Delhi District Court
State vs Mohd Shahnawaj @Shanu @Ansari on 11 December, 2023
CNR No. DLNE01-000450-2021
State v. Mohd. Shahnawaz @ Shanu etc.
SC No. 47/2021, FIR No. 113/2020, PS Gokalpuri
Judgment dated 11.12.2023
DLNE010004502021
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 3-5
3 Charges 6-7
4 Description of Prosecution Evidence 7-19
5 Plea of accused under Section 313 Cr.P.C. 20
6 Arguments of Defence & Prosecution 20-23
APPRECIATION OF LAW, FACTS AND EVIDENCE
7 Unlawful Assembly and Riots 24-27
8 Identification of accused 27-43
9 Conclusion and Decision 43
Digitally signed
by PULASTYA
PRAMACHALA
PULASTYA
PRAMACHALA Date:
Page 1 of 43 (Pulastya Pramachala)
2023.12.11
ASJ-03, North-East District,
11:31:22
+0530
Karkardooma Courts, Delhi
CNR No. DLNE01-000450-2021
State v. Mohd. Shahnawaz @ Shanu etc.
SC No. 47/2021, FIR No. 113/2020, PS Gokalpuri
Judgment dated 11.12.2023
Sessions Case No. : 47/2021
Under Section : 143/147/148/454/427/395 IPC read
with Section 149 IPC & 188 IPC
Police Station : Gokalpuri
FIR No. : 113/2020
CNR No. : DLNE01-000450-2021
In the matter of: -
STATE
VERSUS
1. MOHD. SHAHNAWAZ @ SHANU @ Ansari
S/o. Mohd. Rashid,
R/o. H.No. A-528, Gali No. 22,
Phase-10, Shiv Vihar, Delhi.
2. MOHD. SHOAIB @ CHHUTWA
S/o. Sh. Islam,
R/o. H.No. 93, Gali No. 5/2,
Behind Rajdhani School,
Babu Nagar, Delhi.
3. SH. SHAHRUKH
S/o. Sh. Salauddin,
R/o. B-262, Gali No. 7, Babu Nagar,
Near Shiv Mandir, Delhi.
4. SH. RASHID @ RAJA
S/o. Sh. Riyajuddin,
R/o. A-22, Gali No. 1, Chaman Park,
Shiv Vihar Tiraha, Delhi.
5. SH. AZAD
S/o Riyasat Ali,
R/o. C-824, Gali No. 9, Old Mustafabad,
Delhi.
6. SH. ASHRAF ALI
S/o Anisul Haq,
R/o H.No. A-18, Chaman Park, Indra Vihar,
Delhi.
Digitally signed
Page 2 of 43 (Pulastya Pramachala)
by PULASTYA
ASJ-03,
PULASTYA North-East
PRAMACHALA District,
Karkardooma
PRAMACHALA Date: Courts, Delhi
2023.12.11
11:31:33
+0530
CNR No. DLNE01-000450-2021
State v. Mohd. Shahnawaz @ Shanu etc.
SC No. 47/2021, FIR No. 113/2020, PS Gokalpuri
Judgment dated 11.12.2023
7. SH. PARVEZ
S/o Riyajuddin,
R/o. H.No. A-30/6, Gali No. 1,
Mahalaxmi Enclave, Babu Nagar,
Delhi &
Mohalla Patua, PS Chaudpur,
Distt. Bijnour, U.P.
8. MOHD. FAISAL
S/o. Sh. Raisuddin,
R/o. H.No. F-14, Gali No. 1, Babu Nagar,
Main Brijpuri Road, Delhi.
9. SH. RASHID @ MONU
S/o. Sh. Khalil,
R/o. H.No. 259, Gali No. 7, Shiv Mandir,
Shakti Vihar, Delhi.
10. MOHD. TAHIR
S/o. Mohd. Umar
R/o. H.No. 16, Gali No. 6,
Old Mustafabad, Delhi. ...Accused Persons
Complainant: SH. MUKESH KUMAR,
S/o. Sh. Hari Kishan,
R/o. K-4/13, Gali No. 5, West
Ghonda, Bhajanpura, Delhi.
Date of Institution : 14.07.2020
Date of reserving judgment : 04.12.2023
Date of pronouncement : 11.12.2023
Decision : All accused acquitted.
(Section 437-A Cr.P.C. 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.Page 3 of 43 (Pulastya Pramachala)
ASJ-03, North-East DigitallyDistrict, signed Karkardooma Courts, Delhi by PULASTYA PULASTYA PRAMACHALA PRAMACHALA Date: 2023.12.11 11:31:44 +0530 CNR No. DLNE01-000450-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 47/2021, FIR No. 113/2020, PS Gokalpuri Judgment dated 11.12.2023
2. Brief facts of the present case are that on 03.03.2020, FIR was registered at PS Gokalpuri pursuant to receipt of a written complaint dated 29.02.2020 (received vide DD No.55-A) from Sh. Mukesh Kumar. In his complaint, Mukesh Kumar alleged that his shop no. A-49, in the name of "New Sharma Paints & Hardware Store" situated in Chaman Park, Shiv Vihar Tiraha, was burnt on 25.02.2020, by the rioters. Riot had started since the evening of 24.02.2020 in that area. Mukesh Kumar further alleged that he suffered loss of rupees 80/85 thousands in that incident. This complaint was marked to Insp. Bineet Kumar Pandey for necessary action. On 29.02.2020, Insp. Bineet Kumar Pandey endorsed the complaint to DO to register a case under Section 147/148/149/427/380 IPC and to hand over further investigation of the case to ASI Manvir Singh.
3. During investigation, on 03.03.2020, IO/ASI Manvir Singh received the copy of present FIR and original complaint from DO alongwith certificate 65B of IE Act and prepared site plan at the instance of complainant Mukesh Kumar. After that, IO recorded statement of complainant. On 15.03.2020, IO called crime team and got the spot inspected, where crime team also took several photographs. IO collected inspection report as well as photographs and placed them on the record. He also collected ash of burnt articles from the shop of complainant. He examined several witnesses including eye witnesses. Thereafter, further investigation of the present case was handed over to SI Yogesh Page 4 of 43 (Pulastya Pramachala) ASJ-03, North-East District, Digitally Karkardooma signed Courts, Delhi by PULASTYA PULASTYA PRAMACHALA PRAMACHALA Date: 2023.12.11 11:31:53 +0530 CNR No. DLNE01-000450-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 47/2021, FIR No. 113/2020, PS Gokalpuri Judgment dated 11.12.2023 Dahiya, who after discussion with senior officers, added Section 436 IPC in the present case. During further investigation, IO examined Ct. Vipin, Ct. Sanjay and HC Hari Babu, who were also witnesses to the incident. They named accused persons. IO came to know about arrest of accused persons by crime branch and he formally arrested accused Mohd. Shahnawaz @ Shanu on 16.04.2020. On 22.04.2020, accused Azad, Shahrukh, Mohd. Shoaib, Rashid @ Raja, Ashraf Ali, Parvez and Mohd. Tahir, were formally arrested. Accused Mohd. Faisal and Rashid @ Monu were formally arrested on 25.04.2020. During further course of investigation, more witnesses including PCR callers were examined.
4. After completion of investigation, on 14.07.2020 a chargesheet was filed before Duty MM (North-East), Karkardooma Courts, Delhi, against aforesaid accused persons. Thereafter, on 23.12.2020, 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 offences under Section 153-A IPC and 188 IPC, for want of sanction and complaint. Thereafter, case was committed to the sessions court on 12.01.2021.
5. On 01.10.2022, first supplementary chargesheet was filed before this court, along with a complaint under Section 195 Cr.P.C and other documents.
Digitally signed by PULASTYA PULASTYA PRAMACHALA
Page 5 of 43 PRAMACHALA
(Pulastya
Date: Pramachala)
2023.12.11
ASJ-03,11:32:03
North-East District,
+0530
Karkardooma Courts, Delhi
CNR No. DLNE01-000450-2021
State v. Mohd. Shahnawaz @ Shanu etc.
SC No. 47/2021, FIR No. 113/2020, PS Gokalpuri Judgment dated 11.12.2023 CHARGES
6. On 22.09.2021, charges were framed against aforesaid accused persons for offences punishable under Section 143/147/148/454/ 427/395/436 IPC read with Section 149 IPC, in following terms:-
"That in the evening of 24.02.2020, in the area of Chaman Park, Brijpuri Road, Shiv Vihar Tiraha, Delhi-110094, within the jurisdiction of PS Gokalpuri, all of you being from a particular community alongwith your other associates (unidentified) formed an unlawful assembly, the object whereof was to cause maximum damage to the property and persons belonging to the other community, commit vandalism, theft and arson in the shops, houses and other properties of the persons from other community, by the use of force and violence in prosecution of the common object of such assembly and thereby committed offences punishable under Section(s) 143/147/148 IPC read with Section 149 IPC and within my cognizance.
Secondly, on the aforesaid date, in the evening, exact time unknown, at shop No.A-49 (by the name of "New Sharma Paints & Hardware Store"), Chaman Park, Shiv Vihar Tiraha, Delhi-94, you all being members of said unlawful assembly in furtherance of your common object alongwith your other associates (unidentified) committed lurking house-trespass in the aforesaid shop, belonging to complainant Mukesh Kumar, S/o Shri Hari Kishan, to commit offences, vandalized/damaged the same, committed extortion of various articles lying therein and thereafter committed mischief by fire or explosive substance with the intent to destroy the aforesaid shop of complainant and thereby committed offences punishable under Section(s) 454/427/395/436 IPC read with Section 149 IPC and within my cognizance."
7. Thereafter, on 01.02.2023, additional charge was framed against aforesaid accused persons for offence punishable under Section 188 IPC, in the following terms: -
"That, in and around the evening time of 24.02.2020, at and around the area of Chaman Park, Brijpuri Road, Shiv Vihar Tiraha, Delhi-94, within the jurisdiction of PS Gokalpuri, you all accused persons being member of an unlawful assembly alongwith your other associates (unidentified) were present at aforesaid place, in prosecution of the common object of an unlawful assembly and in violation of the proclamation issued u/s 144 Cr. PC by the competent authority/DCP, North East vide order dated 24.02.2020 bearing no.10094-170 X-1, Page 6 of 43 (Pulastya Pramachala) Digitally signed ASJ-03, byNorth-East PULASTYA District, PULASTYA Karkardooma Courts, Delhi PRAMACHALA PRAMACHALA Date: 2023.12.11 11:32:11 +0530 CNR No. DLNE01-000450-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 47/2021, FIR No. 113/2020, PS Gokalpuri Judgment dated 11.12.2023 North East, Delhi dt.24.02.2020, which was duly announced in all the localities of District North East including area of PS Gokalpuri, thereby you all committed offence punishable under Section 188 IPC and within my cognizance. And I hereby direct that you be tried by this Court for the aforesaid charge."
DESCRIPTION OF PROSECUTION EVIDENCE: -
8. Several witnesses were dropped on the basis of admission of documents under Section 294 Cr.P.C. and prosecution examined 21 witnesses in support of its case, as per following descriptions:-
Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties PW1/Sh. On 24.02.2020, PW1 had his shop at Ex.PW1/A Mukesh Shiv Vihar Tiraha under the name of (complaint of Kumar M/s New Sharma Paints. After seeing a PW1);
large mob at Shiv Vihar Tiraha, PW1 Ex.PW1/B (site closed his aforesaid shop at plan dated 02:30/03:00 PM and moved to the 03.03.2020) & house of his sister which was adjacent to his shop. The mob approached the Ex.PW1/C rear gate of his sister's house. They (seizure memo tried to break open the gate. Upon dated seeing that, PW1 went to the roof of 09.03.2020). that house.
PW1 identified accused Arif and Shahnawaz in that mob. Upon seeing the aggressive nature of the mob, PW1 left that house and went to the house of his other sister which was at a distance of 200-300 meters from the above-
mentioned house. At about 8-9 PM, someone told PW1 that his shop had been set on fire. Accordingly, PW1 visited his shop and saw that first floor of his shop was burning at that time. PW1 made a call at 112 number.
Thereafter, PW1 went to his home.
On 25.02.2020, when PW1 again came to his shop, he found that the shop as well as his sister's house had been Page 7 of 43 (Pulastya Pramachala) Digitally signed ASJ-03, North-East by PULASTYADistrict, PULASTYA Karkardooma Courts, Delhi PRAMACHALA PRAMACHALA Date: 2023.12.11 11:32:20 +0530 CNR No. DLNE01-000450-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 47/2021, FIR No. 113/2020, PS Gokalpuri Judgment dated 11.12.2023 Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties completely burnt. PW1 identified accused Shahnawaz before the court. On 27.02.2020 or 28.02.2020, PW1 submitted a complaint in the PS, bearing his signatures at point A. Police came to his shop on 03.03.2020 and recorded statement of PW1 and prepared site plan. PW1 identified his signature at point A on the site plan PW1 handed over certain GST invoices/bills to the police on 09.03.2020, which were seized vide a memo. PW1 identified his signature at point A on that seizure memo. He identified accused Shahnawaz in the court.
PW1 had mentioned in his statement to the police that the persons in the mob were having rods, stones and petrol bombs in their hands.
PW2/Sh. He was having a shop at Chaman Park Crossing by the Pawan name of Pizza Diet. PW2 was a PCR caller, who called the Singh PCR as informed by his staff that his aforesaid shop was being vandalized by the rioters. PW2 made call from his mobile no. 7840072456 between 2 PM and 4 PM. PW2 did not support the prosecution on the point of identification of accused persons.
PW3/Sh. He used to sell earthen pots on the pavement at footpath Daya (Nala Patri), Shiv Vihar. On 24.02.2020, at about 12 Noon Chand or 1 PM, PW3 saw that some quarrel had taken place at Shiv Vihar Tiraha. PW3 sensed a trouble and accordingly, collected all his earthen pots and left for his home at Loni, Ghaziabad.
PW3 did not support the prosecution on the point of identification of accused persons.
PW5/Sh. On 24.02.2020 in the evening hours when he was present at Mahesh his house, he saw that a vehicle parked near a park near his house had caught fired. Accordingly, PW5 made call to fire Page 8 of 43 Digitally (Pulastya signed Pramachala) by PULASTYA ASJ-03, North-East PULASTYA PRAMACHALADistrict, Karkardooma PRAMACHALA Courts, Delhi Date: 2023.12.11 11:32:28 +0530 CNR No. DLNE01-000450-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 47/2021, FIR No. 113/2020, PS Gokalpuri Judgment dated 11.12.2023 Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties brigade at telephone no. 101. Thereafter, PW5 made a call at telephone 100 number.
PW6/Sh. On 24.02.2020 at about 02:30 PM when he was present at Vipin his house at C-3, A block, Chaman Park near Shiv Vihar Tiraha, he saw a mob coming from Mustafabad Road. They started pelting stones upon reaching Shiv Vihar Tiraha. Later on, a mob also came from Shiv Vihar side and they also started throwing stones. There was stone pelting from both the sides. Some stones landed inside his house also. PW6 made call at telephone number 100 several times. PW6 did not support the case of prosecution on the point of identification of the accused persons. PW7/Smt. On 24.02.2020 at about 4 PM or 5 PM when she was Rekha present at the roof of his house, she saw that riots had Sharma started in her area. The rioters were creating ruckus. Upon seeing all that, PW7 came down from the roof and made a call to her husband asking him to take her to a safe place. Her husband came home and they all left the house and went to reside in a tenanted accommodation at a safer place. Mukesh Kumar is his brother. His shop was adjacent to house of PW7 in Chaman Park.
PW7 also did not support the case of prosecution on the point of identification of the accused persons. PW8/Sh. On 24.02.2020 at about 2 PM or 02:30 PM when he was Shyam present at his Tea Stall, near Shiv Vihar T-point, he saw a Sunder mob coming from Mustafabad side towards his Tea Stall. At the same time, a stone thrown by somebody hit PW8 below his left armpit. The persons in the mob asked them to shut their shops. Accordingly, PW8 also shut his Tea Stall and left for his home.
PW8 returned to his shop after about two days and found that its locks had been broken open and goods lying therein including his cycle had been stolen.
PW8 did not support the prosecution on the point of identification of accused persons.
PW9/Sh. He was working as Nodal Officer in Ex.PW9/A (colly. Kamal Reliance Jio Infocom Ltd. since 10 pages) (CDR Kumar December, 2016. An Email was of mobile no.
Page 9 of 43 (Pulastya Pramachala) Digitally signedASJ-03, North-East District, by PULASTYA Karkardooma Courts, Delhi PULASTYA PRAMACHALA PRAMACHALA Date: 2023.12.11 11:32:37 +0530 CNR No. DLNE01-000450-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 47/2021, FIR No. 113/2020, PS Gokalpuri Judgment dated 11.12.2023 Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties received for providing CDR of mobile 9718825136); numbers 7984796920 and 9718825136. Ex.PW9/B (all 3 In response to such mail, PW9 had sent pages of the the requisite data i.e. CDR of aforesaid certified copy of numbers for period w.e.f. 23.02.2020 to printout of DKYC 10.03.2020, CAF and certificate u/s in the name of 65B of I.E. Act through Email. Mohd. Parvez s/o PW9 produced certified copy of Riazuddin); CAF/EKYC and DKYC of aforesaid Ex.PW9/C (all both numbers, CDRs for aforesaid 33 pages of CDR period, location chart and certificate u/s of mobile no. 65B of I.E. Act. PW9 identified his 7984796920); initial with official stamp at point X on all 10 pages of CDR of mobile no. Ex.PW9/D 9718825136; on all 3 pages of the (certified copy of certified copy of printout of DKYC in printout of EKYC the name of Mohd. Parvez s/o in the name of Riazuddin; on all 33 pages of CDR of Ashraf s/o mobile no. 7984796920; on certified Anisulhak); copy of printout of EKYC in the name Ex.PW9/E (6 of Ashraf s/o Anisulhak; and on all 6 sheets (back to sheets (back to back) of certified copy back) of certified of Cell ID Chart. copy of Cell ID PW9 also identified his initial with Chart); & official stamp at circle X on certificate Ex.PW9/F u/s 65B of I.E Act in respect of (certificate u/s aforesaid CDRs and CAFs brought by 65B of I.E Act in him. respect of aforesaid CDRs and CAFs) PW10/HC On 24.02.2020, from 2 PM onwards he was stationed on Sanjay duty at Shiv Vihar, Tiraha, in order to control the riots. HC Hari Babu, Ct. Vipin and the staff from other police station were also present there on duty. At that time, there was mob of around 500-600 persons on Brijpuri Road. That mob was vandalising and setting on fire the properties situated around Johripur Road. The mob was equipped with lathi, danda, stone and some inflammable object which used to burst into fire. Police team tried to control them but due to large size of mob, they could not be controlled. Some Page 10 of 43 (Pulastya Pramachala) Digitally signed by PULASTYA ASJ-03, North-East District, PULASTYA PRAMACHALA Karkardooma Courts, Delhi PRAMACHALA Date:
2023.12.11 11:32:49 +0530 CNR No. DLNE01-000450-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 47/2021, FIR No. 113/2020, PS Gokalpuri Judgment dated 11.12.2023 Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties persons in that mob were wearing helmet etc. and some were having naked face.
PW10 knew some of the members of that mob, who were having naked face. PW10 identified accused Mohd. Faizal, Shahnawaj @ Shanu, Ashraf Ali and Rashid @ Raja. Accused persons alongwith other companions around 05:00 PM entered into New Sharma Hardware and paint shop from back side. That shop was situated on Johripur Road and back side entry was from a gali. Accused had broken open the gate of that shop. When police team tried to stop accused, then accused persons started pelting stone and petrol bomb towards them. Accused set on fire the paint boxes and plastic pipes. Accused broke the articles kept in that shop. The mob including aforesaid accused persons, had also taken away money from the cash box in that shop. Some articles from that shop were also carried away. The shop was also set on fire. The mob did not allow fire brigade vehicle to move ahead from Johripur Nala. PW10 knew accused Mohd. Faizal, Shahnawaj @ Shanu, Ashraf Ali and Rashid @ Raja, as PW10 had been beat Constable in the area of Chaman Park and during his patrolling duty PW10 used to meet accused persons. PW10 identified accused Mohd. Faisal, Ashraf Ali and Rashid @ Raja correctly and had initially pointed out to accused Mohd. Tahir as Shahnawaj @ Shanu. However, later on on being so suggested. he identified accused Shahnawaz, stating that due to lapse of long time he could not remember him earlier.
PW11/HC On 24.02.2020, at about 5-6 PM, he was patrolling the area Vipin around Shiv Vihar Tiraha, thereby moving on the main Brijpuri road and Karawal Nagar-Johripur road. PW11 was on duty since morning in the same place alongwith HC Hari Babu, Ct. Sanjay and other staff. On Karawal Nagar- Johripur road, there was a mob of around 500-600 persons since morning. That mob was raising slogan since morning to take back CAA/NRC. That mob pelted stone towards police, as well as towards other mob assembled on the side of Shiv Vihar on and off during day time. At about 5-6 PM, that mob tried to break open the shutter of shop in the name and style of New Sharma Hardware situated on Karawal Page 11 of 43 (Pulastya Pramachala) Digitally signed ASJ-03,byNorth-East PULASTYA District, PULASTYAKarkardooma Courts, Delhi PRAMACHALA PRAMACHALA Date: 2023.12.11 11:33:03 +0530 CNR No. DLNE01-000450-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 47/2021, FIR No. 113/2020, PS Gokalpuri Judgment dated 11.12.2023 Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties Nagar Johripur Road in A-Block Chaman Park. That was property bearing no. A-49 belonging to Sh. Mahesh Sharma (subsequently admitted his name to be Mukesh). That was a two and half storey building and the shop was situated on the ground floor. The mob thereafter, went towards back side of that property and PW11 also followed them up to corner of the back gali. That mob broke open the iron gate of the aforesaid property and entered into the shop. They vandalized the shop and looted the articles like plastic pipes, paint etc. Thereafter, the mob went upstairs and PW11 came back on the main road. From the main road, PW11 could see that the mob had gone upto terrace of the property and they were vandalizing the upper floors also. The same mob had set that property on fire on the ground floor itself.
PW11 had seen and identified faces of some persons in that mob, whom PW11 knew since prior to that incident. PW11 identified accused Shahnawaz @ Shanu, Shoiab @ Chutwa, Shahrukh and Rashid @ Monu before the court correctly. PW11 knew owner of aforesaid building with the name of Mahesh.
PW12/ On 24.02.2020, since 8 AM he was Ex.PW12/A ASI Hari on duty alongwith Ct. Vipin and Ct. (colly. 5 sheets) Babu Sanjay as well as some other staff at (Photocopy of Shiv Vihar Tiraha. At about 2 PM, medical PW12 found a mob of around 500- documents of 600 persons at that place. There was treatment of a New Sharma Hardware shop on PW12, from the road going to Johripur from Shiv 12.01.22 till Vihar Tiraha. At about 5 PM, that 21.01.22, mob went to the back side gate of pertaining to that shop, which opened in a gali Garg Hospital);
and broke open the gate of the shop. &
They went inside that shop and set it Ex.PW12/B
on fire. (colly. 8 sheets)
PW12 saw that mob was equipped (photocopy of
with danda, sword and such medical
material, which used to burst into documents
fire on throwing the same. The mob pertaining to
Page 12 of 43 (Pulastya Pramachala)
Digitally signed
ASJ-03, North-East District,
by PULASTYA
PULASTYA
Karkardooma Courts, Delhi
PRAMACHALA
PRAMACHALA Date: 2023.12.11
11:33:12 +0530
CNR No. DLNE01-000450-2021
State v. Mohd. Shahnawaz @ Shanu etc.
SC No. 47/2021, FIR No. 113/2020, PS Gokalpuri Judgment dated 11.12.2023 Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties broke open the gate of aforesaid treatment taken shop, entered the same and looted it. by PW12 at Jain PW12 identified some rioters Hospital from including accused Azad, Mohd. 21.01.2022 up Tahir, Shahnawaz @ Shanu and to 21.03.2022) Parvez, in that mob as PW12 knew them prior to this incident. Many persons in the mob had covered their face with helmet and cloth and some were with naked face.
PW-12 identified accused Azad, Mohd. Tahir, Shahnawaz @ Shanu and Parvez before the court correctly.
PW12 produced original medical documents of his treatment, which started from 12.01.2022 and continued till 21.01.2022, pertaining to Garg Hospital.
PW12 continued his treatment at Jain Hospital from 21.01.2022 up to 21.03.2022. PW12 continued taking medicines up to June 2022. PW12 had felt dizziness on 12.01.2022, due to which he started aforesaid treatment. In the Jain hospital, he was treated by Neuro doctor.
PW13/ On 03.03.2020 on the instructions Ex.PW13/A ASI of Insp.(investigation), he received (seizure memo Manvir copy of FIR with original rukka of ash of burnt from MHC(R) for investigation. material) PW13 reached A-49, Chaman Park, Delhi-94. At that place, complainant Mukesh and his sister Rekha met PW13. PW13 prepared site plan of that place and obtained signature of Digitally signed Page 13 of 43 by PULASTYA (Pulastya Pramachala) PULASTYA PRAMACHALA ASJ-03, North-East District, PRAMACHALA Date:
Karkardooma Courts, Delhi 2023.12.11 11:33:22 +0530 CNR No. DLNE01-000450-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 47/2021, FIR No. 113/2020, PS Gokalpuri Judgment dated 11.12.2023 Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties Mukesh on the same. PW13 had also signed the same. PW13 identified his signature at circle X on said site plan, which is Ex.PW-
1/B. On 15.03.2020, PW13 called crime team at aforesaid place. ASI Mahavir and SI Manish visited aforesaid place and inspected that place. On 20.03.2020, PW13 again visited aforesaid place and collected ash of burnt material from 2nd floor of that property. The ash was kept in a transparent plastic box, which was sealed with Doctor's tape and sealed with the seal of 'MS'. This box was seized vide a seizure memo in the presence of Mukesh and Rekha, though PW13 had obtained signature of Mukesh only on the seizure memo. PW13 identified his signature at circle X and that of Mukesh at point 'Y' on the said seizure memo. Thereafter on the instructions of Insp. (investigation), PW13 handed over file to him.
PW14/HC On 24.02.2020 he being reader to SHO, received an Pradeep order u/s. 144 Cr.P.C, issued by DCP, N/E, in the PS through Dak and he informed SHO about the same. On the direction of SHO, PW14 visited the area of PS Gokalpuri and announced aforesaid order through loud hailer.
PW15/ On 01.08.2022, on the directions of SHO, he received ASI case file in this case from MHC(R).
Gajraj On 24.08.2022, PW15 sent a request letter in the office of DCP (NE) for obtaining complaint u/s 195 Cr.P.C. On the same day, PW15 examined Ct. Pradeep and Page 14 of 43 (Pulastya Pramachala) Digitally signed ASJ-03, North-East District, by PULASTYA PULASTYA PRAMACHALA Karkardooma Courts, Delhi PRAMACHALA Date:
2023.12.11 11:33:32 +0530 CNR No. DLNE01-000450-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 47/2021, FIR No. 113/2020, PS Gokalpuri Judgment dated 11.12.2023 Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties recorded his statement. On 27.09.2022, PW15 received complaint u/s 195 Cr.P.C. in this case from the office of DCP (NE). Thereafter PW15 prepared a supplementary chargesheet and filed the same in the court on 01.10.2022.
PW16/ On 15.03.2020, he was working as Ex.PW16/A ASI photographer in Mobile crime team (certificate u/s Mahavir (NE), Delhi. On that day, PW16 65B of I.E Act accompanied I/C crime team SI in respect of Manish to A-49, Chaman Park, photographs Delhi. Complainant and IO/ASI taken by PW16 Manvir met there. It was a shop of at A-49): & paint etc. Ex.PW16/P1 to PW16 had taken 7 photographs of Ex.PW16/P7 the shop inside and outside, using (Photographs) official Nikon camera. PW16 had deposited back the camera with memory card therein in the office.
Photographs print used to be prepared by a private lab namely, Prince Digital Studio.
PW16 produced a certificate u/s 65B of I.E Act in respect of those photographs, which were taken by PW16. PW16 identified his signature at circle X on aforesaid certificate.
PW17/ On 15.03.2020, he was posted as SI Ex.PW-17/A Insp. and I/C in mobile crime team, NE (SOC report Manish District. On that day, PW17 prepared by Kumar alongwith ASI Mahavir PW17) (photographer) went to A-49, Chaman Park, Johripur road, Delhi.
IO ASI Manvir met there. It was a shop of Hardware and Paints.
Complainant was also present there.
The shop was found in burnt Page 15 of 43 (Pulastya Pramachala) Digitally signed by PULASTYA ASJ-03, North-East District, PULASTYA PRAMACHALA Karkardooma Courts, Delhi PRAMACHALA Date:
2023.12.11 11:33:40 +0530 CNR No. DLNE01-000450-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 47/2021, FIR No. 113/2020, PS Gokalpuri Judgment dated 11.12.2023 Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties condition and PW17 inspected the same. ASI Mahavir took photographs of that property from different angles.
PW17 prepared SOC report and handed over the same to the IO.
PW17 identified his signature at circle X on said report.
PW18/Sh. He was authorised by Dr. Sangeeta Ex.PW18/A Himanshu Jain, Director of Jain Hospital, (attested copy of Vikas Marg, Delhi, to produce authority letter) attested photocopies of medical prescription and other medical documents of patient namely Hari Babu. PW18 identified signature of Dr. Sangeeta Jain at point X as well as of himself at point Y, on authority letter. Original of all these documents were given to the patient.
PW19/Dr. He compared original medical document with Sanjay photocopies of the same i.e. Ex.PW12/A (colly 5 Garg sheets) (wrongly mentioned as Ex.PW14/A (colly. 4 sheets) in the testimony of PW19). Those documents were prepared in Garg hospital, AGCR Enclave, Delhi. The patient was checked and treated by PW19. The documents bore his signature at circles X. As per those records, the patient had come with problem of chest infection, breathlessness, high grade fever, weakness and vertigo and was subsequently found Covid positive. All those medical documents were prepared under his instructions. PW20/Dr. He worked as Consultant Neurologist in Jain Hospital, Arun Jagriti Enclave, Delhi, from August 2019 upto May, Kumar 2022. PW20 had prepared OPD prescription i.e. Agrawal Ex.PW12/B (colly 5 pages) from Jain Hospital. PW20 Page 16 of 43 Digitally signed (Pulastya Pramachala) by PULASTYA PULASTYA ASJ-03,PRAMACHALA North-East District, Karkardooma Courts, Delhi PRAMACHALA Date: 2023.12.11 11:33:49 +0530 CNR No. DLNE01-000450-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 47/2021, FIR No. 113/2020, PS Gokalpuri Judgment dated 11.12.2023 Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties identified impression of his signature at point X on the back page of said document. PW20 used to sign his prescription at same place, as appearing in that document. The patient namely Hari Babu complained before him about chakkar and dizziness, which was episodic i.e. one, two or three episodes daily. That prescription was dated 21.01.2022. On his next visit on 31.01.2022, PW20 had prepared another prescription, wherein PW20 had recorded his diagnosis as peripheral vestibulopathy and ET (essential tremors). On both the aforesaid occasions, PW20 had prescribed medicines on prescriptions.
On 07.02.2022, the patient again visited PW20 for follow up. PW20 again prepared prescription for that date, which was also part of aforesaid document. On that day, PW20 declared him fit to join his duties. There was another prescription dated 21.03.2022. The patient came for follow up, but as per his complaint his symptoms had not subsided completely. PW20 again prescribed him few medications. All those subsequent prescriptions were prepared by PW20 and were signed by PW20. PW20 identified impression of his signature appearing on all the prescriptions at point X. The problem narrated by the patient was related to Neurology.
PW20 explained that Peripheral Vestibulopathy meant disfunction of vestibular system, which was responsible for balance of the body. Disfunction could cause vertigo and imbalance. ET meant essential tremors, which caused trembling of the body parts and cause was idiopathic (not known). On 21.03.2022, PW20 had asked this patient to come after one month for follow up.
PW21/SI On 07.04.2020 he received file of this case from Yogesh MHC(R) for further investigation. Dahiya On 08.04.2020, PW21 recorded statement of Ct. Vipin, Digitally signed by PULASTYA Page 17 of 43 PULASTYA (Pulastya Pramachala) PRAMACHALA PRAMACHALA ASJ-03, North-East District, Date: 2023.12.11 11:33:57 Karkardooma +0530 Courts, Delhi CNR No. DLNE01-000450-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 47/2021, FIR No. 113/2020, PS Gokalpuri Judgment dated 11.12.2023 Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties Ct. Sanjay and HC Hari Babu, who were found to be on duty at the place of incident i.e. Shiv Vihar Tiraha on the date of incident i.e 24.02.2020. On 09.04.2020, complainant Mukesh Kumar handed over certain documents related to GST certificate and electricity bill of his shop. PW21 seized those documents, vide a seizure memo i.e. Ex.PW1/C and placed those documents on the record. PW21 identified his signature at circle X on Ex.PW1/C. PW21 recorded statement of Mukesh Kumar. On 10.04.2020, PW21 recorded statement of Shyam Sunder, Dayachand and Vipin. After discussion with Inspector (Investigation), PW21 went to Mandoli Jail along with Ct. Sandeep Sharma. PW21 visited Mandoli Jail, obtained permission from Duty Magistrate, interrogated and formally arrested accused Shehnawaz vide arrest memo Ex.A-5 (admitted document) on 16.04.2020 and accused Mohd. Tahir, Ashraf Ali, Rashid @ Raja, Mohd. Shoaib, Shahrukh, Azad and Parvez; vide separate arrest memo which are Ex.A-17, Ex.A-18, Ex.A-19, Ex.A-20, Ex.A-21, Ex.A-22 and Ex.A-23, respectively (admitted documents) on 22.04.2020. PW21 also visited Tihar Jail, obtained permission from Duty Magistrate, interrogated and formally arrested accused Rashid @ Monu and Mohd. Faisal vide separate arrest memo as Ex.A-6 and Ex.A-7, respectively (admitted documents) on 25.04.2020. PW- 21 identified his signature at point X on aforesaid arrest memos. PW21 also recorded statement of Ct. Sandeep and Ct. Arvind, when they visited Jail with PW21. On 19.07.2020 PW21 recorded statement of PCR callers namely Vipin, Sharad, Pawan and Mahesh, and obtained PCR forms in respect of these calls. PW21 sent notice u/s 91 Cr.P.C to concerned service provider to provide CDRs of mobile numbers used by accused persons.
The incident in this case had taken place at about 5 PM Digitally signed by PULASTYA Page 18 of 43 (PulastyaPRAMACHALA PULASTYA Pramachala) ASJ-03, North-East PRAMACHALA Date: District, Karkardooma2023.12.11 Courts, Delhi 11:34:06 +0530 CNR No. DLNE01-000450-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 47/2021, FIR No. 113/2020, PS Gokalpuri Judgment dated 11.12.2023 Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties on 24.02.2020 near Shiv Vihar Tiraha. In FIR No. 39/20 also, same accused persons were already chargesheeted and incident in that FIR also related to same date and nearby place. A CCTV footage was also relied in FIR No. 39/20 wherein some accused persons were appearing. Therefore, PW21 cited Ahlmad of the concerned court as witness in the case to produce the case file of FIR 39/20. PW21 prepared chargesheet accordingly and filed it before the Court in August, 2020.
PW21 identified accused persons and pointed out to all accused persons correctly except accused Mohd. Tahir and accused Ashraf Ali, before the court. PW21 pointed out to Mohd. Tahir as Ashraf Ali and to Ashraf Ali as Mohd. Tahir. PW21 had arrested accused persons in this case on the basis of statement given by Mukesh, Rekha, Ct. Vipin, Ct. Sanjay and HC Hari Babu.
Admitted documents under Section 294 Cr.P.C. FIR as Ex.A-1; certificate u/s 65B of Indian Evidence Act as Ex.A2; complaint of Mukesh Kumar dated 29.02.2020 as Ex.A-3; Five GDs no.63A, 78A, 102A, 88A and 83A as Ex.A-4 (Colly 5 pages); arrest memo of accused Mohd. Shahnawaz, Rashid @ Monu and Mohd. Faisal as Ex.A-5, Ex.A-6 and Ex.A-7, respectively; request letter, certificate u/s 65B of Indian Evidence Act, CAFs, CDRs in respect of Mobile no. 8512856163 as Ex.A-8 to Ex.A-11, respectively; request letter, certificate u/s 65B of Indian Evidence Act, CAFs, CDRs in respect of mobile no. 981892093 as Ex.A-12 to Ex.A-15, respectively; prohibitory order u/s. 144 Cr.P.C. as Ex.A-16, arrest memo of accused Mohd. Tahir, Ashraf Ali, Rashid @ Raja, Mohd. Shoaib @ Chutwa, Shahrukh, Azad and Parvez are exhibited as Ex.A-17 to Ex.A-23; complaint u/s. 195 Cr.P.C. as Ex.A-24; statement of HC Hari Babu dated 28.03.2022 recorded in FIR No. 40/20, as Ex.A-25; statement of HC Hari Babu dated 28.03.2022 recorded in FIR No.83/20, as Ex.A-26; and statement of Ct. Sanjay dated 28.03.2022 recorded in FIR No. 40/20, as Ex.A-27.
Digitally signed Page 19 of 43 PULASTYA (Pulastya Pramachala) by PULASTYAPRAMACHALA ASJ-03, North-East District, PRAMACHALA Date: 2023.12.11 Karkardooma Courts, Delhi 11:34:14 +0530 CNR No. DLNE01-000450-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 47/2021, FIR No. 113/2020, PS Gokalpuri Judgment dated 11.12.2023 PLEA OF ACCUSED PERSONS UNDER SECTION 313 CR.P.C.
9. Accused persons denied all the allegations and pleaded innocence, taking plea in their statement under Section 313 Cr.P.C. that witnesses deposed falsely against them at the instance of IO, being interested to show that the case was solved. They further took plea that they were not present at the spot on the day of incident. Accused persons further took plea that they have been falsely implicated in the present case by the investigating agency. They further took plea that they were falsely arrested in this case only to work out the case. Accused persons did not opt to lead any evidence in their defence.
10. I heard ld. Special PP and ld. counsels for accused persons. I have perused the entire material on the record.
ARGUMENTS OF DEFENCE & PROSECUTION
11. Sh. Z Babar Chauhan, ld. defence counsel for accused Mohd.
Shahnawaz @ Shanu, Parvez and Azad, argued that except for PW1/Sh. Mukesh Kumar, none of other public witnesses supported the prosecution case. PW1 and PW7/Smt. Rekha Sharma, are important witnesses of this case as PW1 is brother of PW7. Ld. counsel further argued that prosecution claimed that PW7 had also identified accused, but PW7 did not support such theory of prosecution. Ld. counsel further argued that IO/PW21/ SI Yogesh Dahiya had prepared false statements of PW1 and PW7, to make them eyewitnesses. Ld. counsel further argued that Digitally signed Page 20 of 43 by PULASTYA (Pulastya Pramachala) PULASTYA PRAMACHALA ASJ-03, North-East District, PRAMACHALA Date: 2023.12.11 Karkardooma Courts, Delhi 11:34:22 +0530 CNR No. DLNE01-000450-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 47/2021, FIR No. 113/2020, PS Gokalpuri Judgment dated 11.12.2023 version of PW1 in his complaint, statement under Section 161 Cr.P.C. and testimony before the court, had been different. In his complaint, PW1 did not claim seeing anyone or incident at his shop. PW1 did not mention about going to his sister's house. PW1 did not offer reasons to omit to mention name of Shanu in his complaint. Ld. counsel further argued that PW10/HC Sanjay, PW11/HC Vipin and PW12/ASI Hari Babu gave belated statements. PW10 and PW12 both failed repeatedly to identify accused correctly, in different cases. Ld. counsel further argued that accused Azad and Parvez were identified by one witness i.e. PW12/ASI Hari Babu only. Ld. counsel referred to judgment passed in the cases of Masalti v. State of U.P., AIR 1965 SC 202 and Khurshid Ahmed v. State of Jammu and Kashmir, (2018) 7 SCC 429, so as to submit that identification by one witness was not sufficient. 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.
12. Ms. Shavana, ld. counsel for accused Shoaib, Mohd. Tahir, Shahrukh and Rashid @ Raja as well as Sh. Badre Alam, ld. counsel for accused Mohd. Faisal, Ashraf Ali and Rashid @ Monu, argued that PW10/HC Sanjay was present at point 'Z' and he admitted that lane on back side of the shop was not visible from this point. They further argued that accused persons were implicated falsely, being already arrested in the other cases also.
Digitally signed Page 21 of 43 (Pulastya Pramachala) by PULASTYAPULASTYAASJ-03,PRAMACHALA North-East District, PRAMACHALA Karkardooma Courts, Delhi Date: 2023.12.11 11:34:31 +0530 CNR No. DLNE01-000450-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 47/2021, FIR No. 113/2020, PS Gokalpuri Judgment dated 11.12.2023
13. Per-contra, Sh. Chandan Kumar Pandey, ld. Special PP for State argued that incident of present case took place in the evening of 24.02.2020. Ld. Special PP further argued that PW1/Sh. Mukesh Kumar identified accused Shanu and proved the incident. PW1 proved modus operandi of Shanu, which was not defeated by defence. Ld. Special PP further argued that PW10/HC Sanjay, PW11/HC Vipin and PW12/ASI Hari Babu were also eyewitnesses. PW10 proved presence of accused Mohd. Faisal, Shanu, Ashraf Ali and Rashid @ Raja, in the riotous mob. PW10 proved their modus operandi. Ld. Special PP further argued that IO/PW21/SI Yogesh Dahiya had checked the record of duty of these three police officials. PW12/ASI Hari Babu proved his illness and with evidence of PW19/Dr. Sanjay Garg and PW20/Dr. Arun Kumar Agarwal, previous testimony of PW12 cannot be used to discard his evidence in this case.
14. In addition to his oral arguments, ld. Special PP for State also filed written submissions referring to the testimony of witnesses examined in the present case. In support of his contentions, Sh. Chandan Kumar Pandey, ld. Special PP for State, relied upon certain case laws, which are as follows: -
(a) Lalji v. State of U.P. (1989) 1 SCC 437.
(b) State of U.P. v. Dan Singh & Ors. (1997) 3 SCC 747.
(c) State of NCT of Delhi v. Sunil Kumar, (2011) 1 SCC 652.
(d) Rizwan Khan v. State of Chhattisgarh, (2020) 9 SCC (FB)
627.
(e) Jarnail Singh v. State of Punjab, (2011) 3 SCC 521.
15. Case of Lalji (supra) has been referred to submit that "while Digitally signed Page 22 of 43 (Pulastya Pramachala) by PULASTYA PULASTYA PRAMACHALA ASJ-03, North-East District, PRAMACHALA Date: 2023.12.11 Karkardooma Courts, Delhi 11:34:39 +0530 CNR No. DLNE01-000450-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 47/2021, FIR No. 113/2020, PS Gokalpuri Judgment dated 11.12.2023 overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability."
16. Case of Dan Singh (supra) has been referred to submit that "it is not necessary for the prosecution to prove which of the members of the unlawful assembly did which or what act."
17. Ld. Special PP also referred to the case of Sunil Kumar (supra) wherein Supreme Court observed that: -
"It is an archaic notion that actions of the police officer should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law, the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognized even by the legislature."
Supreme Court further observed that: -
"Applying the law laid down by this Court on the evidence of police officials/police witnesses to the facts of the case in hand, referred to hereinabove, we are of the opinion as the police witnesses are found to be reliable and trustworthy, no error has been committed by both the courts below in convicting the accused relying upon the deposition of the police officials."
18. Ld. Special PP placed reliance upon the case of Rizwan Khan (supra) referring the legal principle in the favor of the public servant/police officials who were associated with any point of time of investigation.
19. Ld. Special PP referred to the case of Jarnail Singh (supra) wherein Supreme Court observed that: -
"This merely because prosecution did not examine any independent witness, would not necessarily lead to conclusion that the accused was falsely implicated. The evidence of official witnesses cannot be distrusted and disbelieved, merely on account of their official status."Digitally signed Page 23 of 43 by PULASTYA
(Pulastya Pramachala) ASJ-03, PRAMACHALA PULASTYA North-East District, PRAMACHALA Date:
Karkardooma Courts, Delhi 2023.12.11 11:34:49 +0530 CNR No. DLNE01-000450-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 47/2021, FIR No. 113/2020, PS Gokalpuri Judgment dated 11.12.2023 APPRECIATION OF FACTS AND EVIDENCE UNLAWFUL ASSEMBLY & RIOTS
20. As per testimony of complainant namely Sh. Mukesh Kumar/PW1, on 24.02.2020, there were riots at Shiv Vihar Tiraha. He had his shop at Shiv Vihar Tiraha under the name of M/s New Sharma Paints. After seeing a large mob at Shiv Vihar Tiraha, he closed his aforesaid shop at 02:30/03:00 PM and moved to the house of his sister which was adjacent to his shop. The mob approached the rear gate of his sister's house. They tried to break open the gate. Upon seeing that, complainant went to the roof of that house. He identified two persons namely Arif and Shahnawaz in that mob. Upon seeing the aggressive nature of the mob, complainant left that house and went to the house of his other sister which was at a distance of 200-300 meters from the above-mentioned house. At about 8-9 PM, someone told complainant that his shop had been set on fire. Accordingly, PW1 visited his shop and saw that first floor of his shop was burning at that time. On 25.02.2020, when complainant again came to his shop, he found that the shop as well as his sister's house had been completely burnt. Complainant also proved his complaint Ex.PW1/A.
21. As per testimony of PW3/Sh. Daya Chand, he used to sell earthen pots on the pavement at Nala Patri, Shiv Vihar. On 24.02.2020, at about 12 Noon or 1 PM, he saw that some quarrel had taken place at Shiv Vihar Tiraha. He sensed a trouble and accordingly, collected all his earthen pots and left for his home at Digitally signed Page 24 of 43 (Pulastya Pramachala) by PULASTYA ASJ-03, North-East PULASTYA PRAMACHALADistrict, Karkardooma PRAMACHALA Courts, Delhi Date:
2023.12.11 11:34:58 +0530 CNR No. DLNE01-000450-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 47/2021, FIR No. 113/2020, PS Gokalpuri Judgment dated 11.12.2023 Loni, Ghaziabad. However, he could not identify any of the persons in the mob.
22. As per testimony of PW7/Smt. Rekha, on 24.02.2020 at about 4 PM or 5 PM when she was present at the roof of her house, she saw that riots had started in that area. The rioters were creating ruckus. Upon seeing all that, Rekha came down from the roof and made a call to her husband asking him to take her to a safe place. Her husband came home and they all left the house and went to reside in a tenanted accommodation at a safer place.
Mukesh Kumar was his brother. His shop was adjacent to house of Rekha in Chaman Park.
23. As per testimony of PW8/Sh. Shyam Sunder, he was running a Tea Stall near Shiv Vihar T-point. On 24.02.2020 at about 2 PM or 02:30 PM when he was present at his Tea Stall, he saw a mob coming from Mustafabad side towards his Tea Stall. At the same time, a stone thrown by somebody hit him below his left armpit. The persons in the mob asked shopkeepers to shut their shops. Accordingly, Shyam Sunder also shut his Tea Stall and left for his home. He returned to his shop after about two days and found that its locks had been broken open and goods lying therein including his cycle had been stolen.
24. According to testimony of PW10/HC Sanjay, PW11/HC Vipin and PW12/ASI Hari Babu, all of them were on duty at Shiv Vihar Tiraha. On 24.02.2020, a mob had assembled there which indulged into rioting, vandalism and arson. This mob at about 5-6 PM, broke open the shutter of the shop in the name and style of Page 25 of 43 (Pulastya Pramachala) ASJ-03,Digitally signed North-East District, by PULASTYA PULASTYAKarkardooma Courts, PRAMACHALA Delhi PRAMACHALA Date: 2023.12.11 11:35:07 +0530 CNR No. DLNE01-000450-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 47/2021, FIR No. 113/2020, PS Gokalpuri Judgment dated 11.12.2023 "New Sharma Hardware" from the back side gali of property no. A-49. They took away the articles from that shop and thereafter, set ablaze that shop/property.
25. According to 1st IO/PW13/ASI Manvir, he collected ash material from the 2nd floor of this property on 20.03.2020.
26. As per testimony of PW16/ASI Mahavir, he was photographer in crime team. He along with PW17/Insp. Manish Kumar/IC Crime team visited property no. A-49, Chaman Park on 15.03.2020. It was shop of paint etc. He had taken 7 photographs and he proved the same. He also proved certificate under Section 65-B of I.E. Act in respect of these photographs. The photographs Ex.PW16/P-1 to P7, do show picture of shop from inside and outside, situated at A-49, Chaman Park, Delhi, with burn marks. These photographs leave no doubt that this shop and the property was ransacked and set on fire. During cross-examination of PW16, defence suggested that he did not visit shop i.e. A-49 and that he did not take any photographs. He denied such suggestions. Questions were also asked from PW16 as to whether he had verified document of this property from the complainant or from other sources and the response of witness was in negative. For such reasons, defence challenged taking of these photographs of this place by PW16. PW17 was also asked similar questions about verifying documents of this property and he responded that the address of this property was informed by IO and he acted accordingly.
27. I do not find any need for these witnesses to verify the address of Page 26 of 43 (Pulastya Pramachala) Digitally signed ASJ-03, PULASTYA North-East by PULASTYA District, PRAMACHALA Karkardooma Courts, Delhi PRAMACHALA Date: 2023.12.11 11:35:16 +0530 CNR No. DLNE01-000450-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 47/2021, FIR No. 113/2020, PS Gokalpuri Judgment dated 11.12.2023 scene of crime from other sources. They were called there by the IO and particular of the place was to be furnished by the IO. Secondly, the photographs show that address of this place was written on one side of the entry of shop. One board of Paint and Hardware Store is also visible in the photograph Ex.PW16/P4. There is no suggestion that such address was falsely mentioned there. I have no reason to assume that such board and address were falsely mentioned/put at this property, where photographs were taken by PW16. To me the photographs leave no doubt about vandalism and arson in this property.
28. The testimonies of above-mentioned witnesses leave no doubt that this property was vandalized by a riotous mob and it was set ablaze as well. It is also not difficult to believe that articles lying in this shop were taken away also, because the photographs do show the shop being empty and left with only some damaged articles and burn marks. Therefore, on this aspect testimony of PW1 and PW7 stand well corroborated. On the appreciation of all these evidences, I come to the conclusion that there was an unlawful assembly, which looted, vandalized and set on fire the shop in property bearing no. A-49, Chaman Park, Delhi-94. IDENTIFICATION OF ACCUSED
29. In respect of identification of the members of responsible mob, prosecution relied upon the evidence of complainant PW1/Sh. Mukesh Kumar, PW2/Sh. Pawan Singh, PW3/Sh. Daya Chand, PW6/Sh. Vipin, PW7/Smt. Rekha Sharma (sister of complainant/PW1), PW8/Sh. Shyam Sunder, PW10/HC Sanjay, Digitally signed Page 27 of 43 (Pulastya Pramachala) by PULASTYA PULASTYA ASJ-03,PRAMACHALA North-East District, Karkardooma PRAMACHALA Date: Courts, Delhi 2023.12.11 11:35:26 +0530 CNR No. DLNE01-000450-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 47/2021, FIR No. 113/2020, PS Gokalpuri Judgment dated 11.12.2023 PW11/HC Vipin and PW12/ASI Hari Babu. As already noted herein above, PW2, PW3, PW6, PW7 and PW8, did not support the prosecution on the point of identification of accused persons. The relevant part of their examination in chief have already been mentioned in the description of prosecution evidence. All these witnesses were cross-examined by the prosecutor, still nothing came in their evidence in favour of prosecution, so as to establish identity of accused persons as members of aforesaid mob.
30. As rightly pointed out by ld. defence counsel, PW1 and PW7 are important witnesses in this case, because they were shown to be present at this property at the time of incident. Their evidence requires careful scrutiny in respect of identification of the rioters. PW7 did not identify anyone stating that she had not seen or identified any of the rioters. However, PW1 did name two persons including Shahnawaz and identified Shahnawaz before the court.
31. There are three versions from PW1 in respect of incident in question. First version was in the form of his complaint dated 29.02.2020 i.e. Ex.PW1/A. PW1 during his cross-examination by defence deposed that he had got this complaint written by someone else, but he had signed it after going through and understanding its contents. In this complaint, PW1 stated that on seeing rioters being violent in the evening of 24.02.2020, he closed his shop in the evening and went back to his home at Bhajanpura. When he came back to his shop on 25.02.2020, then he saw his shop on fire and in looted condition. In this complaint, Page 28 of 43 (Pulastya Pramachala) Digitally signed ASJ-03, North-East District, by PULASTYA Karkardooma PULASTYA Courts, Delhi PRAMACHALA PRAMACHALA Date:
2023.12.11 11:35:35 +0530 CNR No. DLNE01-000450-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 47/2021, FIR No. 113/2020, PS Gokalpuri Judgment dated 11.12.2023 he prayed for taking action against responsible persons. He did not mention about going to roof of house of his sister or about seeing and identifying any rioter. As per his testimony before the court, he knew Shahnawaz for last 10-12 years.
32. Witnessing the incident and identifying any of the rioters, were not such facts which could escape attention of PW1 while making his complaint before the police. Therefore, such most important facts being omitted to be mentioned in the complaint Ex.PW1/A, leave severe dent in the claim of PW1 as made before the court.
33. Secondly, in statement recorded under Section 161 Cr.P.C. on 03.03.2020 i.e. after mere three days of making complaint Ex.PW1/A, it is shown that same witness claimed having identified five rioters in the mob. He also claimed in this statement that this mob had entered his godown and house of PW7, where PW7 was present with him. This mob started vandalizing their house and godown in their presence and asked PW1 as well as PW7 to leave that place. Thereafter, PW1 left for his home at Bhajanpura. Now the possibility is that either such kind of statement was made by PW1 before 1st IO or such statement was prepared by 1st IO on his own. In either of the situations, there is complete deviation in the testimony given before the court. Before the court, PW1 did not claim having identified five rioters and knowing their names. He did not say anything about the rioters confronting him and PW7 inside the property and threatening them to leave the property. Apparently Page 29 of 43 (PulastyaDigitally signed Pramachala) by PULASTYA ASJ-03, North-East District, PRAMACHALA PULASTYA Karkardooma Courts, Delhi PRAMACHALA Date:
2023.12.11 11:35:44 +0530 CNR No. DLNE01-000450-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 47/2021, FIR No. 113/2020, PS Gokalpuri Judgment dated 11.12.2023 PW7 did not say any such fact as mentioned in aforesaid statement of PW1 or as mentioned in statement under Section 161 Cr.P.C. pertaining to her. Therefore, in either of the aforesaid situation, such difference in claim of prosecution witness at different time, goes against the credibility of prosecution case.
34. PW1 during his cross-examination, claimed that he had left his shop at 5 PM and returned to his shop on 25.02.2020 at 8 AM.
He also deposed that on 24.02.2020, he had gone to his sister's house at about 2-02:30 PM. In his examination-in-chief he stated that he had closed his shop at 2-3 PM. All these timings are fluctuating, which also cast doubt over his claim of being present at his shop or in that property during the incident. PW1 also stated during his cross-examination that he had mentioned all the facts in his complaint, which occurred around his shop on 24.02.2020. However, many such facts regarding time of closing his shop and moving to the house of his sister and climbing up to the roof of her house or about being informed by someone at about 8-9 PM regarding fire being set in his shop, were not so mentioned in his complaint. PW1 did not offer any justification to omit to mention of culprits in his complaint. Thus, I find that the fluctuating claims being made by PW1 at different points of time, make it difficult to rely upon identification done by him before the court.
35. Defence counsel had referred to the test mentioned in the case of Masalti (Supra). In the case of Masalti (supra), hon'ble Supreme Court dealt with a case of multiple murder by an unlawful Page 30 of 43 Digitally (Pulastya signed Pramachala) by PULASTYA ASJ-03, PULASTYA North-East District, PRAMACHALA Karkardooma PRAMACHALA Courts, Delhi Date:
2023.12.11 11:35:52 +0530 CNR No. DLNE01-000450-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 47/2021, FIR No. 113/2020, PS Gokalpuri Judgment dated 11.12.2023 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."
36. The test mentioned in the case of Masalti (supra), was deliberated upon by Supreme Court in the case of State of Maharashtra v. 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 Page 31 of 43 (Pulastyasigned Digitally Pramachala) by PULASTYA ASJ-03, North-East District, PULASTYA PRAMACHALA PRAMACHALAKarkardooma Courts, Delhi Date: 2023.12.11 11:36:01 +0530 CNR No. DLNE01-000450-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 47/2021, FIR No. 113/2020, PS Gokalpuri Judgment dated 11.12.2023 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 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."
37. In the same case, Supreme Court explained the nature of cases Digitally signed by PULASTYA Page 32 of 43 PULASTYA (Pulastya Pramachala) PRAMACHALA PRAMACHALA ASJ-03, North-East District, Date: 2023.12.11 Karkardooma Courts, Delhi 11:36:11 +0530 CNR No. DLNE01-000450-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 47/2021, FIR No. 113/2020, PS Gokalpuri Judgment dated 11.12.2023 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."
38. 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 quality of evidence of PW10, PW11 and PW12, before taking any decision in this case, so as to apply this rule of prudence.
39. Defence took plea that PW10, PW11 and PW12 had though knowledge of the names and particulars of the accused persons, Page 33 of 43 Digitally (Pulastya signed Pramachala) by PULASTYA ASJ-03, North-East District, PULASTYA PRAMACHALA Karkardooma Courts, Delhi PRAMACHALA Date: 2023.12.11 11:36:20 +0530 CNR No. DLNE01-000450-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 47/2021, FIR No. 113/2020, PS Gokalpuri Judgment dated 11.12.2023 but they did not take any step to formally get this information recorded, before 08.04.2020. Defence claimed that PW10, PW11 and PW12 were planted and tutored witnesses and hence, there was delay in recording their statements by IO. In respect of delayed examination of PW10, PW11 and PW12 by IO in this case, Mr. Babar referred to judgment passed in the case of Harbeer Singh (supra). Relevant observations made in that judgment, are as follows: -
"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 161Cr.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 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 Page 34 of 43 Digitally signed (Pulastya Pramachala) by PULASTYA ASJ-03, PRAMACHALA District, North-East PULASTYA PRAMACHALA Karkardooma Date:
Courts, Delhi 2023.12.11 11:36:33 +0530 CNR No. DLNE01-000450-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 47/2021, FIR No. 113/2020, PS Gokalpuri Judgment dated 11.12.2023 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.""
40. 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.
41. In the present case, it is matter of common knowledge that on 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 Digitally signed by PULASTYA Page 35 of 43 PULASTYA (Pulastya Pramachala) PRAMACHALA PRAMACHALA ASJ-03, North-East District, Date: 2023.12.11 Karkardooma Courts, 11:36:40 Delhi +0530 CNR No. DLNE01-000450-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 47/2021, FIR No. 113/2020, PS Gokalpuri Judgment dated 11.12.2023 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 PW10, PW11 and PW12.
42. Defence challenged the credibility of PW12/ASI Hari Babu 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 Ex.A-25 and Ex.A-26. Defence also challenged the credibility of PW10/Ct. Sanjay on the basis of his previous testimony recorded in FIR No.40/20, PS Goklapuri on Digitally signed Page 36 of 43 (Pulastya Pramachala) by PULASTYA ASJ-03, North-East PRAMACHALADistrict, PULASTYA Karkardooma Courts, Delhi PRAMACHALA Date:
2023.12.11 11:36:49 +0530 CNR No. DLNE01-000450-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 47/2021, FIR No. 113/2020, PS Gokalpuri Judgment dated 11.12.2023 28.03.2022. Certified copy of those testimonies is Ex.A-27. At that time PW12 could not identify the accused persons in FIR 40/20, taking plea of lapse of long time. However, PW12 had stated that he had seen some persons in the mob and identified them. PW12 had disclosed names of those persons as Shahrukh, Parvez and Azad. In that case, PW12 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. PW12 was cross-examined by ld.
Special PP at that time also and in that process, he admitted that the person identified by him was Shahnawaz and not Shahrukh. Ld. defence counsel made contentions that PW12 identified the accused persons in FIR 83/20, subsequent to his examination in FIR No. 40/20 only because of tutoring. His other argument was that since PW12 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, PW12 was not in fit condition.
43. PW12 was again examined on application u/s 311 Cr.P.C. and then he stated that he took medicine from Garg hospital and Jain Hospital, Anand Vihar. He produced original medical documents, copies of which were proved on the record. PW19 was the treating doctor at Garg hospital and PW20 was the treating doctor at Jain hospital. Both of them confirmed that these medical prescriptions were authored by them and that this patient was Page 37 of 43 Digitally (Pulastya signed Pramachala) by PULASTYA ASJ-03, North-East PULASTYA PRAMACHALA District, Karkardooma PRAMACHALA Courts, Delhi Date: 2023.12.11 11:36:57 +0530 CNR No. DLNE01-000450-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 47/2021, FIR No. 113/2020, PS Gokalpuri Judgment dated 11.12.2023 treated as per complaint made by him. The defence counsels took plea that these medical documents do not show any mental illness of the witness. Hence, the plea of memory loss due to medical problems as taken by PW12, is not sustainable.
44. It is correct that medical documents of Garg Hospital show that PW12 was suffering from problem related to his ear, which included the problem of vertigo. However, medical documents of Jain Hospital show 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 mental illness. 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 PW12 with such normal person, then apparently his condition was worse than others. As per alleged history mentioned in his medical documents, he 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, nousea and his sleep was also reported to be disturbed. His medical prescriptions show that he continued taking medical advice and the last prescription is dated 21.03.2022, wherein again complaint of dizziness was reported.
Page 38 of 43 Digitally (Pulastya signed
Pramachala)
by PULASTYA
PULASTYA ASJ-03, North-East District, PRAMACHALA Karkardooma Courts, Delhi PRAMACHALA Date: 2023.12.11 11:37:04 +0530 CNR No. DLNE01-000450-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 47/2021, FIR No. 113/2020, PS Gokalpuri Judgment dated 11.12.2023 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 and accurately.
45. Moreover, testimony of PW20 is very relevant in respect of condition of this witness at that time period. PW20 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 this witness was actually having severe physical problem at that time, which was defined as Peripheral Vestibulopathy. He explained that this symptom meant dis-function of vestibular system, which is responsible for balance of the body. Dis-function can cause vertigo and imbalance. PW20 further affirmed that the complaint made by ASI Hari Babu was relating to brain and that he had made complaint of dizziness before him. Thus, the problem of PW12 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.
46. Ld. Special PP argued that just because of mishappening taken place in one case, the testimony of same witness as given in other cases should not be seen with suspicion and rejected. After Digitally signed by PULASTYA PULASTYA PRAMACHALA Page 39 of 43 (Pulastya Pramachala) PRAMACHALA ASJ-03, North-East District, Date: 2023.12.11 11:37:13 Karkardooma +0530 Courts, Delhi CNR No. DLNE01-000450-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 47/2021, FIR No. 113/2020, PS Gokalpuri Judgment dated 11.12.2023 having the aforesaid medical documents on the record and appreciating the probable mental state of this witness during his examination in FIR No. 40/20, I am now in agreement with such contention of ld. Special PP. 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 No. 40/20. Therefore, testimony of PW12 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 PW12 is found credible in this case. That question is to be dealt with herein-after.
47. In this case, PW12 deposed that on 24.02.2020, he was on duty with PW10 and PW11 at Shiv Vihar Tiraha. On this day, at about 2 PM, there was mob of around 500-600 persons at that place. There was a "New Sharma Hardware Shop" on the road going to Johripur from Shiv Vihar Tiraha. At about 5 PM, the mob went to the back side of this shop and broke open the gate of the shop.
Page 40 of 43 Digitally(Pulastya signed Pramachala) by PULASTYA PULASTYA ASJ-03,PRAMACHALA North-East District, Karkardooma PRAMACHALA Date: Courts, Delhi 2023.12.11 11:37:20 +0530 CNR No. DLNE01-000450-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 47/2021, FIR No. 113/2020, PS Gokalpuri Judgment dated 11.12.2023 They went inside this shop and set it on fire. This back side gate of the shop was in a gali. PW12 stated that the mob looted the shop, but at the same time he also stated that he did not see them taking away the articles. He deposed that he had seen mob breaking open the gate of the shop and entering the same and that he had identified four accused persons who were known to him since prior to this incident and they were Azad, Mohd. Tahir, Shahnawaz and Parvez. He identified all these accused persons correctly before the court.
48. During his cross-examination by defence, PW12 deposed that at the time of incident he was present at the corner of that gali at a distance of about 150 meters from the shop. He could not see the width of the gali because mob was present there. He denied the suggestion that he could not see face of anyone because of large volume of persons in that mob or that gate of shop was not visible to him. He deposed that accused persons in this case had been accused in other 5-6 cases also including FIR No. 40/20, 95/20, 142/20. He admitted that he could not identify these accused persons in FIR No. 40/20. He took grounds of mind being disturbed due to ongoing treatment at that time.
49. On the other hand, PW10/HC Sanjay deposed about identifying Mohd. Faisal, Shahnawaz, Ashraf Ali and Rashid @ Raja, in the mob which entered into New Sharma Hardware Shop from back side at about 5 PM. He claimed that mob had taken away money from the cash box of this shop. He further claimed that some Digitally signed by PULASTYA Page 41 of 43 (Pulastya Pramachala) PRAMACHALA PULASTYA ASJ-03, PRAMACHALA Date: North-East District, Karkardooma Courts, Delhi 2023.12.11 11:37:27 +0530 CNR No. DLNE01-000450-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 47/2021, FIR No. 113/2020, PS Gokalpuri Judgment dated 11.12.2023 articles from the shop were also carried away. He deposed that he knew aforesaid persons as he used to meet them during patrolling duty. However, at the time of identifying the accused persons, he pointed out to Mohd. Tahir as Shahnawaz @ Shanu.
50. During his cross-examination by defence, PW10 pointed out his position in the site plan Ex.PW1/B. He also pointed out the location of shop in question at point Y. Thereafter, he further pointed out the places from where street/lanes were going inside the locality from the main road. On further grilling on the aspect of location of back side gate of the shop in the gali/lane, this witness admitted the suggestion that this shop was not situated in any of the streets/lanes going inside from the main road. He ended up by admitting the suggestion that the street on the back side of shop in question, was not visible from his location at point X. It is worth to refer here that the witness had himself pointed out to the place at point X as his location at the time of incident at this shop. From his cross-examination by defence, it is established that from point X PW10 could not have seen the back side gate of the shop, meaning thereby that he could not have seen the face of the persons also, who attacked upon the shop from the back side gate.
51. On the other hand, other police witness i.e. PW11/HC Vipin claimed that he was at a distance of about 50-60 meters from the shop in question at the time of incident. The back gate was at a distance of about 20-25 steps from the corner of the gali. There is Digitally signed by PULASTYA Page 42 of 43 PULASTYA (Pulastya Pramachala) PRAMACHALA ASJ-03,Date:
PRAMACHALA North-East District, Karkardooma Courts, Delhi 2023.12.11 11:37:35 +0530 CNR No. DLNE01-000450-2021 State v. Mohd. Shahnawaz @ Shanu etc. SC No. 47/2021, FIR No. 113/2020, PS Gokalpuri Judgment dated 11.12.2023 no further explanation from the side of PW11 and PW12 that which corner of gali they were referring to. When all these three police officials claimed having seen the incident taking place at the back side gate of this shop, in the backdrop of their assertion that they were on duty together, it has to be presumed that they would have been together or present nearby, so as to be able to see this incident. But, as already mentioned herein above, from the position of PW10 this incident could not have been seen, at least to be able to see the face of the rioters present on the back side gate of the shop. In that situation, it becomes a doubtful case to presume that PW10, PW11 and PW12 could actually see the rioters at the back side gate of this shop. Hence, on the basis of identification by these three police officials as well, presence of accused persons in the mob responsible for incident at shop in question and property no. A-49 cannot be assumed safely.
CONCLUSION & DECISION
52. 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, Parvez, Md. Faisal, Rashid @ Monu and Mohd. Tahir, are acquitted of all the charges Digitally signed by levelled against them in this case. PULASTYA PULASTYA PRAMACHALA PRAMACHALA Date: 2023.12.11 11:37:45 +0530 Announced in the open court (PULASTYA PRAMACHALA) today on 11.12.2023 ASJ-03 (North- East) (Judgment contains 43 pages) Karkardooma Courts/Delhi Page 43 of 43 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi