Insp. Mahesh.
PW24/Sh. He was working as Nodal Officer in Ex.PW24/A to Ajay Kumar Bharti Airtel company and he proved Ex.PW24/N Page 24 of 68 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri Sl. No. & Role of Witness & Description of Proved Name of Testimony documents/ Witness case properties certified copy of CDR, and (certified copy respective CAFs/EKYCs/DKYCs, as of CDR, and pertaining to mobile numbers respective 9871171934, 9212946177, CAFs, as 9205095077, 9891407613, pertaining to 9821685321, 9560585420 and given mobile 7453838637, for the period w.e.f numbers); 01.02.2020 to 29.02.2020.
Ex.PW24/P & PW24 also proved manual Cell ID Ex.PW24/Q Chart and certificate u/s. 63 BSA (Respective pertaining to afore-said CDRs, certificates u/s.
EKYCs/DKYCs. 65-B of I.E.
Act);
During his cross-examination by ld.
SPP, PW24 admitted the suggestion Ex.PW24/R that he had furnished the record (manual Cell sought by IO in respect of CDR and ID Chart); EKYC of mobile no. 9650832647.
PW24 proved certified copy of Ex.PW24/S & EKYC with certificate u/s. 65-B of Ex.PW24/T I.E. Act. (certificate u/s.
65-B of I.E. Act and certified copy of EKYC) PW25/ASI PW25 participated in the Ex.PW25/A Satish Patil investigation of the present case on (pointing out 10.04.2020 along with IO/Insp. memo at the Vinay Tyagi, SI Hawa Singh, ASI instance of Sunil, ASI Salim Khan, ASI Ramesh, accused Vivek HC Shashikant, HC Babu Lal, HC Panchal);
Shyam Lal, Ct. Kuldeep, Ct. Puneet. Ex.PW25/B
PW25 was witness to pointing out (original
memo at the instance of accused acknowledgme
Vivek Panchal. nt from FSL)
PW25 deposed on the lines of PW19
in respect of Ex.PW19/A (OSR). Till
the time aforesaid exhibits remained Page 25 of 68 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri Sl. No. & Role of Witness & Description of Proved Name of Testimony documents/ Witness case properties in his custody, same were not tampered with in any manner.
PW25 correctly identified accused Vivek Panchal before the court.
PW26/ASI On 20.08.2020, on the instruction of IO/Insp. Vinay
Shashikant Tyagi, PW26 went to office of FSL Rohini in Bio
Division. PW26 collected report no.
2730/CSMD/132/20/12639 dt.31.07.2020, which was sealed with the seal of 'FSL J DELHI' and articles/pullandas, pertaining to FIR No.35/20. Thereafter, PW26 went to malkhana, PS Gokalpuri and deposited 2 pullandas in the malkhana PS Gokalpuri. Report was handed over to the IO/Insp. Vinay Tyagi. Till the time exhibits and reports remained in his custody, same were not tampered with, in any manner. PW27/HC PW27 deposed that on 27.02.2020, on receipt of Karamveer telephonic call from DO, he reached Johripur pulia.
PW27 accompanied PW13/ASI Manvir and PW17/ASI Ram Dass to GTB hospital, in one TATA 407, wherein three dead bodies were kept.
PW27 deposed that MLC of three dead bodies were prepared in GTB hospital and dead bodies were deposited in mortuary GTB hospital. PW27 was deputed at the mortuary for safety of aforesaid dead bodies and he remained there upto 29.02.2020, for aforesaid particular duty. His statement was recorded by Insp. Bineet Pandey in FIR Nos. 35/20 and 37/20. PW28/Sh. PW28 was running his business in the name of L.A. Rajeev Enterprises at the address of 4697/3, IIIrd floor, Nepal Manocha Carrier Building, 21A, Ansari Road, Daryaganj, New Delhi.
PW28 deposed that his company had provied Mr. Narottam a motorcycle bearing no. DL-1SA E 6074 Page 26 of 68 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri Sl. No. & Role of Witness & Description of Proved Name of Testimony documents/ Witness case properties and a mobile no. 9310849006. Said motorcycle was registered in the name of afore-said company and said mobile number was obtained in the name of afore-said company.
PW29/Insp. He was IO of FIR No. 156/20 PS Ex.PW29/A & Vinod Gokalpuri. He had arrested accusedEx.PW29/B Ahlawat Himanshu Thakur, in his case on (true copies of 08.04.2020. arrest and personal search PW29 correctly identified accused memo of Himanshu Thakur. Himanshu Thakur, respectively) PW30/Insp. PW30 was IO of FIR No.36/20 of PS Ex.PW30/A & Dinesh Gokalpuri. Ex.PW30/B Kumar (true copies of In that case, PW30 had recovered and seized one danda each at the seizure memos instance of accused Jatin and Vivek, of danda at the on 09.04.2020. On 11.04.2020, instance of PW30 had provided copy of that Jatin and seizure memos to the IO of this case Vivek); & i.e. Insp. Vinay Tyagi.
Ex.PW30/C to
PW30 was assigned further Ex.PW30/E
investigation of this case and he had (arrest memo interrogated and formally arrested accused Sahil @ Babu in jail no. 5, of accused Tihar, on 27.10.2020; accused Sahil, Sandeep Sandeep @ Mogli and Tinku in jail and Tinku, no.13, Mandoli on 29.12.2020. respectively) PW30 recorded statement Sh. Rajiv Minocha and Sh. Nasir, in the present case.
On 18.01.2021, PW30 along with SI Subhash visited PS Gokalpuri, where PW30 was provided 3 photographs of rioters, copies of seizure memo of Page 27 of 68 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri Sl. No. & Role of Witness & Description of Proved Name of Testimony documents/ Witness case properties mobile phone of Nasir and that of pen-drive taken from Nasir, by IO/ASI Manveer of FIR No.78/20.
PW30 seized all these materials vide seizure memo.
PW30 received another report in respect of examination of the dandas from FSL. The dandas were also received back from FSL. Thereafter, PW30 sent those dandas alongwith an application to GTB Hospital for obtaining subsequent opinion regarding injuries received by deceased being possible to be inflicted through those dandas.
Subsequently, PW30 received that opinion also.
PW30 also received a sanction order u/s 196 Cr.P.C. against accused Lokesh Solanki, Pankaj, Ankit, Sumit, Prince, Jatin, Vivek, Rishab and Himanshu for offence u/s 153A/505 IPC. Thereafter, PW30 prepared supplementary chargesheet and filed the same alongwith aforesaid material in the court on 24.01.2021.
Thereafter, PW30 sent a request letter to DCP, N/E for a complaint u/s 195 Cr.P.C. against all the accused persons for the offence u/s 188 IPC on account of violating the order u/s 144Cr.P.C. Subsequently, PW30 received that complaint from the office of DCP, N/E. PW30 also sent a request letter to Govt. of NCT of Delhi, requesting sanction u/s 196 Cr.P.C. for offence u/s 153A/505 IPC Page 28 of 68 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri Sl. No. & Role of Witness & Description of Proved Name of Testimony documents/ Witness case properties against accused Sahil @ Babu, Sandeep @ Mogli and Tinku. This sanction order was also subsequently received. Thereafter, in September 2021, PW30 filed another supplementary chargesheet alongwith aforesaid materials.
PW30 had also collected CDRs and CAF of the mobile numbers used by some witnesses and some accused persons. PW30 correctly identified accused Sahil @ Babu, Sandeep @ Mogli and Tinku before the court.
PW31/Sh. He was working as Nodal Officer in Ex.PW31/A to Pankaj Reliance Jio and he proved certified Ex.PW31/J Sharma copy of CDR and respective (certified copy CAFs/EKYCs/DKYCs, as pertaining of CDR, and to mobile no. 7557497409, respective 7557223533, 7982702731, CAFs, as 7217779080 and 8287809349, for pertaining to the period w.e.f 01.02.2020 to given mobile 29.02.2020. numbers);
PW31 also proved manual Cell ID Ex.PW31/K Chart and certificate u/s. 63 BSA (certificate u/s.
pertaining to afore-said CDRs, 63 BSA in
EKYCs/DKYCs. respect of
aforesaid
CDRs and
CAFs); &
Ex.PW31/L
(manual Cell
ID Chart)
PW32/Insp. PW32 had joined investigation in Ex.PW32/A &
Arjun Singh FIR No.35/20 and in this case with Ex.PW32/B
IO/Insp. Vinay Tyagi on 09.03.2020. (arrest and In his presence pointing out memo personal search was prepared at the instance of memos of Page 29 of 68 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri Sl. No. & Role of Witness & Description of Proved Name of Testimony documents/ Witness case properties accused Lokesh Solanki. Lokesh Pankaj); Solanki had opened his Facebook Ex.PW32/C profile and pointed out to his some of (copy of friends while disclosing their names seizure memo and IO had taken print/screenshot of of mobile at the these photographs in his presence. instance of Accused Pankaj and Prince were Pankaj, arrested in his presence by IO on pertaining to 10.03.2020 and 13.03.2020. FIR No.35/20); A mobile phone from accused Pankaj Ex.PW32/D was seized in his presence in FIR (arrest memo No.33/20. of accused Pointing out memos of place of Prince); incident at the instance of Sumit Ex.PW32/F Chaudhary, Ankit and Prince were (seizure memo prepared in his presence. On of VIVO 17.03.2020 accused Pawan and Lalit mobile at the were arrested in his presence. instance of One mobile phone make VIVO was Lalit); & recovered from Lalit in his presence. Ex.PW32/G & Subsequently, accused Sahil @ Ex.PW32/H Babu, Sandeep @ Mogli and (arrest and Himanshu Thakur were arrested in personal search his presence on 27.10.2020 and memo of 29.12.2020, respectively. accused Lalit) PW32 had examined HC Pradeep regarding announcement of order u/s. 144 Cr.P.C.
In the court, this witness identified all accused persons except Prince, though in cross-examination by prosecution, he admitted the suggestion regarding identity of Page 30 of 68 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri Sl. No. & Role of Witness & Description of Proved Name of Testimony documents/ Witness case properties Prince.
PW33/Sh. PW33 was Alternate Circle Nodal Ex.PW33/A to Shashank Officer in Vodafone Idea Ltd. He Ex.PW33/M Tyagi proved certified copy of CDR and (certified copy CAF in respect of mobile numbers of CDRs and 8750610027, 9540689734, CAFs of given 9136034019, 8588902696 & mobile number 9313118035 along with certificate along with u/s. 65-B of I.E. Act and Cell ID certificate and Chart. Cell ID Chart) PW34/Ms. PW34 was widow of Aamir. She deposed that on Shabina 26.02.2020, her husband late Aamir alongwith her brother-in-law (devar) namely Hashim Ali left Garima Garden, Ghaziabad, U.P. at about 9 p.m., for Mustafabad, Delhi. They had gone on their Apache bike. At around 9.30 p.m., PW34 spoke to her husband on mobile phone from her mobile phone bearing no.7827..... She did not remember the complete number.
PW34 further deposed that her husband informed her that they had reached Gokalpuri pulia and they would be reaching home within 5 minutes. He had also informed PW34 that at that place, there was a mob and that the mob was intercepting the muslim persons. After around 5-10 minutes, PW34 called her husband on mobile phone, to know whether they had reached home or not. However, his phone was switched off. PW35/Sh. PW35 deposed on the lines of PW8 in respect of Aamir Sheruddin and Hasim, who were coming home on Apache vehicle on 26.02.2020 and in respect of telephonic conversation of Nasir with Amir.
PW35 identified photograph of Amir and Hasim at PS Gokalpuri, where police informed him that those dead Page 31 of 68 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri Sl. No. & Role of Witness & Description of Proved Name of Testimony documents/ Witness case properties bodies were taken out from the drain. PW36/Sh. PW36 was not sure about the exact date, but on 25- Narottam 26.02.2020 at about 7-8 PM, he had gone to drain of Singh Bhagirathi Vihar, T-point bridge and had seen a mob of around 100 persons on bridge. Those persons were inspecting the passersby and making inquiry about the religion. They were assaulting the persons from Muslim Community. PW36 was at the distance of about 100 meters from them near a Pipe Line and he found that certain vehicles/bikes were set on fire. He saw two persons coming on Apache motorcycle being inspected by that mob. One of them had jumped in the drain and second person was given beatings, thereafter that person also jumped in the drain. Thereafter, PW36 came back to his home.
He did not know anyone in that mob nor did he see face of any one in that mob. PW36 had also not seen those bikers or their face because they were wearing helmet. He had made call at 100 number and informed police about ongoing riots.
PW36 was declared hostile by prosecution in respect of identity of accused persons and other factual aspects, but he did not confirm the date of incident of beating two bike riders, nor did he support the prosecution about having seen any of the accused persons in that mob.
PW37/Sh. PW37 was working as Scientist B, in Ex.PW37/A Arun Kumar Cyber Forensic Lab, CERT-In, (True copy of Sahani Ministry of Electronics, Government original report of India, New Delhi. On 17.04.2020, prepared by PW37 received request letter from PW37 in FIR Crime branch in FIR No.35/20, PS No.35/20, in Gokalpuri, alongwith 5 sealed respect of packets and other documents. These extracted data exhibits were assigned to PW37 and from digital Page 32 of 68 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri Sl. No. & Role of Witness & Description of Proved Name of Testimony documents/ Witness case properties his Incharge Lt. Colonel Santosh exhibits); Khadsare.
Ex.PW37/B PW37 extracted data from the digital (certificate u/s exhibits i.e. mobile phones, SIM 65B of IE Act cards and memory cards as contained in respect in those 5 sealed packets. The Ex.PW37/A); extracted data were copied/stored in a pendrive. PW37 and his I/C Ex.PW37/D & prepared report about afore-said Ex.PW37/E proceeding and issued a certificate in (true copy of respect of the same, in that FIR. another report dated PW37 again received another request 22.09.2020 and letter dated 07.09.2020 in FIR certificate u/s. No.35/20, PS Gokalpuri alongwith 65-B of I.E. sealed packets of exhibits as sent Act, back by this witness to the police. respectively); This time, PW37 examined exhibits A1-MOB, A2-MOB and A3-MOB, Ex.PW37/H alongwith their related SIMs and (certificate u/s. memory cards. PW37 and his I/C 63 BSA in prepared report about afore-said respect of proceeding and issued a certificate in preparation of respect of the same, in that FIR. mirror copy);
& PW37 received a request letter from Delhi Police, thereby seeking mirror Ex.PW37/ copy of extracted data, which was so Article-1 (Pen- done in FIR No.35/20, PS Gokalpuri. drive with PW37 prepared mirror copy of afore- extracted data) said extracted data for this case, using office copy maintained in his office. The mirror copy was sealed and sent back to Delhi Police. PW37 also provided certificate u/s 63 BSA in this respect. He identified pendrive with its contents as Ex.PW37/Article-1. This pen-drive contained chats from afore-said WhatsApp group namely "Kattar Page 33 of 68 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri Sl. No. & Role of Witness & Description of Proved Name of Testimony documents/ Witness case properties Hindut".
PW38/Sh. PW38 was working as Deputy Ex.PW38/A & L.K. Secretary (Home), GNCT, Delhi. Ex.PW38/B Gautam (sanction PW38 deposed that Lt. Governor of GNCT of Delhi, approved for orders dated according sanction u/s. 196 Cr.P.C 16.12.2020 and for offences u/s 153A/505 IPC 26.07.2021); against accused Lokesh Solanki, Pankaj Sharma, Sumit Chaudhary, Ankit Chaudhary, Prince, Rishabh Chaudhary, Jatin Sharma, Vivek Panchal and Himanshu Thakur, in this case.
PW38 being competent officer to sign the sanction order on behalf of LG, signed said sanction order.
Similar sanction was accorded by LG against accused Sandeep, Sahil and Tinku in this case.
PW39/Retd On 05.03.2020, PW39 was assigned investigation of Insp. Vinay present case as well as of FIR No.35/20, both PS Tyagi Gokalpuri. On same day, PW39 visited house of deceased situated in Bhagirathi Vihar and met his father Babu Khan and his elder brother Nasir Ali as well as widow of deceased Aamir, namely Smt. Shabeena Khan. He recorded their statements. PW39 deposed on the lines of PW21 and PW22 in respect of seizure of mobile phones from witnesses Shivam, Mohit and Dimpal.
PW39 received report of SOC alongwith photographs from Crime Team from North East district. Same were inspected and placed on file.
PW39 also deposed on the lines of PW21, PW22 and Page 34 of 68 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri Sl. No. & Role of Witness & Description of Proved Name of Testimony documents/ Witness case properties PW32, in respect of Ex.PW21/A, Ex.PW21/D, Ex.PW21/E, Ex.PW22/A to Ex.PW22/L and Ex.PW32/A to Ex.PW32/H. PW39 also deposed on the lines of PW16 in respect of Ex.PW16/A, Ex.PW16/B, Ex.PW16/C, Ex.PW16/D, Ex.PW16/E, Ex.PW16/F and Ex.PW16/G. On 17.04.2020 PW39 sent all the pullandas to CERT- In, for the retrieval of all the data i.e. text messages, videos and audios, through ASI Satish Patil. On 27.04.2020, PW39 recorded statement of Insp. Pramod Joshi regarding registration of FIR in this case. On 06.05.2020 draughtsman Insp. Mahesh Chand along with his team went to place of occurrence and he took measurements at the instance of Insp. Pramod Joshi. PW39 recorded their statement. On 08.05.2020, clothes of deceased were sent to FSL, Rohini, for the purpose of investigation, through ASI Satish Patil.
PW39 had prepared the chargesheet and filed the same on 04.06.2020 before the court of ld. CMM/NE. On 24.09.2020, report from CERT-In was collected by HC Shyam Lal and he handed over the same to PW39. He deposited the 5 mobile phones in the malkhana. In this regard, statements of HC Shyam Lal (Crime branch) and MHC(M) PS Gokalpuri namely HC Mahesh, were recorded.
Thereafter, PW39 prepared supplementary chargesheet-I and filed it on 30.09.2020 before the court alongwith aforesaid materials. On 22.07.2020 PW39 had also applied for sanction u/s 196 Cr.PC through DCP Crime Branch against the accused persons. Same was received by PW39 and he had also filed that sanction order in the court of ld.
Page 35 of 68 (Pulastya Pramachala)ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri Sl. No. & Role of Witness & Description of Proved Name of Testimony documents/ Witness case properties CMM/NE. Thereafter, this case was transferred to Insp. Dinesh Kumar for further investigation. PW39 had also collected certified copy of CAFs and CDRs of mobile phones of all accused persons. He had also obtained certified copy of CAF and CDR of mobile phone of deceased Aamir Ali, witness Narottam and some other witnesses. PW39 had sent information of IMEI number of mobile phone set and SIM card number alloted to deceased Aamir Ali, to all service providers. PW39 received information from one service provider that the SIM card number of Aamir Ali i.e. 9313118035 was being used on a mobile phone set with different IMEI number ending with 11151108. PW39 also added Section 412 and 201 IPC against accused Pawan and Lalit, in the present case. PW39 correctly identified accused Sumit @ Badshah, Pawan, Lokesh, Panchal, Jatin, Rishab and Prince, before the court.
PW39 also correctly identified accused Ankit, Lalit, Pankaj and Himanshu.
Admitted documents under Section 294 Cr.P.C/330 BNSS Particulars of R/C of vehicle no. DL-5SBA-7168 as Ex.A-1 & Ex.A-2; certificate u/s. 65-B of I.E. Act as Ex.A-3; MLC No.760 as Ex.A-4; postmortem report no.356/2020 as Ex.A-5; death certificate as Ex.A-6; emergency registration card as Ex.A-7; opinion regarding weapon of offence as Ex.A-8; copy of FIR No.41/20 as Ex.A-9 (colly 3 pages); copy of arrest memo of Ankit Chaudhary as Ex.A-10; copy of arrest memo of Sumit @ Badshah as Ex.A-11; copy of personal search memo of Ankit Chaudhary as Ex.A-12; copy of personal search memo of Sumit @ Badshah as Ex.A-13; copy of FIR No.50/20 as Ex.A-14; copy of arrest memo and personal search memo of accused Prince as Ex.A-15 & A-16 respectively and copy of R/C No.15/21/20 as Ex.A-17.
Page 36 of 68 (Pulastya Pramachala)ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri PLEA OF ACCUSED UNDER SECTION 351 BNSS
16. For the purpose of recording statement of accused persons under Section 351 BNSS, prosecution was asked to file synopsis of incriminating evidence. It was so filed by ld. Special Public Prosecutor. Submissions were heard from both the sides on the point of incriminating evidence against the accused persons.
ARGUMENTS OF DEFENCE & PROSECUTION ON THE POINT OF INCRIMINATING EVIDENCE
17. Ms. Priyanka Jain, Adv. authorised by Sh. Nishant Kumar Tyagi, ld. counsel for accused Jatin Sharma, Lokesh Solanki, Sahil @ Babu, Vivek Panchal and Rishabh Chaudhary; Sh. Rakshpal Singh and Sh. Hari Krishan, ld. counsels for accused Pankaj Sharma, Sumit @ Badshah, Ankit Chaudhary @ Fauji, Prince, Tinku and Sandeep @ Mogli; and Sh. Rajan Sisodia, ld. counsel for Himanshu Thakur, took plea that the alleged eye witnesses of prosecution, did not support the case of prosecution and they were declared hostile by the prosecutor. None of the witnesses of prosecution identified any of the accused persons, as part of the mob of rioters who killed the victim in this case. Hence, judgment of acquittal should be passed in the case.
18. However, Sh. Saleem Ahmed, ld. Special P.P. argued that though the witnesses cited as eye witness of the incident did not support the case of prosecution, but there are circumstantial evidences on the record, which point out to accused persons. Hence, those circumstantial evidences should be put to the accused persons, for their response under Section 351 BNSS.
Page 37 of 68 (Pulastya Pramachala)ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri SECTION 255 BNSS & 351 BNSS
19. Section 255 BNSS (erstwhile S.232 Cr.P.C.) provides as under: -
"Acquittal- If, after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed the offence, the judge shall record an order of acquittal."
Section 256 BNSS (erstwhile 233 Cr.P.C.) provides as under: -
"Entering upon defence. - (1) Where the accused is not acquitted under section 255, he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof. (2) If the accused puts in any written statement, the Judge shall file it with the record. (3) If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice."
Section 257 BNSS further provides that when examination of the witness of accused, (if any) is complete, the prosecutor shall sum up his case and thereafter the accused shall be entitled to respond to the arguments of the prosecutor. Section 258 BNSS further provides that after hearing arguments and points of law (if any), the judge shall give a judgment in the case.
20. On the other hand, Section 351 BNSS (erstwhile S.313 Cr.P.C.) provides as under: -
"Power to examine the accused - (1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court- (a) may at any stage, without previously warning the accused, put such questions to him as the Court considers Page 38 of 68 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri necessary; (b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case: ......"
21. As it is evident from the language used in Section 351 BNSS, this provision talks about "any circumstance appearing in the evidence against the accused". On the basis of such language, practically the courts have been using the term of "incriminating evidence". The purpose or objective behind the provision under section 351 BNSS is also evident from the language of the provision, wherein it is mentioned that 'for the purpose of enabling the accused personally to explain'. Hon'ble High Court of Delhi in the case of Ranjan Dwivedi & Anr. v. CBI, 2008 Cri.L.J. 1440 (DHC), was examining the scope and content of Section 313 Cr.P.C. and in that process, Delhi High Court referred to following observations made by hon'ble Supreme Court in the case of Jai Dev v. State of Punjab, AIR 1963 SC 612: "the ultimate test in determining whether or not the accused has been fairly examined under Section 342 Cr.P.C. (similar provision under old Act), would be to enquire whether, having regard to all the question put to him, he did get an opportunity to say what he wanted to say in respect of prosecution case against him. If it appears that the examination of the accused person was defective and thereby a prejudice has been caused to him, that would no doubt be a serious infirmity.". Taking view of object behind Section 313 Cr.P.C., Delhi High Court observed that " 19. Thus, it is well settled that the provision is mainly intended to benefit the accused and as it's corollary to benefit the court in reaching the final conclusion. 20. At the same time, it should be Page 39 of 68 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri borne in mind that the provision is not intended to nail him to any position, but to comply with the most salutary principle of natural justice enshrined in the maxim 'audi alteram partem'."
22. Delhi High Court further made observations in the same case in the following terms: -
"24. We think that a pragmatic and humanistic approach is warranted in regard to such special exigencies. The word 'Shall' in clause b to Section 313 (1) of the code is to be interpreted as obligatory on the court and it should be complied with when it is for the benefit of the accused."
23. Delhi High Court was dealing with a different situation in the concerned case, however, in that process, the court did come up with clear cut observations that the principle underlying Section 313 Cr.P.C. was "audi alteram partem" i.e. to afford an opportunity to the accused to explain adverse material or circumstances. The court further made it clear that the said provision was intended for the benefit of the accused, to explain circumstances, which might appear adverse to him, so that accused could explain them.
24. In the case of Sivamani & Anr. v. State of Kerala, 1993 Cri.L.J. 23 (Kerala), while examining the scope of section 232 Cr.P.C., hon'ble Kerala High Court observed that an accused can be acquitted u/s 232 only when there is no evidence that he committed the offence. In that case, Kerala High Court dealt with the term of 'there is no evidence' and in that process the court referred to observations made by Division Bench of same court in the case of State of Kerala v. Mundan, 1981 Cri.L.J. 1795 (Kerala), to the effect that where there is some evidence Page 40 of 68 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri connecting the accused with the commission of crime, it is the duty of the judge to pass on to Section 233 and not to appreciate that evidence and find out whether it was reliable or not, so as to pass an order u/s 232 of the Code. In the case of Mundan (supra), Kerala High Court had further observed that the words 'no evidence' in Section 232 Cr.P.C. cannot be construed and interpreted to mean absence of sufficient evidence for conviction or absence of satisfactory or trustworthy or conclusive evidence in support of the charge. The judge has to see whether any evidence has been let in on behalf of the prosecution in support of their case that the accused committed the offence alleged, and whether that evidence is legal and relevant. It is not the quality or quantity of the evidence that has to be considered at this stage. If there is any evidence to show that the accused has committed the offence, then the judge has to pass on to the next stage. It is not open to him to evaluate and consider the reliability of the evidence at that stage.
25. In the case of Madan Mohan Jagga v. The State, 1984 Cri.L.J. 681 (Himachal Pradesh), even High Court of Himachal Pradesh examined the scope of 'no evidence' as appearing in Section 232 Cr.P.C. to observe that "this term neither means total absence of evidence, nor does it mean absence of cogent, convincing, reliable and trustworthy evidence. All that it means is that there is no inculpatory evidence against the accused in the sense that even if the prosecution evidence adduced is accepted at it's face value, it would not amount to legal proof of the evidence, charged against the accused. In such a case, the court is not Page 41 of 68 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri required to marshal the evidence with a view to find out if it would be safe to act upon it or not."
26. In view of above-mentioned observations made by higher courts, it had to be seen if at all examination of an accused u/s 351 BNSS was necessary in all the circumstances. As per S.351 BNSS, the inculpatory evidence appearing against the accused is to be put to him, so as to enable the accused to give his explanation. As per Section 255 BNSS, if the judge considers that there is no evidence that the accused committed the offence, the judge shall record an order of acquittal. On conjoint reading of Section 255 and Section 351 BNSS, it becomes amply clear that the focus of the court has to be on inculpatory evidence. However, the expression 'no evidence' as mentioned in Section 255 BNSS has an important role to decide if examination u/s 351 BNSS is mandatory in all circumstances. If there is no admissible evidence on the record, so as to indicate towards the accused for commission of alleged offence, then there remains no occasion to seek any kind of explanation from the accused. In other words, if there is no inculpatory evidence on the record to connect the accused with the offences charged against him, then it is not a viable situation to seek any kind of explanation from him. In absence of inculpatory evidence on the record, examination u/s 351 BNSS shall be useless exercise, because accused is otherwise not required to explain evidence of any such fact, which does not connect him with the offences charged against him. Section 255 BNSS becomes relevant for such situation only.
27. For this purpose, as per law explained by higher courts, Page 42 of 68 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri appreciation of the evidence on the record was to be done on limited para meters i.e. without looking into the credibility and sufficiency of the evidence to convict the accused for the offences charged with. On analysing the evidence on the record, on the above-mentioned parameters, I did not find any incriminating evidence against any of the accused persons, which could connect them with the alleged riotous incident of killing of victim Aamir. Hence, statement of all accused persons u/s 351 BNSS was dispensed with, vis a vis all the charges except the charges framed under Section 153-A/505 IPC and 412/201 IPC. On perusal of the record and taking into consideration the view taken by this court in FIR No.35/20, PS Gokalpuri, the evidence qua charges under Section 153-A/505 IPC was looked into in this case and the relevant incriminating evidence was put to accused Lokesh Solanki. Similarly, the relevant incriminating evidence against accused Pawan was put to him which related to charge under Section 201/412 IPC. However, on analysing the evidence on the parameters of requisite ingredients of offence under Section 412 IPC, no incriminating circumstance to satisfy those ingredients could be found against accused Lalit. Hence, statement under Section 351 BNSS of accused Lalit also, was dispensed with.
PLEA OF ACCUSED LOKESH AND PAWAN
28. Accused Lokesh took plea that he did not know about the WhatsApp Chat retrieved from the phone of witness Shivam. He further took plea that he had not posted any message against any community. He did not deny that a mobile phone make Redmi Page 43 of 68 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri Y-2 with dual SIM facility having SIM of mobile number 7557497409 was taken from his possession by IO, with WhatsApp group in the name of "Kattar Hindut Ekta" and that there were messages from his afore-said mobile number in afore- said WhatsApp group. He also did not deny the correctness of CDR and CAF of mobile no. 7557497409, which was issued in his name. He took further plea that he was not an active member in afore-said WhatsApp group and he was added in this WhatsApp group by someone without his consent. He pleaded innocence.
29. Accused Pawan took plea that he did not use the mobile phone set (Intex) and that he did not give any information regarding Lalit. He also pleaded innocence.
FINAL ARGUMENTS OF DEFENCE & PROSECUTION SECTION 153-A/505 IPC
30. Sh. Nishant Tyagi, ld. counsel for accused Lokesh Solanki argued that in the present case the ingredients of S.153-A IPC are not proved and satisfied. He submitted that the allegations against accused Lokesh could be covered under Clause (a) only and there are no allegations to invoke Clause (b) & (c) at all. According to him, for invoking Clause (a) malicious intent is very important and there must be consequences of the words spoken or written by the accused, to result into creating disharmony or riots etc. Ld. counsel submitted that accused Lokesh through his messages did not ask anyone to join him or to kill anyone. Accused rather offered his help to the others. It was further argued that the other members of that group were not before accused Lokesh in his Page 44 of 68 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri physical presence and there is no evidence that any of those members joined this accused for subsequent action. There is no evidence to show that any disturbance was created because of messages of accused Lokesh. Accused Lokesh did not hold any position of responsibility so that his messages could be given importance by anyone else. Thus, no one had listened to him and no one was influenced by his messages.
31. Per contra, Sh. Saleem Ahmed, ld. Special Public Prosecutor for State, argued that there is no requirement in law that there should be some consequence as outcome of the hatred messages. He submitted that if all the messages posted by Lokesh in the WhatsApp group are read together, then there cannot be doubt about satisfying the ingredients of S.153-A (a) IPC. He submitted that a sanction under S. 196 Cr.P.C regarding this offence was also duly proved.
32. Ms. Mangla Verma, ld. counsel appearing on behalf of victim also argued that Section 153-A (a) & (b) IPC do not require any consequent impact. She argued that these provisions only looked for requisite intention of the accused, which can be reflected from the messages posted by accused Lokesh.
33. A written argument was also filed on behalf of victim. In the arguments, it has been mentioned that in Bilal Ahmed Kaloo v. State of A.P., (1997) 7 SCC 431, Supreme Court had analysed the ingredients of Sections 153-A and 505 IPC and held that while Section 153-A applies when a person, through spoken or written words, signs, or visible representations, promotes or attempts to promote feelings of enmity, hatred, or ill will, Section 505(2) Page 45 of 68 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri requires that such feelings be promoted specifically through a publication or by circulating a statement, rumour, or alarming news. In both sections, however, the presence of mens rea or criminal intent, is an essential element of the offence. Recently, the Court in Patricia Mukhim v. State of Meghalaya, (2021) 15 SCC 35 while referring to Manzar Sayeed Khan v. State of Maharashtra, (2007) 5 SCC 1, clarified that the intention has to be judged primarily by the language of the piece of writing and the circumstances in which it was written and published. The matter complained of within the ambit of Section 153-A must be read as a whole.
SECTION 412/201 IPC
34. Sh. Rakshpal Singh and Sh. Hari Krishan, ld. counsels for accused Pawan argued that there is contradiction in the testimony of PW22 and PW32 regarding recording of disclosure statement of accused Pawan. PW22 mentioned the date of 18.03.2020, while PW32 mentioned the date of 17.03.2020 for recording such statement. They further argued that PW32 deposed that they had gone in search of accused Pawan on 17.03.2020, though according to IO/PW39 they were not aware about Pawan before they met his father on 17.03.2020. It was further argued that IO did not establish the chain and circumstances under which the SIM card had allegedly reached upto accused Pawan. They submitted that no mobile phone make Intex was recovered from accused Pawan, rather it was planted upon him. IO did not make inquiry from any of those persons with whom the conversions would have taken place using afore-said SIM card, so as to Page 46 of 68 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri confirm if the SIM card was actually used by accused Pawan.
35. Per contra, Sh. Saleem Ahmed, ld. Special Public Prosecutor for State argued that CAF & CDR of mobile phone used by deceased Aamir i.e. Ex.PW33/K & Ex.PW33/J show that the particular mobile number was issued and was used by deceased Aamir. Same mobile number was subsequently found being used after the incident of killing of Aamir for some period, while using IMEI of the phone set, which was found from the possession of accused Pawan. The other SIM card used on that mobile phone set (Intex) was found allocated in the name of father of Pawan. He further submitted that S. 114 (a) of Indian Evidence Act provides for presumption, which was not rebutted by accused Pawan. He further submitted that Section 106 Evidence Act operated against accused Pawan to account for his possession of afore-said mobile set. He further submitted that IO deposed that Pawan had disclosed about destroying the SIM card, which was used in the name of deceased Aamir.
36. I have given due consideration to the rival contentions and perused the record.
APPRECIATION OF FACTS AND EVIDENCE UNLAWFUL ASSEMBLY & RIOT
37. Though the first charge refers to a wide range of period from 25.02.2020 to 26.02.2020, but it has to be appreciated that FIR in this case was registered for murder of an unidentified person presumably by a mob. Subsequently, said dead person was identified as Aamir. On the basis of investigation, prosecution alleged in the chargesheet that this victim was killed on Page 47 of 68 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri 26.02.2020 at about 9.40 P.M. at Bhagirathi Vihar Pulia. Therefore, talking about any unlawful assembly at any other place and at any other time, is irrelevant in this case. In the present case, I have to look for evidence of unlawful assembly at Bhagirathi Vihar Pulia at around 9.40 P.M. on 26.02.2020.
38. PW36/Narottam is the only witness, who claimed to have seen two bikers being intercepted by a mob near Johripur Pulia. As per testimony of PW36, either on 25 or 26.02.2020 at about 7-8 P.M., he saw a mob intercepting two bikers on T point bridge. One of them jumped into the drain (Nala) and the second biker was beaten. Thereafter second person also jumped into the drain. Such evidence on its face value, establishes that two persons riding a bike, were intercepted by a mob. One person jumped into the drain, while other person was beaten and he also jumped into the drain near Johripur Pulia (T point bridge). There is gap of time between the time-period deposed by PW36 and alleged time period of killing of Aamir. PW36 did not remember about the exact date also. Thus, testimony of PW36 does not lead to any concrete situation, to confirm the incident taking place in his presence, as alleged in this case. This witness was examined by prosecution in other cases also, including FIR 35/20 of same police station which related to murder of Hashim (brother of Aamir). However, prosecution did not take support from the statement made by this witness in other case. Thus, evidence of this witness on the record of this case, does not depict any incriminating circumstance against any accused.
39. PW13 and PW17 were the police officials. According to their Page 48 of 68 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri evidence, on 27.02.2020, they reached at drain in front of E block, Bhagirathi Vihar and they recovered three dead bodies from the drain. One motorcycle bearing no. DL-5S BA 7168 was also recovered from the drain in burnt condition, from nearby place to place of recovery of dead bodies. Number plate of the motorcycle was lying outside the drain. Record from transport authority related to motorcycle bearing aforesaid number, are Ex.A-1 and Ex.A-2. These documents show that said motorcycle (Apache) was registered in the name of Asgari, w/o Babu Khan. PW8/Babu Khan deposed that Hashim and Aamir were his sons. Aamir was having a bike bearing no. DL....7168, which was purchased in the name of wife of Babu Khan i.e. Asgari. According to evidence of PW8, PW10/Nasir and PW34/Shabina, on 26.02.2020 Aamir and Hashim had left for Mustafabad, Delhi from Ghaziabad on Apache bike at about 9 P.M. At about 9.30 P.M., Aamir had telephonic conversation with PW34, when Aamir informed that he had reached Gokalpuri Pulia. But thereafter Aamir or Hashim could not be contacted, as their phone was found switched off. PW10 also had telephonic talk with Aamir at about 9.30 P.M.
40. PW15 and PW19 did not find any other bike from the drain, at least from the place where 3 dead bodies were lying in the drain. Out of three, two bodies pertained to Hashim and Aamir. The postmortem examination report of Aamir Ex. A-5 shows that he had been inflicted several injuries including burn injuires. Aforesaid evidence read together, show that probably Hashim and Aamir were intercepted by someone in the night of Page 49 of 68 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri 26.02.2020 near Johripur Pulia and Aamir was beaten as well as burnt. Aamir either jumped into the drain or he was thrown in the drain. Their motorcycle was also burnt and thrown into the drain. Therefore, on the basis of above-mentioned circumstantial evidences, it can be inferred that Hashim and Aamir were intercepted by someone which could or could not be a mob/unlawful assembly. Postmortem report of Aamir shows that he was inflicted 25 injuries and he died because of shock as a result of injury to his head. Thus, it can be inferred from the circumstances that it was a case of culpable homicide.
IDENTIFICATION OF ACCUSED PERSONS
41. Next question is that whether there is any evidence to show that accused persons prosecuted in this case, were behind killing of Aamir? Ld. Prosecutor submitted that the circumstantial evidence on the record, point out to the accused persons.
42. Before I proceed further, it shall be beneficial to have an idea of legal principles related to circumstantial evidence. In K.T. Palanisamy Vs. State of Tamil Nadu, 2008 (1) RCR (Criminal) 870, Supreme Court held that: -
"When the offence is said to have been committed and the circumstantial evidence is made the basis for establishing the charge against the appellant, indisputably all the links must be completed to form the basis for his conviction. It is now well settled that in a case where an offence is said to have been established on circumstantial evidence alone, indisputably all the links in the chain must be found to be complete."
43. Hon'ble Supreme Court has dealt with the conditions, which need to be satisfied, before circumstantial evidence can be made the Page 50 of 68 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri basis of conviction. In Shambhu Nath Mehra Vs. State of Ajmer AIR 1956 SC 404; Shivaji Shohib Rao Bobade Vs. State AIR 1973 SC 2622; Birdhi Chand Sarda Vs. State of Maharashtra AIR 1984 SC 1622; Pandala Veera Reddy Vs. State of A.P and Other AIR 1990 SC 79; C. Chenga Reddy and Others Vs. State of A.P 1996 (3) 10 SCC 193; Bodh Raj @ Bodha Vs. State of J & K AIR 2002 SC 3164; Trimukh Murty Kirka Vs. State of Maharashtra 2007 (Crl.); Vithal Eknath Adilinge Vs. State of Maharashtra 2009(3) RCR (Crl.) 161, Hon'ble Supreme Court had the occasion to deal with the circumstantial evidence based cases. The principles for use of circumstantial evidence to arrive at the finding of guilt, as laid down by the Hon'ble Apex court, can be summarized as: -
i) The circumstances from which the conclusion of guilt is to be drawn, should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established;
ii) The facts so established should be consistent only with the hypothesis of guilt of accused, i.e. to say, they should not be explainable on any other hypothesis except that the accused is guilty;
iii) The circumstances should be of a conclusive nature & tendency;
iv) They should exclude every possible hypothesis except the one to be proved, and there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
44. In the present case, the circumstantial evidence has been relied upon by ld. Prosecutor, for the reasons that the cited eye witnesses, did not support the prosecution on the aspect of identifying accused persons or any of them, as member of the Page 51 of 68 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri mob which had allegedly intercepted Hashim and Amir. In fact, except for PW36, no other witness claimed having seen any incident. Even evidence of PW36 remained inconclusive in respect of alleged incident. The circumstantial evidence has to be looked into, to see if a chain of facts is so established, as to lead to inference that accused persons or any of them, were part of a mob which was responsible for killing of Hashim and Aamir.
45. Ld. Prosecutor as well as the written arguments on behalf of victim, heavily relied upon the WhatsApp chats from above- mentioned group, to raise fingers against accused Lokesh Solanki and some others. These chats were proved to show extra judicial confessions made therein by accused Lokesh. The relevant part of those chats is as follows: -
"2/26/20, 9:45 AM - Binni: sare taiyaar rho 2/26/20, 8:29 PM - Binni: Bhai taiyaar rho kaam start hone vala hai 2/26/20, 8:29 PM - Binni: taiyaar rho sare 2/26/20, 8:30 PM - Binni: puliya se pipeline ki trf aarge hai suer 2/26/20, 8:44 PM - +91 97168 29847: Aane du in mullo ka suar bna denge 2/26/20, 10:22 PM - +91 70539 44604: Bhaio ye danga q ho raha h nale par abhi jo hua tha 2/26/20, 10:22 PM - +91 70539 44604: Jhoripur nale par 2/26/20, 10:24 PM - +91 96435 06209: Dikat lag rhi he 6 no me sab ready rhena 2/26/20, 11:39 PM - +91 75574 97409: Bhai Mai Ganga Vihar se lokesh Solanki hu agr kisi ko koi problem ho or wha log Kam pde to bta dena Mai apni Puri Ganga Vihar ki team k sath aayunga Sara Saman hai humare pass goli bandook sab kuch 2/26/20, 11:40 PM - +91 75574 97409: Bhai Pura support hai abhi Hindu bhaiyo ko 2/26/20, 11:40 PM - +91 75574 97409: Bilkul bhai Ganga Vihar gokulpuri jhoripur sb sath hai tumhare Page 52 of 68 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri 2/26/20, 11:41 PM - +91 97739 29196: 15 k Dane h kya 2/26/20, 11:41 PM - +91 97739 29196: Kisi Bhai k pass 2/26/20, 11:41 PM - +91 95992 45196: Monty Nagar.vcf (file attached) 2/26/20, 11:41 PM - +91 95992 45196: Bahi ad kro bhai ktr hindu h 2/26/20, 11:41 PM - +91 95992 45196: Yeh 2/26/20, 11:41 PM - +91 75574 97409: Pistol hai 2/26/20, 11:42 PM - +91 75574 97409: Humare pass 2/26/20, 11:42 PM - +91 97739 29196: Faltu h kya 2/26/20, 11:42 PM - +91 97739 29196: Bhai goli h Kya 315 ki 2/26/20, 11:44 PM - +91 75574 97409: Tumhare Bhai ne abhi 9 bje k krib b.vihar m 2 mulla mare hai 2/26/20, 11:44 PM - +91 75574 97409: Or nale m feka hai 2/26/20, 11:44 PM - +91 97168 29847: Bilkul Lokesh bhai 2/26/20, 11:44 PM - +91 75574 97409: Apni team k sath 2/26/20, 11:44 PM - +91 70539 44604: Haa bhai 2/26/20, 11:45 PM - +91 97168 29847: Ha 2/26/20, 11:45 PM - +91 75032 34804: Rajput bhai bhagirath vihar me bande bhej do 2/26/20, 11:45 PM - +91 75574 97409: Bhai abhi thodi aarhe hai hum sab raily lekr 2/26/20, 11:45 PM - +91 75574 97409: B.vihar m 2/26/20, 11:45 PM - +91 97739 29196: Koi dikkt na h Bhaiyo 2/26/20, 11:49 PM - +91 75574 97409: Vinay tumhe pta hai na tumhara Bhai sbse aage rhta hai aise kamo m"
46. Such posts/messages may be put in the group solely with intention of becoming hero in the estimation of other members of the group and the alleged confession could be only a boast without truth. Hon'ble Supreme Court has dealt with confessions including extra judicial confession, in many cases. The judgments of Pancho v. State of Haryana, (2011) 10 SCC 165; Pyare Lal v. State of Rajasthan, AIR 1963 SC 1094; Sahadevan v. State of Tamil Nadu, (2012) 6 SCC 403; State of Maharashtra v. Damu, (2000) 6 SCC 269; Chandrapal v. State of Chhattisgarh, Page 53 of 68 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri (2022) LiveLaw (SC) 529; Ramu Appa Mahapatar v. The State of Maharashtra, 2025 INSC 147, uniformly classify extrajudicial confessions as corroborative evidence rather than substantive. They cannot form the sole basis for conviction due to their inherent weaknesses and they must be supported by independent, reliable evidence. The Supreme Court has emphasized for voluntariness, truthfulness, and corroboration, reflecting safeguards under Article 20(3) of the Constitution (protection against self-incrimination).
47. In the facts and circumstances of this case, the relied upon confessional chats, cannot be substantive evidence to show that accused Lokesh had actually killed two muslim persons. Above- mentioned chats, at the most could be used as corroborative piece of evidence, so as to support the substantive evidence. But there is no substantive evidence showing complicity of Lokesh in the alleged incident. Moreover, they cannot be read, as confession of killing Hashim and his brother Aamir. Prosecution has used same confession for killings of nine persons in different cases. Thus, even prosecution used it only as circumstantial evidence, without being sure as to for which particular victim, this particular chat related to. The first chargesheet itself mentioned about three incidents of killing on 26.02.2020 between 9.15 P.M. and 9.40 P.M. So, even otherwise the relied upon confessional message in the group, cannot be evidence of all these killings between 9.15 P.M. and 9.40 P.M. The argument of ld. Prosecutor that the chats show that Lokesh and other accused persons who were member of that group, were involved in the riots. However, I find that this Page 54 of 68 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri plea is just a general presumption without support of substantive evidence and has no bearing in this case. It shall be matter of analysis of other piece of circumstantial evidence, to see if the chain of all circumstances has been connected, to show involvement of Lokesh and others in the incident leading to death of Aamir.
48. Ld. Prosecutor and ld. counsel for victim, also relied upon testimony of PW1/Nisar. PW1 claimed having seen and identified several persons including some accused persons, in the mob present near Bhagirathi Nala or Johripur Pulia at different points of time than the alleged time of incident in this case. In that situation, any name being mentioned by PW1, becomes worthless.
49. Ld. Prosecutor argued that evidence of PW1 shows a pattern of presence in the mob during the period since 24.02.2020 upto 26.02.2020. Before I deal with this plea, it is worth to refer to some part of the evidence of PW1. In his cross examination by prosecutor, PW1/Nisar deposed that he had subsequently come to know from police that murders had taken place at Johripur Pulia. This goes on to show that he had not seen any incident of murder himself. PW1/Nisar admitted suggestion of the prosecutor that he had told name of some persons to police, who were part of the mob seen by him and who continued rioting for whole day of 25.02.2020 and they used to kill muslim persons. However, PW1 denied the suggestion that he had told before police about the same continuing till night of 26.02.2020.
50. First of all, such admission of suggestion does not become Page 55 of 68 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri evidence of the stated facts, because what was told by PW1/Nisar before police, does not become substantive evidence. What was deposed by him before the court, is the substantive evidence. Secondly, even this statement does not show if PW1/Nisar had seen any particular incident of murder. This was a generalized statement, perhaps based on hearsay, which does not help in the trial of a particular incident. Therefore, even without going into question of credibility of evidence of PW1/Nisar, I find that his evidence does not help the case of prosecution in any manner, to prove involvement of any accused in the alleged incident or to connect any chain of circumstances.
51. As far as pattern of presence in the mob for three days, is concerned, it cannot be forgotten that prosecution has chargesheeted the accused persons, for murder of Aamir with aid of S.149 IPC. Unless, it is shown that there was a mob, which killed Aamir and unless the identity of members of the culprit mob is established, vicarious liability cannot be fastened upon anyone else. In absence of some concrete evidence laying down the foundation, no presumption can be raised that some persons identified as part of some mob at some place at some other time period, would also have been part of a mob, and such mob was involved in the incident of murder of Aamir.
52. Ld. Prosecutor further referred to evidence of PW9/Ct. Vipin, submitting that this witness also had heard names of some accused, being taken by the members of a mob. As per testimony of this witness, on 26.02.2020 he was on duty. On that day at about 10 P.M., he was present near Ganda Nala Pulia known as Page 56 of 68 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri Ganga Vihar Pulia. He was coming towards that Pulia (bridge) from the side of Ganga Vihar and he saw a mob near that Pulia. On seeing police, that mob started dispersing away and while running away from that place, they took names of Rishabh, Pankaj, Prince, Avadesh, Ankit and many other names. All of them fled away from that place and this witness could not see any person. This witness could not remember other names heard by him but, when ld. Prosecutor suggested names of Himanshu, Lokesh Rajput, Jatin, Monty Nagar, Pawan, Monu and Sumit, then this witness admitted having heard these names as well at Ganga Vihar Pulia. He was also witness of the proceedings wherein Lokesh had pointed out to photographs of some accused persons and had told their names before IO.
53. There are two site plans proved on the record as Ex.PW17/B and Ex.PW18/A. In site plan Ex.PW18/A i.e. a scaled site plan, there is only one Pulia, which is referred as Bhagirathi Vihar Jal Board Pulia. Place of incident is also shown near that Pulia. Unfortunately, prosecution did not get it confirmed from PW36 or PW9, as to it was same place where PW36 had seen two bikers being intercepted, or PW9 had seen the mob. Moreover, in none of these two site plans, there is any reference to Ganga Vihar or Ganga Vihar Pulia. Thus, the evidence of prosecution regarding place of recovery of dead body and motorcycle, does not refer to Ganga Vihar Pulia. Prosecution has not come up with any evidence to show that Ganga Vihar Pulia and Bhagirathi Vihar Pulia were same. There is no evidence to confirm the place where victim and his brother was intercepted. In the written Page 57 of 68 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri argument on behalf of victim, statement of PW9 is quoted to say that distance between Ganga Vihar and Bhagirathi Vihar was 100 meters. I find this distance to be irrelevant in this case, for ascertaining the culprit in the case. This distance does not help in any manner to raise any inference. The drain (Bhagirathi Drain) was stated to be between Ganga Vihar and Bhagirathi Vihar. Both these localities are across the drain to each other. It is not the case of prosecution that there was only one pulia (bridge) between these two localities. Therefore, whatever was heard by PW9, cannot be connected with the alleged incident, nor on the basis of the same it can be inferred that any of the accused persons were part of a mob, which could be behind the killings of Aamir.
54. Other circumstance relied by ld Prosecutor and ld. counsel for victim, was recovery of a stick (Danda) each from Himanshu, Jatin and Vivek in other cases. Those sticks were sent to Forensic Department of GTB Hospital. The Board of Doctors, who had conducted postmortem examination, gave opinion that the injuries found on the body of Aamir, could be caused by those sticks. However, at the same time nothing more was found on any of those sticks, so as to say that same sticks were used to inflict injuries upon Aamir. Hence, such general opinion does not help much, so as to infer anything against these three accused persons in the present case.
55. Thus, in the name of circumstantial evidence, there are some fragments and pieces of evidence, which fall much short to point out towards any of the accused persons as culprit for killing of Aamir.
Page 58 of 68 (Pulastya Pramachala)ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri S.153-A/505 IPC
56. In the written arguments filed on behalf of victim, some case laws are referred, which are Bilal Kaloo v. State of A.P., (1997) 7 SCC 431; Patricia Mukhim v. State of Meghalaya, (2021) 15 SCC 35 and Manzar Sayeed Khan v. State of Maharashtra, (2007) 5 SCC 1.
57. It is relevant to reproduce the provisions u/s 153-A and 505 IPC, which are as follows:
S.153-A. Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony. -- (1) Whoever-- (a) by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different reli-gious, racial, language or regional groups or castes or communities, or (b) commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquility, or (c) organizes any exercise, movement, drill or other similar activity intending that the participants in such activity shall use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, or participates in such activity intending to use or be trained to use criminal force or violence or Page 59 of 68 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, against any religious, racial, language or regional group or caste or community and such activity for any reason whatsoever causes or is likely to cause fear or alarm or a feeling of insecurity amongst members of such religious, racial, language or regional group or caste or community, shall be punished with imprisonment which may extend to three years, or with fine, or with both. Offence committed in place of worship, etc.--
(2) Whoever commits an offence specified in sub-section (1) in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment which may extend to five years and shall also be liable to fine.
S.505. Statements conducing to public mischief. -- (1) Whoever makes, publishes or circulates any statement, rumour or report, with intent to incite, or which is likely to incite, any class or community of persons to commit any offence against any other class or community, shall be punished with imprisonment which may extend to three years, or with fine, or with both.
58. In the case of Patricia (supra), hon'ble Supreme Court while dealing with aforesaid legal provisions, made following observations: -
"9. Only where the written or spoken words have the tendency of creating public disorder or disturbance of law and order or affecting public tranquility, the law needs to step in to prevent such an activity. The intention to cause disorder or incite people to violence is the sine-qua-non of the offence under Section 153 Page 60 of 68 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri A IPC and the prosecution has to prove the existence of mens rea in order to succeed.1
10. The gist of the offence under Section 153 A IPC is the intention to promote feelings of enmity or hatred between different classes of people. The intention has to be judged primarily by the language of the piece of writing and the circumstances in which it was written and published. The matter complained of within the ambit of Section 153A must be read as a whole. One cannot rely on strongly worded and isolated passages for proving the charge nor indeed can one take a sentence here and a sentence there and connect them by a meticulous process of inferential reasoning.
11. In Bilal Ahmed Kaloo v. State of A.P.3, this Court analysed the ingredients of Sections 153 A and 505 (2) IPC. It was held that Section 153 A covers a case where a person by "words, either spoken or written, or by signs or by visible representations", promotes or attempts to promote feeling of enmity, hatred or ill will. Under Section 505 (2) promotion of such feeling should have been done by making a publication or circulating any statement or report containing rumour or alarming news. Mens rea was held to be a necessary ingredient for the offence under Section 153 A and Section 505 (2). The common factor of both the sections being promotion of feelings of enmity, hatred or ill will between different religious or racial or linguistics or religious groups or castes or communities, it is necessary that at least two such groups or communities should be involved. It was further held in Bilal Ahmed Kaloo (supra) that merely inciting the feelings of one community or group without any reference to any other community or group cannot attract any of the two sections. The Court went on to highlight the distinction between the two offences, holding that publication of words or representation is sine qua non under Section 505."
59. This charge is based on the chats posted in the aforesaid WhatsApp group. This group was created on 24.02.2020 at 19:19:42 hours. Accused Lokesh was member of this group since Page 61 of 68 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri beginning. Some of the messages posted by him in this group, are already reproduced in this judgment. I have gone through the messages posted in this group by different members. As the name suggests, the central focus of messages in this group have been to unite the persons from Hindu community. However, on that pretext, messages started pouring in to the effect of abusing the muslims. Messages were posted to call upon the members to assemble together, so as to counter the muslims.
60. In the given scenario of riots which started from 24.02.2020, any communication only for the purpose of being united or to come together to counter any attack from rival group, can be understandable. However, messages in the aforesaid group were not limited to this extent only. There were abuses in some messages for muslims. There were instigations against the community of muslim. For example, some of such messages are reproduced herein below: -
"9mullo ko maar diya gya hai.
brijpuri puliya pr.
himmat bnaye rkho or inki bajaye rkho."
61. Among such kind of messages, accused Lokesh also posted messages like mentioned herein below: -
"Are inki MAA ki ch--
Jo krna hai kro Are sbki maa cho--
Dekha jayega Group m bakchodi krne se kya hoga Agr Kuch krna hai to Bhar road pr aao na"
62. The messages posted in the group by accused Lokesh on 26.02.2020, have already been reproduced in paragraph 45. I Page 62 of 68 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri have deliberately skipped to reproduce some of the messages containing abuses and only a few of them have been mentioned here. Thus, in the background of messages posted earlier in the aforesaid group and the kind of participation shown by accused Lokesh therein, the messages posted by him on 26.02.2020 leave no doubt that theme of all those messages was to mobilize the members against muslim persons. It is also well apparent that intent of the messages posted by accused Lokesh, was to instigate the others against muslim persons. This act was in fact alike spreading hatred for muslim persons and to instigate others to resort to violence against them.
63. I am in agreement with the arguments of ld. Prosecutor and ld. counsel for victim, that there is no requirement of evidence of consequent action taking place, on the basis of messages posted by accused Lokesh. Thus, I do find that accused Lokesh through his messages attempted to promote disharmony, feeling of enmity and hatred for muslim persons and he committed offence defined and punishable under S.153-A IPC.
64. Accused Lokesh offered to others to help with weapons etc., which was to incite others to commit offences against muslim persons, because no person without authority of law can use weapon or force against any person. If force or weapons were to be used by any member of this group against muslim persons, then it had to be an offence. Thus, messages posted by accused Lokesh are also found to be with intent to cause alarm to other members of the group and to induce them to commit offence against muslim persons and against public tranquility, being Page 63 of 68 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri punishable under S.505 IPC.
65. Section 412 IPC deals with dishonestly receiving or retaining stolen property, with knowledge of such property being acquired by the commission of dacoity, or with knowledge that the person from whom such property is being received, is member of a gang of dacoits, or the knowledge that it is a stolen property, or having reason to believe that such property is stolen property. The burden of proof lies with the prosecution to establish the elements of the offence beyond reasonable doubt. To convict a person under Section 411 or 412 IPC, the prosecution must prove the following:
1. The property in question was obtained through theft (as defined under Section 378, IPC) or related offenses like robbery or dacoity.
2. The accused had possession or control of the stolen property.
3. The accused knew or had reason to believe that the property was stolen i.e. the accused was aware or had reasonable grounds to suspect that the property was stolen.
4. The act was done dishonestly i.e. the accused acted with intent to wrongfully gain or cause wrongful loss to the rightful owner.
66. There can be situation where the accused directly knew that the property was stolen (e.g., he was informed by the thief or witness of the theft). Reason to believe means that the accused had such circumstances that would lead a reasonable person to suspect the property to be stolen, which may include purchasing goods at a Page 64 of 68 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri suspiciously low price or acquiring property in a clandestine or irregular manner (e.g. late-night transactions without documentation).
67. The prosecution bears the burden of proving all elements of the offence beyond reasonable doubt. The accused is not required to prove his innocence. Ld. Prosecutor mentioned about S. 114 (a) of the Indian Evidence Act. This provision provides that if the accused is found in recent possession of stolen property and he cannot satisfactorily explain as to how did he acquire it, the court may presume that accused stole that property or he knew that it was stolen property or he dishonestly received it. This is a rebuttable presumption meaning thereby the accused can offer an explanation to counter it, but the ultimate burden remains with the prosecution to prove the ingredients of the offence.
68. In the case of Trimbak v. State of Madhya Pradesh, AIR 1954 SC 39, Supreme Court held that mere possession of stolen property does not automatically prove guilt unless the prosecution shows the accused had knowledge or reason to believe it was stolen. In the case of Shiv Kumar v. State of M.P., (2022) 7 SCR 493, while relying upon aforesaid judgment, Supreme Court again observed that "12. In this case, although recovery of items was made, the prosecution must further establish the essential ingredient of knowledge of the appellant that such goods are stolen property. Reliance solely upon the disclosure statement of accused Raju alias Rajendra and Sadhu alias Vijaybhan Singh will not otherwise be clinching, for the conviction under Section 411 of the IPC.......The penal Section extracted above can be broken Page 65 of 68 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri down into four segments namely: Whoever, I. Dishonestly; II. Receives or retains any stolen property; III. Knowing; or IV. Having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
15. To establish that a person is dealing with stolen property, the "believe" factor of the person is of stellar import. For successful prosecution, it is not enough to prove that the accused was either negligent or that he had a cause to think that the property was stolen, or that he failed to make enough inquiries to comprehend the nature of the goods procured by him. The initial possession of the goods in question may not be illegal but retaining those with the knowledge that it was stolen property, makes it culpable."
69. In the present case, prosecution alleged that a mobile phone was recovered from the possession of accused Pawan, and SIM card issued in the name of deceased Aamir, was used on that phone set after killing of Aamir. The CDR of mobile phone number issued in the name of Aamir, i.e. Ex.PW33/I, shows that said number was used on mobile phone set bearing same IMEI number, which pertained to mobile phone (Intex), from 02.03.2020 to 10.03.2020. However, prosecution did not prove the CAF of mobile number, which was allegedly found in the name of father of accused Pawan. Moreover, there is merit in the argument of ld. defence counsel that IO did not confirm from those persons, with whom conversations had taken place using SIM card in the name of Aamir on this phone set (Intex), as to who was actual user of Page 66 of 68 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri this mobile phone and that SIM card. Most importantly, prosecution did not prove any such circumstance, which could lead to inference that this SIM card was received with knowledge of same being stolen property. In my opinion, presumption u/s 114 (a) of I.E. Act cannot come into play in this case, because there was a big gap of the mobile phone of Aamir being stolen/robbed and recovery of this phone from accused Pawan or accused Lalit. IO deposed that accused Pawan had disclosed to him that mobile phone and Sim card of Aamir was given to Pawan by one Babu. But IO could not find that Babu. The allegation of prosecution that Pawan and Lalit disclosed before IO that SIM card of Aamir was destroyed by them, is not acceptable because it is hit by S.24, S.25 and S.27 of I.E. Act. This alleged disclosure did not lead to recovery of any new fact. There is no evidence on the record, except for one circumstance of mobile phone sets being found in possession of Pawan and Lalit, to show that it was Pawan who actually used the SIM card of Aamir. S.106 I.E. Act could have application in this case, only when aforesaid fact would have been established. There is no evidence to show that Pawan or Lalit had the knowledge of the SIM card and mobile phone set being stolen property. Thus, I find that charges u/s 201 are not proved against Pawan. Evidences on the record do not establish all ingredients of offence u/s 412 IPC either against Pawan or Lalit.
CONCLUSION & DECISION
70. In view of my foregoing discussions, observations and findings, I find that charges under Sections Page 67 of 68 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-002398-2020 State v. Lokesh Solanki etc. SC No. 117/2020, FIR No. 37/2020, PS Gokalpuri 144/147/148/188/302/427/432/435/395/396/34 IPC read with Section 149 IPC, are not proved at all, against accused namely 1. Lokesh Kumar Solanki, 2. Pankaj Sharma, 3. Sumit Chaudhary @ Badshah, 4. Ankit Chaudhary, 5. Prince @ D.J. Wala, 6. Rishabh Chaudhary, 7. Jatin Sharma @ Rohit, 8. Vivek Panchal @ Nandu, 9. Himanshu Thakur, 10. Tinku Arora, 11. Sandeep @ Mogli and 12. Sahil @ Babu. Hence, they are acquitted of such charges.
71. Accused 1. Pankaj Sharma, 2. Sumit Chaudhary @ Badshah, 3. Ankit Chaudhary, 4. Prince @ D.J. Wala, 5. Rishabh Chaudhary @ Tapal, 6. Jatin Sharma @ Rohit, 7. Vivek Panchal @ Nandu, 8. Himanshu Thakur, 9. Tinku Arora, 10. Sandeep @ Mogli and 11. Sahil @ Babu are also acquitted for charges under Sections 153- A/505 IPC.
72. Accused Pawan Kumar @ Lokesh and Lalit Kumar @ Rahul Chaudhary are acquitted for charges under Sections 201/412 IPC.
73. Charges under Sections 153-A/505 IPC stand proved against accused Lokesh Kumar Solanki and he is held guilty and convicted under both these provisions.
Digitally signed by PULASTYA PULASTYA PRAMACHALA
PRAMACHALA Date:
2025.05.13
16:27:39 +0530
Announced in the open court (PULASTYA PRAMACHALA)
today on 13.05.2025 ASJ-03 (North- East)
(This order contains 68 pages) Karkardooma Courts/Delhi
Page 68 of 68 (Pulastya Pramachala)
ASJ-03, North-East District,
Karkardooma Courts, Delhi