Delhi District Court
Fir No. 111/2020 P.S. Welcome State vs . Gurmeet Singh & Ors. Page No.1 on 9 May, 2023
IN THE COURT OF SH. AMITABH RAWAT,
ADDITIONAL SESSIONS JUDGE-03
(SHAHDARA), KARKARDOOMA COURT, DELHI
CNR No. : DLSH01-001065-2021
FIR No. : 111/2020
Under Section : 143/147/149/188/395/427/454 IPC
Police Station : Welcome
Sessions Case No. : 43-2021
STATE
VERSUS
1. Gurmeet Singh
S/o. Sh. Harban Singh,
R/o. H.No. 14, North Chajjupur, near
Rajiv Bajaj Showroom, Delhi.
2. Gaurav
S/o Sh. Mahesh Sagar
R/o-H. No. C/372, Kidwai Gali, Chajjupur, Delhi.
3. Vishal Verma
S/o Sh. Nanhe Lal Verma
R/o H. No. C-461, Kidwai Gali, Chajjupur, Babarpur, Delhi.
4. Raj Kamal
S/o Sh. Shyam Badan
R/o. H. No. 427/E, Gali No. 5, Chajjupur, Babarpur,
Shahdara, Delhi.
5. Deepak Tomar
S/o Sh. Dhramveer Singh
R/o H. No. C-270, Chanakya Marg, Chajjupur, Delhi.
FIR No. 111/2020 P.S. Welcome State vs. Gurmeet Singh & Ors. Page no.1
6. Vikram Singh
S/o Brijlal
R/o E-151, Gali No. 4, Krishna Gali,
Yaadram Mandir, Babarpur, Delhi.
.....ACCUSED PERSONS
Date of Institution : 05.06.2020
Date of reserving judgment : 18.04.2023
Date of pronouncement : 09.05.2023
Decision : Acquitted
JUDGMENT
1. The present judgment is the culmination of the criminal proceedings initiated against the accused persons namely Gurmeet Singh, Gaurav, Vishal Verma, Raj Kumar, Deepak Tomar and Vikram Singh in reference to the charge-sheet filed against them under Section 143/147/149/427/395/454/188 Indian Penal Code (IPC, in short) based upon the First Information Report lodged on the written complaint of complainant Nishar.
2. 2.1 In gist, the case of the prosecution is that the present First Information Report (FIR) was registered on the written complaint of the complainant Sh. Nishar S/o Mohd. Ishak under section 143/147/149/427 IPC. As per the said complaint, he runs an auto works shop by the name of 'Royal Enfield' at A-13, Kabir Nagar, Gali no. 3, 100 Foota Road, Babarpur, Delhi. On 24.02.2020 at around 3:00 pm, he closed his shop and left for home. He did not visit his shop on 25.02.2020 due to riots. He was further informed on phone on 26.02.2020 that his shop has been ransacked and FIR No. 111/2020 P.S. Welcome State vs. Gurmeet Singh & Ors. Page no.2 entire articles of the said shop have been thrown out.
2.2 Later on, during the investigation, one complaint of Sh. Vishal Mehndi S/o Parvez Miya was also investigated in the present case. His statement was recorded under section 161 Cr.P.C. As per the said statement, Vishal Mehndi runs a shop by the name of 'Zaidi Car Accessories' at C-549, 100 foota road near Shiv Mandir, Babarpur, Delhi. On 25.02.2020 at around 3:00 pm when he was present at his shop and he saw that demonstrators from Maujpur Chowk were coming towards his side and then all the adjoining shop owners started running after closing their shops. No sooner had he begun to pull down the shutter of his shop, when 8- 10 people came and entered into the shop. On account of fear, he ran away. On 26.02.2020 when he returned to his shop, he saw broken shutters and found some articles missing as well as burnt. There was a lot of ransacking in the said shop. Articles worth Rs.4 - 5 lakhs were missing from his shop.
2.3 During investigation, site plan and seizure memo were prepared and photographs of the burnt property were taken. It is the case of the prosecution that among the rioters were accused persons Gurmeet Singh, Gaurav, Vishal Verma, Raj Kumar, Deepak Tomar and Vikram Singh who had burnt the shops of the complainants. The prosecution had relied upon the CCTV footage seized in another case FIR No. 93/2020, P.S. Welcome wherein accused persons are visible and the statement of alleged eye-witness namely Ct. Navneesh, who had identified accused persons namely Gurmeet Singh, Gaurav, Vishal Verma, Raj Kumar, Deepak Tomar and Vikram Singh. On the strength of the CCTV footages and statement of the said witness, FIR No. 111/2020 P.S. Welcome State vs. Gurmeet Singh & Ors. Page no.3 accused persons Gurmeet Singh, Gaurav, Vishal Verma and Raj Kumar, who were already in custody in FIR No. 93/20, P.S. Welcome on 09.03.2020, the said four accused persons were arrested. Thereafter, during investigation, accused persons namely Deepak Tomar and Vikam Singh who were already in custody in FIR No. 93/20, P.S. Welcome, were also arrested on 13.03.2023 and 16.03.2023 respectively. The accused persons gave disclosure statement admitting their culpability in the offences covered by the present case. On completion of investigation, charge-sheet was filed in the Court.
3. After compliance of provisions of Section 207 of Code of Criminal Procedure, the present case was committed to Court of Sessions, which in turn, assigned the case to this Court for trial in accordance with law.
4. Vide order on charge dated 27.09.2021, charges under Section 147 IPC, 148 IPC, 188 IPC, 427 IPC, 454 IPC read with Section 149 IPC & Section 395 IPC were framed against all the six accused persons to which they pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution has examined a total of 09 witnesses i.e. :-
i) PW-1 Ct. Sunder, who alongwith Ct. Navneesh and HC Mahipal has joined the investigation of the present case. He deposed that on 08.03.2020, SI Himanshu told him, Ct. Navneesh and HC Mahipal that three persons being involved in riots who can be apprehended near Shiv Mandir, FIR No. 111/2020 P.S. Welcome State vs. Gurmeet Singh & Ors. Page no.4 100 Foota Road, Babarpur. All three accused persons namely Gurmeet, Gaurav and Vishal were apprehended and Ct. Navneesh identified them being Beat Constable on 08.03.2020. He proved their arrest memos Ex. PW-
1/A, Ex. PW-1/B and Ex. PW-1/C and personal search memos Ex. PW-1/D, Ex. PW-1/E and Ex. PW-1/F respectively. He also proved the disclosure statements of the said accused persons as Ex. PW-1/G, Ex. PW-1/H and Ex. PW-1/I respectively.
ii) PW-2 Nishar is the complainant in the present case.
iii) PW-3 HC Prempal, Duty officer proved his endorsement on rukka as Ex. PW-3/A, FIR Ex. PW-3/B and Certificate under Section 65B Indian Evidence Act as Ex. PW-3/C.
iv) PW-4 Vishal Mehndi is another complainant in this case.
v) PW-5 Ct. Navneesh, is an eye witness in this case. He joined the investigation with Investigating Officer on many occasions and witnessed to the arrest of accused persons and has also identified all the accused persons as involved in the present case. He proved arrest memo of accused Raj Kamal Ex. PW5/A, his disclosure statement Ex. PW5/B; arrest memo of accused Deepak Tomar Ex. PW5/C(wrongly typed as Ex. PW5/B), his disclosure statement Ex. PW5/D; arrest memo of accused Vikram Ex. PW5/E, his disclosure statement Ex. PW5/F.
vi) PW-6 HC Mahipal. He deposed on the similar lines of PW1 FIR No. 111/2020 P.S. Welcome State vs. Gurmeet Singh & Ors. Page no.5 Ct. Sunder qua accused persons Gurmeet Singh, Gaurav and Vishal.
He further deposed that after some time, SI Himanshu again received a secret information about the presence of a person at Suganda Nursing Home near Nala, who was involved in riots on 25.02.2020 in both FIR No. 111/2020 and FIR No. 93/20. A raiding party was constituted consisting of PW6, SI Himanshu and Ct. Navneesh and accused Raj Kamal was apprehended. Ct. Navneesh again identified him upon his apprehension. PW6 He also proved the personal search memo of accused Raj Kamal Ex. PW6/A.
vii) PW-7 Sh. Ved Prakash Surya, DCP, who issued prohibitory order dated 24.02.2020 under Section 144 Cr.P.C Ex. PW-7/1 and his complaint under Section 195 Cr.P.C dated 09.12.2020 against the six accused persons and proved the same as Ex. PW-7/2.
viii) PW-8 ACP Sh. Mahesh Kumar. He deposed that on the request of IO, he visited the place of incident on 15.20.2021 and prepared scaled site plan on 18.02.2021 as Ex. PW-8/A.
ix) PW-9 SI Himanshu Singh, the Investigating Officer of the present case. He got the present case FIR registered on the written complaint of complainant Sh. Nisar. He proved his endorsement on the written complaint made by complainant Ex. PW9/A. He conducted the investigation of the present case including arrest of all the six accused persons. He detailed about the investigation and deposed more or less on the similar lines of prosecution case. He also proved the seizure memo, in FIR No. 111/2020 P.S. Welcome State vs. Gurmeet Singh & Ors. Page no.6 respect of articles stolen from the shop of complainant, old rent-agreement and the photographs, Ex.PW9/B, personal search memos in respect of accused persons namely Deepak Tomar & Vikram as Ex. PW9/C & PW9/D. He also proved six photographs of the accused persons in the present case which were taken from the CCTV Footage and the CCTV footages from three different cameras, seized in another case FIR No. 93/2020, P.S. Welcome, as Ex. PW9/E1 to PW9/E6 & Ex. PW9/F to PW9/H respectively. After completion of the investigation, he prepared the charge-sheet and filed it in the court.
All the witnesses were cross-examined by the Ld. Defence Counsel. Prosecution evidence was, thereafter, closed on 24.02.2023.
6. On conclusion of the prosecution evidence, statement of accused persons under Section 313 Cr.P.C. were recorded on 10.04.2023 in which they all denied the prosecution version in its entirety and claimed that they are innocent and falsely implicated in this case. However, accused persons did not opt to lead evidence in their defence.
7. Arguments, on behalf of the accused persons by their respective counsels and for prosecution by Sh. Saleem Ahmed, Ld. Special Public Prosecutor for the State, were heard at length.
Discussion & Reasoning :-
8. At the outset, it is important to underscore the cardinal principle of criminal juris-prudence that a case has to be proved beyond reasonable doubt against an accused/accused persons if he/they is/are to be held guilty FIR No. 111/2020 P.S. Welcome State vs. Gurmeet Singh & Ors. Page no.7 of the offences for which they are charged.
9. 9.1 The present case pertains to the investigation conducted in relation to the trespassing and ransacking/looting of shop of complainant/PW2 Sh. Nishar by the name of "Royal Enfield" at A-13, Kabir Nagar, 100 Foota Road, Babarpur Road, Delhi on 25.02.2020 and mischief, ransacking and dacoity at shop of PW4 Sh. Vishal Mehndi by the name of "Zaidi Car Accessories" at C-549, 100 Foota Road near Shiv Mandir, Babarpur, Delhi on 25.02.2020.
9.2 Mischief is defined under Section 425 IPC and is punishable under Section 427 IPC.
425. Mischief.--Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits "mischief".
427. Mischief causing damage to the amount of fifty rupees.-- Whoever commits mischief and thereby causes loss or damage to the amount of fifty rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
9.3 Section 442 IPC defines house-trespass and Section 445 IPC defines house-breaking. Section 454 IPC provides for the punishment when house-breaking is done for committing the offence.
442. House-trespass. Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for FIR No. 111/2020 P.S. Welcome State vs. Gurmeet Singh & Ors. Page no.8 worship, or as a place for the custody of property, is said to commit "house-trespass"
445. House breaking.--A person is said to commit "house- breaking" who commits house-trespass if he effects his entrance into the house or any part of it in any of the six ways hereinafter described; Or if, being in the house or any part of it for the purpose of committing an offence, or having committed an offence therein, he quits the house or any part of it in any of it in such six ways, that is to say:
First.--If he enters or quits through a passage made by himself, or by any abettor of the house-trespass, in order to the committing of the house-trespass.
Secondly.--If he enters or quits through any passage not intended by any person, other than himself or an abettor of the offence, for human entrance; or through any passage to which he has obtained access by scaling or climbing over any wall or building.
Thirdly.--If he enters or quits through any passage which he or any abettor of the house-trespass has opened, in order to the committing of the house-trespass by any means by which that passage was not intended by the occupier of the house to be opened.
Fourthly.--If he enters or quits by opening any lock in order to the committing of the house-trespass, or in order to the quitting of the house after a house-trespass.
Fifthly.--If he effects his entrance or departure by using criminal force or committing an assault, or by threatening any person with assault.
Sixthly.--If he enters or quits by any passage which he knows to have been fastened against such entrance or departure, and to have been unfastened by himself or by an abettor of the house-trespass.
454.--Lurking house-trespass or house-breaking in order to commit offence punishable with imprisonment.--Whoever commits lurking house-trespass or house-breaking, in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and if the offence intended to be committed is theft, the FIR No. 111/2020 P.S. Welcome State vs. Gurmeet Singh & Ors. Page no.9 term of the imprisonment may be extended to ten years.
9.4 Section 395 IPC is the punishment for dacoity and Section 390 IPC defines robbery.
395. Punishment for dacoity.--Whoever commits dacoity shall be punished with 1[imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
390. Robbery.--In all robbery there is either theft or extortion. When theft is robbery.--Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
9.5 PW-2 Sh. Nishar, in his testimony, deposed that he had an Auto Workshop, by the name of Royal Enfield at A-13, Kabir Nagar, Gali No.3, 100 Foota Road, Babarpur Road, Delhi. On 24.02.2020 at about 3.00 PM, he left his shop for residence due to riots and also did not come on 25.02.2020. On 26.02.2020, he received a call that his shop had been looted and some articles of shop are lying outside. He went to the shop and saw that it was ransacked and some articles were lying outside. He then collected the lying articles and put it inside the shop. He took photographs of the articles and shop and then went home. On 01.03.2020, he went to Police Station and lodged his complaint, Ex. PW2/A. He then alongwith I.O went to his shop. I.O prepared a site plan Ex. PW2/B at his instance and seizure memo of the photographs Ex. PW2/D (colly) taken by him as Ex.
PW2/C. He also proved the certificate under Section 65-B of Indian FIR No. 111/2020 P.S. Welcome State vs. Gurmeet Singh & Ors. Page no.10 Evidence Act as Ex. PW2/E. Thereafter, they then returned to the Police Station.
Thus, as per the testimony of PW2, he had left his shop on 24.02.2020 due to riots and did not come on 25.02.2020. He received a call about his shop on 26.02.2020. He found out that his shop was ransacked and some articles of his shop were lying outside the shop. Thus, what PW2 proves is that there was trespass (Section 454 IPC) and a looting/theft from his shop (Section 395 IPC) and criminal mischief (Section 427 IPC) by an armed/unlawful assembly in prosecution of common object (Section 147/148/149 IPC) (Prohibitory Order under Section 144 Cr.P.C Ex. PW7/1 was in operation and based on complaint of DCP(NE)/PW7, Section 188 IPC was attracted).
Indubitably, PW2 is not an eye-witness to the incident.
9.6 PW-4 Sh. Vishal Mehandi, in his testimony, deposed that he runs a car accessories shop on rent by the name of Zaidi Car Accessories at C-549, 100 Foota Road, near Shiv Mandir, Babarpur, Delhi. On 25.02.2020, there was a protest near Maujpur Red Light against the CAA/NRC and shopkeepers were shutting their shops. At around 2-3.00 PM, when a crowd came near to his shop, he also pulled down the shutter of his shop and left for his home. While he was going, he saw the rioters just outside his shop.
On 26.02.2020 at around 8.00 PM, when he came to his shop and saw that it was ransacked, looted and many items were lying burnt outside his shop. He took photographs of the shop and left. He gave a statement to the police on 12.03.2020 and also list of stolen and destroyed articles of his shop Ex. PW-4/A to the police. Site plan Ex. PW-4/B was prepared by I.O at FIR No. 111/2020 P.S. Welcome State vs. Gurmeet Singh & Ors. Page no.11 his instance. He also proved the photographs given to the police as Ex. PW- 4/C to Ex. PW-4/E alongwith certificate u/s.65B Indian Evidence Act as Ex. PW-4/F. Thus, from the testimony of PW4, it is clear that he is an eye- witness to the incident of mischief (Section 427 IPC), ransacking and dacoity at his shop (Section 395 & 454 IPC) by armed members of unlawful assembly in prosecution of their common object (Section 147,148,149 IPC). (However, he has not identified any accused persons either during investigation or during trial. In fact, since he had seen rioters regarding incident of his shop, IO should have taken steps for getting a Test Identification Parade (TIP) done during investigation but for reasons best known to him, he did not do so).
10. 10.1 Having seen that house-trespass, criminal mischief and dacoity was committed on the shops of the complainants/PW2 & PW4 on 25.02.2020, it was for the prosecution to prove that the six accused persons arrested in this case were part of that riotous mob which committed the acts on the shops of the complainants.
10.2 The prosecution has brought forward only one eye-witness to prove the role of the accused persons. The said witness is PW/5 Ct. Navneesh.
Section 134 of the Indian Evidence Act reads as under :-
134. Number of witnesses-- No particular number of witnesses shall in any case be required for the proof of any fact.
FIR No. 111/2020 P.S. Welcome State vs. Gurmeet Singh & Ors. Page no.12 Hon'ble Supreme Court of India in case of Yanob Sheikh Allias Gagu Vs. State of West Bengal, reported In (2013) 6 SCC 428 has observed that in order to prove its case beyond reasonable doubt, the evidence produced by the prosecution has to be qualitative and may not be quantitative.
Thus, it is the quality of the testimony of a witness and not the number of witnesses which is crucial for the prosecution case. The evidence of PW-5/Ct. Navneesh,therefore, has to be scrutinized in the context of its testimony, testimony of other witnesses and the material exhibits.
10.3 The eye-witness PW5/Ct. Navneesh has deposed that he was on patrolling duty at 100 Foota Road, Shiv Mandir, Chajjupur, Babarpur, Delhi on 25.02.2020. His testimony is being reproduced as under :-
"On 25.02.2020, I was posted at P.S. Welcome as Constable. On that day, I alongwith other staff namely ASI Dharamveer, HC Narender, HC Mahipal and Ct. Praveen were on duty at 100 Foota Road, Shiv Mandir, Chhajju Pur, Babarpur, Delhi. In the afternoon, I saw that hundreds of rioters were coming on the 100 Foota Road from Maujpur Chowk while committing rioting along the way and they were armed with lathi, dandas and other weapons. We tried to persuade them not to indulge in rioting and continuous announcements were being made in this regard. They did not listen. We chased them away and the rioters then entered in Gali No.1, Kabir Nagar, Delhi. From that group of rioters, 1520 of them came out and entered into a shop by the name of Nisar Auto Works by breaking open the shutters and ransacking the entire shop. We tried to push them away and FIR No. 111/2020 P.S. Welcome State vs. Gurmeet Singh & Ors. Page no.13 the said group of rioters, left the said shop but then entered into another shop on the opposite side of the road by the name of Zaidi Car Accessories. The rioters then ransacked the shop, looted it and many rioters took articles of it.
We tried to stop them but could not as we were heavily outnumbered. The said group of rioters were thereafter pushed away towards the road leading to Durga Puri Chowk.
On 08.03.2020, while I was present at P.S. Welcome, SI Himanshu told us that he has received a secret information that three persons who are involved in riots could be apprehended from near Shiv Mandir, 100 Foota Road. I alongwith HC Mahipal, Ct. Sunder, SI Himanshu and secret informer reached the said place. The secret informer then pointed towards the said three accused persons and thereafter, left. I alongwith HC Mahipal and Ct. Sunder then apprehended the said three persons. We searched them, interrogated them and they disclosed about their participation in the riots on 100 Foota Road on 25.02.2020. I also identified them as I was also on duty at 100 Foota Road on 25.02.2020. Their names were disclosed as Gaurav,Gurmeet and Vishal. They were thereafter arrested. The arrest memo of accused Gaurav, Gurmeet and Vishal are already Ex. PW1/B, PW1/1 & PW1/C bearing my signatures at point B respectively. The personal search memo of accused Gaurav, Gurmeet and Vishal are already Ex. PW1/E, PW1/D & PW1/F bearing my signatures at point B respectively. The disclosure statement of accused Vishal Verma, Gaurav and Gurmeet Singh are already Ex. PW1/E, PW1/H and PW1/G respectively bearing my signature at point B. On the same day i.e. 08.03.2020, after some time, one secret informer came at the Police Station and told SI Himanshu that one rioter who had participated on 25.02.2020 is standing near Sugandha Nursing Home near Naala and he can be apprehended. I alongwith HC Mahipal, SI Himanshu and secret informer reached the said place and the secret informer pointed out towards one person and left the place. I FIR No. 111/2020 P.S. Welcome State vs. Gurmeet Singh & Ors. Page no.14 alongwith HC Mahipal apprehended that person who disclosed his name as Raj Kamal. Upon seeing him, I also identified him as one who had participated in the riots on 25.02.2020 at 100 Foota Road. I told SI Himanshu that he is the same person who had participated in the rioting incident at Zaidi Car Accessories and Nisar Auto Works. He was thereafter arrested and his arrest memo is Ex.5/A bearing my signatures at point A. He was brought to the Police Station. The disclosure statement of accused Raj Kamal is Ex. PW5/B bearing my signature at point A. On 13.03.2020, one secret informer came at the Police Station and told SI Himanshu that one rioter who had participated on 25.02.2020 is standing near Shiv Mandir, 100 Foota Road and he can be apprehended. I alongwith SI Himanshu and secret informer reached the said place and the secret informer pointed out towards one person and left the place. I alongwith SI Himanshu apprehended that person who disclosed his name as Deepak Tomar. Upon seeing him, I also identified him as one who had participated in the riots on 25.02.2020 at 100 Foota Road. I told SI Himanshu that he is the same person who had participated in the rioting incident at Zaidi Car Accessories and Nisar Auto Works. He was thereafter arrested and his arrest memo is Ex.5/B bearing my signatures at point A. He was brought to the Police Station. The disclosure statement of accused Deepak Tomar is Ex. PW5/D bearing my signature at point A On 16.03.2020, when I was present at Police Station, SI Himanshu told that he has been informed by a secret informer that one rioter who had participated on 25.02.2020 is standing near Chhajju Gate, Babarpur and he can be apprehended. I alongwith and SI Himanshu and secret informer reached the said place and the secret informer pointed out towards one person and left the place. I alongwith SI Himanshu apprehended that person who disclosed his name as Vikram. Upon seeing him, I also identified him as one who had participated in the riots on 25.02.2020 at 100 Foota Road. I FIR No. 111/2020 P.S. Welcome State vs. Gurmeet Singh & Ors. Page no.15 told SI Himanshu that he is the same person who had participated in the rioting incident at Zaidi Car Accessories and Nisar Auto Works. He was thereafter arrested and his arrest memo is Ex.5/E bearing my signatures at point A. The disclosure statement of accused Vikram is Ex. PW5/F bearing my signature at point A. He was brought to the Police Station. I can identify all the accused persons. The witness has correctly identified all the six accused persons, present in the Court today.
Inter alia, in cross-examination, PW5/Ct. Navneesh deposed as under :-
" It is correct that I was shown certain photographs of accused by SI Himanshu in FIR No. 93/2020, P.S. Welcome during investigation. I was not asked to join in a judicial TIP in FIR No. 93/20.
I have been posted at P.S. Welcome for around three years from around November, 2016 till 2020. I cannot tell the name of all persons living in the area of P.S Welcome. (Volunteered. The Police Station is divided into beat and I can tell about the beat where I am posted). I cannot tell the name of every person living in my beat.
My first statement was recorded on 08.03.2020. It is correct that I had not given any complaint or any intimation to the Police Station before 08.03.2020 regarding the fact that I can identify certain rioters who had committed rioting on 25.02.2020. I cannot tell the reason for not giving such complaint or the intimation.
It is wrong to suggest that no such intimation or complaint was given as I could not have identified any rioters. Accused Vikram was arrested at about 7.15/7.20 PM. IO had asked a few passersby to join the investigation but they all refused citing their own personal difficulties. No notice in writing was given to any passersby. It is wrong to suggest that accused Vikram was asked to come to the Police Station for recording of his statement,or that he was falsely implicated in FIR No. 111/2020 P.S. Welcome State vs. Gurmeet Singh & Ors. Page no.16 this case. It is correct that prior to 16.03.2020, I had not given any statement regarding accused Vikram. It is wrong to suggest that I am deposing falsely or that accused Vikram is not involved in any rioting act. It is wrong to suggest that I have not joined the investigation in the present case. I.O had taken my statement four times (i.e. on 08.03.2020, 13.03.2020, 16.03.2020 & 09.06.2020) in the present case. I had given the statement earlier but on 09.06.2020, I had mentioned certain aspects which I could not give earlier.
10.4 As per the examination-in-chief of PW-5 Ct. Navneesh, he alongwith ASI Dharamvir, HC Narender, HC Mahipal,HC Praveen were on duty at 100 Foota Road, Shiv Mandir, Chajjupur, Babarpur, Delhi on 25.02.2020. PW-5 specifically deposed that they tried to persuade the rioters not to indulge in rioting but they did not listen and rioters entered into Gali No.1 and from that group 15-20 people entered the shop of PW-2/Nishar by breaking open the shutters and ransacking the shop. The said group of rioters, after being pushed by them, entered into the shop of PW-4/Vishal Mehandi,which was on the opposite side of the road and ransacked and looted it.
10.5 ASI Dharamvir, HC Narender and Ct. Praveen, who PW-5 deposes as present and witnessed alongwith him on 25.02.2020 on patrolling duty at 100 Foota Road, Shiv Mandir, Chajjupur, Babarpur, Delhi, the incident of rioting of the shops of PW2 & PW4, were not even brought by the prosecution as witnesses. They are police officials only and yet IO has not cared to examine them as witnesses.
10.6 Only HC Mahipal deposed as PW-6 and he did not depose FIR No. 111/2020 P.S. Welcome State vs. Gurmeet Singh & Ors. Page no.17 anything about 25.02.2020 or his presence or having witnessed accused persons on the said date regarding the two incidents in shops of PW2 & PW4 as adumbrated above. In fact, his testimony states that Ct. Navneesh identified accused persons when they were apprehended on the instance of a secret informer on 08.03.2020. The testimony of PW-6 is in direct contradiction to the testimony of PW-5 and it puts the testimony of PW-5 in grave doubt as far as the identification of accused persons is concerned.
10.7 Moreover, as per PW-5 when accused persons were apprehended on 08.03.2020, 13.03.2020, 16.03.2020 at the instance of secret informer, he identified them from their faces instantly. It is surprising that PW-5 was able to identify accused persons from their faces when in fact, he had never stated that knew the accused persons or could identify them.
He did not make any report or DD entry regarding the rioting and arsoning of property. He also admitted that he never gave any oral or written complaint regarding the incident of 25.02.2020 or regarding the identification of the accused persons by their face to police officers and he stated that he cannot tell the reason for not giving such complaint or intimation.
Thus, the deposition of PW5/Ct. Navneesh that he never made any intimation or any oral or written complaint about the incident of 25.02.2020 or his identification of the accused persons by their faces gives rise to suspicion about the veracity of the said deposition in as much as the prosecution is required to establish its case beyond reasonable doubt.
FIR No. 111/2020 P.S. Welcome State vs. Gurmeet Singh & Ors. Page no.18 10.8 PW-5 also does not explain as to how he was able to identify the accused persons despite hundreds of rioters being present on 25.02.2020 nor does any explanation come from Investigating Officer recording the said reason and the version of PW-5 for the sudden recognition of the accused by PW-5 as and when accused persons were apprehended on the instance of secret informer.
10.9 It must be pointed out that prosecution seems to rely upon CCTV footage of 25.02.2020 of nearby places (covered by FIR No.93/20, P.S. Welcome )in order to establish the presence of accused persons near the shops of PW2 & PW4. As per IO/PW9/SI Himanshu, there is no CCTV camera covering the place of incident. The CCTV cameras cited in FIR No. 93/20 does not pertain to the place of incident but of 30-40 steps away from the place of incident.
The seizure memo of DVR of CCTV cameras in FIR No. 93/2020, P.S. Welcome were seized on 26.02.2020 by IO/PW9 SI Himanshu (who is also the IO in this case). Thus, the footage of accused persons was already available with the IO when it is stated that accused persons were arrested on 08.03.2020, 13.03.2020 & 16.03.2020 upon the instance of the secret informer and identified by PW5 instantly by chance. The footage pertains to the same road where the shops of the complainants are located. If that was the case, IO should have asked PW-5, PW-6 or other police officials on duty (but not made as witnesses on the relevant date and time of the incident), to identify from the footage if the accused persons herein were part of the riotous mob that committed the offence in respect of the shops of the complainants. The manner of investigation and the consequent deposition of FIR No. 111/2020 P.S. Welcome State vs. Gurmeet Singh & Ors. Page no.19 the witnesses leaves the prosecution version doubtful about the presence and the involvement of the accused persons in the present case.
10.11 Now, coming to the footage aspect :-
10.11.1. The one video is of 26 minutes and 21 seconds and begins at 12:00:10 hours on 25.02.2020.
IO/PW9/SI Himanshu pointed out accused Deepak Tomar in the said video where he is seen putting a gamchha to cover his face and hitting the camera with a stone. The said spot is 60-70 steps away from the place of the incident in the present case.
PW9/IO SI Himanshu further deposed that accused Vishal and Gurmeet Singh are not visible in the footage filed by him. Only, accused persons namely Vikram, Raj Kamal and Gaurav are seen in one footage of PWD at around 15:39:53 hours on 25.02.2020.
The present incident is of around 3.00 PM.
10.11.2 As per the Investigating Officer/PW9/SI Himanshu, the CCTV Camera/footage cited in FIR No. 93/20, P.S. Welcome is at a distance of 30-40 steps from the place of the incident. Accused Vishal and Gurmeet Singh are not visible in the footage. The footage depicting accused Deepak Tomar is of 12.00 PM on 25.02.2020 while the footage depicting accused Vikram, Raj Kamal and Gaurav are of 3.39 PM on 25.02.2020. However, the incident covered in the present case is of around 3.00 PM.
FIR No. 111/2020 P.S. Welcome State vs. Gurmeet Singh & Ors. Page no.20 This means that the footage of accused Deepak Tomar is of three hours prior to the incident covered by this case and for the remaining accused persons, it is half-an-hour after the incident. Even the footage is not of the spot or the place of incident. It is strange that all six accused persons are being referred to in the same way as if all the footage is of the same time of 25.02.2020 when, in fact, it is of different times during the course of the day. It is seen that accused were seen on the footage covered in FIR No. 93/2020 and arrested in that case and thereafter, they were arrested in this case. It is more the case that accused persons were visible in the footage and that led to the conclusion by the IO that they must have participated in the ransacking incident covered in the present case on the same day i.e. 25.02.2020.
11. The testimony of the eye-witness/PW5 Ct. Navneesh does not inspire the court to conclude the case against accused persons namely Gurmeet Singh, Gaurav, Vishal Verma, Raj Kumar, Deepak Tomar and Vikram Singh beyond reasonable doubt.
12. On the cumulative reading of the entire testimonies of all the witnesses, the presence of accused persons in the unlawful assembly on the time and place of incident and their participation in the act of rioting, mischief and ransacking of shops of PW2/complainant Nishar and PW4 Vishal Mehandi is not established.
13. In view of the above stated discussion, prosecution has not been able to prove its case against all six accused persons beyond reasonable FIR No. 111/2020 P.S. Welcome State vs. Gurmeet Singh & Ors. Page no.21 doubt which is the touchstone of criminal law. Hence, all six accused persons namely Gurmeet Singh, Gaurav, Vishal Verma, Raj Kumar, Deepak Tomar and Vikram Singh are acquitted of all the offences punishable under Section Section 147 IPC, 148 IPC, 188 IPC, 427 IPC, 454 IPC read with Section 149 IPC & Section 395 IPC.
Pronounced & Dictated in the open court today i.e. 09.05.2023 (Amitabh Rawat) Additional Sessions Judge-03 (Shahdara) Karkardooma Courts, Delhi FIR No. 111/2020 P.S. Welcome State vs. Gurmeet Singh & Ors. Page no.22