Delhi District Court
State vs Mohd Shahnawaj @Shanu @ Ansari And Ors on 11 September, 2024
CNR No. DLNE01-000456-2021
State v. Mohd. Shahnawaz etc.
SC No. 48/2021, FIR No. 140/2020, PS Gokalpuri
DLNE010004562021
IN THE COURT OF SH. PULASTYA PRAMACHALA
ADDITIONAL SESSIONS JUDGE-03,
NORTH-EAST DISTRICT
KARKARDOOMA COURTS: DELHI
INDEX
Sl. HEADINGS Page Nos.
No.
1 Description of Case & Memo of Parties 2-3
2 The case set up by the Prosecution 3-6
3 Charges 6-7
4 Description of Prosecution Evidence 7-15
5 Plea of accused under Section 351 BNSS 15-16
6 Arguments of Defence & Prosecution 16-20
APPRECIATION OF LAW, FACTS AND EVIDENCE
7 Unlawful Assembly and Riots 20-23
8 Identification of accused 23-41
9 Conclusion & Decision 41
Digitally signed
by PULASTYA
PULASTYA PRAMACHALA
Page 1 of 41 PRAMACHALA Date: 2024.09.11
15:52:05 +0530
CNR No. DLNE01-000456-2021
State v. Mohd. Shahnawaz etc.
SC No. 48/2021, FIR No. 140/2020, PS Gokalpuri
Sessions Case No. : 48/2021
Under Section : 147/148/436/392/427/452/454 read
with 149 IPC
Police Station : Gokalpuri
FIR No. : 140/2020
CNR No. : DLNE01-000456-2021
In the matter of: -
STATE
VERSUS
1. MOHD. SHAHNAWAZ @ SHANU
S/o. Mohd. Rashid,
R/o. H.No. A-528, Gali No.22,
Phase-10, Shiv Vihar, Delhi.
2. MOHD. SHOAIB @ CHHUTWA
S/o. Late Islam,
R/o. H.No. A-29, Gali No.5/2,
Babu Nagar, Mustafabad, Delhi-94.
3. SH. SHAHRUKH
S/o. Sh. Salauddin,
R/o. H.No. B-262, Gali No.7, Babu Nagar,
Near Shiv Mandir, Delhi.
4. SH. RASHID @ RAJA
S/o. Sh. Riyazuddin,
R/o. H.No.3, Gali No.2, Chaman Park,
Gokapuri, N/E, Delhi-94.
5. SH. AZAD
S/o Late Sh. Riyasat Ali,
R/o. H.No. 824, Gali No. 9, Old Mustafabad,
N/E, Delhi.
6. SH. ASHRAF ALI
S/o Sh. Anisul Haq,
R/o. H.No. A-18, A-Block, Chaman Park,
Bhagirathi Vihar, Dayalpur, Delhi-4.
7. SH. PARVEZ
S/o. Sh. Riyazuddin,
R/o. H.No. B-380, Gali No.2,
Indira Vihar, Gokulpur, N/E, Delhi-94.
Digitally signed
by PULASTYA
PULASTYA PRAMACHALA
Page 2 of 41 PRAMACHALA Date: 2024.09.11
15:52:14 +0530
CNR No. DLNE01-000456-2021
State v. Mohd. Shahnawaz etc.
SC No. 48/2021, FIR No. 140/2020, PS Gokalpuri
8. MOHD. FAISAL
S/o. Rahisuddin,
R/o. H.No. F-14, Gali No.1, Babu Nagar,
Mustafabad, Delhi-94.
9. SH. RASHID @ MONU
S/o. Sh. Khalil,
R/o. H.No. 259, Gali No.7, Shakti Vihar,
Shadatpur, Delhi-94.
10. MOHD. TAHIR
S/o. Mohd. Umar,
R/o. H.No. 16, Gali No.6,
Old Mustafabad, Delhi-94.
...Accused Persons
Case registered on Sh. Satish Kumar
the complaint of: S/o. Sh. Mangat Ram,
R/o. H.No. D-412, Main Gamri Road,
Bhajanpura, Delhi-54.
Date of Institution : 14.07.2020
Date of reserving order : 05.09.2024
Date of pronouncement : 11.09.2024
Decision : All accused are acquitted.
(Section 481 BNSS complied with by all accused persons)
JUDGMENT
THE CASE SET UP BY THE PROSECUTION: -
1. The above-named accused persons have been charge-sheeted by the police for having committed offences punishable under Section 147/148/149/436/454/392/452/188/153-A/427/506 IPC.
2. Brief facts of the present case are that on 01.03.2020 complainant Satish Kumar made a hand written complaint in PS Gokalpuri alleging that he was resident of H.No. C-3, FF, Khasra No. 52/8, Gali No.1, Main Brijpuri Road, Chaman Park, Shiv Vihar Tiraha, Delhi-94. It was his three-storey building in area measuring 100 Digitally signed by PULASTYA PULASTYA PRAMACHALA Page 3 of 41 PRAMACHALA Date: 2024.09.11 15:52:32 +0530 CNR No. DLNE01-000456-2021 State v. Mohd. Shahnawaz etc. SC No. 48/2021, FIR No. 140/2020, PS Gokalpuri square yards. There was a hall on the first floor, which he had let out for mobile shop. Complainant further alleged that on 24.02.2020, he along with his family was present at aforesaid home. At around 02:30 PM, a large mob of around 1000-1500 persons came to his building. They were equipped with various weapons. They started looting, vandalising and setting on fire the aforesaid mobile shop. Complainant further alleged that at around 4-04:30 O'clock a mob of around 50-60 persons came upstairs. They threatened him to leave the aforesaid property immediately, otherwise they would burn him alive. They started looting and vandalising in his house. They took away jewelelry measuring 20 tola of gold and a quarter of kilogram of silver as well as cash amount of Rs.1,50,000/-. It was further alleged that at around 04:25-04:30 PM, complainant made call at 100 number through his mobile no.9582463455. Thereafter, those persons set ablaze the furniture, three double beds, one sofa set, one dining table, two AC, one LCD TV, washing machine, two gas cylinder and one oven, which were kept in his house. It was further alleged that rioters also looted valuable clothes and utensils. They also burnt documents related to that house along with all necessary documents. After seeing fire and in order to save the lives, complainant along with his family fled away from his house and took shelter at the place of his relative.
3. On the endorsement made by Insp. Bineet Kumar Pandey on 03.03.2020, ASI Yeshpal registered FIR No.140/2020 on 04.03.2020 for offences under Section 147/148/149/380/427 IPC. ASI Ram Dass was assigned investigation of the present case.
4. During the course of investigation, ASI Ram Dass prepared site Digitally signed Page 4 of 41 by PULASTYA PULASTYA PRAMACHALA PRAMACHALA Date: 2024.09.11 15:52:39 +0530 CNR No. DLNE01-000456-2021 State v. Mohd. Shahnawaz etc. SC No. 48/2021, FIR No. 140/2020, PS Gokalpuri plan at the instance of complainant and recorded his supplementary statement. Complainant could not provide any document related to his burnt or looted properties. Crime Team visited this place on 15.03.2020 and took photographs. Ash was lifted from this place and seized.
5. Further investigation was carried out by SI Manoj and he examined police officials, who were on duty at that place including Ct. Vipin, Ct. Sanjay and HC Hari Babu, who claimed to be eyewitnesses of the incident. On 09.04.2020, complainant produced documents related to his shop and the same were taken into police possession through seizure memo. Another eyewitness namely Shyam Sundar was examined on 10.04.2020.
All these eyewitnesses had mentioned name of 10 accused persons, who were subsequently arrested in this case. These accused persons were already arrested in FIR No. 39/2020, PS Gokalpuri. It was found that scene of crime as reported in FIR No. 39/2020 was adjacent to the scene of crime in the present case.
6. CDR of all the accused persons were obtained and analysed and were placed on the record. IO also examined PCR callers and recorded their statement. IO obtained SOC report and photographs. Copy of order under Section 144 Cr.P.C. was also placed on the record and Section 454/392/153-A/188/506 IPC were added in this case.
7. After completion of investigation, on 14.07.2020 a chargesheet was filed before Duty MM (North-East), Karkardooma Courts, Delhi, against accused persons namely Mohd. Shahnawaz @ Digitally signed by PULASTYA PULASTYA PRAMACHALA Page 5 of 41 PRAMACHALA Date: 2024.09.11 15:52:47 +0530 CNR No. DLNE01-000456-2021 State v. Mohd. Shahnawaz etc. SC No. 48/2021, FIR No. 140/2020, PS Gokalpuri Shanu, Mohd. Shoaib @ Chhutwa, Shahrukh, Rashid @ Raja, Azad, Ashraf Ali, Parvez, Md. Faisal, Rashid @ Monu and Mohd Tahir. Thereafter, on 11.12.2020, ld. CMM (North East), Karkardooma Courts, Delhi, took cognizance of offences punishable under Section 147/148/149/392/427/436/452/454/506 IPC. Vide this order, ld. CMM (North East) declined to take cognizance of offence under Section 153-A/188 IPC, for want of sanction under Section 196 Cr.P.C. and complaint under Section 195 Cr.P.C., respectively. Thereafter, case was committed to the court of sessions vide order dated 12.01.2021.
8. On 12.12.2022, first supplementary chargesheet along with complaint u/s. 195 Cr.P.C., other documents and statement, was filed before this court directly.
CHARGES
9. On 06.05.2022, charges were framed against aforesaid accused persons for offences punishable under Section 147/148/436/392/427/452/454 IPC read with Section 149 IPC, to which they pleaded not guilty and claimed trial. The charges were framed in following terms: -
"That on 24.02.2020 at 02:30 PM, at the House of Satish Kumar S/o late Sh. Mangat Ram R/o C-3,FF, Khasra No.52/8, Gali No.1, Main Brijpuri Road, Chaman Park, Shiv Vihar Tiraha, Delhi- 110094 within the jurisdiction of PS Gokulpuri, you along with your other associates (unidentified) from a particular community had formed an unlawful assembly with the common object of committing riots by carrying stones, sticks and other weapons of rioting and to create fear and insecurity in the minds of members of other community and by use of force or violence in prosecution of a common object of such assembly committed rioting and you, being members of the aforesaid unlawful assembly knew that offences were likely to be committed and thereby you alongwith your other associates (unidentified) committed offences punishable under sections 147,148 IPC read with Section 149 IPC and within my cognizance.Digitally signed by PULASTYA Page 6 of 41 PULASTYA PRAMACHALA
PRAMACHALA Date: 2024.09.11 15:52:54 +0530 CNR No. DLNE01-000456-2021 State v. Mohd. Shahnawaz etc. SC No. 48/2021, FIR No. 140/2020, PS Gokalpuri Secondly, on the aforesaid date, time and place, you all being members of unlawful assembly alongwith your other associates (unidentified) broke open the lock and entered in the house of Complainant Satish Kumar and committed mischief by fire or explosive substance by setting ablaze the house with the intent to destroy the same and as such, committed offence punishable under Section 436 IPC read with Section 149 IPC within my cognizance.
Thirdly, on the aforesaid date, time and place, you all being members of unlawful assembly alongwith your other Associates (unidentified) committed robbery in the aforesaid house of the complainant Satish Kumar and as such, committed offence punishable under Section 392 IPC read with Section 149 IPC within my cognizance.
Fourthly on the aforesaid date, time and place, you all being members of unlawful assembly alongwith your other associates (unidentified) committed mischief by causing wrongful loss and damage to the aforesaid house of complainant Satish Kumar and as such, committed offence punishable under section 427 IPC read with Section 149 IPC within my cognizance.
Fifthly on the aforesaid date, time and place, you all being members of unlawful assembly alongwith your other associates (unidentified) committed house-trespass by causing hurt, assault to the complainant Satish Kumar and as such, committed offence punishable under section 452 IPC read with Section 149 IPC within my cognizance.
Sixthly on the aforesaid date, time and place, you all being members of unlawful assembly alongwith your other associates (unidentified) committed lurking house-trespass in order to commit offence of theft in the aforesaid house of complainant Satish Kumar and as such, committed offence punishable under Section 454 read with Section 149 IPC within my cognizance."
DESCRIPTION OF PROSECUTION EVIDENCE: -
10. Several witnesses were dropped on the basis of admission of documents under Section 294 Cr.P.C. and prosecution examined 17 witnesses in support of its case, as per following description: -
Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties PW1/Sh. On 24.02.2020 at about 02:00-02:30 PM, Ex.PW1/A Satish he along with his family was present at (complaint Kumar his home bearing no. C-3-52/8, 2 nd Floor, of PW1); & Main Brijpuri Road, Near Shiv Vihar Page 7 of 41 Digitally signed by PULASTYA PULASTYA PRAMACHALA PRAMACHALA Date: 2024.09.11 15:53:10 +0530 CNR No. DLNE01-000456-2021 State v. Mohd. Shahnawaz etc. SC No. 48/2021, FIR No. 140/2020, PS Gokalpuri Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties Tiraha, Chaman Park, Delhi. A mob of Ex. PW1/B around 200-250 persons had assembled (seizure on the main Brijpuri Road. PW1 deposed memo of that at about 4 PM that mob climbed over documents terrace of his house through the terrace of and the adjoining properties. On the back side photographs) of his house, there was a gali. There was a gate in his house opening in this gali and the mob broke the kundi of that gate and came upstairs up to second floor. By this time, the room on the side of balcony facing the main Brij Puri Road, was already on fire due to pelting of petrol bomb by that mob. Due to this fire, the second floor of his house was filled with smoke. The persons of this mob were equipped with lathi, danda etc. and they threatened PW1 to leave the house else they would kill him and his family members. Then, PW1 alongwith his family came out of his house and went towards the area of Shiv Vihar. The mob remained in his house.
PW1 further deposed that on 27.02.2020, he came back to his aforesaid home alongwith other persons and found that first and second floor of this house was completely in burnt condition. No article was found lying in his house. The safe wherein he used to keep money, jewellery etc. was in open condition. Nothing was left therein and all other articles were lying in damaged and burnt condition.
On 24.02.2020 at about 4-5 PM, PW1 had made call at 100 number when he was present in his house using his mobile phone no. 9582463455. The mob had vandalized and set on fire the articles kept in his house, when he had left his house. PW1 had made a complaint to Digitally signed Page 8 of 41 by PULASTYA PULASTYA PRAMACHALA PRAMACHALA Date: 2024.09.11 15:53:18 +0530 CNR No. DLNE01-000456-2021 State v. Mohd. Shahnawaz etc. SC No. 48/2021, FIR No. 140/2020, PS Gokalpuri Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties police after 27.02.2020.
PW1 had called a photographer, who had taken photographs of his house. PW1 handed over photographs to police alongwith his complaint. PW1 had also handed over the title documents related to this house to the police and police seized the same.
On 24.02.2020, when the mob had come to his floor, some persons were having naked face and PW1 had seen their faces.
PW1 did not support the case of prosecution on the point of identification of the accused persons and was declared hostile.
PW2/Sh. On 24.02.2020 since about 08:30 AM up to about 2 PM Shyam or 02:30 PM, he was present at his shop of sale and Sunder repair of bicycle as well as of Tea, bearing no.4 & 5, situated in the area of Chaman Park at Shiv Vihar T- point. PW2 saw a large number of persons equipped with danda, lathi, some small bottles came from the side of Brijpuri towards T point. They started pelting stones and petrol bombs towards the shops. PW2 rushed back to his home and he remained there.
PW2 did not support the case of prosecution on the point of identification of accused persons and he was also declared hostile.
PW3/ASI They deposed that on 24.02.2020, they were on duty at Hari Shiv Vihar Tiraha. At about 2 or 4 PM, around 1000- Babu, 1500 persons had assembled on Main Brijpuri Road. PW4/HC They were raising slogans and were carrying danda, rod, Vipin petrol bomb etc. They started pelting stones on police Kumar & party as well as on nearby houses and shops on Brijpuri Road. At about 4 PM, the persons from this mob entered PW5/HC into one under construction restaurant from the back side Sanjay entrance. This building was situated in front of Rajdhani Public School. That mob vandalized that restaurant and upper portion of that building and also indulged into Digitally signed by PULASTYA Page 9 of 41 PULASTYA PRAMACHALA PRAMACHALA Date: 2024.09.11 15:53:27 +0530 CNR No. DLNE01-000456-2021 State v. Mohd. Shahnawaz etc. SC No. 48/2021, FIR No. 140/2020, PS Gokalpuri Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties arson. They burnt the articles on both floors. When police tried to stop them, then this mob pelted stones upon the police team.
PW3 knew and had seen faces of accused Shahnawaz, Parvez, Mohd. Tahir and Azad, in the aforesaid mob. PW4 knew and identified accused Shahnawaz, Shoaib, Shahrukh and Rashid @ Monu.
PW5 knew and identified accused Shahnawaz, Mohd. Faisal, Ashraf Ali and Rashid @ Raja in the aforesaid mob.
PW6/HC He was working as Reader to SHO in PS Gokalpuri on Pradeep 24.02.2020. On that day, an order passed by DCP (N/E) u/s. 144 Cr.P.C. was received through Dak and PW6 on the directions of SHO announced that order in the jurisdictional area of that PS through a loud hailer. PW7/ASI PW7 was working as Photographer in Ex.PW7/A Mahavir Mobile Crime Team (N/E) on (certificate & 15.03.2020. On that day, he accompanied of PW7 in PW15/SI SI Manish/PW15. Both of them visited respect of 18 Manish C-3, Khasra No.52/8, Chaman Park, photographs) Kumar Brijpuri. IO/ASI Ram Das and Ex.PW7/P-1 complainant Satish were present there. to PW15 Inspected that three-storeys houseEx.PW7/P18 and found 1st and 2nd floor in burnt and (18 vandalized condition. photographs PW7 took 18 photographs in that taken by property. PW7 furnished certificate in PW7); & respect of these photographs. Ex.PW15/A PW15 prepared SOC report. (SOC report of PW15) PW3/ASI PW3 had produced attested photocopy of Ex.PW3/B Hari Babu, his medical records, from Jain Hospital, (5 sheets PW8/Sh. Vikas Marg, New Delhi. Original of the OSR) (true Himanshu, same were also produced by PW3 being photocopy of & the concerned patient. original PW10/Dr. PW8 was deputed and authorized by Dr. medical Arun Sangeeta Jain, Director of Jain Hospital, records Digitally signed Page 10 of 41 by PULASTYA PULASTYA PRAMACHALA PRAMACHALA Date: 2024.09.11 15:53:39 +0530 CNR No. DLNE01-000456-2021 State v. Mohd. Shahnawaz etc. SC No. 48/2021, FIR No. 140/2020, PS Gokalpuri Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties Kumar to appear before the court with attested produced by Aggarwal copy of medical records of patient i.e. PW3);
PW3. Original authorization letter was Ex.PW8/A placed in FIR No. 95/20, PS Gokalpuri. (copy of PW10 had examined PW3 in Jain authorization Hospital and had prepared aforesaid letter ) medical prescriptions. PW3 had made complaint of dizziness and he was diagnosed having Peripheral Vestibulopathy and was given treatment accordingly.
PW3/ASI PW3 had visited Garg Hospital on 12.01.2022 and was
Hari treated there up to 21.01.2022 on the complaint of chest
Babu, & infection, breathlessness, high grade fever, weakness and
PW9/Dr. vertigo and his medical prescriptions Ex.PW3/A, were
Sanjay prepared by PW9.
Garg
PW11/ He was handed over a complaint of Ex.PW11/A
Insp. Satish Kumar on 03.03.2020 in PS (endorsement
Bineet Gokalpuri and he made his endorsement of PW11 on
Kumar on that complaint for registration of FIR the complaint
Pandey and to assign further investigation to ASI of Satish
Ram Dass. PW11 identified his Kumar)
endorsement from points A to A-1 on the
complaint of Satish Kumar.
PW12/SI He being posted in PS Gokalpuri, obtained complaint
Satyadev u/s. 195 Cr.P.C. from the office of DCP (N/E). He
Pawar recorded statement of HC Pradeep/PW6. He also collected FSL report related to this case and prepared a supplementary chargesheet, which was filed in the court in February 2023.
PW13/ On 04.03.2020, he was handed over copy Ex.PW13/A ASI Ram of FIR in this case with original rukka for (site plan Dass investigation. He made contact with prepared by complainant Satish and visited his PW13), & property i.e. C-3, Gali No.1, Main Ex.PW13/B Brijpuri Road, Chaman Park. On the first (seizure floor of this property one shop of mobile memo of a Digitally signed Page 11 of 41 by PULASTYA PULASTYA PRAMACHALA PRAMACHALA Date: 2024.09.11 15:53:49 +0530 CNR No. DLNE01-000456-2021 State v. Mohd. Shahnawaz etc. SC No. 48/2021, FIR No. 140/2020, PS Gokalpuri Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties was found in completely burnt condition plastic box along with other part of that floor. PW13 containing prepared site plan. ash lifted On 15.03.2020, PW13 called crime team from first at this property and on 20.03.2020, he floor) again visited this property in the presence of Satish, lifted ash from the first floor in a plastic box, seized it and he deposited the same in the malkhana.
PW14/ He had prepared duty roster in PS Ex.PW14/A HC Gokalpuri for 24.02.2020. He produced (colly. 4 Sarnam original register of duty roster for this sheets OSR) Singh period. He compared copy of duty roster (true copy of as placed in the file with its original and duty roster found it to be the true copy of original. dated 24.02.2020) PW16/ On 24.02.2020 she was posted in PS Gokalpuri and on W/SI that day vide DD No.25-B she along with 3-4 other staff Deepika was on petrolling duty in the area of Brijpuri T-point, Wazirabad Road, Gokalpuri Metro station and Ganga Vihar Market.
PW17/ On 07.04.2020, he was posted in PS
Insp. North Rohini. On this day, he was
Manoj attached in PS Gokalpuri, by the orders
of senior officers. On this day, PW17
received file of this case for investigation from MHC(R). On 08.04.2020, PW17 went through this file and on the basis of analysis of the file, he came to know that Ct. Vipin, Ct. Sanjay and Ct. Babu, were on duty during the period of riots in the area of Brijpuri. Accordingly, PW17 examined all these 3 officials and recorded their statement in this case.
On 09.04.2020, complainant Satish handed over certain documents related to his shop which were seized vide seizure memo Ex.PW1/B. PW17 recorded his statement. On 10.04.2020, one eye Digitally signed Page 12 of 41 by PULASTYA PULASTYA PRAMACHALA PRAMACHALA Date:
2024.09.11 15:53:59 +0530 CNR No. DLNE01-000456-2021 State v. Mohd. Shahnawaz etc. SC No. 48/2021, FIR No. 140/2020, PS Gokalpuri Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties witness namely Shyam Sunder came to PW17 in the PS and PW17 recorded his statement in this case. From the statement of eye witness and aforesaid police officials, name of 10 culprits were revealed namely accused Shahnawaz @ Shanu, Azad, Ashraf, Shahrukh, Shoaib, Mohd. Tahir, Parvez, Rashid @ Raja, Rashid @ Monu and Faisal. After discussing the matter with his senior officers, PW17 came to know that all above-said accused persons were already running into judicial custody in FIR No. 39/20 of PS Gokalpuri.
On 16.04.2020, PW17 along with Ct.
Sandeep came to Karkardooma Courts and moved application before concerned MM, seeking permission to interrogate and arrest accused Shahnawaz. PW17 was granted the permission. PW17 reached Mandoli Jail alongwith Ct.
Sandeep. In that jail, PW17 interrogated accused Shahnawaz and formally arrested him in this case vide arrest memo, which is Ex.A-17 (admitted document). On next day, PW17 again came to Mandoli Jail and moved application before duty MM at the jail and accused Shahnawaz was sent to J/C in this case accordingly.
On 22.04.2020, PW17 along with Ct.
Sandeep again visited Mandoli Jail and moved application before duty MM for interrogation of accused Azad, Ashraf, Shahrukh, Shoaib, Mohd. Tahir, Rashid @ Raja & Parvez. On permission, PW17 interrogated them separately and arrested them in this case vide their separate arrest memos. Arrest memo of Ashraf Ali is Ex.A-18; of Shoaib is Ex.A-19; of Rashid @ Raja is Ex.A-20; of Shahrukh is Ex.A-Digitally signed Page 13 of 41 by PULASTYA
PULASTYA PRAMACHALA PRAMACHALA Date: 2024.09.11 15:54:07 +0530 CNR No. DLNE01-000456-2021 State v. Mohd. Shahnawaz etc. SC No. 48/2021, FIR No. 140/2020, PS Gokalpuri Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties 21; of Mohd. Tahir is Ex.A-22; of Azad is Ex.A-23 and of Parvez is Ex.A-24 (admitted documents). On same day, all of those accused persons were sent to J/C on his application.
On 25.04.2020, PW17 moved application before Duty MM at Tihar jail seeking permission to interrogate Mohd. Faisal and Rashid @ Monu. On getting permission, PW17 interrogated them separately vide their separate arrest memos. Arrest memo of Faisal is Ex.A-
25 and that of Rahid @ Monu is Ex.A-
26. Both of them were sent to J/C on his application. Thereafter, PW17 moved application in the office of ld. DCP for the purpose of getting CAF, CDR, Cell ID chart in respect of mobiles of accused persons. PW17 sent request letter to provide PCR forms in respect of calls made between 23.02.2020 to 25.02.2020 from the area of PS Gokalpuri. From the record of his PS, PW17 analyzed the mobile number of the PCR callers. PW17 examined PCR caller Vipin and 3 more persons.
PW17 collected report and photographs from crime team in respect of scene of crime. Thereafter, PW17 obtained notification u/s 144 Cr.P.C. from ACP Gokalpuri and he placed it on the record.
PW17 collected photographs of all accused persons from IO of FIR No. 39/20 and placed them on the record.
Thereafter, PW17 prepared first charge-
sheet and filed it in the court.
PW17 correctly identified accused you accused Shahnawaz and co-accused Mohd. Faisal, Rashid, Rashid @ Monu.
Digitally signed by PULASTYA Page 14 of 41 PULASTYA PRAMACHALAPRAMACHALA Date: 2024.09.11 15:54:14 +0530 CNR No. DLNE01-000456-2021 State v. Mohd. Shahnawaz etc. SC No. 48/2021, FIR No. 140/2020, PS Gokalpuri Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties PW17 pointed out to co-accused Azad, Shoaib @ Chutwa, Shahrukh and Ashraf (Ashraf was pointed out on display screen). Ct. Babu mentioned by PW17, was HC Hari Babu. PW17 had obtained order u/s 144 Cr.P.C. from the office of ld. DCP.
Admitted documents under Section 294 Cr.P.C. FIR as Ex.A-1; endorsement on rukka as Ex.A-2; GD No. 78-A as Ex.A-3; certificate under Section 65-B of I.E. Act as Ex.A-4; GD No. 63-A as Ex.A-5; GD No. 83-A as Ex.A-6; GD No. 88-A as Ex.A- 7; GD No. 102-A as Ex.A-8; GD No. 25-A as Ex.A-9; GD No. 35-A as Ex.A-10; PCR form dated 24.02.2020 as Ex.A-11(Colly. 5 Pages); PCR form dated 24.02.2020 as Ex.A-12 (Colly. 4 Pages); PCR form dated 24.02.2020 as Ex.A-13 (Colly. 4 Pages); PCR form dated 24.02.2020 as Ex.A-14 (Colly. 6 Pages); PCR form dated 24.02.2020 as Ex.A-15 (Colly. 6 Pages); prohibitory order under Section 144 Cr.P.C. as Ex.A-16; arrest memo of Md. Shahnawaz as Ex.A-17; arrest memo of Ashraf Ali as Ex.A-18; arrest memo of Shoaib as Ex.A-19; arrest memo of Rashid @ Raja as Ex.A-20; arrest memo of Shahrukh as Ex.A-21; arrest memo of Mohd. Tahir as Ex.A-22; arrest memo of Azad as Ex.A-23; arrest memo of Parvez as Ex.A-24; arrest memo of Mohd. Faizal as Ex.A-25 and arrest memo of Rashid @ Monu as Ex.A-26; complaint u/s. 195 Cr.P.C. as Ex.A-27; FSL result as Ex.A-28 and copy of register no.19 as Ex.A-29.
PLEA OF ACCUSED PERSONS U/S. 351 BNSS
11. All accused persons denied all the allegations and pleaded innocence, taking plea that they have nothing to do with the commission of alleged offences. They further took plea that they have been falsely implicated in this case. They further took plea that they were identified on the basis of tutoring. They did not opt to lead any evidence in their defence.
12. Mohd. Dilshad, ld. counsel for accused Mohd. Shahnawaz, Azad and Parvez, filed certified copy of statements of HC Hari Babu Digitally signed by PULASTYA Page 15 of 41 PULASTYA PRAMACHALA PRAMACHALA Date: 2024.09.11 15:54:23 +0530 CNR No. DLNE01-000456-2021 State v. Mohd. Shahnawaz etc. SC No. 48/2021, FIR No. 140/2020, PS Gokalpuri and Ct. Sanjay, as recorded in other cases. Ld. Special PP admitted these documents u/s. 330 BNSS, which were given exhibit mark accordingly i.e. statement of Hari Babu dated 28.03.2022 recorded in FIR No.40/20 as Ex.D/A-1 (colly.2 pages); statement of Hari Babu dated 28.03.2022 recorded in FIR No.83/20 as Ex.D/A-2 (colly.2 pages) and statement of Ct. Sanjay dated 28.03.2022 recorded in FIR No.40/20 as Ex.D/A- 3(colly.2 pages).
ARGUMENTS OF DEFENCE & PROSECUTION
13. I heard ld. Special PP and ld. counsels for accused persons. I have perused the entire material on the record.
14. Sh. Z Babar Chauhan and Sh. Dilshad, ld. defence counsels for accused Mohd. Shahnawaz @ Shanu, Azad and Parvez, argued that all cited public witnesses as eyewitnesses did not support case. It was further argued that police officials are not credible witnesses. It was further submitted that no caller, DD entry or complaint was made by any police official and they gave statement after long gap. Ld. counsel also referred to judgment passed in the case of Harbeer Singh vs. Sheeshpal & Ors. (Crl. Appeal 1624-1625 of 2003 decided on 20.10.2016), to challenge the credibility of prosecution evidence, on the grounds of delay in recording statement of alleged eyewitnesses. In the case of Harbeer Singh (supra), Hon'ble Supreme Court observed that: -
"17. However, Ganesh Bhavan Patel Vs. State Of Maharashtra, (1978) 4 SCC 371, is an authority for the proposition that delay in recording of statements of the prosecution witnesses under Section 161 Cr.P.C., although those witnesses were or could be available for examination when the Investigating Officer visited the scene of occurrence or soon thereafter, would cast a doubt upon the prosecution case. [See also Balakrushna Swain Vs. State Of Orissa, (1971) 3 SCC 192; Maruti Rama Naik Vs. State of Mahrashtra, (2003) 10 SCC 670 and Jagjit Digitally signed by PULASTYA Page 16 of 41 PULASTYA PRAMACHALA PRAMACHALA Date: 2024.09.11 15:54:31 +0530 CNR No. DLNE01-000456-2021 State v. Mohd. Shahnawaz etc. SC No. 48/2021, FIR No. 140/2020, PS Gokalpuri Singh Vs. State of Punjab, (2005) 3 SCC 68]. Thus, we see no reason to interfere with the observations of the High Court on the point of delay and its corresponding impact on the prosecution case.
18. Further, the High Court has also concluded that these witnesses were interested witnesses and their testimony were not corroborated by independent witnesses. We are fully in agreement with the reasons recorded by the High Court in coming to this conclusion.
19. In Darya Singh Vs. State of Punjab, AIR 1965 SC 328 = 1964 (7) SCR 397, this Court was of the opinion that a related or interested witness may not be hostile to the assailant, but if he is, then his evidence must be examined very carefully and all the infirmities must be taken into account. This is what this Court said:
"There can be no doubt that in a murder case when evidence is given by near relatives of the victim and the murder is alleged to have been committed by the enemy of the family, criminal courts must examine the evidence of the interested witnesses, like the relatives of the victim, very carefully........But where the witness is a close relation of the victim and is shown to share the victim's hostility to his assailant, that naturally makes it necessary for the criminal courts examine the evidence given by such witness very carefully and scrutinise all the infirmities in that evidence before deciding to act upon it. In dealing with such evidence, Courts naturally begin with the enquiry as to whether the said witnesses were chance witnesses or whether they were really present on the scene of the offence......If the criminal Court is satisfied that the witness who is related to the victim was not a chance-witness, then his evidence has to be examined from the point of view of probabilities and the account given by him as to the assault has to be carefully scrutinised." "
15. In the written synopsis filed on behalf of accused Shahnawaz @ Shanu, Parvez and Azad, Sh. Z. Babar Chauhan, ld. counsel submitted that eyewitnesses PW1/Sh. Satish Kumar and PW2/Sh. Shyam Sundar, did not support the prosecution story at all, even after lengthy cross-examination and suggestions put by ld. Prosecutor. Ld. counsel referred to testimony of ASI Hari Babu recorded on 28.03.2022, in FIR Nos.40/20 and 83/20, PS Gokalpuri, wherein this witness did not support the case of prosecution on the point of identification of accused Shahnawaz @ Shanu, Parvez and Azad. Similar reference was given for HC Sanjay pertaining to FIR No. 40/20, who was examined as PW5 Digitally signed Page 17 of 41 by PULASTYA PULASTYA PRAMACHALA PRAMACHALA Date: 2024.09.11 15:54:40 +0530 CNR No. DLNE01-000456-2021 State v. Mohd. Shahnawaz etc. SC No. 48/2021, FIR No. 140/2020, PS Gokalpuri in the present case. In respect of PW4/HC Vipin, it has been submitted that he is not reliable witness being police witness and he has been planted by the prosecution to boost up the prosecution story as his statement was recorded after the gap of about one and half months i.e. on 08.04.2020, which cast doubt upon the credibility of PW4/HC Vipin. Even this witness did not make any call at 100 number, after seeing the incident, nor did he make any written complaint to show that he had seen some of the rioters.
16. In the written synopsis filed on behalf of accused Shoaib @ Chhutwa, Rashid @ Raja, Shahrukh and Mohd. Tahir, Sh. Salim Malik, ld. counsel added that PW3/ASI Hari Babu, PW4/HC Vipin Kumar & PW5/HC Sanjay are not reliable and trustworthy witnesses and they seemed to be stock witnesses, as they have claimed themselves as eyewitnesses of the incident dated 24.02.2020 and 25.02.2020 in many cases. They did not even made efforts to register the case regarding the present incident. It was submitted that PW4/HC Vipin and PW5/HC Sanjay improved themselves during their examination. It was further added that accused Mohd. Tahir was identified by PW3/ASI Hari Babu; accused Shahrukh and Shoaib @ Chhutwa were identified by PW4/HC Vipin only; and accused Rashid @ Raja was identified by PW5/HC Sanjay only, stating that these persons were part of the mob. It was further submitted that there is no other corroborative piece of evidence against these accused persons and site plan is also defective.
17. Sh. Abdul Gaffar, Sh. Badre Alam and Sh. Nadeem, ld. counsels for accused Ashraf Ali, Rashid @ Monu and Mohd. Faisal, Digitally signed Page 18 of 41 by PULASTYA PULASTYA PRAMACHALA PRAMACHALA Date: 2024.09.11 15:54:48 +0530 CNR No. DLNE01-000456-2021 State v. Mohd. Shahnawaz etc. SC No. 48/2021, FIR No. 140/2020, PS Gokalpuri argued that PW5/HC Sanjay identified accused Faisal as Shahrukh, thus, all evidence of identification was an afterthought.
18. In the written synopsis filed on behalf of accused Ashraf Ali, Rashid @ Monu and Mohd. Faisal, Sh. Abdul Gaffar, ld. counsel submitted that these accused persons have only been identified as a part of the mob based on testimony of PW4/HC Vipin, who identified accused Rashid @ Monu and that of PW5/HC Sanjay, who identified accused Mohd. Faisal and Ashraf Ali. However, PW3/ASI Hari Babu did not identify any of these accused persons. It was further submitted that there is no explanation of delay in recording statement of PW4 and PW5, despite the fact that they used to participate in daily briefing along with IO. It was further submitted that prior to 08.04.2024, no formal complaint or DD or PCR calls were made by these witnesses. PW4 deposed that he had not seen break opening of the gate of the property in question and that the gate of this property was not visible to him from his position. It was further submitted that as per duty roster dated 24.02.2020, SOC denotes as Beat No.6 i.e. Chaman Park. PW5 was not deputed there. Whereas as per DD No. 25-B at 11 AM, PW4 and PW5 left for Brijpuri T-point. However, PW5 claimed to be on duty from 2 PM. Therefore, either DD No.25-B is manipulated or his version is incorrect. PW17 stated that on 08.04.2024 on the basis of file he came to know that PW4 and PW5 were on duty at the place of incident, but no such material was availble in the file. Ld. counsel placed reliance upon the case of Masalti v. State of U.P. AIR 1965 SC 202, wherein Hon'ble Supreme Court has established the well Digitally signed by Page 19 of 41 PULASTYA PULASTYA PRAMACHALA PRAMACHALA Date: 2024.09.11 15:54:58 +0530 CNR No. DLNE01-000456-2021 State v. Mohd. Shahnawaz etc. SC No. 48/2021, FIR No. 140/2020, PS Gokalpuri followed test of support of at least two or three corroborative witnesses, who give a consistent account of the incident for conviction in an offence involving a large number of offenders and large number of victims. In the present case, the only material against the accused is the testimony of two police witnesses, who admitted to know the accused since prior to the incident and had alleged no overt act on his part. It was further submitted that inconsistencies in the statement of the two witnesses are illustrative of grave doubt regarding the veracity and reliability of the statements.
19. Per-contra, Sh. R.C.S. Bhadoria, ld. Special PP for State argued that public witnesses were examined by IO on 10.04.2020. Police eyewitnesses were examined by IO on 08.04.2020. It was further argued that police went to the places, where they were called. Ld. Special PP further argued that Ct. Vipin, Ct. Sanjay and ASI Hari Babu had duly identified accused persons. It was further argued that ASI Hari Babu proved that he was taking treatment, hence, he could not identify accused earlier in other case. Ld. Special PP further argued that prosecution has proved its case. APPRECIATION OF FACTS AND EVIDENCE UNLAWFUL ASSEMBLY & RIOTS
20. Complainant/PW1 proved his complaint as Ex.PW1/A, wherein he alleged about loot, vandalism and arson in his property bearing no. C-3/C-2, Chaman Park, Brijpuri Road, Shiv Vihar Tiraha, Delhi-94, by the rioters on 24.02.2020. As per his testimony, on 24.02.2020, he along with his family was present at aforesaid home. At around 02:30 PM, a large mob of around 1000-1500 persons came to his building. They were equipped Digitally signed by PULASTYA Page 20 of 41 PULASTYA PRAMACHALA PRAMACHALA Date: 2024.09.11 15:55:10 +0530 CNR No. DLNE01-000456-2021 State v. Mohd. Shahnawaz etc. SC No. 48/2021, FIR No. 140/2020, PS Gokalpuri with various weapons. They started looting, vandalising and setting on fire in aforesaid mobile shop. Complainant further alleged that at around 4-04:30 O'clock a mob of around 50-60 persons came upstairs. They threatened him to leave the aforesaid property immediately. They started looting and vandalising his house. They took away jewelry measuring 20 tola of gold and a quarter of kilogram of silver as well as cash amount of Rs.1,50,000/-. PW1 further deposed that at around 04:25-04:30 PM, he made call at 100 number by his mobile no.9582463455. Thereafter, those persons set ablaze the furniture, three double beds, one sofa set, one dining table, two AC, one LCD TV, washing machine, two gas cylinder and one oven, which were kept in his house. He also deposed that, rioters looted valuable clothes and utensils. They also burnt documents related to that house along with all necessary documents. After seeing fire and in order to save the lives, PW1 along with his family fled away from his house and took shelter at the place of his relative.
21. PW7/ASI Mahavir was photographer and PW15/Insp. Manish Kumar was Incharge, in crime team, who deposed about visiting this property. PW7 proved eighteen (18) photographs stating that same were taken by him. He also proved certificate under Section 65-B of I.E. Act in respect of these photographs. Those 18 photographs are Ex.PW-7/P-1 to Ex.PW-7/P-18. These photographs leave no doubt that the property was vandalized and set on fire by the rioters. During his cross-examination, PW7 denied the suggestion that he did not visit the aforesaid address or that the certificate was not signed by him or that he did not take any photograph. During his cross-examination, PW15 also Digitally signed by Page 21 of 41 PULASTYA PULASTYA PRAMACHALA PRAMACHALA Date: 2024.09.11 15:55:19 +0530 CNR No. DLNE01-000456-2021 State v. Mohd. Shahnawaz etc. SC No. 48/2021, FIR No. 140/2020, PS Gokalpuri denied the suggestion that he did not visit the aforesaid address or that he prepared his report sitting in the office.
22. As per testimony of PW2/Sh. Shyam Sunder, on 24.02.2020 since about 08:30 AM up to about 2 PM or 02:30 PM, he was present at his shop of sale and repair of bicycle as well as of Tea, bearing no.4 & 5, situated in the area of Chaman Park at Shiv Vihar T-point. PW2 saw a large number of persons equipped with danda, lathi and some small bottles, who came from the side of Brijpuri towards T point. They started pelting stones and petrol bombs towards the shops. PW2 rushed back to his home and he remained at his house.
23. According to testimony of PW3/ASI Hari Babu, PW4/HC Vipin Kumar & PW5/HC Sanjay, all of them were on duty at Shiv Vihar Tiraha. On 24.02.2020, at about 2 or 4 PM, around 1000- 1500 persons had assembled on Main Brijpuri Road. They were raising slogans and were carrying danda, rod, petrol bomb etc. They started pelting stones on police party as well as on nearby houses and shops on Brijpuri Road. At about 4 PM, the persons from this mob entered into one under construction restaurant from the back side entrance. This building was situated in front of Rajdhani Public School. That mob vandalized that restaurant and upper portion of that building and also indulged into arson. They burnt the articles on both floors. When police tried to stop them, then this mob pelted stones upon the police team.
24. 1st IO/PW13/ASI Ram Dass also deposed that he visited this property on 04.03.2024. It was 3 storey house. On the first floor of this property one shop of mobile was found in completely Digitally signed by PULASTYA PULASTYA PRAMACHALA Page 22 of 41 PRAMACHALA Date: 2024.09.11 15:55:28 +0530 CNR No. DLNE01-000456-2021 State v. Mohd. Shahnawaz etc. SC No. 48/2021, FIR No. 140/2020, PS Gokalpuri burnt condition, along with other part of that floor. All these evidences regarding condition of this property and incident at this property, have remained unchallenged from defence. On taking overall view of the same, I find that it is well established that an unlawful assembly had attacked this property, while indulging in riotous acts. They vandalized and burnt upper floor of this property.
IDENTIFICATION OF ACCUSED
25. In respect of identification of the members of responsible mob, prosecution relied upon the evidence of PW3/ASI Hari Babu, PW4/HC Vipin Kumar & PW5/HC Sanjay. The relevant part of their examination in chief has already been mentioned in the description of prosecution evidence. Their testimony during cross-examination by defence is reproduced herein-after for the purpose of ready reference.
(a) Testimony in cross-examination of PW3/ASI Hari Babu dated 13.12.2022: -
"XXXX by Ms. Shavana, ld. counsel for accused Rashid @ Raja, Shahrukh, Shoib @ Chhutwa and Mohd. Tahir; XXXX by Sh. Z. Babar Chauhan, ld. counsel for accused Shahnwaj @ Shanu, Azad and Parvez;XXXX by Sh. Abdul Gaffar, ld. counsel for Rashid @ Monu, Ashraf Ali and Mohd. Faisal Ali.
4. I am witness in about 12-13 cases of riots. I do not remember, as to on which date and in which case I gave my statement to IO of such riot cases. After about 15 days from 25.02.2020, I had given my statement in riot cases. I can not tell in which month, I gave my last statement in such cases. All the I.O.s had called me through telephonic call to make statement in their cases. I did not proceed on leave from 25.02.2020 till the date, my last statement would have been recorded. SHO used to conduct briefing during this period on some days. I cannot tell, as to on which date after 25.02.2020, first briefing had taken place. I and other staff of PS used to be present during the briefing. I used to be in the field, therefore I cannot tell, if ACP or DCP visited PS after riots. I did not meet ACP or DCP in the field after riots, though I had seen Digitally signed Page 23 of 41 by PULASTYA PULASTYA PRAMACHALA PRAMACHALA Date: 2024.09.11 15:55:36 +0530 CNR No. DLNE01-000456-2021 State v. Mohd. Shahnawaz etc. SC No. 48/2021, FIR No. 140/2020, PS Gokalpuri them on several occasions. I did not see any public notice outside the PS or in the area, so as to seek information about rioters and riots in that area. During my posting in PS Gokalpuri, SI Manoj was not posted in PS Gokalpuri. After about 6-7 months from riots, I was transferred to PS Harsh Vihar. I know FIR no. of this case. SI Manoj had recorded my statement in this case and at that time, I was posted in PS Harsh Vihar and SI Manoj was posted in Gokalpuri at that time.
5. I did not make any written complaint or DD entry after seeing the aforesaid incident. I had made call to Addl. SHO thereafter. I did not tell the name of 4 persons whom I had identified in the aforesaid mob, to Addl.SHO. I was beat constable of the area of Chaman Park. Shiv Vihar was not within jurisdiction of my PS. It is correct to suggest that my statement was recorded in the court in FIR no.40/20, PS Gokalpuri, but I do not remember the date of the same. Hence, I cannot admit or deny, if it was recorded on 28.03.2020. I do not know, if aforesaid accused persons were also accused in FIR no.40/20. It is correct to suggest that I had refused to identify any rioter in the court in FIR no.40/20. However, It is wrong to suggest that I had not identified any rioter due to lapse of time, rather I had informed the court that I was taking medicine for loss of memory and problem with mind and for that reason, I was not able to identify anyone. It is wrong to suggest that I had not stated so before the court in FIR no.40/20. At the place of my duty, I had not heard any announcement of proclamation/order u/s 144 Cr.PC. It is wrong to suggest that I had not seen any of the aforesaid 4 accused in the mob, or that I have deposed falsely in this regard, or that I am a planted witness at the instance of IO, in order to solve this case, or that I took name of aforesaid 4 accused and identified them in the court at the instance of the IO."
Testimony in cross-examination of PW3/ASI Hari Babu dated 03.08.2023: -
" XXX by Sh. Salim Malik and Ms. Shavana, ld.counsels for accused Mohd. Tahir, Md. Shoiab, Shahrukh and Rashid @ Raja;XXXX by Sh. Z. Babar Chauhan and Mohd. Dilshad, ld. counsels for accused Md. Shahnawaz, Azad and Parvez; and XXXXX by Sh. Abdul Gaffar and Mohd. Nazim, ld. counsels for accused Ashraf Ali, Rashid @ Monu and Mohd.Faisal.
4. After my last examination in this case before the court, I did not have any talk with IO of this case. I did not have any meeting also with him after my last examination in this case. I had paid fees in both the hospitals. In Garg Hospital, I had paid only Rs.50/- and in Jain Hospital, Rs.150/- was paid by me on each visit. It is correct to suggest that I was not satisfied with the treatment given at Garg Digitally signed by Page 24 of 41 PULASTYA PULASTYA PRAMACHALA PRAMACHALA Date: 2024.09.11 15:55:43 +0530 CNR No. DLNE01-000456-2021 State v. Mohd. Shahnawaz etc. SC No. 48/2021, FIR No. 140/2020, PS Gokalpuri Hospital. I had not seen the complete Jain Hospital, hence I cannot state, if it was a bigger hospital than Garg Hospital. In Garg Hospital, there used to be one doctor sitting in the room, where I was checked by the doctor and in Jain Hospital, 4 doctors used to sit in that room. Jain Hospital was also on the panel of Delhi Police. It is correct to suggest that I was satisfied with the treatment and medicine prescribed in Jain Hospital. It is also correct to suggest that doctor at Jain Hospital had declared me fit to join duties from 07.02.2022 and that I had not opted to take additional opinion from any other doctor or hospital, after treatment at Jain Hospital. It is correct to suggest that after treatment at Jain Hospital, I was feeling completely fit and, therefore, I did not take additional opinion from any other doctor. Vol. After taking medicines as prescribed in Jain Hospital, I was feeling fit.
5. I had visited Jain Hospital after 07.02.2022. The evidence of the same can be found in the medical documents i.e. prescription dt. 21.03.2022 (part of Ex.PW14/B). I did not visit Jain Hospital between 07.02.2022 and 21.03.2022. I visited Jain Hospital once after 21.03.2022, but I do not have any document related to this visit. During this visit, I met the doctor and no fresh prescription was prepared by him. He asked me to continue taking the medicine already prescribed. I did not take advise from any doctor before stopping to take those medicines. I have the receipt of the fees paid by me in aforesaid 2 hospitals, but I have not brought them today. I can produce them. I had received summons through WhatsApp for my appearance today in this court (Ld. defence counsel has demanded to show that summons and witness has shown the same in his mobile phone, which has photo/scanned copy of summons in FIR no.140/20, 113/20, 65/20 and this case). Apart from aforesaid treatment, I did not take treatment of any other problem either at Garg Hospital or at Jain Hospital at any other point of time. I used to visit Panchsheel Hospital in Yamuna Vihar in case of other problems like fever etc. I did not read the prescriptions given by doctors as they were written in English and I did not know reading English. Doctors at Garg Hospital and Jain Hospital did not explain the contents of prescription before me. During my first visit before doctor at Jain Hospital itself, I had mentioned before him about my problem of forgetting the things. Prior to Jain Hospital, I did not mention this problem before any other doctor. After first visit at Jain Hospital, during my subsequent visits, doctor used to ask about my improvement and I used to respond that there was improvement. I did not tell any doctor that I was not able to identify accused in the court during my evidence, in any case. I had informed doctor at Jain Hospital on 21.01.2022 that my mind used to remain disturbed.
Digitally signed by PULASTYA Page 25 of 41 PULASTYA PRAMACHALAPRAMACHALA Date: 2024.09.11 15:55:52 +0530 CNR No. DLNE01-000456-2021 State v. Mohd. Shahnawaz etc. SC No. 48/2021, FIR No. 140/2020, PS Gokalpuri Thereafter I did not mention these problems as doctor used to ask about improvement and I used to respond accordingly and therefore, there was no need to tell it again (jararut nahi padi). I was given showcause notice by DCP (5th battalion), after I did not identify accused in FIR no.40/20 on 28.03.2022, during my statement before the court, wherein prosecutor had even cross examined me on this point. I gave reply to that showcause notice alongwith my medical papers and thereafter I have not received further response. This showcause notice was received by me in the month of June, 2023.
6. It is wrong to suggest that I have started identifying accused persons in my subsequent evidence in the court, after my examination in FIR no.40/20, because of receiving showcause notice from DCP. It is wrong to suggest that after my examination in FIR no.40/20, my senior officers had reprimanded me (dant fatkar lagayi thi); or that due to such reprimand, I changed my subsequent statement to identify the accused persons; or that I was tutored regarding identification of every accused by IO, during my examination in FIR no.40/20 and thereafter; or that I never complained about forgetting the things before any doctor; or that I am deposing falsely, at the behest of IO and senior officers.
7. It is wrong to suggest that I never had problem of forgetting the things. I had joined duties from 07.02.2022.
8. I did not demand lighter job from my seniors after joining duties from 07.02.2022. I had made departure entry on 21.03.2022, to visit the hospital. I did not tell prosecutor before my examination on 28.03.2022 in FIR no.40/20 about having any problem with my memory."
(b) Testimony in cross-examination of PW4/HC Vipin dated 20.12.2022: -
"XXXX by Ms. Shavana, ld. counsel for accused Rashid @ Raja, Shahrukh, Shoib @ Chhutwa and Mohd. Tahir; XXXX by Sh. Z. Babar Chauhan, ld. counsel for accused Shahnwaj @ Shanu, Azad and Parvez; XXXX by Sh. Abdul Gaffar, ld. counsel for Rashid @ Monu, Ashraf Ali and Mohd. Faisal Ali.
4. I do not remember the date, when for the first time and for the last time, my statement was recorded by IO of any riot case. I was examined as witness in about 10-15 cases of riots by the respective I.Os. I went to those I.Os for my examination, on call from those I.Os. I.Os did not give me any written notice in those cases. IO of this case had examined me, on 08.04.2020. I do not remember if my statement was recorded in some other case also on this day. I do not remember, Digitally signed by PULASTYA Page 26 of 41 PULASTYA PRAMACHALA PRAMACHALA Date: 2024.09.11 15:56:00 +0530 CNR No. DLNE01-000456-2021 State v. Mohd. Shahnawaz etc. SC No. 48/2021, FIR No. 140/2020, PS Gokalpuri as to in which of the FIRs, my statement was first recorded on 07.04.2020. In the present case, my statement was recorded at about 5- 6 p.m.
5. I did not proceed on leave between 24.02.2020 and 08.04.2020. It is correct that everyday briefing from SHO used to take place in the PS. I and SI Manoj used to participate in such briefing. It is correct to suggest that public notice was pasted outside the PS, as well as at other places, thereby seeking information from the public about the riots. I did not make any call at 100 number at the time of aforesaid incident at aforesaid property nor did I make any DD entry about this incident, after returning back to PS nor did I make any written complaint about the same. It is correct to suggest that I was not beat constable of the area of Shiv Vihar Tiraha at any point of time. It is correct that area of Shiv Vihar falls within the jurisdiction of PS Karawal Nagar. At Shiv Vihar Tiraha, there is meeting point of jurisdiction of PS Dayalpur and PS Karawal Nagar. After 24.02.2020, area DCP and other DCPs used to visit PS everyday for at least 15-20 days.
6. I was at a distance of 50-100 meters from aforesaid property, when incident took place there. From the place where I was standing, the back gate of this property opening in the gali was not visible. I had not seen myself break opening of the lock of gate. DO had made DD entry regarding arrangement duty of us in riots, but he did not make mention the place of our duty and we went to particular place, as per telephonic instruction received from SHO/Addl.SHO through Chitha munshi. I had seen police official making announcement of order u/s 144 Cr.PC on main Brijpuri road during day time, may be around 10-11 a.m. on E-rickshaw.
7. Around 50-60 persons would have been there in the mob which entered into aforesaid property. Some persons were with un-muffled face. I remained beat constable of same area for about another 1½ years after 24.02.2020. I did not see those other unidentified persons from the aforesaid mob, during this period. I had taken break of about 1-2 hours at about 4-5 p.m. on 24.02.2020 and in the morning of 25.02.2020 and during such break, I used to go back to take rest and thereafter, come back on the spot of duty. I remained on duty till 26.02.2020 in same manner. I had come back to Johripur toll tax booth and taken my m/cycle from that place to go back to the PS.
8. It is wrong to suggest that I had not seen any accused in the mob at the aforesaid property, as stated by me herein above, or that I had not seen any accused raising any kind of slogan or carrying any kind of weapon, or that I have been planted as a witness to sort out the cases, Digitally signed Page 27 of 41 by PULASTYA PULASTYA PRAMACHALA PRAMACHALA Date: 2024.09.11 15:56:08 +0530 CNR No. DLNE01-000456-2021 State v. Mohd. Shahnawaz etc. SC No. 48/2021, FIR No. 140/2020, PS Gokalpuri or that I have deposed falsely at the instance of IO and senior police officials, or that I have identified accused persons at the instance of IO."
(c) Testimony in cross-examination of PW5/HC Sanjay dated 06.03.2023: -
" XXXX by Sh. Salim Malik, ld. counsel for accused Rashid @ Raja, Shahrukh, Shoib @ Chhutwa and Mohd. Tahir; XXXX by Sh. Z. Babar Chauhan and Mohd. Dilshad, ld. counsels for accused Shahnwaj @ Shanu, Azad and Parvez; XXXX by Sh. Abdul Gaffar, ld. counsel for Rashid @ Monu, Ashraf Ali and Mohd. Faisal Ali.
4. I am witness in 6-7 cases of riots. I do not remember, when police had recorded my statement for the first time in riot case. I do not remember the FIR number in which case and on which date, my statement was recorded first and last. In the present case, my statement was recorded in PS on 08.04.2020, but I do not remember the time of the same. I do not recollect as to in how many cases, my statement was recorded on 08.04.2020. I do not remember, if I lodged any DD entry or made any written complaint after the incident. It is correct to suggest that briefing used to happen in PS on regular basis in which myself, ASI Ram Dass and SI Manoj used to participate. Vol. SI Manoj joined after some days of the riots, but he used to participate in the briefings subsequently. I do not remember, if public notice/posters were pasted outside the PS, to seek information regarding riots. I was posted in beat of Chaman Vihar since the year 2019. I knew accused persons by face and name since 2019 after my posting in the beat. I was standing at a distance of 10-15 feet from the last person of that mob at the place of incident. I do not recollect, whether myself or any other police official had sustained any injury during the said riot. It is correct that I had deposed before the court in FIR no.40/20, PS Gokalpuri. I do not recollect, if it was the first time or not of my deposition in riot case. I do not recollect, if I had wrongly identified Rashid @ Monu as Faisal; or that I identified Rashid @ Raja and Parvez as Shahnawaz during the deposition in FIR no.40/20, PS Gokalpuri, before the court.
5. It is wrong to suggest that I had not seen the incident; or that I am a tutored witness; or that I had given the names and identified the accused persons at the instance of IO; or that I am a planted witness to solve the present case.
6. I had stated before IO that Ct. Vipin and HC Hari Babu were also present on duty with me (It is not so recorded in the statement u/s 161 Cr. PC.). I do not remember, if I made any arrival entry after coming Digitally signed by PULASTYA Page 28 of 41 PULASTYA PRAMACHALA PRAMACHALA Date: 2024.09.11 15:56:17 +0530 CNR No. DLNE01-000456-2021 State v. Mohd. Shahnawaz etc. SC No. 48/2021, FIR No. 140/2020, PS Gokalpuri back to PS. I do not know, if any departure entry was made by us in the morning. I do not remember, if I made any call to my senior officer to inform about gathering of 1000-1500 persons at about 2 p.m.; or that any other official made such call in my presence."
2. Defence counsel had referred to the test mentioned in the case of Masalti (supra). I shall first deal with this argument that test referred in the judgment passed in the case of Masalti (supra) applies to all the cases. In the case of Masalti (supra), hon'ble Supreme Court dealt with a case of multiple murder by an unlawful assembly. The court while dealing with the aspect of identification of members of that mob, made certain observations regarding test of consistent testimony by four witnesses as applied by High Court. The relevant part of the same is as follows: -
"16. Mr. Sawhney also urged that the test applied by the High Court in convicting the appellants is mechanical. He argues that under the Indian Evidence Act, trustworthy evidence given by a single witness would be enough to convict an accused person, whereas evidence given by half a dozen witnesses which is not trustworthy would not be enough to sustain the conviction. That, no doubt is true; but where a criminal court has to deal with evidence pertaining to the commission of an offence involving a large number of offenders and a large number of victims, it is usual to adopt the test that the conviction could be sustained only if it is supported by two or three or more witnesses who give a consistent account of the incident. In a sense, the test may be described as mechanical; but it is difficult to see how it can be treated as irrational or unreasonable. Therefore, we do not think any grievance can be made by the appellants against the adoption of this test. If at all the prosecution may be entitled to say that the seven accused persons were acquitted because their cases did not satisfy the mechanical test of four witnesses, and if the said test had not been applied, they might as well have been convicted. It is, no doubt, the quality of the evidence that matters and not the number of witnesses who give such evidence. But sometimes it is useful to adopt a test like the one which the High Court has adopted in dealing with the present case."
3. The test mentioned in the case of Masalti (supra), was deliberated upon by Supreme Court in the case of State of Maharashtra v.
Digitally signed by PULASTYA Page 29 of 41 PULASTYA PRAMACHALAPRAMACHALA Date: 2024.09.11 15:56:26 +0530 CNR No. DLNE01-000456-2021 State v. Mohd. Shahnawaz etc. SC No. 48/2021, FIR No. 140/2020, PS Gokalpuri Ramlal Devappa Rathod, (2015) 15 SCC 77, and the court made following observations: -
"24. The liability of those members of the unlawful assembly who actually committed the offence would depend upon the nature and acceptability of the evidence on record. The difficulty may however arise, while considering the liability and extent of culpability of those who may not have actually committed the offence but were members of that assembly. What binds them and makes them vicariously liable is the common object in prosecution of which the offence was committed by other members of the unlawful assembly. Existence of common object can be ascertained from the attending facts and circumstances. For example, if more than five persons storm into the house of the victim where only few of them are armed while the others are not and the armed persons open an assault, even unarmed persons are vicariously liable for the acts committed by those armed persons. In such a situation it may not be difficult to ascertain the existence of common object as all the persons had stormed into the house of the victim and it could be assessed with certainty that all were guided by the common object, making every one of them liable. Thus, when the persons forming the assembly are shown to be having same interest in pursuance of which some of them come armed, while others may not be so armed, such unarmed persons if they share the same common object, are liable for the acts committed by the armed persons. But in a situation where assault is opened by a mob of fairly large number of people, it may at times be difficult to ascertain whether those who had not committed any overt act were guided by the common object. There can be room for entertaining a doubt whether those persons who are not attributed of having done any specific overt act, were innocent bystanders or were actually members of the unlawful assembly. It is for this reason that in Masalti [Masalti v. State of U.P., AIR 1965 SC 202 : (1965) 1 Cri LJ 226 : (1964) 8 SCR 133] this Court was cautious and cognizant that no particular part in respect of an overt act was assigned to any of the assailants except Laxmi Prasad. It is in this backdrop and in order to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly", this Court at SCR pp. 148-49 in Masalti [Masalti v. State of U.P., AIR 1965 SC 202 observed that his participation as a member of the unlawful assembly ought to be spoken by more than one witness in order to lend corroboration. The test so adopted in Masalti [Masalti v. State of U.P., AIR 1965 SC 202 was only to determine liability of those accused against whom there was no clear allegation of having committed any overt act but what was alleged against them was about their presence as members of the unlawful assembly. The test so adopted was not to apply to cases where specific allegations and overt acts constituting the offence are alleged or ascribed to Digitally signed Page 30 of 41 by PULASTYA PULASTYA PRAMACHALA PRAMACHALA Date: 2024.09.11 15:56:35 +0530 CNR No. DLNE01-000456-2021 State v. Mohd. Shahnawaz etc. SC No. 48/2021, FIR No. 140/2020, PS Gokalpuri certain named assailants. If such test is to be adopted even where there are specific allegations and overt acts attributed to certain named assailants, it would directly run counter to the well-known maxim that "evidence has to be weighed and not counted" as statutorily recognised in Section 134 of the Evidence Act."
4. In the same case, Supreme Court explained the nature of cases wherein test mentioned in the case of Masalti (supra), can be applied, while making following observations: -
" 26. We do not find anything in Masalti [Masalti v. State of U.P., AIR 1965 SC 202 : (1965) 1 Cri LJ 226 : (1964) 8 SCR 133] which in any way qualifies the well-settled principle that the conviction can be founded upon the testimony of even a single witness if it establishes in clear and precise terms, the overt acts constituting the offence as committed by certain named assailants and if such testimony is otherwise reliable. The test adopted in Masalti [Masalti v. State of U.P., AIR 1965 SC 202 : (1965) 1 Cri LJ 226 : (1964) 8 SCR 133] is required to be applied while dealing with cases of those accused who are sought to be made vicariously responsible for the acts committed by others, only by virtue of their alleged presence as members of the unlawful assembly without any specific allegations of overt acts committed by them, or where, given the nature of assault by the mob, the Court comes to the conclusion that it would have been impossible for any particular witness to have witnessed the relevant facets constituting the offence. The test adopted in Masalti [Masalti v. State of U.P., AIR 1965 SC 202 : (1965) 1 Cri LJ 226 : (1964) 8 SCR 133] as a rule of prudence cannot mean that in every case of mob violence there must be more than one eyewitness."
5. The above-mentioned observations of Supreme Court, make it clear that for inviting liability by virtue of Section 149 IPC, it is not required to prove overt act on the part of every member of the mob. However, a rule of prudence has been spoken about, for fastening vicarious liability with aid of S.149 IPC. That rule of prudence is the genesis of test mentioned in the case of Masalti (supra). In that case also, it was approved as a mark of precaution, rather than laying it down as a hard and fast rule. Therefore, it shall depend upon the facts and circumstances of this case and quality of evidence of PW3, PW4 and PW5, before taking any decision in this case, so as to apply this rule of Digitally signed by Page 31 of 41 PULASTYA PULASTYA PRAMACHALA PRAMACHALA Date: 2024.09.11 15:56:44 +0530 CNR No. DLNE01-000456-2021 State v. Mohd. Shahnawaz etc. SC No. 48/2021, FIR No. 140/2020, PS Gokalpuri prudence.
6. Defence took plea that PW3/ASI Hari Babu, PW4/HC Vipin and PW5/HC Sanjay had though knowledge of the names and particulars of the accused persons, but they did not take any step to formally get this information recorded, before 08.04.2020. Defence claimed that PW3, PW4 and PW5 were planted and tutored witnesses and hence, there was delay in recording their statements by IO. In respect of delayed examination of these witnesses by IO in this case, Mr. Babar referred to judgment passed in the case of Harbeer Singh (supra). Relevant observations made in that judgment have already mentioned herein-above.
7. It is true that in normal circumstances delayed examination of an eyewitness would give rise to a reason to be suspicious against statement of such eyewitness. However, it depends upon case to case and facts and circumstances of each case, to look into the credibility of given reasons behind such delay. It is not the ratio of aforesaid judgment that in all the cases delayed examination of any eyewitness would result into rejection of his evidence in toto. In the case of John Pandian v. State, (2010) 14 SCC 129, on the point of effect of delayed examination of witnesses, hon'ble Supreme Court observed that statement of eyewitnesses should be recorded immediately or with least possible delay. Early recording of statement gives credibility to evidence of witnesses, but it is not an absolute rule that where statement is recorded late, witness is a false or a trumped-up witness. Supreme Court held that it will depend upon the quality of evidence of the witness.
8. In the present case, it is matter of common knowledge that on Digitally signed by Page 32 of 41 PULASTYA PULASTYA PRAMACHALA PRAMACHALA Date: 2024.09.11 15:56:52 +0530 CNR No. DLNE01-000456-2021 State v. Mohd. Shahnawaz etc. SC No. 48/2021, FIR No. 140/2020, PS Gokalpuri account of unexpected riots, which rocked North-East part of Delhi for about four days, there had been huge pressure upon the police agency. Large number of complaints were bound to pour in and it so happened. It is matter of common knowledge that huge damage was done in this riot, affecting a large number of victims. Police was having task to tackle such grave situation. It is well within knowledge of everyone that year 2020 was also rocked on account of unexpected pandemic of Covid-19. There had been cases since beginning of the year and because of highly accelerated increase in the positive cases of Covid-19, even Government of India was compelled to take a hard decision for complete lock-down in the whole country since 24.03.2020. It does not mean that prior to 24.03.2020, the situation was normal. On account of everyday reporting of positive cases of Covid-19, there had been advise and guidelines issued for all for least interaction, to avoid physical contact and to maintain physical distance etc. Therefore, there was impact on the functioning of every organization. Police organization could not be exception to this impact. Police in Delhi would have been recovering from the impact of riots taken place during concluding days of February 2020, when they were also expected to enforce the directions of government given on account of Covid-19. For such reasons, I find that the delay in recording statement of witnesses, was much probable in the given scenario, hence, same cannot be a reason to discard the evidence of PW3, PW4 and PW5.
9. Defence challenged the credibility of PW3 on the basis of his previous testimony recorded in FIR No.40/20 and 83/20, PS Goklapuri on 28.03.2022. Certified copy of those testimonies are Digitally signed Page 33 of 41 by PULASTYA PULASTYA PRAMACHALA PRAMACHALA Date: 2024.09.11 15:57:01 +0530 CNR No. DLNE01-000456-2021 State v. Mohd. Shahnawaz etc. SC No. 48/2021, FIR No. 140/2020, PS Gokalpuri Ex.D/A-1 and Ex.D/A-2. At that time this witness could not identify the accused persons in FIR 40/20, taking plea of lapse of long time. However, he had stated that he had seen some persons in the mob and identified them. He had disclosed names of those persons as Shahrukh, Parvez and Azad. In that case, he was talking about the riotous act of the mob as taken place on Main Brijpuri Road on 25.02.2020 at about 01-02 PM. He was cross- examined by ld. Special PP at that time also and in that process, he admitted that the person identified by him during riot was Shahnawaz and not Shahrukh. Ld. defence counsel made contentions that this witness identified the same accused Shahnawaz in FIR 83/20, subsequent to his examination in FIR No.40/20, on same day only because of tutoring. His other argument was that since this witness had not seen any accused, therefore, he could not identify any accused during his examination in FIR No.40/20, but subsequently this witness identified same accused persons in other cases. In this respect, ld. Special PP submitted that at the time of examination in FIR No.40/20, this witness was not in fit condition.
10. Prosecution examined PW9/Dr. Sanjay Garg and PW10/Dr. Arun Aggarwal, who deposed about medically examining PW3 and treating him. Mr. Babar argued that PW9/Dr. Sanjay admitted that PW3 did not make complaint of memory loss or mind problem before him. PW10/Dr. Arun also admitted that PW3 did not complain about memory loss before him. However, treatment being given by Neurologist for the purpose of not being able to recollect any fact or face of a person correctly, it is not necessary that the person concerned would be suffering from some sort of Digitally signed Page 34 of 41 by PULASTYA PULASTYA PRAMACHALA PRAMACHALA Date: 2024.09.11 15:57:09 +0530 CNR No. DLNE01-000456-2021 State v. Mohd. Shahnawaz etc. SC No. 48/2021, FIR No. 140/2020, PS Gokalpuri mental illness. The term used by this witness, was a term used by layman, which was given over emphasis by defence. In fact, even without suffering from any particular illness, it is a normal tendency of any person that he does not recollect an incident taken place in the past completely and very accurately. If I compare the condition of PW3 with such normal person, then as per testimony of both aforesaid doctors, apparently his condition was worse than others. As per the statements given by both these doctors, PW3 was admitted in Garg hospital on 12.01.2022 with complaint of high-grade fever with vertigo. He was discharged on 15.01.2022 and was found suffering from acute vertigo with cervical spondylosis with Covid-19. Thereafter also he remained under treatment in Garg hospital. On 21.01.2022, he visited Jain hospital with complaint of dizziness, nausea and his sleep, was also reported to be disturbed. As per common knowledge of medical science, the problem of vertigo does make a person unstable and very uncomfortable because of severe giddiness etc. In that state of mind, it can be possible with anyone that he does not recollect all the things very correctly or accurately.
11. Moreover, testimony of PW10/Dr. Arun is very relevant in respect of condition of this witness at that time period. PW10/Dr. Arun was cross examined at length by the defence counsels and he came up with very natural answers to the questions put to him. His cross examination rather made it very clear that PW3 was actually having severe physical problem at that time, which was defined as Peripheral Vestibulopathy. PW10/Dr. Arun explained that this symptom meant dis-function of vestibular system, which is responsible for balance of the body. Dis-function can cause Digitally signed Page 35 of 41 by PULASTYA PULASTYA PRAMACHALA PRAMACHALA Date: 2024.09.11 15:57:18 +0530 CNR No. DLNE01-000456-2021 State v. Mohd. Shahnawaz etc. SC No. 48/2021, FIR No. 140/2020, PS Gokalpuri vertigo and imbalance. PW10/Dr. Arun further affirmed that the complaint made by PW3/ASI Hari Babu was relating to brain and that he had made complaint of dizziness before him. Thus, the problem of PW3 was not a simple problem. His problem must have acted as aggravating factor to make him confused, being in uncomfortable physical condition. Therefore, forgetting the things or mixing up several faces in the memory, was very much possible for this witness during that period.
12. On appreciating the probable mental state of this witness (PW3) during his examination in FIR No.40/20, I am in agreement with his plea for not remembering face of Shahnawaz with accuracy. It is also worth to mention here that after his examination in FIR No.40/20, this witness was examined in another FIR No.83/20 on same day, wherein he had identified some of the accused persons and at that time the court had recorded its observations about failure of this witness to identify those accused in FIR No.40/20 and his subsequent identification in FIR No. 83/20. However, at that time the court could not and did not assess the reasons behind such conduct of this witness and therefore, those observations cannot be given much weightage. The subsequent identification could be because the witness would have occasion to recollect the faces during his cross examination in the previous case i.e. FIR 40/20. Therefore, testimony of PW3 in this case cannot be discarded merely on account of nature of his testimony as recorded in FIR No. 40/20 and 83/20. Having said so, I do not mean to say that evidence of PW3 is found credible in this case. That question is to be dealt with herein-after.
13. Testimony of PW1 along with the complaint made by him i.e. Digitally signed Page 36 of 41 by PULASTYA PULASTYA PRAMACHALA PRAMACHALA Date: 2024.09.11 15:57:27 +0530 CNR No. DLNE01-000456-2021 State v. Mohd. Shahnawaz etc. SC No. 48/2021, FIR No. 140/2020, PS Gokalpuri Ex.PW1/A show that he alleged about first and second floor of this house being completely burnt by this mob. The restaurant was being constructed on the ground floor. His testimony further mentions that this mob entered into his property through terrace of adjoining property and by opening the gate situated on the back side of this property, which means that the mob did not enter into this property from the front side situated on the main Brijpuri Road. PW1 deposed that the persons in the mob, who had entered in his property, were having naked face and he had also seen their faces, but due to smoke in his house, he could not retain face of anyone and for such reasons, PW1 did not identify anyone before the court as member of aforesaid mob. He also deposed that all those persons were unknown to him.
14. During his cross-examination by ld. Prosecutor, PW1 deposed that he knew Shanu and Raja and he also identified these two accused persons in the court. However, he deposed that he had not seen any of them in the aforesaid mob. He also denied presence of remaining accused persons in the aforesaid mob. So much evidence of PW1 negates the presence of Shahnawaz and Rashid @ Raja in the mob, which had attacked upon his property.
15. According to testimony of PW3 also, the mob entered into property of PW1 from back side gali and this mob vandalised restaurant and upper portion and burnt articles on both these floors. However, such stand taken by PW3 is contrary to the stand taken by PW1, as far as it relates to burning of ground floor. According to PW3, he had identified Shahnawaz, Parvez, Mohd. Tahir and Azad in the mob, which had attacked upon aforesaid property. However, PW1 was in better condition than Digitally signed Page 37 of 41 by PULASTYA PULASTYA PRAMACHALA PRAMACHALA Date: 2024.09.11 15:57:39 +0530 CNR No. DLNE01-000456-2021 State v. Mohd. Shahnawaz etc. SC No. 48/2021, FIR No. 140/2020, PS Gokalpuri PW3 to know, if Shahnawaz was part of aforesaid mob and PW1 denied presence of Shahnawaz.
16. Moreover, PW3 claimed that during his posting in PS Gokalpuri, IO/SI Manoj was not posted in PS Gokalpuri. He further deposed that after about 6-7 months from riots, he was transferred to PS Harsh Vihar and SI Manoj had recorded his statement, when he was posted in PS Harsh Vihar. On the contrary, IO/PW17/Insp. Manoj vouched that he had recorded statement of PW3 as well as PW4 and PW5 on 08.04.2020 and that at that time all these officials were posted in same police station. These two contradictory statements from PW3 and PW17 create a ground to suspect the actual time of recording of statement of these witnesses.
17. PW3 was already examined in FIR No.40/20, wherein he had declined to identify anyone despite claiming that he had identified three rioters in the mob. He had named those rioters as Shahrukh, Parvez and Azad in that case. Subsequently, he admitted suggestion that it was Shahnawaz, rather than Shahrukh. On same day in FIR No. 83/20, he had identified accused Shahnawaz. In such situation, it was not expected from PW3 that he did not know about these persons being accused in FIR No. 40/20. Still in this case, during his cross examination by defence, PW3 deposed that he did not know, if the accused persons namely Shahnawaz, Parvez, Mohd. Tahir and Azad were also accused in FIR No.40/20. At least in respect of Shahnawaz and Parvez, PW3 could not have shown such ignorance. Therefore, his deliberate ignorance shows that he deposed in this case out of some predetermined mind, which adversely affects Digitally signed by Page 38 of 41 PULASTYA PULASTYA PRAMACHALA PRAMACHALA Date: 2024.09.11 15:57:47 +0530 CNR No. DLNE01-000456-2021 State v. Mohd. Shahnawaz etc. SC No. 48/2021, FIR No. 140/2020, PS Gokalpuri credibility of his testimony.
18. PW4/HC Vipin deposed that ground floor and whole building of PW1 had caught fire. However, his such claim is incorrect because the restaurant on the ground floor was not allegedly burnt. During his cross-examination by defence, this witness finally deposed that he had not seen himself the breaking of the lock of gate of this property, being at a distance of about 50-100 meters from this property. He also deposed that gate of this property was not visible from his position. However, in such situation how could he identify accused Shahnawaz, Shoaib, Shahrukh and Rashid @ Monu in that mob, is the question which was not explained by the prosecution in the evidence. It is admitted case that PW3, PW4 and PW5, were cited as eyewitnesses in several cases of riot involving the same accused persons with some minor variation. In that situation, in the backdrop of above-mentioned contradictory stand and deposition of PW4, it is not improbable that the given statement of PW4 regarding identification of accused persons in this case, could have been based on his presumptions.
19. PW5/HC Sanjay also claimed that restaurant and residential unit on first floor were set on fire, which is not correct. In fact PW15/Insp. Manish Kumar, who was In-charge of Crime Team and who had visited this property with photographer/PW7, also vouched that first and second floors of this house were in burnt and vandalised condition. The photographs which were proved as Ex.PW7/P1 to Ex.PW7/P-18, do not show any portion being under construction, in burnt condition. Rather, the first photograph itself mentions it to be first floor. PW5 also did not Digitally signed by PULASTYA Page 39 of 41 PULASTYA PRAMACHALA PRAMACHALA Date: 2024.09.11 15:57:56 +0530 CNR No. DLNE01-000456-2021 State v. Mohd. Shahnawaz etc. SC No. 48/2021, FIR No. 140/2020, PS Gokalpuri explain as to from what position he could identify accused Faisal, Ashraf Ali, Rashid @ Raja and Shahnawaz. He claimed to be posted in Beat of Chaman Vihar and to be on duty with PW3 and PW4, but duty roster Ex.PW14/A mentions that he was assigned duty in the Beat of Johripur, while PW3 and PW4 were assigned duty in the Beat of Chaman Park. PW14 during his cross- examination by defence, explained that after preparation of duty roster changes could be made in the same and a separate DD entry is made in respect of given reason. No such separate DD entry was placed on the record, to show if duty of PW5 was changed from Beat of Johripur to Chaman Park. Thus, presence of PW5 at that place becomes doubtful.
20. PW17 was 2nd IO of this case. He claimed that he was assigned investigation of this case on 07.04.2020. Prior to him, PW13/ASI Ram Dass was 1st IO. PW13 being 1 st IO had not placed any record of duty roster in the file, before handing over file to MHC(R) on 04.04.2020. Thus, this duty roster was not there in the file on 08.04.2020. But, PW17 claimed that on 08.04.2020 he went through the file and on analysis of the file he came to know that during riots PW3, PW4 and PW5 were on duty in the area of Brijpuri. The question is that if duty roster was not placed in the file when PW17 received it on 07.04.2020, then how could he know about duty of PW3, PW4 and PW5 on analysis of the file. Thus, there appears to be element of artificiality in such claim of PW17. PW17 deposed about examining PW1, and then PW2 on 09.04.2020 and 10.04.2020 respectively. He claimed that names of accused persons were revealed from the statement of these eye-witnesses and aforesaid police officials. His testimony also Digitally signed by PULASTYA Page 40 of 41 PULASTYA PRAMACHALA PRAMACHALA Date: 2024.09.11 15:58:04 +0530 CNR No. DLNE01-000456-2021 State v. Mohd. Shahnawaz etc. SC No. 48/2021, FIR No. 140/2020, PS Gokalpuri shows that all accused were already arrested in FIR 39/20 of same police station and PW17 was informed about the same by SHO. All these scenarios go on to cast doubt over the manner, in which PW17 claimed to examine aforesaid police eye-witnesses, who were otherwise posted in the same police station since beginning of the investigation. I can understand that due to ongoing other problems in the form of managing after effect of riots and Covid-19, there could have been delay in going ahead with investigation. However, the artificiality of claim, is different thing which creates doubt regarding genuineness of the claim made by IO and aforesaid police eye-witnesses. Thus, the overall effect remains that I find it unsafe to rely upon the evidence of PW3, PW4 and PW5, to believe that all the accused persons were part of the mob, which had attacked upon the property of PW1. CONCLUSION & DECISION
26.In view of my foregoing discussions, observations and findings, I find that charges levelled against all the accused persons in this case are not proved beyond reasonable doubts. Hence, accused Mohd. Shahnawaz @ Shanu, Mohd. Shoaib @ Chhutwa, Shahrukh, Rashid @ Raja, Azad, Ashraf Ali, Parvej, Md. Faisal, Rashid @ Monu and Mohd Tahir, are given benefit of doubt and they are acquitted of all the charges levelled against them in this Digitally signed case. by PULASTYA PULASTYA PRAMACHALA PRAMACHALA Date:
2024.09.11 15:58:15 +0530 Announced in the open court (PULASTYA PRAMACHALA) today on 11.09.2024 ASJ-03 (North- East) (This order contains 41 pages) Karkardooma Courts/Delhi Page 41 of 41