Delhi District Court
State vs Mohd Tahir Hussain And Ors on 13 July, 2026
IN THE COURT OF SH. PARVEEN SINGH,
ADDL. SESSIONS JUDGE - 03 (NORTH EAST DISTRICT)
KARKARDOOMA COURT : DELHI.
SC No. 120/2020
FIR No. 65/2020
PS Dayalpur
U/s. 109/114/147/148/149/436/153-A/174-A/505/365/302/201/120-
B/34 IPC
&
25/27/54/59 Arms Act
State
Versus
1. Mohd. Tahir Hussain
s/o Sh. Kallan Saifi,
r/o H. No. F-7, Main Karawal Nagar Road,
Near Lakhpat Model School, Khajuri Khas,
Delhi.
2. Haseen @ Mullaji @ Salman,
s/o Sh. Mobin,
r/o H. No. 34-35, Gali No. 3,
Shani Bazar Road, Sunder Nagri, Delhi.
3. Nazim,
s/o Md. Azeem,
r/o H. No. 1378, Gali No. 15,
Nala Road, Mustafabad, Delhi.
4. Kasim,
s/o Md. Azeem,
FIR No. 65/20
PS Dayalpur 1 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
r/o H. No. 1378, Gali No. 15,
Nala Road, Mustafabad, Delhi.
5. Sameer Khan,
s/o Md. Saheed,
r/o H. No. 433, F-2 Block,
Sunder Nagri, Delhi.
6. Anas,
s/o Sh. Idrish,
r/o Gali No. 1, Sanjay Chowk,
Mustafabad, Delhi.
7. Firoz,
s/o Sh. Babuddin,
r/o H. No. B-1/3, Main 20 Foota Road,
Chand Bagh, Delhi.
8. Javed,
s/o Sh. Jafruddin,
r/o Gali No. 2, Near Sanjay Chowk,
Moonga Nagar, Delhi.
9. Gulfam,
s/o Sh. Ramjani,
r/o B-34, Gali No. 2, Chand Bagh, Delhi.
10. Shoaib Alam @ Bobby,
s/o Sh. Mustafa Hussain,
r/o A-10, 20 Foota Froad,
Chand Bagh, Delhi.
11. Muntajim @ Musa
s/o Md. Azim,
FIR No. 65/20
PS Dayalpur 2 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
r/o I-86 (B-165), Nala Road,
Near Firdaus Masjid, Gali No. 8,
Chand Bagh, Delhi. ...Accused
Date of Committal : 07.10.2020.
Date of Arguments : 22.05.2026.
Date of Pronouncement : 13.07.2026.
(In compliance of directions passed in judgment Manojbhai Jethabhai
Parmar (Rohit) v. State of Gujarat, list of prosecution witnesses is
Annexure 1; list of documents exhibited by prosecution is Annexure 2
and list of articles is Annexure 3, list of defence witnesses is Annexure
4 and list of documents proved by defence witness is Annexure 5 to
the judgment.)
JUDGMENT
Facts of Prosecution Case as per Charge Sheet
1.1 Briefly stated, the facts of the present case are that on
26.02.2020, complainant Ravinder Sharma lodged GD No. 9A at PS
Dayalpur regarding the missing of his son Ankit Sharma since the
previous evening. GD No. 63A was recorded at PS Dayalpur. This GD
was assigned to ASI Rajender. This GD was regarding Ankit Sharma
s/o Ravinder Sharma i.e. son of complainant being brought to GTB
Hospital and declared brought dead by the doctor.
1.2 Thereafter, the present FIR came to be registered on the
basis of a complaint of Ravinder Sharma. The complaint of Ravinder
Sharma was recorded vide DD No. 82A. It was alleged in the
FIR No. 65/20
PS Dayalpur 3 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
complaint that for 2-3 days, demonstration had been going on by the
Anti-CAA and Pro-CAA protesters at Chand Bagh Pulia, Main
Karawal Nagar Road. In these demonstrations, the incidents of stone
pelting, brick batting, arson, firing and sabotage had taken place from
both sides. Mohd. Tahir, who was the then Municipal Councilor had
gathered a lot of goons in his office. Complainant further alleged that
on 25.02.2020, his son Ankit Sharma, who was posted in Intelligence
Bureau, came back from his office and at about 5.00 p.m, Ankit had
gone out of house to bring some household goods. When his son did
not return after a long time, he started searching for his son at nearby
places, hospitals etc. but he could not find his son. After waiting
overnight, he had lodged a missing report (GD No.9A) of his son
Ankit Sharma at PS Dayalpur. Then complainant came to know that
after being killed, a boy had been thrown into Chand Bagh nala from
the Masjid of Chand Bagh pulia.
1.3 The dead body was recovered from Chand Bagh nala.
The body was recovered in underwear. There were numerous injuries
on the body caused by sharp weapons. The body was taken to GTB
hospital where it was declared brought dead.
1.4 On the basis of this complaint, the present FIR was
registered and investigation was assigned to Insp. Hukum Singh.
1.5 During investigation, on 26.02.2020, Insp. Hukum Singh
along with ASI Rajender went to GTB hospital and obtained MLC of
FIR No. 65/20
PS Dayalpur 4 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
Ankit Sharma. Thereafter, dead body was shifted to mortuary of GTB
Hospital. On 27.02.2020, post-mortem examination of the body of
deceased was conducted at GTB. Hospital. After the post-mortem,
exhibits i.e. blood in gauze and clothes of the deceased Ankit Sharma
were collected from hospital and seized through a seizure memo.
Thereafter, on 28.02.2020, further investigation was transferred to SIT
of Crime Branch.
1.6 During further investigation, on 28.02.2020, inspection of
building of Tahir Hussain i.e. E-7, Khajuri Khas, Main Karawal Nagar
Road, Delhi and the adjoining area was got done by the FSL team.
Physical inspection of the premises was also done. A lot of debris and
stones, bricks, broken bottles, some glass bottles with liquid, bullets
and burnt articles were found lying scattered in front of Tahir
Hussain’s house, on the Main Karawal Nagar Road from the front of
Tahir Hussain’s house to half the way upto Chand Bagh Pulia. The
building of Tahir Hussain had been used by the rioters/
miscreants/accused persons for brick batting, stone pelting, pelting of
petrol bombs and acid bombs. A lot of stones, bricks, a catapult, glass
bottles containing petrol with bottle neck stuffed with pieces of cloth
and other material were found lying on the third as well as on the
terrace of the building of Tahir Hussain and also on the road along
with damaged/burnt articles lying in front of Tahir Hussain’s house.
All those articles were seized in FIR No.101/2020, PS Khajuri Khas
FIR No. 65/20
PS Dayalpur 5 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
by another team of SIT, Crime Branch.
1.7 During further investigation, scene of crime i.e. Khajuri
Nala beside Chand Bagh Pulia, Main Karawal Nagar Road, Delhi,
from where the body of deceased Ankit Sharma was recovered, was
also got inspected by the team of FSL at the instance of Ct. Sachin.
The exhibits i.e. blood on gauze piece were collected from the wall of
the nala and a cemented stone from the bank of nala was also
collected. Thereafter, both the exhibits were seized and sent to FSL
for comparison with the blood of deceased Ankit Sharma. Site plan of
the place, from where the body of Ankit Sharma was recovered, was
prepared at the instance of Ct. Sachin. One more site plan, showing
the distance between the house of deceased and the house of Tahir
Hussain and the place of recovery of dead body, was prepared. Ct.
Sachin had made videos and clicked photographs of recovery of the
dead body of Ankit Sharma. Those video clips and the photographs
were collected from Ct. Sachin along with certificate u/s 65-B I.E.
Act.
1.8 During further investigation, scene of crime i.e. from the
house/building of Tahir Hussain was videographed and photographed.
At the pointing out of witness Vikalp Kochar, rough site plan of the
place of occurrence was prepared. Photographs of the place of
occurrence were also taken. On 09.03.2020, the place of occurrence
i.e. Opp. Bunny Bakers Cake Shop beside the wall of nala was also
FIR No. 65/20
PS Dayalpur 6 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
got inspected by FSL team. Blood was collected from the plastic
sheets hanging on the wall of nala and from the paper piece affixed on
the wall of nala. Exhibits were seized and were sent to FSL, Rohini for
comparison with the blood of deceased Ankit Sharma to establish the
place of occurrence.
1.9 During further investigation, one video of the incident of
throwing body of a person by three persons in the Khajuri nala near
Chand Bagh Pulia from F-Block, Khajuri Khas side had been received
through some unknown source. In the video footage, a person wearing
red colour shirt along with two other persons was visible throwing a
body in the drain near Chand Bagh Pulia. It was found that the said
video was made by one Neeraj Kasana. The mobile phone of Neeraj
was seized and sent to FSL, CFU Division, Rohini to provide/retrieve
the video files of dated 25.02.2020 from the mobile.
1.10 During the course of further investigation, photographs of
various suspects/accused persons arrested in other riot cases were
shown to various public persons and witnesses. In the process of
identification, witnesses Pardeep Verma and Shamshad Pradhan had
identified five accused persons namely Anas, Firoj, Javed, Gulfam and
Shoaib Alam who were involved in the act of rioting and arson on the
instigation of accused Tahir Hussain. Witness Vikalp Kochar
identified accused Tahir Hussain and Anas as the persons who were
involved in the act of murder of Ankit Sharma. Vikalp Kochar further
FIR No. 65/20
PS Dayalpur 7 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
stated that accused Haseen and other had killed Ankit Sharma. Scaled
site plan of the place of incident was also got prepared through
draftsman. Statements of two witnesses namely Pardeep Verma and
Bharat @ Kalu u/s 164 Cr.P.C were got recorded. Statements of public
witnesses namely Vikalp Kochar, Gyanender Kumar Kochar, Bharat
@ Kalu, Akash, Pardeep Verma, Surender Pal Singh Senger and
Girish Yaduvanshi, who had witnessed the incident, were recorded.
HC Rahul and Ct. Praveen Kumar of PS Khajuri Khas had identified
accused Anas, Firoj, Gulfam, Shoaib Alam and Javed, stating that they
were also involved in the act of rioting and arson at Chand Bagh Pulia
on 25.02.2020. These five accused persons were also identified by
other public witnesses namely Pardeep Verma and Shamshad Pradhan
on seeing their photographs. Witness Vikalp Kochar, on seeing the
photographs of various arrested accused persons in other riot cases
and the accused arrested in the present case, identified Anas and stated
that he was also present among the rioters/ accused persons who had
killed Ankit Sharma. Vikalp Kochar also identified accused Haseen @
Mullaji @ Salman among the photographs of various persons and
stated that he had stabbed Ankit Sharma with knife. Witnesses
Pardeep Verma, Bharat @ Kalu and Girish Yaduvanshi identified
accused Nazim and Kasim and stated that they were also involved in
the act of killing of Ankit Sharma. Witness Akash identified accused
Sameer Khan, who was also involved in the act of killing of Ankit
FIR No. 65/20
PS Dayalpur 8 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
Sharma.
1.11 During further investigation accused Mohd Tahir Hussain
and Haseen @ Mullaji @ Salman were arrested on 16.03.2020. Nazim
was arrested on 30.03.2020. Kasim, Sameer Khan, Anas, Firoz, Javed,
Gulfam and Shoib Alam @ Bobby were arrested on 09.03.2020 and
Muntajim @ Musa was arrested on 12.10.2022.
1.12 After completion of investigation, on 03.06.2020 a
chargesheet for offences punishable u/s 109/114/
147/148/149/436/153-A/505/365/302/201/120-B/34 IPC was filed.
1.13 Thereafter, on 05.02.2021 first supplementary
chargesheet with additional accused Muntajim @ Musa, alongwith
FSL report, sanction u/s. 196 Cr.P.C., subsequent opinion of doctor
regarding the injuries sustained by deceased, copies of CDRs etc. was
filed and sections 25/27/54/59 Arms Act were also added in the charge
sheet.
1.14 On 23.06.2022 second supplementary chargesheet,
alongwith FSL reports regarding data extracted from the mobile
phones of accused and witnesses was filed.
1.15 Subsequently, during further investigation, accused
Mutazim @ Musa was arrested by the team of Spl. Cell, Delhi from
Gayatri Nagar Bus Stand, Meerpet, Telangana. Thereafter, on
09.12.2022 third supplementary chargesheet along with a complaint
u/s 195 Cr.P.C., prohibitory order u/s. 144 Cr.P.C. and other certain
FIR No. 65/20
PS Dayalpur 9 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
documents was filed.
1.16 Thereafter, fourth supplementary charge sheet with a
sanction u/s 196 Cr.P.C against accused Mutazim @ Musa was filed.
1.17 Thereafter, on 05.04.2024, fifth supplementary charge
sheet with FSL result regarding scene of crime was filed.
1.18 On 12.09.2025, sixth supplementary charge sheet with
voice samples of PW Faheem @ Chikna and PW Nadeem and FSL
report was filed.
Charges
2.1 On 23.03.2023, charge for offences punishable u/s
147/148/302/365 r/w sections 120B and 149 IPC; u/s 188 IPC and u/s
120B IPC r/w sections 147/148/153A/302 IPC was framed against all
the accused to which they pleaded not guilty and claimed trial. On the
same day, another charge for offence punishable u/s 153A r/w section
120B and 149 IPC was framed against all accused except accused
Mutajim @ Mussa to which they all pleaded not guilty and claimed
trial. On the same day, another charge for offence punishable u/s 25
Arms Act was framed against accused Nazim and Haseen @ Mullaji
@ Salman to which they pleaded not guilty and claimed trial. On the
same day, another charge for offence punishable u/s 109/114 IPC r/w
sections 147, 148, 149, 153-A, 302 IPC and u/s 505 IPC was framed
against accused Mohd. Tahir Hussain to which he pleaded not guilty
and claimed trial. On the same day, another charge for offence
FIR No. 65/20
PS Dayalpur 10 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
punishable u/s 174-A IPC was framed against accused Muntajim @
Musa to which he pleaded not guilty and claimed trial.
Prosecution Evidence
3.1 Thereafter, the prosecution examined 91 witnesses. A
table providing details of these witnesses and brief description of their
roles and testimonies is annexed as Annexure-1. The list of documents
proved by the prosecution and the witnesses who proved them, is
Annexure-2. The list of articles proved during trial is Annexure- 3.
Statement of Accused
4.1 Thereafter, statements of accused u/s 313 Cr.P.C of all
the accused were recorded and accused Javed, Anas, Mohd. Tahir
Hussain, Sameer Khan, Firoz Khan, Kasim, Nazim, Muntazim @
Musa and Haseen @ Mullaji preferred to lead evidence in their
defence.
Defence Evidence
5.1 On 23.03.2026, accused Sameer Khan, Nazim, Kasim and
Firoz closed their evidence. On 02.04.2026, accused Muntazim @
Musa closed his evidence. Accused Haseen @ Mullaji examined DW1
Dr. Parshu Ram and DW2 Dr. Reeta R Gupta. A table providing
details of these witnesses and brief description of their roles and
testimonies is annexed as Annexure-4. The list of documents proved
by the defence witnesses is Annexure-5.
FIR No. 65/20
PS Dayalpur 11 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
Contentions of ld. SPP and of ld. Counsel for accused
6.1 I have heard ld. SPP for State as well as ld. counsel for
accused and perused the record very carefully.
6.2 It has been contended by Sh. Madhukar Pandey, ld. SPP
that the prosecution through its public and official witnesses has
proved that on 25.02.2020 at around 4:30 p.m to 5:00 p.m, a large,
violent, and riotous mob armed with deadly weapons had unlawfully
assembled near Chand Bagh Pulia on the Main Karawal Nagar Road.
The police witnesses i.e. PW-5 HC Rahul and PW-33 HC Praveen
Kumar had categorically deposed about the presence of an aggressive,
communally charged, and heavily armed mob. Public witnesses i.e.
PW6 Pardeep Verma, PW13 Aakash, PW14 Bharat, PW19 Vikalp
Kochar and PW56 Priyanka Gaur have categorically deposed about
the assembly of mob and its violent acts. Thus, from the testimonies of
these witnesses, it stands proved that the common object of the mob
was to cause harm and to create violence.
6.2.1 It has further been contended that PW5 HC Rahul, PW6
Pradeep Verma, PW13 Aakash, PW14 Bharat, PW19 Vikalp Kochar,
PW33 HC Praveen and PW56 Priyanka Gaur have categorically
deposed that they saw Tahir Hussain actively instigating the mob and
upon his instigation, the rioting mob became more violent and killed
Ankit Sharma. They have also deposed that Tahir Hussain was
repeatedly seen moving back and forth between his house at E-7,
FIR No. 65/20
PS Dayalpur 12 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
Khajuri Khas and Chand Bagh Pulia, delivering inflammatory
speeches and exhorting the mob to attack Hindus and their properties.
6.2.2 It has further been contended that the prosecution,
through the eye witnesses, has proved direct evidence to the fact that
Ankit Sharma was being caught by the mob and murdered. PW6
Pradeep Verma and PW14 Bharat had identified accused Nazim and
Kasim as a part of the group that had dragged Ankit Sharma. PW13
Aakash had identified accused Samir Khan as a part of the group
which was involved in killing Ankit Sharma. Through the testimonies
of PW5, PW33 and PW6, the presence of accused Firoz, Javed,
Gulfam, Anas, Shoaib Alam @ Bobby in the riotous mob has been
established. Through the testimony of PW6, presence of accused
Muntazim Musa in the riotous mob has been established.
6.2.3 It has further been contended that the fact that after being
murdered, Ankit Sharma was thrown into the drain at Chand Bagh
Pulia, has been established through the testimonies of PW13, PW14
and PW66. PW66 had recorded a video in his mobile phone, which
was Ex.PW66/V-1. This integrity and authenticity of this video has
been proved through the testimony of FSL experts i.e. PW35 Vikas
Kumar and PW25 Geetesh Patel.
6.2.4 It has further been contended that the recoveries of knives
were effected at the instance of accused Haseen @ Mullaji and Nazim.
The subsequent medical opinion (Ex.PW15/2) sought from the board
FIR No. 65/20
PS Dayalpur 13 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
of doctors who conducted PM of the deceased, proved that that
injuries could have been caused by the weapons recovered.
6.2.5 It has further been contended that there is extra-judicial
confession made by accused Haseen @ Mullaji in the form of his
intercepted phone calls wherein he boasted of killing a person and
throwing the body in a drain. These intercepted calls were transferred
by PW76 Insp. Jaiveer and were seized by the IO (PW79) vide
seizure memo Ex.PW50/I. PW76 had also given his certificate u/s
65B of Indian Evidence Act, which was Ex.PW76/D. PW79 further
placed on record transcripts of the recorded conversations, which was
Ex.PW79/12. Further, this extra-judicial piece of evidence has been
corroborated by the CDR (Ex.PW44/I) and Cell Id Chart
(Ex.PW44/R) of accused Haseen, according to which location of
accused Haseen was found near Chand Bagh at the place of Incident.
It has further been contended that to further corroborate this extra-
judicial piece of evidence, voice of accused Haseen was recorded in
FSL and as per FSL report (Ex.PW24/A), one of voice in recorded
conversation is of accused Haseen Mullaji. The prosecution examined
PW58 Nadeem and PW75 Faheem @ Chikna to whom accused made
calls however, they both denied having any conversation with the
accused Haseen and failed to recognize their voices in recorded
conversation. Thereafter, voice samples of PW58 and PW75 were
recorded in the CFSL and as per reports of CFSL experts, voice of
FIR No. 65/20
PS Dayalpur 14 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
PW58 and PW75 matched with the recorded calls found in the
memory card of Haseen Mullaji. It has thus been contended that the
extra judicial confession coupled with the FSL report and the recovery
of the weapon at his instance, forms a powerful and conclusive piece
of evidence against Haseen @ Mullaji. It has further been contended
that the existence of an unlawful assembly of more than five persons,
armed with deadly weapons and sharing a common object of causing
violence and harm to the Hindu community has been established
through the testimonies of multiple witnesses. The murder of Ankit
Sharma by members of this assembly was a direct consequence and in
furtherance of this common object. Once it is established that an
accused was a member of an unlawful assembly, and an offence was
committed in prosecution of its common object, every member
becomes guilty of that offence. It has therefore been contended that
the prosecution through the testimonies of the witnesses have proved
its case beyond all reasonable doubts.
6.3 On the other hand, Sh. Rajiv Mohan, ld. counsel for
accused Tahir Hussain had opened his arguments by pointing certain
discrepancies in the receipt of information by the police and
registration of FIR. It had been contended that as per the statements of
witnesses, SHO PS Khajuri Khas was an important witness, but he
was not examined and no reasons have been assigned for it. It has
further been contended that as per the statement of PW40, even before
FIR No. 65/20
PS Dayalpur 15 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
recording of DD No. 9A (Ex.PW38/A) and DD no. 63A (Ex.PW1/A),
SHO PS Khajuri Khas had the information that Ankit Sharma was
missing. The recovery of his dead body statedly happened in the
presence of SHO, PS Khajuri Khas and Ct. Sachin. Despite these
facts, no record of PS Khajuri Khas was collected and SHO PS
Khajuri Khas was not examined. There is no explanation that why,
despite the recovery of a dead body having signs of murderous assault,
no FIR was immediately registered either at PS Khajuri Khas or at PS
Dayalpur. No statement of PW28 was recorded despite him being
present during the recovery of dead body. This indicates that police
were waiting to implicate Tahir Hussain in the murder so that his
name could be included. The only explanation for non examination of
SHO PS Khajuri Khas given by PW79 IO is completely unbelievable,
because he had merely presumed that the SHO would have no relevant
fact in his knowledge.
6.3.1 It has further been contended that the complaint of PW28
was changed and a fabricated statement purported to be the statement
of PW28 was made basis of this FIR, as is visible from the testimony
of PW28. The only reason for placing on record the fabricated
complaint, which is the basis of this FIR, is that Tahir Hussain was
introduced by way of this fabricated complaint to falsely implicate
him in this case. It has further been contended that even the FIR was
ante-dated and ante-timed. In order to buttress this claim, it is
FIR No. 65/20
PS Dayalpur 16 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
contended that PW9 was assigned DD No. 9A and DD No. 63A and
the rukka for registration of FIR was handed over to him. He was also
assigned the inquest proceedings and the task of having the autopsy
done. These proceedings were conducted in pursuance of DD No. 63A
and not in respect of the FIR which had already been registered. It has
further been contended that the documents Ex.PW9/A, Ex.PW9/B,
Ex.PW9/C and Ex.PW9/D did not have the FIR number but have DD
No. 63A mentioned on them. However, PW9 failed to explain why
inquest proceedings were done under DD No. 63A. It is further
contended that ASI Rajender did not depose about rukka being handed
over to him by Insp. Hukum Singh, or the registration of FIR pursuant
to the said rukka. Prosecution also did not cross examine PW9 to this
effect. These lapses lend credence to the fact that FIR was not
registered on 26.02.2020. It is further contended that PS Dayalpur, at
11.40 a.m on 26.02.2020, had the information of Ankit Sharma being
missing and by 6.30 p.m, they had the information about his unnatural
death and that his body being recovered with injuries. Despite this
information about commission of cognizable offence, failure of PS
Dayal Pur to register FIR either on DD No. 9A or DD No. 63A makes
the genuineness of FIR highly doubtful.
6.3.2 This establishes that FIR was deliberately recorded at a
later point of time by fabricating its contents to implicate Tahir
Hussain to satisfy public sentiments and give credence to local
FIR No. 65/20
PS Dayalpur 17 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
rumours. It is therefore, contended that fabrication of the FIR, upon
which the whole investigation is based, makes the whole investigation
non-est. In this regard, reliance has been placed on paras 107 and 109
of the judgment of Hon’ble Supreme Court in State of Punjab v.
Devender Pal Singh Bhullar (2011) 14 SCC 770 specifically on paras
107 and 109, wherein it has been held as under:-
107. It is a settled legal proposition that if initial
action is not in consonance with law, all subsequent
and consequential proceedings would fall through
for the reason that illegality strikes at the root of the
order. In such a fact-situation, the legal maxim
sublato fundamento cadit opus meaning thereby that
foundation being removed, structure/work falls,
comes into play and applies on all scores in the
present case.
……
109. Similarly in Mangal Prasad Tamoli (dead) by
Lrs. v. Narvadeshwar Mishra (dead) by Lrs. & Ors.,
this Court held that if an order at the initial stage is
bad in law, then all further proceedings, consequent
thereto, will be non est and have to be necessarily
set aside.
6.3.3 It is further contended that the prosecution failed to prove
the compliance of Section 157 Cr.P.C as no DD entry regarding
departure of special messenger with the FIR was brought on record to
prove that FIR was sent to higher authorities or to the Ilaka
Magistrate. Nothing was brought on record to show that FIR was
received by the Ilaqa Magistrate, or the time of such receipt. The fact
that the first IO Insp. Hukum Singh stated that he did not collect the
FIR No. 65/20
PS Dayalpur 18 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
copy of closure DD and that he also did not examine any special
messenger show that copy of the FIR was not sent to the magistrate in
compliance of section 157 Cr.P.C. It is therefore, contended that this
vitiates the entire investigation. Reliance in this regard has been
placed on the judgment of Hon’ble Supreme Court in Sudershan &
Anr. v. State of Maharashtra (2014) 12 SCC 312.
14. No doubt, different persons may react differently to the same
situation. However, at the same time, as mentioned above, it
appears very improbable that when there were as many as 15 to 20
persons, namely, the complainant and his friends, none of them
even thought of going to the police station to report the matter,
which is odd and out of ordinary behaviour in such cases. Instead,
they chose to go to an Advocate, who was staying at a distance of
15 km. The persons who were allegedly very scared would not take
the risk of going a distance of 15 km rather than approaching the
nearby police station within the jurisdiction of the area where the
incident had taken place. Strangely, in the process of defending the
said conduct of the complainant and his friends, the High Court
became presumptuous as it itself gave an imaginary story that there
was a possibility that these persons had consumed liquor and the
material thrown by them included liquor as well. It was not even
the case of the prosecution, probable or otherwise. We may have
agreed with the High Court that not reporting to the police and
going straightaway to an Advocate could have been because of the
reason that all these persons were very scared had it been a stand-
alone fact. However, when this fact is examined in conjunction
with other circumstances, which we narrate hereinafter, we find
that approaching an Advocate instead of going to the police station
to report the matter, was not that innocent a step as the prosecution
has made us to believe.
15. Even after meeting their advocate and his advice that the matter
be reported to the police, these persons did not come back to
Ballarshah Police Station, which was the proper police station for
this purpose. Instead, the FIR was lodged in Chandrapur Police
Station. Things do not end here. Mr Umesh, Sub-Inspector, was at
FIR No. 65/20
PS Dayalpur 19 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
Chandrapur Police Station, who had recorded the FIR. He has
appeared as PW 12 during trial. The FIR which was lodged with
him is proved as Ext. 213. Column 15 of the FIR pertains to ” date
and time of dispatch to the court”. This column is left blank, which
means that no date and time of the dispatch/delivery of this FIR to
the court concerned is mentioned. In the cross-examination, PW 12
was specifically asked about the requirement of submitting a copy
of the FIR to the Magistrate concerned within 24 hours. He replied
in the affirmative insofar as this need is concerned. However, at the
same time, he was candid in admitting that he was unable to say as
to by whom and when the copy of Ext. 213 was sent to the
Magistrate. A specific suggestion was put to him that the copy of
the FIR was not sent to the Magistrate concerned. Though he
denied, but thereafter no attempt was made to prove as to when and
how the copy was sent. The necessity of sending the copy of the
FIR to the Magistrate concerned hardly needs to be emphasized.
The primary purpose is to ensure that truthful version is recorded in
the FIR and there is no manipulation or interpolation therein
afterwards. For this reason, this statutory requirement is provided
under Section 157 of the Code of Criminal Procedure, 1973.
………
………
21. In the aforesaid scenario, we find that the present case is fully
covered by the judgment of this Court in Meharaj Singh v. State of
U.P. [(1994) 5 SCC 188 : 1994 SCC (Cri) 1391] , wherein the
importance of recording of FIR and the requirement of dispatching
the copy thereof to the Magistrate within 24 hours with the
consequences fraught with danger was highlighted in the following
manner : (SCC pp. 195-96, para 12)
12. FIR in a criminal case and particularly in a murder case is
a vital and valuable piece of evidence for the purpose of
appreciating the evidence led at the trial. The object of
insisting upon prompt lodging of the FIR is to obtain the
earliest information regarding the circumstance in which the
crime was committed, including the names of the actual
culprits and the parts played by them, the weapons, if any,
used, as also the names of the eyewitnesses, if any. Delay in
lodging the FIR often results in embellishment, which is a
creature of an afterthought. On account of delay, the FIR not
only gets bereft of the advantage of spontaneity, danger also
FIR No. 65/20
PS Dayalpur 20 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
creeps in of the introduction of a coloured version or
exaggerated story. With a view to determine whether the FIR
was lodged at the time it is alleged to have been recorded, the
courts generally look for certain external checks. One of the
checks is the receipt of the copy of the FIR, called a special
report in a murder case, by the local Magistrate. If this report
is received by the Magistrate late it can give rise to an
inference that the FIR was not lodged at the time it is alleged
to have been recorded, unless, of course the prosecution can
offer a satisfactory explanation for the delay in dispatching or
receipt of the copy of the FIR by the local Magistrate.
Prosecution has led no evidence at all in this behalf. The
second external check equally important is the sending of the
copy of the FIR along with the dead body and its reference in
the inquest report. Even though the inquest report, prepared
under Section 174 CrPC, is aimed at serving a statutory
function, to lend credence to the prosecution case, the details
of the FIR and the gist of statements recorded during inquest
proceedings get reflected in the report. The absence of those
details is indicative of the fact that the prosecution story was
still in an embryo state and had not been given any shape and
that the FIR came to be recorded later on after due
deliberations and consultations and was then ante-timed to
give it the colour of a promptly lodged FIR. In our opinion,
on account of the infirmities as noticed above, the FIR has
lost its value and authenticity and it appears to us that the
same has been ante-timed and had not been recorded till the
inquest proceedings were over at the spot by PW 8.
Neither the trial court nor the High Court has appreciated the
aforesaid circumstances which go to the root of the matter and raise
sufficient doubt about the involvement of the appellants in the
present case.
6.3.4 It is further contended that FIR was ante dated and ante
timed and it was so done only to implicate Tahir Hussain. The fact
that PW28 did not support the prosecution about the contents of FIR
reflects that the allegations against Tahir Hussain, as mentioned in the
FIR No. 65/20
PS Dayalpur 21 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
complaint, were the interpolations made by the investigating
authorities to implicate him in a premeditated manner. It is further
contended that PW28 Ravinder Sharma, in his first information given
to the police in the form of DD No. 9A (Ex.PW38/A) stated that he
did not suspect anyone and this DD was recorded at 11.40 a.m.
Despite the fact that in his statement he had stated that a night before,
he had visited Tahir Hussain along with police officials to search for
Ankit Sharma, he had not named Tahir Hussain in DD No. 9A. This
reflects that he had no reasons to suspect the involvement of Tahir
Hussain. It is further contended that when the purported complaint of
PW28 was shown to him in order to identify his signatures, he stated
that complaint did not have his signatures and stated that those
signatures were in English and he always sign in Hindi. This
fabricated complaint was made the basis of FIR and this was done
because the complainant, in his original complaint, might not have
named Tahir Hussain, as is visible from DD No. 9A. It is further
contended that the police authorities wanted to implicate Tahir
Hussain and that is why, this fabrication was done. The prosecution
made no efforts to get the said complaint proved through PW28 and
even during his cross examination, the contents of the said complaint
were not put to the complainant to ascertain if the averments made in
that complaint were made to the police in his original complaint or
not. Reliance in this regard has been placed on the judgment of
FIR No. 65/20
PS Dayalpur 22 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
Hon’ble Supreme Court in Meharaj Singh v. State of U.P., (1994) 5
SCC 188 wherein it has been held as under:-
12. FIR in a criminal case and particularly in a murder
case is a vital and valuable piece of evidence for the
purpose of appreciating the evidence led at the trial. The
object of insisting upon prompt lodging of the FIR is to
obtain the earliest information regarding the
circumstance in which the crime was committed,
including the names of the actual culprits and the parts
played by them, the weapons, if any, used, as also the
names of the eyewitnesses, if any. Delay in lodging the
FIR often results in embellishment, which is a creature
of an afterthought. On account of delay, the FIR not
only gets bereft of the advantage of spontaneity, danger
also creeps in of the introduction of a coloured version
or exaggerated story. With a view to determine whether
the FIR was lodged at the time it is alleged to have been
recorded, the courts generally look for certain external
checks. One of the checks is the receipt of the copy of
the FIR, called a special report in a murder case, by the
local Magistrate. If this report is received by the
Magistrate late it can give rise to an inference that the
FIR was not lodged at the time it is alleged to have been
recorded, unless, of course the prosecution can offer a
satisfactory explanation for the delay in despatching or
receipt of the copy of the FIR by the local Magistrate.
Prosecution has led no evidence at all in this behalf. The
second external check equally important is the sending
of the copy of the FIR along with the dead body and its
reference in the inquest report. Even though the inquest
report, prepared under Section 174 CrPC, is aimed at
serving a statutory function, to lend credence to the
prosecution case, the details of the FIR and the gist of
statements recorded during inquest proceedings get
reflected in the report. The absence of those details is
indicative of the fact that the prosecution story was still
FIR No. 65/20
PS Dayalpur 23 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
in an embryo state and had not been given any shape and
that the FIR came to be recorded later on after due
deliberations and consultations and was then ante-timed
to give it the colour of a promptly lodged FIR. In our
opinion, on account of the infirmities as noticed above,
the FIR has lost its value and authenticity and it appears
to us that the same has been ‘ante-timed and had not
been recorded till the inquest proceedings were over at
the spot by PW 8.
6.3.5 The next limb of arguments of ld. counsel for accused is,
that till 06.03.2020, no investigation was done on any material aspects
of this case. It is contended that Ankit Sharma was not murdered in
secret and it was an open mob violence at Chand Bagh Pulia and
naturally, there would have been a lot of public witnesses which could
be available there. However, those witnesses were not examined for
first 24 hours and thereafter for considerable days, and this fact cannot
be taken lightly, without there being any plausible explanation from
the prosecution. It is further contended that the only inference that can
be drawn is, that the police waited for concoction of a false story so
that the statement of public witnesses can be recorded only to
implicate Tahir Hussain. It is further contended that in first 24 hours,
IO Insp. Hukum Singh did not conduct any effective investigation
except recording the supplementary statements of PW28 and PW54
regarding the identification of dead body and other formal witnesses.
It is important to note that PW28 and PW54 denied ever giving
statements to PW46. It is further contended that PW79 had deposed
FIR No. 65/20
PS Dayalpur 24 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
that he did not record statements of witnesses as they were not ready
to become witnesses but he did not use powers available to him to
compel them to give their statements. Till the arrest of Tahir Hussain,
there was scarce and scanty investigation and no explanation has come
forward for reluctance in conducting the investigation. In this regard,
reliance has been placed on the judgment of Hon’ble Supreme Court
in State of A.P. v. Punati Ramulu, 1994 Supp (1) SCC 590, wherein
in para 5, it has been held as under:-
5. According to the evidence of PW 22, Circle
Inspector, he had received information of the
incident from police constable No. 1278, who
was on ‘bandobast’ duty. On receiving the.
information of the occurrence, PW 22 left for
the village of occurrence and started the
investigation in the case. Before proceeding to
the village to take up the investigation, it is
conceded by PW 22 in his evidence, that he
made no entry in the daily diary or record in the
general diary about the information that had
been given to him by constable 1278, who was
the first person to give information to him on
the basis of which he had proceeded to the spot
and taken up the investigation in hand. It was
only when PW 1 returned from the police
station along with the written complaint to the
village that the same was registered by the circle
inspector, PW 22, during the investigation of the
case at about 12.30 Noon, as the F.I.R., Ex. P-1.
In our opinion, the complaint, Ex. P-1, could not
be treated as the F.I.R. in the case as it certainly
would be a statement made during the
investigation of a case and hit by Section 162,
FIR No. 65/20
PS Dayalpur 25 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
Cr.P.C. As a matter of fact the High Court
recorded a categorical finding to the effect that
Ex. P-1 had not been prepared at Narasaraopet
and that it had “been brought into existence at
Pamidipadu itself, after due deliberation”. Once
we find that the investigating officer has
deliberately failed to record the first information
report on receipt of the information of a
cognizable offence of the nature, as in this case,
and had prepared the first information report
after reaching the spot after due deliberations,
consultations and discussion, the conclusion
becomes inescapable that the investigation is
tainted and it would, therefore, be unsafe to rely
upon such a tainted investigation, as one would
not know where the police officer would have
stooped to fabricate evidence and create false
clues. Though we agree that mere relationship
of the witnesses PW 3 and PW 4, the children of
the deceased or of PW 1 and PW 2 who are also
related to the deceased, by itself is not enough
to discard their testimony and that the
relationship or the partisan nature of the
evidence only puts the Court on its guard to
scrutinise the evidence more carefully, we find
that in this case when the bona fides of the
investigation has been successfully assailed, it
would not be safe to rely upon the testimony of
these witnesses either in the absence of strong
corroborative evidence of a clinching nature,
which is found wanting in this case.
6.3.6 It is further contended that out of 91 witnesses, there are
only 07 witnesses which are stated to be the eye witnesses to the
murder. They are Vikalp Kochar (PW19), Gyandendra Kochar
FIR No. 65/20
PS Dayalpur 26 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
(PW21), Pradeep Verma (PW6), HC Rahul (PW5), HC Praveen
(PW33), Akash (PW13) and Bharat (PW14). Out of these witnesses,
the most natural witnesses are PW19 and PW21 as they were present
near their shop i.e. Bunny Bakery. The said shop was also damaged
and set on fire by the rioters. It is contended that PW19 had given a
detailed description of how the incident had unfolded and how
deceased Ankit Sharma was murdered by the rioters. However, he did
not identify any of the accused as a part of the rioting mob. Rather he
stated, that the mob which had murdered Ankit Sharma was the same
mob which was involved in looting and setting ablaze his shop.
However, none of the accused (in this case) were made accused in FIR
No. 129/20 of PS Khajuri Khas which was registered regarding the
burning of shop of PW19. Furthermore, this witness categorically
deposed that he had not seen Tahir Hussain on that day between 3-6
p.m and he saw him sometime after 6.00 p.m but he did not know
about how much time after 6.00 p.m that he had seen Tahir Hussain. It
is further contended that the prosecution claimed that he is natural
witness. If that be the case then why this witness did not support the
case of the prosecution and therefore not testifying on the lines of the
prosecution cannot give an inference that PW19 had been won over by
the accused. The prosecution did not bring anything on record that
PW19 was not giving true version of the events. It is further contended
that the site plan (Ex.PW79/3) is stated to have been prepared at the
FIR No. 65/20
PS Dayalpur 27 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
instance of Vikalp Kochar but it does not depose depict the position of
Tahir Hussain and this falsifies the statement u/s 161 Cr.P.C recorded
by the IO and supports the testimony of the witness as had been given
in the court.
6.3.7 It is further contended, that PW21 Gyanendra Kochar,
who was the owner of Bunny Bakery, also stated that on 25.02.2020 at
about 5.00 p.m, he was present outside his shop. He saw a person
surrounded by the mob and being attacked. On being asked, if he
knew Tahir Hussain, he stated that he had heard his name but had not
seen his face. The testimony of PW21 corroborates the testimony of
PW19. Their presence is natural and their testimonies make them
trustworthy witnesses.
6.3.8 It is further contended that PW6 Pradeep Verma has also
deposed about the manner in which Ankit Sharma was killed but has
not stated about the presence of Tahir Hussain. According to him, at
about 5.00 p.m, he was outside gali no. 6, Moonga Nagar and he gave
a detailed description of killing of Ankit Sharma. However, he
categorically denied seeing Tahir Hussain. It is further contended that
PW56 Priyanka Gaur stated that she was present inside the gate at
Gali No. 6 which was closed at that time. During the site visit, it was
established that Chand Bagh Pulia was not visible from that position.
She was therefore, not a witness to the incident of murder or rioting at
Chand Bagh Pulia, as stated in her statement u/s 161 Cr.P.C. and at the
FIR No. 65/20
PS Dayalpur 28 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
most, she could be a witness to general riot at Karawal Nagar Road.
She testified that she had seen Tahir Hussain near his house and
through gestures, she could see he was instigating the mob to move in
the direction of Dayalpur. No description of the gestures had been
elicited and this statement is mere conjecture. She had also made
several PCR calls which were Ex.PW91/2 to Ex.PW91/4 but she had
not named Tahir Hussain in any of those calls. Therefore, the
allegations against Tahir Hussain are improvements which are liable
to be discarded. It is further contended that PW56 is otherwise not a
reliable witness of the incident because despite her calls on
25.02.2020, her first statement was recorded on 29.04.2020 and no
explanation was provided on record for this delay.
6.3.9 It is further contended that the next witness is PW11
Deepak Pradhan. He was not a witness to the incident of murder but at
the same time, he is a witness of general riots at Karawal nagar Road.
During his cross examination, he admitted that till about 5/5.30 p.m,
he was inside the temple in gali no. 5 wherefrom he could not have
seen anything happening outside and from there, he returned. In any
event, he did not depose about the incident in relation to Ankit
Sharma.
6.3.10 It is further contended that of the three witnesses placed
by the prosecution around gali no. 6, Moonga Nagar, as per their
testimonies, only Pw6 Pradeep Verma could have witnessed the
FIR No. 65/20
PS Dayalpur 29 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
incident. It is further contended that the statements of these witnesses,
who could have been natural persons near the spot, reflect that there
was no premeditated conspiracy which lead to killing of Ankit Sharma
much less, to kill at the instance of exhortation of any person as the
mob was already engaged in arson and rioting, and the acts in relation
to Ankit Sharma evidently happened in quick succession within a
short span of time. The sequence of events as narrated by these
witnesses also rules out any possibility of instigation by any accused,
and thus, the charge u/s. 109 r/w section 114 is also not proved. On the
contrary, the CDR of Tahir Hussain (mobile no. 9810363925), during
and around the time of incident, shows that he was furiously
attempting to call police officials, PCR and political leaders to help
him. He also received calls during this time and so it cannot be said
that he was making calls to cover up.
6.3.11 It is further contended that when IO named Tahir Hussain
in the complaint, the agency got a clear path to collect suitable
evidence to implicate Tahir Hussain. It is further contended that PW79
had visited Chand Bagh Pulia on 28.02.2020 but recorded the first
statement describing the complete chain of events on 06.03.2020.
Therefore, it was incumbent upon the prosecution to explain why it
took him so much time to record the statement.
6.3.12 It is further contended that there are two police witnesses
i.e. PW5 and PW33. However, both these witnesses are completely
FIR No. 65/20
PS Dayalpur 30 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
untrustworthy and cannot be relied upon. The sum and substance of
the arguments with regard to these two witnesses is, that they had
made considerable improvements during their testimony in the court.
Reliance in this regard has been placed on the judgment of Hon’ble
Supreme Court in Harbir Singh v. Sheesh Pal (2016) 16 SCC 418. It is
contended that both these witnesses, as per the case of the prosecution,
were not the eye witnesses of the incident wherein the deceased was
murdered. However, while appearing in the court, they deposed as eye
witnesses and that they had seen the murder of the deceased.
However, their conduct subsequent to the incident is unnatural. Being
police officials, it cannot be presumed that despite seeing a cognizable
offence, they would not disclose these details in their statements to the
IO. Furthermore, they had been regularly visiting the police station
from 25.02.2020 onwards, however, no DD entry was lodged by any
of the witnesses; no complaint was made by any of these witnesses; no
PCR call was made by any of the witnesses; no site plan was prepared
by the IO at the instance of any of these witnesses. Reliance has been
placed on the judgments of Sunderam Gurbakash Kalar v. State of
Madhya Pradesh (1971) 3 SCC 443 and Arul v. State of Madras
(2016) SCC Online Madras 5506.
6.3.13 It is further contended that PW40 had deposed that from
11 pm on 25.02.2020 itself, SHO Khajuri Khas and several other
police staff were involved in the search of Ankit Sharma. That being
FIR No. 65/20
PS Dayalpur 31 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
the case, it would have been natural for this witness to inform the
SHO and IO did not examine SHO to find out whether, they had given
any information regarding the murder of deceased to the SHO or not.
Therefore, these witnesses did not come forward to report the incident
and their statements were recorded after 13 days of the incident. This
lack of promptness on the part of the IO is not inadvertence, but is
illegal. The unnatural conduct of these police officials in not reporting
the incident points towards them being planted witnesses in order to
create false evidence against the accused.
6.3.14 With regard to two other eye witnesses i.e. PW13
and PW14, it is contended that they are wholly unreliable. They had in
fact not witnessed any incident on 25.02.2020 and had been planted at
the site by the IO with the intention to implicate Tahir Hussain in the
present case.
6.3.15 Apart from the present case, these witnesses were
witnesses in two other cases, i.e. FIR No. 114/20 PS Khajuri Khas and
FIR No. 88/2020 PS Dayalpur, which were being investigated by the
Crime Branch. In three other cases of contemporaneous time of
incident, i.e. FIR 91 and 92 of PS Dayalpur and FIR 129 of PS Khajuri
Khas, these two have not been named as witnesses. It has further been
contended that these two are chances witnesses who interestingly
happen to chance upon the IOs in the respective cases to give their
statements to them.
FIR No. 65/20
PS Dayalpur 32 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
6.3.16 It is further contended that their statements came to be
recorded for the first time on 11.03.2020. However, the IO has failed
to explain the delay in recording their statements after 15 days of the
date of the incident. It is further contended that when the statements of
these witnesses were recorded by the IO, they failed to explain why
they were present at the place. It is further contended that by the time
their statements were recorded, IO was aware about the place of
killing of Ankit Sharma, the manner of his assault and killing and the
disposal of the body. It is further contended that version of these two
witnesses is in complete variance with the statements given by the
natural and probable witnesses. They claimed to be standing together
but there are glaring contradictions in their testimonies inter se. There
is a strong probability that they had been arranged and planted by the
investigating agency and had been made stock witnesses and that is
why, they deposed in multiple cases of riots occurring near Chand
Bagh Pulia, between 3-6pm, but their testimonies in each case were
carefully crafted to the incident in that case. This could only be if they
were told what to say and when to say. It is further contended that it is
to be noticed that both of them, despite having mobile phones did not
dial the PCR or went to PS Khajuri Khas which was close to their
house and workplace; or despite police officials from PS Khajuri Khas
visiting their shop, they didn’t inform them; between 25.02.2020 and
11.03.2020, they were doing their routine activities and had seen
FIR No. 65/20
PS Dayalpur 33 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
police on several occasions and the fact that it was only on
11.03.2020, when as per the version of PW13, he saw police officials
at Lakhpat school and decided to go and inform them about the
incident. This conduct creates serious doubts about they being the eye
witnesses. In this regard, reliance has been placed on the judgment of
Hon’ble Supreme court in Puran v. State of Punjab (1952) 2 SCC 454.
6.3.17 It is further contended that there is probability that the
statements of these two witnesses were not recorded on 11.03.2020
because as per the IO on 11.03.2020, he had recorded four statements
that is of these two witnesses, witness Pradeep Verma and Ajay
Goswami. As per Pradeep Verma and IO, Pradeep Verma was shown
certain photographs of the accused which he identified. However, it is
not the case of the prosecution that any photograph was shown to
these witnesses. Neither it is so stated in their statements u/s 161
Cr.P.C. However, in their statements u/s 161 Cr.P.C, it is stated that
they could identify persons in the mob should those persons come in
front of them. Therefore, there was no reason not to show them those
photographs. It is further contended that Bharat, in his testimony,
categorically stated that he met IO for the first time only at the time of
preparation of nishandehi by Nazim and Kasim, which he stated to
have happened only on 30.03.2020. It further reflects that no
statements of these witnesses were recorded on 11.03.2020.
FIR No. 65/20
PS Dayalpur 34 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
6.3.18 It has further been contended that PW14, in his statement
u/s 164 Cr.P.C, was silent about witnessing the incident of burning of
Bunny Bakery or Aman e-rickshaw or seeing them in burnt condition.
This is despite the fact that he had stated that he was present at Chand
Bagh Pulia between 4-4.30 pm and despite it being a matter of record
that both these shops were burnt prior to the murder of Ankit Sharma.
It is therefore, contended that the silence of Bharat regarding any
incident in relation to burning of these shops makes his presence on
25.02.2020 at Chand Bagh Pulia highly doubtful. Despite their rehris
being near to PS Khajuri Khas where office of SIT was situated, they
did not approach the police. In this regard, reliance has been placed on
the judgment of Hon’ble Supreme Court in Suresh & Anr. v. State of
Haryana (2018) 18 SCC 654.
6.3.19 It is further contended that during their testimonies, both
these witnesses failed to disclose any reason or offer any reasonable
explanation for being present at the alleged spot of incident. This is
despite the fact, that both of them had stated that they were aware that
riots were going on in the area for about 2-3 days prior to 25.02.2020.
It is also to be noticed that these witnesses were not residing in the
vicinity of place of occurrence but were residing in Gali No.1 Khajuri
Khas and their rehri was at Sonia Vihar Road. Akash had merely
stated that they were going for some work which necessitated the need
for the prosecution to establish where they were going and from where
FIR No. 65/20
PS Dayalpur 35 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
had they come. In the absence these facts, their presence cannot be
established. Furthermore, they had failed to disclose the side from
which they came upon Chand Bagh Pulia. Chand Bagh Pulia can be
approached from either Sherpur Chowk or Bhajanpura. Due to riots
going on main Karawal Nagar Road and gali no. 6, being a
demarcation line between two rioting mobs, it was necessary for the
prosecution to establish the route taken by Aakash and Bharat to arrive
at Chand Bagh Pulia and their alleged location.
6.3.20 It is further contended that notably since both these
witnesses categorically admitted that they did not show position of
their standing at or around Chand Bagh Pulia to the IO, the IO failed
to ascertain their actual place of standing. IO also admitted that he had
not taken them to the location wherefrom they had purportedly
witnessed the incident and this was a prerequisite to ascertain the
veracity of a witness’ statement who claimed to have seen and heard
things. This mystery, how Akash and Bharat’s position came to be
marked by the IO on the site plan, lends credence to the assertion that
they were planted witnesses.
6.3.21 It is further contended that as per PW13, the incident of
burning of Bunny Bakery and dragging and killing of Ankit occurred
in close succession whereas, as per Vikalp Kochar (PW19), burning of
his shop and the incident of killing Ankit Sharma were not
simultaneous or even in close succession. There was no reason to
FIR No. 65/20
PS Dayalpur 36 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
disbelieve the statement of PW19, as he was the owner of the shop.
PW13 also claimed that upon exhortation of Tahir Hussain, the mob
set ablaze a factory/shop of bakery situated near where he was
standing. He further stated that this mob engaged in further arson and
then engaged in the killing of Ankit Sharma. However, Bharat (PW14)
did not mention about setting ablaze of the bakery shop located right
next to his purported location. This could not have gone unnoticed by
him. It is further contended that any person, who would have reached
the spot at around 4.30 pm could have seen the shop in burning
condition but contrary to this natural observation, PW14 was silent on
the burning all together and PW13 stated that it was in front of him
that after Tahir Hussain’s exhortation, the mob set ablaze the shop.
6.3.22 It is further contended that on the one hand, PW13 stated
that he had seen the entire sequence of events from Ankit Sharma
being taken by the mob, being dragged to Chand Bagh Pulia and then
assaulted but on the contrary, PW14 stated that when they reached,
they saw the mob already assaulting a boy.
6.3.23 It is further contended that PW13 stated that as the boy
was being dragged to Chand Bagh Pulia, he and Bharat stepped inside
the gate and closed it. PW14, in contrast stated that they stayed near
the place of incident when the deceased was being dragged and came
in only when the deceased was being thrown from the opposite side of
the nala. This change in their position at different times is a material
FIR No. 65/20
PS Dayalpur 37 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
inter-se contradiction, making their statements completely
unbelievable.
6.3.24 It is further contended that while Vikalp Kochar, Akash
and Bharat were positioned around the same place, only Viklap gave a
vivid description of the incident including the manner in which the
body was thrown while Akash and Bharat were significantly silent on
how the body was dragged, after being assaulted to be disposed of in
the nala. Their narrations were limited to events which were already in
the knowledge of the investigating agency, i.e. killing and dragging of
Ankit Sharma and throwing of the body from the other side of Chand
Bagh Pulia.
6.3.25 It is further contended that while PW13 imputed the
averments being made by Tahir Hussain and then stated that Tahir
Hussain had a knife in his hand, his brother PW14 who was stated to
be standing next to him at the same time, stated that when the mob
was assaulting the boy, Tahir was saying “maaro maaro”. Bharat
mades no mention of Tahir Hussain being involved in the act of
assaulting or having a knife. These are interse contradictions. It is
further contended that this contradiction became glaring in view of the
statement of Vikalp Kochar (PW19), who was also present at the same
place at that very particular point of time but he did not state anything
about Tahir Hussain’s presence or any role played by Tahir Hussain,
rather, he categorically denied any suggestions in relation to presence
FIR No. 65/20
PS Dayalpur 38 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
of or exhortation by Tahir Hussain. In this regard, reliance is placed
on the judgment of Hon’ble Supreme Court in Musa Khan v. State of
Maharashtra (1977) 1 SCC 733. It has also been contended, that as
the offence involved a large number of offenders and there were large
number of victims, the case should have been supported by 2-3 more
witnesses who gave consistent account of the incident. In this regard,
reliance has been placed on the judgment of Hon’ble Supreme Court
in Masalti v State of U.P. AIR 1965 SC 202.
6.3.26 Then there is the contention of ld. Counsel for accused
Tahir Hussain with regard to the recovery of dead body of Ankit
Sharma. It is contended that that there has been a difference in the
depositions of witnesses with regard to the recovery of body.
According to counsel for accused, PW27 and PW28 had stated that
body was recovered in the morning because according to PW28, on
26.02.2020, he reached Chand Bagh Pulia at around 6 am and the
divers arrived about 10-15 minutes later. According to PW27 Sanjay
Singh, at around 8.30-9 am, he saw persons and police present at
Chand Bagh Pulia and that some divers were also present there. The
divers had taken out the body which was revealed to be that of Ankit
Sharma. However, PW17 and PW40 deposed that body was
discovered somewhere between 11.30 a.m – 12.00 p.m. On the other
hand, PW23 Sudhir Kumar specified the time of recovery of body of
deceased at 1.00 p.m whereas MLC shows that body of Ankit Sharma
FIR No. 65/20
PS Dayalpur 39 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
had reached the hospital at about 12.53 pm. However, the MLC did
not reflect any injuries over the body. Even the rukka sent by Insp.
Hukam Singh, which was Ex.PW46/A, had not mentioned about any
injury on the deceased. Insp. Hukam Singh, during his cross
examination, deposed that he had only seen the face of the deceased
and there was no injury on the face. He was not aware about the injury
to any other part of the body. It is further contended that as per Insp.
Hukam Singh (PW48), PW9 had deposited the dead body in the
mortuary but at that time, no family member was present, who
identified the dead body. No mortuary ticket was placed on record and
PW9 was silent about the deposition of dead body on the mortuary.
PW41, who had prepared the MLC (Ex.PW41/A), was also silent
about any injury on the body and stated that the body was sent to
mortuary through hospital staff. The MLC does not reflect any
injuries. The prosecution made no efforts to solve this mystery of how
the body of Ankit Sharma reached the mortuary. It is further
contended that the case of the prosecution shows that a call was made
by one Pooja Chaudhary at 6.34 pm informing, ‘yaha par musalman
hindu ko maar kar naale mein daal rahe hai’. The same caller at about
6.39 pm informed that ‘3-4 ladke maar diye hai’. In these
circumstances, the version of prosecution becomes doubtful.
Furthermore, the prosecution is relying upon FSL report, Ex.PW31/A.
As per this report, blood lifted from the wall towards Mazar
FIR No. 65/20
PS Dayalpur 40 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
Bhajanpura and the stone were found containing the blood of the
deceased, whereas the blood lifted from a plastic sheet and one poster
were of some other person. It is further contended that whatever be
the number of the bodies, from the testimony of the witnesses, it has
come on record that at each time of recovery of body, police was
present but Ct. Sachin (PW40) is the only witness examined, whose
videos of alleged recovery of body has not been proved.
6.3.26 It is further contended that prosecution, along with the
charge sheet, had relied upon the list of calls made by Tahir Hussain to
Emergency Response Support System (ERSS) on 24.2.2020, as well
as on 25.02.2020. The record would show that on 25.02.2020 from
3.55 PM to 4.31 PM, Tahir Hussain made about 6 calls to PCR. As per
this record, on 24.02.2020 at about 3.53 PM, Tahir Hussain made a
call to PCR stating ‘caller ke ghar ki chatt par log chad gaye hai aur
pathrav kar rahe hai’. The same information was conveyed by him to
PCR on 24.2.2020 at 5.57 PM. It is further contended that on
25.02.2020, using his mobile no. 9810363925, from 2.36 PM to 5.30
PM, Tahir Hussain was continuously making calls to K.P.Singh of
Delhi police, several leaders of Aam Admi Party, correspondents of
Indian Express, Nigam Parshad of Karawal Nagar and other persons.
During the course of investigation, none of these persons were
examined. The conduct of accused reflects that he was not involved in
this incident and rather was contacting the authorities for seeking help.
FIR No. 65/20
PS Dayalpur 41 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
In this regard reliance has been placed on the judgment of on’ble
Supreme Court in Ramdass v. State of Maharashtra (1977) 2 SCC 124.
Therefore, it is contended that Tahir Hussain has been falsely
implicated. The evidence suggests false implication of the accused
persons by way of fabrication, forgery and even planting witnesses.
6.4 Ms. Tara Narula, Ms. Shivangi Sharma and Ms. Sonal
Sarda, ld. counsels for accused Gulfam and Shoaib Alam have
contended that the allegation against these accused was that on
25.02.2020, they alongwith four other accused persons were identified
in the mob and were involved in the act of rioting and arson at Chand
Bagh Pulia around 5.00 p.m. It has been contended that as per the
charge sheet, to prove its case against these accused, the prosecution
has relied on the statements of four eye witnesses namely HC Rahul,
Ct Praveen, Pradeep Verma and Shamshad Pradhan. However, witness
Shamshad Pradhan was not examined in court. The other independent
witness namely Pradeep Verma (PW6) did not identify Gulfam and
Shoaib Alam in court. Further no Test Identification Parade (TIP) or
proper photo identification of these accused was conducted and the
charge sheet itself limits the role of these accused to rioting. Witnesses
namely Vikalp, Akash and Bharat were not pressed into service to
identify these accused persons. It has further been contended that two
police witnesses i.e. PW5 HC Rahul and PW33 Ct. Praveen, had
identified Gulfam and Shoaib Alam when they were already in police
FIR No. 65/20
PS Dayalpur 42 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
custody in another case (FIR No. 98/2020) and these accused were
later discharged in that case. Such identification in police custody of
accused persons is improper and raises doubts on the credibility of
such identification.
6.4.1 It has further been contended that the police witnesses i.e.
PW5 and PW33 claimed to have witnessed the incident. However,
they are unreliable witnesses because they have made major
improvements in their evidence. PW5 deposed that at about 5.00 p.m,
he saw a mob at Chand Bagh Pulia and the mob was aggressive and
pelting stones etc. They dragged one person from the mob of persons
from Hindu community towards Chand Bagh Pulia. However, this fact
is not mentioned in his statement u/s 161 Cr.P.C. During his cross-
examination, PW5 deposed that he did not remember if he had
mentioned before the IO of this case about a person from mob of
Hindu community being dragged by the other mob on Chand Bagh
Pulia. PW33, in his cross examination, admitted that he did not
mention in his statement to IO that one boy from Hindu mob, while
being assaulted, was dragged towards Chand Bagh Pulia by the
persons from the mob on the side of Chand Bagh. Further PW79
deposed that whatever had been stated by HC Rahul and Ct Praveen
had been recorded by him in their statements u/s 161 Cr.P.C. Thus, it
cannot be presumed that police officers would not disclose details to
the IO and would later disclose facts during evidence before Court.
FIR No. 65/20
PS Dayalpur 43 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
This inconsistency in their evidence shows that PW5 and PW33 are
planted witnesses. It has further been contended that PW5 and PW33,
despite being police officials, did not lodge any DD entry or any
complaint in the PS regarding the incident and did not make any PCR
call. This further proves that they were planted witnesses and this
unnatural conduct of police officers shows that they are planted
witnesses. It has further been contended that statements u/s 161 Cr.P.C
of PW5 and PW33 were recorded only on 09.03.2020 i.e. about 13
days after the incident and there is no explanation for this delay. This
unexplained delay and failure to report the incident creates a serious
doubt about the case of the prosecution. In this regard, reliance has
been placed on the judgment of Hon’ble Supreme Court in Ganesh
Bhavan Patel v State of Maharashtra (1978) 4 SCC 371. It has further
been contended that apart from two witnesses i.e. PW5 and PW33,
there is no other witness or evidence against the accused Gulfam and
Shoaib Alam.
6.4.2 It has further been contended that the prosecution has not
brought forth any credible evidence to establish the charge for offence
under section 149 IPC as well. The two witnesses who allegedly
identified the accused persons did not give a consistent account of the
incident and further failed to show any overt act attributed to accused
Gulfam in the present case. In this regard, reliance has been placed on
the judgment of Hon’ble Supreme Court in Masalti v State of U.P.
FIR No. 65/20
PS Dayalpur 44 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
AIR 1965 SC 202 wherein it has been held that “while dealing with
the commission of an offence involving a large number of offenders
and a large number of victims, it is usual to adopt that the test that the
conviction could be sustained only if it’s supported by two or three or
more witnesses who give a consistent account of the incident.”
6.4.3 It has further been contended that the investigation was
against Tahir Hussain and Gulfam was unnecessarily added by the
prosecution to strengthen its case. It has further been contended that as
per the testimony of PW40 HC Sachin from 11 pm on 25.02.2020
itself, SHO Khajuri Khas and several other police staff were involved
in the search for Ankit Sharma. Thus, as per HC Sachin, the SHO,
Khajuri Khas was also involved in the recovery of the body of Ankit
Sharma on 26.02.2020 and PS Khajuri Khas was well informed of the
incident of Ankit Sharma, and that a body had been recovered with
homicidal injuries. However, the said SHO had not been examined to
ascertain whether HC Rahul or HC Praveen told him about witnessing
any incident on 25.02.2020. It has thus been contended that the
prosecution has failed to prove its case against accused Gulfam and
accused deserves to be acquitted of all the charges framed against him.
6.5 Sh. Mehmood Pracha and Sh. Sikandar, ld. counsels for
accused Haseen @ Mullaji have contended that the case of the
prosecution against this accused rests upon the evidence of eye
witnesses Gyanender Kochar (PW-21), and Vikalp Kochar (PW-19);
FIR No. 65/20
PS Dayalpur 45 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
recovery of knife at the instance of accused Haseen, which as per the
prosecution was used in commission of crime; subsequent opinion of
the Board that injuries could be caused by the recovered knife;
recovery of red shirt at the instance of accused which he had worn at
the time of commission of offence; video shot by Neeraj Kasana
(PW-66) in which, as per prosecution, Haseen can be seen throwing
the body of deceased; extra judicial confession over phone and FSL
reports matching the voice of accused Haseen recorded by Special
Cell after interception, with voice sample recorded in FSL, as well as
subsequent voice sample matching report of Nadeem (PW58) and
Faheem@ Chikna (PW75) with their intercepted voices.
6.5.1 It is contended that in his initial statement u/s 161 Cr.P.C
dated 07.03.2020, PW21 Gyanendra Kochar had stated that murder of
the deceased was committed by an old aged man having white beard
and another boy who was aged about 25-26 years wearing jeans and
blue jacket and was having skin allergy on both of his cheeks. None of
these persons match with the description of accused Haseen @
Mullaji. Despite this statement, IO, after the arrest of accused Haseen
@ Mullaji, got the TIP conducted on 18.03.2020. During the TIP,
PW21 failed to identify accused Haseen @ Mullaji. Not only this,
during his testimony in the court also, he failed to identify accused
Haseen @ Mullaji. It is further contended that IO could not give any
reason or ground that how he reached the conclusion, that despite the
FIR No. 65/20
PS Dayalpur 46 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
different role of persons stated by Gyanendra Kochar in his statement
dated 07.03.2020, accused Haseen @ Mullaji could be amongst the
two persons referred to in the said statement. It is further contended
that despite PW21 not identifying accused Haseen @ Mullaji in the
court, Ld. SPP during his cross examination, did not even suggest to
the witness regarding the identification of Haseen @ Mullaji. The
second witness PW19 was also examined by IO and he also gave his
statement on similar lines as that of his father. In his first statement u/s
161 Cr.P.C dated 06.03.02020, PW19 made a slight modification
when he stated that he saw a boy aged about 18-19 years giving
multiple stabs to the deceased with knife. This witness in his statement
dated 20.03.2020 i.e. a day after the judicial TIP had failed, identified
accused Haseen from the various photographs shown to him by the
police. This points towards the fact that IO of the present case from
the very beginning took all possible steps to plant witnesses against
accused Haseen. Before this court also, PW19 did not identify
accused Haseen @ Mullaji. Reliance in this regard has been placed on
the judgment of Hon’ble Supreme Court in Raj Kumar @ Bheema v.
State of NCT of Delhi 2025 INSC 1322. PW19 also failed to identify
the deceased in his testimony and also did not recall the date of the
incident which he witnessed. It is contended that PW19 had only
referred the deceased to be a boy who claimed himself from IB and
there is no positive identification of the deceased. It is further
FIR No. 65/20
PS Dayalpur 47 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
contended that there was another witness Shamshad Pradhan who
could have identified the accused. However, the prosecution dropped
that witness. Therefore, in view of the testimonies of PW19, PW21
and dropping of witness Shamshad Pradhan, a doubt is created about
the case of the prosecution and an adverse inference should be drawn
against the prosecution in terms of Section 114 illustration (g) of the
Indian Evidence Act. In this regard, reliance has been placed on the
judgment of Hon’ble Supreme Court in Harvinder Singh @ Bachchu
v. State of H.P (2023) 13 SCE 157: 2023 INSC 907. Specific reliance
has been placed on para 24 of this judgment, which is as under:-
24. Failure on the part of the prosecution in not examining a
witness, though material, by itself would not vitiate the trial.
However, when facts are so glaring and with the witnesses
available, particularly when they are likely to give a different
story, the Court shall take adequate note of it. When a
circumstance has been brought to the notice of the Court by
the defense and the Court is convinced that a prosecution
witness has been deliberately withheld, as it in all probability
would destroy its version, it has to take adverse notice.
Anything contrary to such an approach would be an affront
to the concept of fair play. in Takhaji Hiraji v. Thakore
Kubersing Chamansing, (2001) 6 SCC 145,
19. So is the case with the criticism levelled by the
High Court on the prosecution case finding fault
therewith for non-examination of independent
witnesses. It is true that if a material witness, who
would unfold the genesis of the incident or
an essential part of the prosecution case, not
convincingly brought to fore otherwise, or where
there is a gap or infirmity in the prosecution case
which could have been supplied or made good by
examining a witness who though available is not
FIR No. 65/20
PS Dayalpur 48 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
examined, the prosecution case can be termed as
suffering from a deficiency and withholding of such
a material witness would oblige the court to draw an
adverse inference against the prosecution by holding
that if the witness would have been examined it
would not have supported the prosecution case. On
the other hand if already overwhelming evidence is
available and examination of other witnesses would
only be a repetition or duplication of the evidence
already adduced, non- examination of such other
witnesses may not be material. In such a case the
court ought to scrutinise the worth of the evidence
adduced. The court of facts must ask itself —
whether in the facts and circumstances of the case, it
was necessary to examine such other witness, and if
so, whether such witness was available to be
examined and yet was being withheld from the
court. If the answer be positive then only a question
of drawing an adverse inference may arise. If the
witnesses already examined are reliable and the
testimony coming from their mouth is
unimpeachable the court can safely act upon it,
uninfluenced by the factum of non-examination of
other witnesses…” (emphasis supplied)
6.5.2 With regard to the recovery of knife at the instance of
accused Haseen @ Mullaji, it is contended that recovery of knife
(Ex.PW15/Article-2) was made pursuant to his alleged supplementary
disclosure (Ex.PW12/B). The knife was sent to FSL for matching with
the DNA of the deceased and as per the FSL report (Ex.PW31/B),
DNA profile generated from the knife did not match with DNA profile
generated from the blood of deceased. It is further contended that as
per section 27 of Indian Evidence Act, recovery of knife is
FIR No. 65/20
PS Dayalpur 49 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
inadmissible and the law does not recognize the concept of
supplementary disclosure. The disclosure recorded is also hit by
section 24 of Indian Evidence Act because the accused was in police
custody for about 36 hours i.e. an illegal custody for 12 hours. Here
counsel was referring to the fact that accused was arrested on
11.03.2020 by Spl. Cell and was only produced before the court on
13.03.2020. It is further contended that as per PW12, pursuant to first
disclosure, accused Haseen had taken them to a kudedaan for recovery
of knife but nothing could be recovered and thereafter, supplementary
disclosure (Ex.PW12/B) was recorded. PW12 further deposed that
relative of accused Haseen, namely Baby Zubaida was having the key
of the room wherefrom the alleged recovery was made. However, said
Baby Zubeda was never examined by the prosecution. Not even her
statement u/s 161 Cr.P.C was recorded. On the one hand, PW12 stated
that the custody of seal, after sealing the knife, was handed to him by
the IO whereas PW29 stated that seal had been given to one Ct.
Sohanveer, who appeared as PW57. It is further contended that even
the site plan of the place, wherefrom the knife was recovered, was
never put to PW12 or PW55, who were the witnesses of this alleged
recovery. The site plan (Ex.PW79/10) only bears the signatures of the
IO and of no other police witness or independent witness. Therefore,
the recovery is doubtful. The subsequent opinion of the forensic report
(Ex.PW15/B) was to the effect that injury nos. 1,10,17,25,27 and 29 as
FIR No. 65/20
PS Dayalpur 50 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
reflected in PM Report (Ex.Pw15/A), were possible by both the
weapons i.e Ex.PW15/Article-1 (knife recovered from accused
Nazim) and Ex.PW15/Article-2 (knife recovered from accused
Haseen). It is contended that even as per the witness, this is mere a
possibility and he had admitted in cross examination that the injuries
could have been caused by another similar weapon. Secondly, PW15
stated that he did not remember if the subsequent opinion was
prepared on the basis of original post-mortem report of the copy
thereof. This raises doubts that whether the report was even perused
by the Board at the time when subsequent opinion was being
considered. The witness also did not recall the nature of discussion
that had taken place between the members of the Board regarding the
subsequent opinion, or whether there was any difference of opinion
between the members of the Board. Furthermore, the DNA report
Ex.PW31/B was not sent to the Board for correlation with the weapon.
Hence, it is contended that the subsequent opinion is not reliable.
6.5.3 It is further contended that the red shirt of the accused
which is stated to have been recovered pursuant to supplementary
disclosure (Ex.PW12/B) was sent to FSL. However, the DNA profile
generated from the clothes of accused did not match with the DNA
profile generated from the blood of the deceased. Similarly, the video
of Neeraj Kasana (Ex.PW66/V-1) was examined by PW25 who filed
his report Ex.PW25/A and the sum and substance of the report is, that
FIR No. 65/20
PS Dayalpur 51 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
the images extracted from the video were low pixelated and further
image analysis test was not possible. Therefore, there was no
reasonable or scientific basis to rely upon the claim of the prosecution
that the person wearing red colour shirt seen in this video was
Accused Haseen. Even otherwise, nothing can be clearly seen in the
video by the normal vision of human eyes and even it is not clear in
that video that whether, a dead body was being thrown or not, or what
activity was being done.
6.5.4 It has been contended on behalf of accused Haseen @
Mullaji that the alleged recovery of the alleged phone calls of Haseen
Mullaji @ Salman are inadmissible because requirements of rule
419A of the Indian Telegraph Rules were not complied with. Nothing
has been placed on record that Shri Satya Gopal, who passed the order
(Ex.PW53/A), being Addl. Chief Secretary (Home), was competent to
pass the sanction for interception because the said order was required
to be passed by Secretary to the Government of India in Ministry of
Home Affairs, or Secretary to State Government in-charge of Home
Department. It has further been contended that in the order,
Ex.PW53/A, there is no reasoning to show what was the nature of
“public emergency” or “public safety” which led to the direction for
interception, and how this interception was necessary or expedient in
the interest of the sovereignty and integrity of India, the security of the
State, friendly relations with foreign States or public order or for
FIR No. 65/20
PS Dayalpur 52 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
preventing incitement to the commission of an offence to issue such
direction as required u/s 5(2) of the Telegraph Act. The order also
does not mention that possibility of acquiring the necessary
information by other means was considered by PW53 as required
under Rule 419A sub-clause (3). There is also no mentioning of the
officer authority to whom the intercepted messages were to be
disclosed although, only the designation. i.e. Joint Commissioner (Spl
Cell) Delhi was mentioned and thus, there is no compliance of Rule
419A sub-clause (5). It has further been contended that there is no
evidence on record that Rule 419A sub-clause (7) had been complied
with and directions were conveyed to designated officers of the
licensee. Although PW80 deposed about a letter having been sent but
no proof that such letter actually reached the designated officer of the
licensee or how such letter was sent, by whom and what mode, has
come on record. The record required to be maintained by the officer
authorized under sub-clause (8) of Rule 419A has not been brought on
record. As per rule 419A sub clause (11), the nodal officers of service
providers required to issue an acknowledgment letter and the said
letter has also not been placed on record. It has further been contended
that as per sub clause 16 of Rule 419A, the review committee is
required to be constituted and sub clause 17 mandates that such
committee has to meet at least once in two months. However, there
was nothing on record to indicate that any such exercise pertaining to
FIR No. 65/20
PS Dayalpur 53 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
this case was done by the Review Committee and in fact, Ex.PW53/A
did not even mention whether the order had been forwarded to the
Chief Secretary, or any other official who may have been a member of
such review committee. In this regard, reliance has been placed on the
judgment of Hon’ble Delhi High Court in Jatinder Pal Singh v. CBI,
2022 SCC OnLine Del 135 wherein the Hon’ble Delhi High Court
while relying upon the judgment of Hon’ble Supreme Court in PUCL
v. Union of India, (1997) 1 SCC 301, had held as under:-
55. In the case of People’s Union for Civil Liberties v. Union of
India, (1997) 1 SCC 301 (hereinafter referred to as “PUCL”), a two
Judge Bench of the Hon’ble Supreme Court had held that:
“18. The right to privacy – by itself – has not been identified
under the Constitution. As a concept it may be too broad and
moralistic to define it judicially. Whether right to privacy can
be claimed or has been infringed in a given case would
depend on the facts of the said case. But the right to hold a
telephone conversation in the privacy of one’s home or office
without interference can certainly be claimed as “right to
privacy”. Conversations on the telephone are often of an
intimate and confidential character. Telephone-conversation
is a part of modern man’s life. It is considered so important
that more and more people are carrying mobile telephone
instruments in their pockets. Telephone conversation is an
important facet of a man’s private life. Right to privacy
would certainly include telephone-conversation in the
privacy of one’s home or office. Telephone-tapping would,
thus, infract Article 21 of the Constitution of India unless it is
permitted under the procedure established by law.
***
28. Section 5(2) of the Act permits the interception of
messages in accordance with the provisions of the said
Section. “Occurrence of any public emergency” or “in the
interest of public safety” are the sine qua non for the
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PS Dayalpur 54 of 320
(Parveen Singh)
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application of the provisions of Section 5(2) of the Act.
Unless a public emergency has occurred or the interest of
public safety demands, the authorities have no jurisdiction to
exercise the powers under the said Section. Public emergency
would mean the prevailing of a sudden condition or state of
affairs affecting the people at large calling for immediate
action. The expression “public safety” means the state or
condition of freedom from danger or risk for the people at
large. When either of these two conditions are not in
existence, the Central Government or a State Government or
the authorised officer cannot resort to telephone tapping even
though there is satisfaction that it is necessary or expedient
so to do in the interests of sovereignty and integrity of India
etc. In other words, even if the Central Government is
satisfied that it is necessary or expedient so to do in the
interest of the sovereignty and integrity of India or the
security of the State or friendly relations with sovereign
States or public order or for preventing incitement to the
commission of an offence, it cannot intercept the messages or
resort to telephone tapping unless a public emergency has
occurred or the interest of public safety or the existence of
the interest of public safety requires. Neither the occurrence
of public emergency nor the interest of public safety are
secretive conditions or situations. Either of the situations
would be apparent to a reasonable person.
29. The first step under Section 5(2) of the Act, therefore, is
the occurrence of any public emergency of the existence of a
public safety interest. Thereafter the competent authority
under Section 5(2) of the Act is empowered to pass an order
of interception after recording its satisfaction that it is
necessary or expedient so to do in the interest of (i)
sovereignty and integrity of India, (ii) the security of the
State, (iii) friendly relations with foreign States, (iv) public
order or (v) for preventing incitement to the commission of
an offence. When any of the five situations mentioned above
to the satisfaction of the competent authority require then the
said authority may pass the order for interception of
messages by recording reasons in writing for doing so.”
56. After the judgment in PUCL (Supra) and before the
judgment in K.S. Puttaswamy (Supra), Rules were framed by the
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PS Dayalpur 55 of 320
(Parveen Singh)
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Central Government. Relevant Rules introduced by G.S.R. 193(4)
dated 1st March 2007 (w.e.f. 12th March 2007) read as follows:
“419. Interception or monitoring of telephone messages- (1)
It shall be lawful for the Telegraph Authority to monitor or
intercept a message or messages transmitted through
telephone, for the purpose of verification of any violation of
these rule or for the maintenance of the equipment.
419-A…
***
(2) Any order issued by the competent authority under sub-
rule (1) shall contain reasons for such direction and a copy of
such order shall be forwarded to the concerned Review
Committee within a period of seven working days.
***
(16) The Central Government and the State Government, as
the case may be, shall constitute a Review Committee. The
Review Committee to be constituted by the Central
Government shall consist of the following, namely:
a) Cabinet Secretary — Chairman
b) Secretary to the Government of India In-charge, Legal
Affairs – Member
c) Secretary to the Government of India, Department of
Telecommunications — Member
The Review Committee to be constituted by a State
Government shall consist of the following, namely:
a) Chief Secretary — Chairman
b) Secretary Law/Legal Remembrance In-charge, Legal
Affairs — Member
c) Secretary to the State Government (other than the Home
Secretary) — Member
(17) The Review Committee shall meet at least once in two
months and record its findings whether the directions issued
under sub-rule (1) are in accordance with the provisions of
sub-section (2) of Section 5 of the said Act. When the
Review Committee is of the opinion that the directions are
not in accordance with the provisions referred to above it
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PS Dayalpur 56 of 320
(Parveen Singh)
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may set aside the directions and orders for destruction of the
copies of the intercepted message or class of messages.
(18) Records pertaining to such directions for interception
and of intercepted messages shall be destroyed by the
relevant competent authority and the authorized security and
Law Enforcement Agencies every six months unless these
are, or likely to be, required for functional requirements.”
57. As per Rule 419A of the Rules framed under the Telegraph
Act, the order of the Home Secretary granting permission to
intercept telephonic conversations is to be forwarded to the Review
Committee within seven days of passing the order, for the purpose
of being reviewed by the Committee. This Court does not find any
material on record to establish that any review of the order of the
Home Secretary was conducted in compliance of the aforesaid
rules framed under the Telegraph Act. Therefore, this Court is
convinced that the Special Judge while passing the impugned
orders has totally ignored the provisions of the aforesaid rules.
58. This Court is of the view that as per Section 5 (2) of the
Telegraph Act, an order for interception can be issued on either the
occurrence of any public emergency or in the interest of the public
safety as per the law laid down by the Hon’ble Supreme Court in
the case of PUCL (Supra). After the perusal of the records, this
Court is satisfied that in peculiar facts of the instant case, the
mandatory requirements laid down by law for placing reliance on
such audio conversations, have not been fulfilled. It is an admitted
position that Rule 419(A)(17) which provides for destruction of
intercepted message also adopt the said directions. The court below
while passing the impugned orders has also ignored the settled
legal positions and directions of the Hon’ble Supreme Court.
59. It is also relevant to add here that if the directions of the
Hon’ble Supreme Court in PUCL (Supra) which are now re-
enforced and approved by the Hon’ble Supreme Court in K.S.
Puttaswamy (Supra) as also the mandatory rules in regard to the
illegally intercepted messages/audio conversations pursuant to an
order having no sanction of law, are permitted, it would lead to
manifest arbitrariness and would promote the scant regard to the
procedure and fundamental rights of the citizens, and law laid
down by the Hon’ble Supreme Court.
FIR No. 65/20
PS Dayalpur 57 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
6.5.5 It has further been contended that in the final conclusion,
Hon’ble Delhi High Court in para 74 had held that the intercepted
calls because of the failure to prosecution to follow the procedure as
mandated by Telegraph Act was not admissible. Para 74(iv) is being
reproduced as under:-
74 (iv) Tape records of the calls intercepted in the instant
case are not admissible since the due procedure for such
interception as mandated by the Telegraph Act and the Rules
framed thereunder has not been followed. Further, even the
same has not been verified in the FSL report. No further
witness/evidence to implicate the petitioner is on record.
6.5.6 It has further been contended by ld. counsel for accused
Haseen Mullaji that the extra judicial confession of Haseen Mullaji
allegedly recorded in phone calls is not admissible. It is contended that
accused was first arrested on the basis of calls of mobile no.
9891167837 by Spl. Cell because, these calls were being intercepted
on some secret information that some arms supply dealings were
going on. It is however, contended that the mobile number, which was
under surveillance, did not belong to accused Haseen Mullaji. In fact,
this mobile number belonged to Shahid who is stated to be the brother
of the accused. Shahid was never examined in the court to depose that
at the time of alleged incident, this number was used by accused
Haseen @ Mullaji. It is further contended that there is no explanation
given by either the witness of Spl. Cell, or the IO that how, without
examining Shahid, they reached at a conclusion that this mobile
FIR No. 65/20
PS Dayalpur 58 of 320
(Parveen Singh)
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number was used by accused Haseen @ Mullaji. This belies the logic
that how Special Cell, on a secret information, directly arrested
accused Haseen @ Mullaji. So it is completely missing the fact that
how Spl. Cell reached at a conclusion that the number which belonged
to Shahid was being used by accused Haseen @ Mullaji whereas,
PW76 categorically deposed that Haseen @ Mullaji was wanted in the
murder of Ankit Sharma and that he came to know about this fact on
11.03.2020 and before going to Nand Nagri. It is further contended
that 11.03.2020 is the date of arrest of accused Haseen @ Mullaji by
Spl. Cell and it is not the case of the prosecution that before
11.03.2020, Haseen was wanted in this case. He was only introduced
in this case when PW79 formally arrested him on a kalandra
(Ex.PW76/C) on 13.03.2020. Therefore, it is argued that there was no
credible basis to introduce accused Haseen @ Mullaji in this case and
there is material and irreconcilable contradiction regarding the timing
of this accused being introduced in the present case.
6.5.7 It is further contended that no witness had been examined
that who, when and by what means by what means had actually
intercepted the original phone calls and saved the recordings. Even the
certificate u/s 65B of IE Act with the alleged DVD containing
intercepted phone calls was not proper. It is further contended that the
voice sample has not been proved because the only competent witness
for proving this recording in Ex.PW24/Article-2, was the FSL official,
FIR No. 65/20
PS Dayalpur 59 of 320
(Parveen Singh)
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who had conducted the process of recording his voice. No one was
examined by the prosecution in this regard and the only police
witnesses i.e. PW79 ASI Kuldeep and HC Sanjeev had deposed about
the process of voice recording. Hence it is doubtful whether voice
recording had taken place of not. The basis of voice matching by
PW24 was by critical listening/auditory analysis and spectrographic
analysis and both these were absolutely unscientific and unreliable
methods as is reflected from the literatures Ex.PW24/D-1,
Ex.PW24/D-2, and Ex.PW24/D-3 while PW24 never cited any
scientific literature to counter this material. Hence, the entire exercise
of voice matching has no credence. It is further contended that as per
the prosecution the calls, wherein confession appears to have been
made by accused Haseen, were made to Sameer Khan (accused),
Muntazzim @ Musa (accused), Saira (bhabhi of accused), Nadeem
Khan (friend of accused) and Faheem (friend of accused). Nadeem
Khan appeared as PW58 and while appearing as a witness, he
categorically denied that he had any telephonic conversation with
Haseen @ Mullaji and he was made to listen all the recordings of his
alleged conversation with Haseen @ Mullaji and he categorically
denied that the recordings contained his voice. Similarly, the second
witness Faheem also denied that the conversation purported between
him and Haseen @ Mullaji was having his voice. He even denied
knowing Haseen @ Mullaji. Thereafter, the prosecution moved for
FIR No. 65/20
PS Dayalpur 60 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
recording of voice samples of these witnesses for comparison with the
recordings. However, after the application being allowed, voice
samples were taken at CFSL. However, after the report came, these
witnesses were not recalled by the prosecution. They were not even
called to prove the fact that they had gone to FSL to have their voice
samples recorded. It is further contended that PW83 and PW89 are the
witnesses of the fact that PW75 was actually produced from JC at
CFSL and his voice sample was recorded. PW89 did not personally
verify the identity of Nadeem and Faheem to ensure that they were the
same persons. On the other hand, PW89 stated that Faheem@ Chikna
was actually produced before CFSL, whereas PW83 stated that the jail
staff had produced Faheem to CFSL. It is further contended that
PW90 Insp. Priyanka, during her cross examination, stated that she
had not retained any copy of forwarding letter which she had sent to
the CFSL whereas the forwarding letter was the most essential part
which would prove that these opinions were sought. The presence of
PW75 and PW58 has not been proved by any public witness or any
document. It is further contended that ld. SPP merely stated that as
PW58 and PW75 had already turned hostile, the only purpose of the
filing of charge sheet was to prove the CFSL record and therefore, no
purpose would be served by recalling these witnesses. It is further
contended that in the scheme of Indian Evidence Act, witness always
have to step into the witness box and depose about the fact. It is only
FIR No. 65/20
PS Dayalpur 61 of 320
(Parveen Singh)
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then it could be proved that such an exercise had happened. The
prosecution had even not seized the phone of PW58 and PW75. It is
further contended that CFSL expert involved in the matching of voice
of PW58 and PW75, in their report, did not give any opinion
regarding tampering of the sound recordings, further raising doubts
about these recordings. Hence, the entire process is under a cloud of
doubt. In this regard, reliance has been placed on the judgment of
Hon’ble Supreme Court in Santosh @ Bhure v. State (GNCT of Delhi)
[2023] 7 S.C.R. 719. It has further been contended that even if the
transcripts of Haseen @ Mullaji are taken on face value, the accused
was mentioning to PW58 about various injuries to him which he got in
the riot, however no medical document of accused Haseen was on
record to state about any injuries which were inflicted on his body.
6.6 On behalf of accused Mutazim @ Musa, Sh. Mehmood
Pracha, ld. counsel has contended that accused Musa was implicated
in this case only on the basis of the disclosure statement of co-accused
Sameer Khan. It has further been contended that against this accused,
the prosecution has relied upon the testimony of PW6 Pradeep Verma
and the alleged call recording between accused Haseen and Musa. It
has further been contended that on 08.05.2020, statement u/s 164
Cr.P.C of PW6 was recorded and by that time, the name of Musa was
already known to the IO because Sameer Khan had disclosed it on
09.04.2020. However, the chargesheet shows that no effort was made
FIR No. 65/20
PS Dayalpur 62 of 320
(Parveen Singh)
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by the IO to get Musa identified by Pradeep Verma through
photographs. From 09.04.2020 to 08.05.2020, no attempt was made to
have Pradeep Verma identify Musa. It has further been contended that
the chargesheet also does not state that the police had tried to collect
the photograph of accused Musa but could not find. Till the time of
his arrest, only disclosure statement of other co-accused person and
alleged call recording of Haseen with him was the only material
before the PW81. It has further been contended that on 08.11.2022,
about one month after Musa’s arrest, Pradeep Verma allegedly met
PW81 by chance for the third time and on that day, he was shown
photographs of eight persons and he identified Musa amongst them.
Therefore, the alleged identification of Musa by Pradeep Verma
during the third chance meeting does not inspire confidence. This
shows that Pradeep Verma was introduced as a planted witness against
Musa. As regards the call between accused Haseen and accused, it has
been contended that even if the transcript of the recording
(Ex.PW81/8) is accepted as true, it establishes that Haseen and
Muntazim were not together. It has further been contended that CDR
of accused Musa (Ex. 43/A), if taken on face value, shows that at the
relevant time, his location was static at one point and he was
continuously taking on phone with other person. Even his location at
the given areas in CDR was not unnatural as at that he was a resident
of Chand Bagh itself.
FIR No. 65/20
PS Dayalpur 63 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
6.6.1 As regards offence u/s 174A IPC, it has been contended
that the prosecution had neither relied upon nor examined any witness
to prove this charge against Musa.
6.7 Mohd. Dilshad, ld. counsel for accused Javed has
contended that accused Javed has been falsely implicated in this case.
It has been contended that the case of the prosecution mainly relies
upon the testimonies of PW6 Pradeep Verma, PW5 HC Rahul and
PW33 HC Parveen Kumar. PW6 Pradeep Verma stated that he was a
witness in only two cases of riots. However, he was actually cited as a
witness in more than six cases of riots. This shows that he is a planted
witness. During cross-examination, PW6 admitted that he did not
make any call to PCR or make any complaint to any authority to
report that he had seen and identified persons involved in the riots on
25.02.2020. It has further been contended that PW6 is not a reliable
witness because he had appeared in several riot cases and had made
contradictory statements. PW6 admitted that he identified the accused
from photographs shown by the IO and the names of the accused were
also told to him by the IO. However, the photographs were not shown
according to the proper legal procedure. Further no Test Identification
Parade was conducted. The accused, while in custody, was allegedly
shown to PW6. Therefore, the right of accused to a fair identification
process was violated and the benefit of doubt should go to the
accused.
FIR No. 65/20
PS Dayalpur 64 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
6.7.1 It has further been contended that PW5 HC Rahul did not
make a call to PCR after allegedly witnessing the incident and did not
file any complaint regarding the incident. Thus, this shows that PW5
falsely deposed that he had witnessed the incident and he had
identified the accused on the direction of senior police officers. It has
further been contended that PW33 was tutored about the identity of
the accused at the police station on 09.03.2020 and he gave false
evidence to solve a blind case. It has further been contended that
police witnesses must be treated with caution because they are
interested witnesses. Even when they had ample opportunity to come
forward earlier, their statements under Section 161 Cr.P.C were
recorded after a considerable delay. This delay is fatal to the case of
the prosecution and deteriorates the quality of the evidence of the
police witnesses. Thus, it would be unsafe to convict the accused
solely on such testimony. It has further been contended that accused
Javed was neither present at the place of incident nor has any
involvement in the present case and the prosecution has concocted a
false story against the accused. It has further been contended that there
is no direct, credible and corroborated evidence connecting accused
Javed with the alleged offence. It has further been contended that it is
a well-established principle of criminal law that the prosecution must
prove its case beyond reasonable doubt, however, the prosecution has
failed to do so in this case. Thus, the accused is entitled to acquittal.
FIR No. 65/20
PS Dayalpur 65 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
6.8 Sh. Abdul Gaffar, Sh. Badre Alam and Sh. Danish, ld.
counsels for accused Sameer Khan have contended that accused
Sameer was arrested from his house on 09.03.2020 and as per the
prosecution’s case, his name was allegedly surfaced in the disclosure
statement of accused Haseen @ Mullaji. It has further been contended
that the only witness produced against accused Sameer was PW13
Akash. As per the case of the prosecution, PW13 Akash identified
Sameer when IO brought him to the location to prepare a pointing-out
memo. Two statements u/s 161 Cr.P.C. of PW13 were recorded on
11.03.2020 and 09.04.2020. However, as per the call attributed to
Sameer, at the time of the incident, he was not at the crime scene. It
has further been contended that PW13 is a chance witness, allegedly
discovered by the I.O. by chance and who by chance identified
Sameer. A series of such coincidences like this is very unlikely and
hard to believe. It has further been contended that when a witness is
produced as a chance witness, his presence at the scene of crime
should be naturally explained by the prosecution. However, the
prosecution has failed to explain it. Even at the time of alleged
identification on 09.04.2020, COVID restrictions were imposed and
people were not allowed to be outside without a valid reason. In this
regard, reliance has been placed upon the judgment of Hon’ble
Supreme Court in Baby & ors. v. Circle Inspector of Police Adimali
(2016) 13 SCC 333, wherein it has been held as under:-
FIR No. 65/20
PS Dayalpur 66 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
29. A careful reading of the evidence on record clearly
highlights the material contradictions and discrepancies in
the prosecution evidence especially the testimonies of Mathai
(PW 6) and Eldose (PW 17) upon which strong reliance has
been placed by the High Court in convicting both the
appellants by setting aside the acquittal order passed by the
trial court. From the testimony of PW 6 one thing is clear that
he is a chance witness who happened to have witnessed the
incident by chance. It is a well-settled legal principle that the
evidence of a chance witness cannot be brushed aside simply
because he is a chance witness but his presence at the place
of occurrence must be satisfactorily explained by the
prosecution so as to make his testimony free from doubt and
thus, reliable.
30. This Court in Jarnail Singh v. State of Punjab [Jarnail
Singh v. State of Punjab, (2009) 9 SCC 719 : (2010) 1 SCC
(Cri) 107] has elaborately explained the reliability of a
chance witness as under: (SCC p. 725, paras 21-22)
“21. In Sachchey Lal Tiwari v. State of U.P. [Sachchey
Lal Tiwari v. State of U.P., (2004) 11 SCC 410 : 2004 SCC
(Cri) Supp 105] this Court while considering the evidentiary
value of the chance witness in a case of murder which had
taken place in a street and passer-by had deposed that he had
witnessed the incident, observed as under: (SCC p. 414, para
7)
If the offence is committed in a street only a passer-by
will be the witness. His evidence cannot be brushed aside
lightly or viewed with suspicion on the ground that he was a
mere chance witness. However, there must be an explanation
for his presence there.
The Court further explained that the expression “chance
witness” is borrowed from countries where every man’s
home is considered his castle and everyone must have an
explanation for his presence elsewhere or in another man’s
castle. It is quite unsuitable an expression in a country like
India where people are less formal and more casual, at any
rate in the matter of explaining their presence.
22. The evidence of a chance witness requires a very
cautious and close scrutiny and a chance witness must
adequately explain his presence at the place of
FIR No. 65/20
PS Dayalpur 67 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
occurrence (Satbir v. Surat Singh [Satbir v. Surat Singh,
(1997) 4 SCC 192 : 1997 SCC (Cri) 538] , Harjinder
Singh v. State of Punjab [Harjinder Singh v. State of Punjab,
(2004) 11 SCC 253 : 2004 SCC (Cri) Supp 28] ,
Acharaparambath Pradeepan v. State of Kerala
[Acharaparambath Pradeepan v. State of Kerala, (2006) 13
SCC 643 : (2008) 1 SCC (Cri) 241] and Sarvesh Narain
Shukla v. Daroga Singh [Sarvesh Narain Shukla v. Daroga
Singh, (2007) 13 SCC 360 : (2009) 1 SCC (Cri) 188] ).
Deposition of a chance witness whose presence at the place
of incident remains doubtful should be discarded (vide
Shankarlal v. State of Rajasthan [Shankarlal v. State of
Rajasthan, (2004) 10 SCC 632 : 2005 SCC (Cri) 579] ).”
6.8.1 It has further been contended that as per PW13, rioting
had been going on since 23.02.2020. If the riots were going on since
23.02.2020 and there was a situation of violence, no reasonable person
would come out of his house unless there was any compelling reason.
Thus, it is hard to believe that PW13 would come out in this kind of
situation and would witness the incident. The presence of PW13 at the
scene of crime is doubtful. It has further been contended that before
11.03.2020, there was no PCR call or complaint mentioning this
incident. It has further been contended that accused Sameer was never
part of a Test Identification Parade (TIP) and before his arrest, no
physical description or role was attributed to him. It has further been
contended that in the manner, PW13 describes the incident is not
visually possible. PW6 Pradeep Verma stated that the both mobs were
about 40-50 steps away each other and PW13 stated to be ahead of
Pulia towards the Chandu Nagar yet it is unclear how he could see
FIR No. 65/20
PS Dayalpur 68 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
activities beyond it in view of maps (Ex.PW79/1 to 3). At about 5:30
p.m. in February, visibility would be further reduced due to dusk and
possible smoke from petrol bombs, making such observation highly
improbable. It has further been contended that PW13 has materially
improved his version during trial by introducing new facts which were
not stated earlier and thus it is clear that the testimony of PW13 was
an afterthought.
6.9 Sh. Abdul Gaffar, ld. counsel for accused Nazim and
Kasim has contended that as per the case of the prosecution, these
were arrested from Sambhal, Uttar Pradesh on 30.03.2020 and were
identified by PW6 and PW14. However, in his statement recorded u/s
164 Cr.P.C. on 09.05.2020, PW06 stated that he identified the accused
only from photographs. He did not mention any identification of the
accused at the scene of crime on 30.03.2020. Further, during his
testimony before the court, he wrongly identified Haseen @ Mulla Ji
as Nazim. This creates serious doubt about the reliability of
identification of accused by this witness. It has further been contended
that neither of accused was subjected to TIP and no reason for not
doing so has been given by the prosecution. It has further been
contended that in his statement u/s 161 Cr.P.C., PW6 did not provide
any physical description of the accused or assign any specific role to
them. However, in his later statement, he suddenly gave detailed roles
to the accused which clearly indicates towards tutoring of this witness.
FIR No. 65/20
PS Dayalpur 69 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
He has further contended that even otherwise, this witness could not
have seen the incident because admittedly, there were hundreds of
people in both the Hindu and Muslim mob. That being the case, if his
position as shown in site plan, Ex.PW79/1, is seen, he is standing
behind the Hindu mob which is shown by many small circles. As
regards PW14, it has been contended that he is a chance witness who
was allegedly found by the IO by coincidence and who also, by
coincidence, identified Sameer. Such a series of coincidences appears
highly improbable and difficult to accept. It has further been
contended that in his statement u/s 164 Cr.P.C., PW14 did not claim
that he had identified any member of the alleged mob. Had he actually
recognized any accused, he would have mentioned it at the earliest
opportunity. No satisfactory explanation has been given for this
omission. Therefore, later identification and improved version of this
witness is doubtful. In this regard, reliance has been placed upon the
judgment of Hon’ble Supreme Court in Kuldeep Yadav & Ors. v.
State of Bihar, MANU/SC/0390/2011, specifically on para 32(b) of
the said judgment, which is as under:-
32 (b) By reading the statement of the prosecution witnesses
under Section 164 of the Code and their evidence before the
Court clearly show their improvements with due deliberation
and consultation and in the absence of credible explanation,
conviction based on their testimony cannot be sustained.
6.9.1 It has further been contended that during his cross
FIR No. 65/20
PS Dayalpur 70 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
examination, PW14 stated that before 30.03.2020, no police officer
had questioned him about the incident and that he met the police only
about two months after the incident. In these circumstances, the
genuineness of his statement u/s 161 Cr.P.C. becomes doubtful. It has
further been contended that during his testimony before the court,
PW14 made material improvements over his statement u/s 164 Cr.P.C.
This makes his evidence unreliable. It has further been contended that
on 05.10.2024, during cross examination by ld. counsel Sh. Rajiv
Mohan, PW14 stated in para 3 that when the stone pelting started, he
and his brother left the spot. Thus in view of this statement, his
presence at the scene becomes doubtful and his testimony does not
inspire confidence.
6.10 Sh. Abdul Gaffar, ld. counsel for accused Firoz has
contended that Firoz was arrested on 06.03.2020 in FIR No. 98/2020,
P.S. Khajuri Khas. PW79 deposed that IO of FIR No. 98/2020
informed him that Firoz had disclosed his involvement in this case.
However, no such disclosure statement is available in either FIR No.
65/2020 or FIR No. 98/2020. Further, Rajnikant (I.O. of FIR No.
98/2020) while appearing as PW24 in that case deposed that no Crime
Branch officer approached him or interrogated Firoz during his
custody. With regard to identification of Firoz, it has contended that
this accused had been identified by PW5 Rahul and PW33 HC
Praveen. Both these witnesses remained silent about the alleged
FIR No. 65/20
PS Dayalpur 71 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
incident in their statements u/s 161 Cr.P.C. However, during their
testimony before the Court, they introduced new facts for the first
time. In a murder trial, if the incident had actually occurred in the
manner alleged, it is highly improbable that neither the Investigating
Officer recorded such crucial facts, nor the witnesses disclosed the
same during investigation. Moreover, no official record has been
placed on record to substantiate their alleged presence at the spot.
Therefore, the testimonies of these witnesses cannot be relied upon
and deserve to be discarded. It is further contended that PW6 Pradeep
Verma appears to be a stock and interested witness. The prosecution
has cited him as a witness in several riot cases including FIR Nos.
91/2020, 92/2020, 88/2020, 65/2020, 80/2020, 114/2020, 98/2020,
101/2020 and 116/2020 relating to P.S. Dayalpur and P.S. Khajuri
Khas. It is highly improbable that the same person would be present at
so many different places during widespread riots. It has further been
contended that in the present case, PW6 stated that he did not know
Firoz and identified him only after PW79 disclosed his name and
showed him his photograph. However, while appearing as PW21 in
FIR No. 98/2020, the same witness stated that he had known Firoz for
the last 10-12 years. Thus, this major contradiction seriously affects
the credibility of the witness. It has further been contended that Firoz
was never subjected to a judicial TIP. If the witness was available
with the investigating agency then why no judicial T.I.P. was
FIR No. 65/20
PS Dayalpur 72 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
conducted raises doubt about the credibility of investigation/witness. It
is contended that in a large mob, the first time identification in court in
absence of judicial TIP cannot be said to be reliable. In this regard,
reliance has been placed on the judgment of Hon’ble Supreme Court
in Usmangani (supra), more specifically para 5, which is as under:-
5. On a careful consideration of the evidence adduced by
PWs-25 and 26, we are left with serious doubt as to the
evidence of the said two witnesses should inspire the
confidence of the court. Identification of a total of 13
accused, who were sent out for trial including the present
accused – appellants, in a mob of 1000-1500 people, is by no
means an easy task. Over and above that no test identification
parade was held so far as accused no. 1 and 5 are concerned.
The prosecution has not offered any explanation that why no
test identification parade was held in respect of A-1 and A-5
whereas a test identification parade was held in respect of
A-13.
6.10.1 It has further been contended that the witness
categorically stated that he was standing near the alleged Hindu mob,
however, he failed to provide any physical description or
identification of any member of the alleged mob. Moreover, he
admitted that the alleged mob was not raising any slogans. Such
conduct is wholly unnatural and improbable in the facts and
circumstances of a riot situation and thus, his presence becomes highly
doubtful and unreliable. It has further been contended that the witness
claimed that he remained at the spot from 12:30 p.m to 6:00 p.m and
was present outside Gali No. 6 at about 3:00 p.m where according to
him, two mobs were attacking each other, petrol bombs were being
FIR No. 65/20
PS Dayalpur 73 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
thrown, stones were being pelted from both sides, and petrol bombs
were also being thrown from high-rise buildings. In such a hostile
situation, it is highly unlikely that an ordinary person would remain
standing between two violent mobs for several hours. The witness also
stated that strength of the mob was about 2,000 people which further
renders his alleged presence at the spot doubtful and unnatural. It has
further been contended that during his cross examination, PW6
admitted that despite repeated police patrolling in the area and several
visits by police officials to his parking premises, he never informed
any authority about the alleged incident. He did not make any PCR
call or submit any written complaint. No explanation has been given
for this unusual silence, particularly when the incident was widely
reported in the media, continuously telecast on television, and the
police had made public appeals seeking information about the riots
and the murder of Ankit Sharma. Even according to the witness,
police inquiries regarding the incident were being conducted in the
area. Despite this, PW6 chose to remain silent. It is highly improbable
that a genuine eyewitness to such a serious offence would not
voluntarily come forward, and the claim that the police later
discovered him merely by chance, makes his testimony wholly
doubtful and unreliable. It is further contended that there has been
contradictions in the testimonies of PW19 and PW6. PW19 Vikalp
Kocher, in his examination in chief, deposed that a huge mob was
FIR No. 65/20
PS Dayalpur 74 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
present in front of his shop and that he himself entered the mob.
However, PW6 stated that the mob pulled him from near a tree. These
versions are materially contradictory and strike at the root of the
prosecution story. It has further been contended that statement of PW6
is self-contradictory and thus, his testimony cannot be relied upon.
6.11 Sh. Salim Malik, ld. counsel for accused Anas has
contended that the prosecution has cited three witnesses against
accused Anas and they are PW5 HC Rahul, PW33 Ct. Parveen and
PW6 Pradeep Verma. However, during their testimonies, PW5 and
PW33 have improved their version and have changed the nature of
their statements u/s 161 Cr.P.C. It has further been contended that
PW6 is also not a reliable witness because the manner in which PW6
has described the incident, is not visually possible. PW6 Pradeep
Verma stated that both the mobs were about 40-50 steps away each
other and PW13 stated to be ahead of Pulia towards Chandu Nagar yet
it is not clear how he could see activities beyond it in view of maps.
Further in the month of February, at about 5:30 p.m., visibility would
be further reduced due to dusk and possible smoke from petrol bombs
and thus, it is improbable that PW6 would be able to see the incident.
It has further been contended that in their statements u/s 161 Cr.P.C,
PW5 and PW33 remained completely silent about the alleged incident.
However, when they appeared in the court, they made material
improvements in their testimonies and introduced new facts. In a
FIR No. 65/20
PS Dayalpur 75 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
murder trial, if the incident had actually occurred in the manner as
alleged, it is highly improbable that neither the IO would record such
crucial facts nor the witnesses would disclose the same during
investigation. Moreover, no official record has been placed on record
to substantiate their alleged presence at the spot. Therefore, the
testimony of these witnesses cannot be relied upon and deserves to be
discarded. It has further been contended that PW6 had been made a
witness in many cases i.e. FIR Nos. 91/2020, 92/2020, 88/2020,
65/2020, 80/2020, 114/2020, 98/2020, 101/2020 and 116/2020
pertaining to Police Stations Dayalpur and Khajuri Khas. It is highly
improbable that the same person would be present at several places
during widespread riots and violence. In the absence of any material
establishing his presence at the spot, his testimony is unreliable and
unsafe to rely upon. It has further been contended that accused Anas
was never subjected to TIP. It has further been contended that the
witness categorically stated that he was standing near the alleged
Hindu mob, however, he failed to provide any physical description or
identification of any member of the alleged mob. Moreover, he
admitted that the alleged mob was not raising any slogans. Such
conduct is wholly unnatural and improbable in the facts and
circumstances of a riot situation and thus, his presence becomes highly
doubtful and unreliable. It has further been contended that the witness
claimed that he remained at the spot from 12:30 p.m to 6:00 p.m and
FIR No. 65/20
PS Dayalpur 76 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
was present outside Gali No. 6 at about 3:00 p.m where according to
him, two mobs were attacking each other, petrol bombs were being
thrown, stones were being pelted from both sides, and petrol bombs
were also being thrown from high-rise buildings. In such a hostile
situation, it is highly unlikely that an ordinary person would remain
standing between two violent mobs for several hours. The witness also
stated that strength of the mob was about 2,000 people which further
renders his alleged presence at the spot doubtful and unnatural. He did
not make any PCR call or submit any written complaint. No
explanation has been given for this unusual silence, particularly when
the incident was widely reported in the media, continuously telecast
on television, and the police had made public appeals seeking
information about the riots and the murder of Ankit Sharma. Even
according to the witness, police inquiries regarding the incident were
being conducted in the area. Despite this, PW6 chose to remain silent.
It is highly improbable that a genuine eyewitness to such a serious
offence would not voluntarily come forward, and the claim that the
police later discovered him merely by chance, makes his testimony
wholly doubtful and unreliable.
6.12 In rebuttal, Sh. Madhukar Pandey, ld. SPP has contended
that the defence has raised a futile argument that unless a judicial TIP
of accused had been conducted, there is no value to the identification
of the accused in the court whereas the law which has been established
FIR No. 65/20
PS Dayalpur 77 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
by judicial pronouncement is to the contrary. In this regard, reliance
has been placed on the judgment of Hon’ble Supreme Court in
Mukesh & Anr. v. State (NCT of Delhi) & Ors. (2017) 6 SCC 1,
wherein it has been held as under:-
142. Criticising the TIP, it is urged by the learned counsel for
the appellants and Mr Hegde, learned Amicus Curiae, that
refusal to participate may be considered as circumstance but
it cannot by itself lead to an inference of guilt. It is also
argued that there is material on record to show that the
informant had the opportunity to see the accused persons
after they were arrested. It is necessary to state here that TIP
does not constitute substantive evidence. It has been held in
Matru v. State of U.P., (1971) 2 SCC 75 : 1971 SCC (Cri)
391 that identification test is primarily meant for the purpose
of helping the investigating agency with an assurance that
their progress with the investigation of an offence is
proceeding on the right lines.
143. In Santokh Singh v. Izhar Hussain, (1973) 2 SCC 406 :
1973 SCC (Cri) 828 , it has been observed that the
identification can only be used as corroborative of the
statement in court.
144. In Malkhansingh v. State of M.P., (2003) 5 SCC 746 :
2003 SCC (Cri) 1247 , it has been held thus : (SCC pp. 751-
52, para 7)
. … The identification parades belong to the stage of
investigation, and there is no provision in the Code of
Criminal Procedure which obliges the investigating agency to
hold, or confers a right upon the accused to claim a test
identification parade. They do not constitute substantive
evidence and these parades are essentially governed by
Section 162 of the Code of Criminal Procedure. Failure to
hold a test identification parade would not make inadmissible
the evidence of identification in court. The weight to be
attached to such identification should be a matter for the
FIR No. 65/20
PS Dayalpur 78 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
courts of fact. …”
And again : (SCC p. 755, para 16)
“16. It is well settled that the substantive evidence is the
evidence of identification in court and the test identification
parade provides corroboration to the identification of the
witness in court, if required. However, what weight must be
attached to the evidence of identification in court, which is
not preceded by a test identification parade, is a matter for
the courts of fact to examine. …”
145. In this context, reference to a passage
from Visveswaran v. State, (2003) 6 SCC 73 : 2003 SCC
(Cri) 1270 would be apt. It is as follows : (SCC p. 78, para
11)
“11. … The identification of the accused either in test
identification parade or in Court is not a sine qua non in
every case if from the circumstances the guilt is otherwise
established. Many a time, crimes are committed under the
cover of darkness when none is able to identify the accused.
The commission of a crime can be proved also by
circumstantial evidence. …”
146. In Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC
1 : (2010) 2 SCC (Cri) 1385 , the Court, after referring
to Munshi Singh Gautam v. State of M.P., (2005) 9 SCC
631 : 2005 SCC (Cri) 1269,Harbajan Singh v. State of J&K,
(1975) 4 SCC 480 : 1975 SCC (Cri) 545
and Malkhansingh v. State of M.P., (2003) 5 SCC 746 : 2003
SCC (Cri) 1247, came to hold that the proposition of law is
quite clear that even if there is no previous TIP, the court
may appreciate the dock identification as being above board
and more than conclusive.
6.12.1 He has further relied upon the judgment of Hon’ble
Supreme Court in Sidharth Vashisht @ Manu Sharma v. State (NCT
FIR No. 65/20
PS Dayalpur 79 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
of Delhi) (2010) 6 SCC 1, and has relied upon the following portions:-
252. It is also contended by the defence that since the
photographs were shown to the witnesses this circumstance
renders the whole evidence of identification in court as
inadmissible. For this, it was pointed out that photo
identification or TIP before the Magistrate, are all aides in
investigation and do not form substantive evidence.
Substantive evidence is the evidence of the witness in the
court on oath, which can never be rendered inadmissible on
this count. It is further pointed out that photo identification is
not hit by Section 162 CrPC as adverted to by the defence as
the photographs have not been signed by the witnesses.
254. Even a TIP before a Magistrate is otherwise hit by
Section 162 of the Code. Therefore to say that a photo
identification is hit by Section 162 is wrong. It is not a
substantive piece of evidence. It is only by virtue of Section
9 of the Evidence Act that the same i.e. the act of
identification becomes admissible in court. The logic behind
TIP, which will include photo identification lies in the fact
that it is only an aid to investigation, where an accused is not
known to the witnesses, the IO conducts a TIP to ensure that
he has got the right person as an accused. The practice is not
borne out of procedure, but out of prudence. At best it can be
brought under Section 8 of the Evidence Act, as evidence of
conduct of a witness in photo identifying the accused in the
presence of an IO or the Magistrate, during the course of an
investigation.
259. In Mullagiri Vajram v. State of A.P. [1993 Supp (2)
SCC 198 : 1993 SCC (Cri) 496] it was held that though the
accused was seen by the witness in custody, any infirmity in
TIP will not affect the outcome of the case, since the
depositions of the witnesses in court were reliable and could
sustain a conviction. The photo identification and TIP are
only aides in the investigation and does not form substantive
evidence. The substantive evidence is the evidence in the
court on oath.
FIR No. 65/20
PS Dayalpur 80 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
6.12.2 He has further contended that the duty of the court is to
separate chaff from the grain and merely because a witness has made
some exaggeration, the entire testimony of the witnesses cannot be
discarded because there is a tendency amongst the witnesses to
exaggerate and in this regard, reliance is placed on the judgment of
Hon’ble Supreme Court in Prabhu Dayal v. State of Rajasthan, (2018)
8 SCC 127, and has relied upon the following portion:-
18. It is a common phenomenon that the witnesses are rustic
and can develop a tendency to exaggerate. This, however,
does not mean that the entire testimony of such witnesses is
falsehood. Minor contradictions in the testimony of the
witnesses are not fatal to the case of the prosecution. This
Court, in State of U.P. v. M.K. Anthony, (1985) 1 SCC 505 :
1985 SCC (Cri) 105 , held that inconsistencies and
discrepancies alone do not merit the rejection of the evidence
as a whole. It stated as follows: (SCC p. 514-15, para 10)
“10. While appreciating the evidence of a witness, the
approach must be whether the evidence of the witness read as
a whole appears to have a ring of truth. Once that impression
is formed, it is undoubtedly necessary for the court to
scrutinise the evidence more particularly keeping in view the
deficiencies, drawbacks and infirmities pointed out in the
evidence as a whole and evaluate them to find out whether it
is against the general tenor of the evidence given by the
witness and whether the earlier evaluation of the evidence is
shaken as to render it unworthy of belief. Minor
discrepancies on trivial matters not touching the core of the
case, hyper-technical approach by taking sentences torn out
of context here or there from the evidence, attaching
importance to some technical error committed by the
investigating officer not going to the root of the matter would
not ordinarily permit rejection of the evidence as a whole. If
the court before whom the witness gives evidence had the
opportunity to form the opinion about the general tenor of
FIR No. 65/20
PS Dayalpur 81 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
evidence given by the witness, the appellate court which had
not this benefit will have to attach due weight to the
appreciation of evidence by the trial court and unless there
are reasons weighty and formidable it would not be proper to
reject the evidence on the ground of minor variations or
infirmities in the matter of trivial details. Even honest and
truthful witnesses may differ in some details unrelated to the
main incident because power of observation, retention and
reproduction differ with individuals. Cross-examination is an
unequal duel between a rustic and refined lawyer. Having
examined the evidence of this witness, a friend and well-
wisher of the family carefully giving due weight to the
comments made by the learned counsel for the respondent
and the reasons assigned to by the High Court for rejecting
his evidence simultaneously keeping in view the appreciation
of the evidence of this witness by the trial court, we have no
hesitation in holding that the High Court was in error in
rejecting the testimony of witness Nair whose evidence
appears to us trustworthy and credible.” (emphasis supplied)
19. In State of U.P. v. Anil Singh, 1988 Supp SCC 686 :
1989 SCC (Cri) 48, this Court observed that: (SCC p. 692,
para 17)
“17. … invariably the witnesses add embroidery to
prosecution story, perhaps for the fear of being disbelieved.
But that is no ground to throw the case overboard, if true, in
the main. If there is a ring of truth in the main, the case
should not be rejected. It is the duty of the court to cull out
the nuggets of truth from the evidence unless there is reason
to believe that the inconsistencies or falsehood are so glaring
as utterly to destroy confidence in the witnesses.”
……..
21. Moreover, it is not necessary that the entire testimony
of a witness be disregarded because one portion of such
testimony is false. This Court observed thus in Gangadhar
Behera v. State of Orissa, (2002) 8 SCC 381 : 2003 SCC
(Cri) 32 : (SCC p. 392, para 15)
“15. To the same effect is the decision in State of
Punjab v. Jagir Singh, (1974) 3 SCC 277 : 1973 SCC (Cri)
886 : AIR 1973 SC 2407 and Lehna v. State of Haryana,
FIR No. 65/20
PS Dayalpur 82 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
(2002) 3 SCC 76 : 2002 SCC (Cri) 526. Stress was laid by
the appellant-accused on the non-acceptance of evidence
tendered by some witnesses to contend about desirability to
throw out the entire prosecution case. In essence prayer is to
apply the principle of falsus in uno, falsus in omnibus (false
in one thing, false in everything). This plea is clearly
untenable. Even if a major portion of the evidence is found to
be deficient, in case residue is sufficient to prove guilt of an
accused, notwithstanding acquittal of a number of other co-
accused persons, his conviction can be maintained. It is the
duty of the court to separate the grain from the chaff. Where
chaff can be separated from the grain, it would be open to the
court to convict an accused notwithstanding the fact that
evidence has been found to be deficient to prove guilt of
other accused persons. Falsity of a particular material witness
or material particular would not ruin it from the beginning to
end. The maxim falsus in uno, falsus in omnibus has no
application in India and the witnesses cannot be branded as
liars. The maxim falsus in uno, falsus in omnibus has not
received general acceptance nor has this maxim come to
occupy the status of rule of law. It is merely a rule of caution.
All that it amounts to, is that in such cases testimony may be
disregarded, and not that it must be disregarded.”
22. In our considered opinion, the trial court as well as
the High Court is also justified in concluding that the
appellant is liable to be convicted under Section 149 IPC,
inasmuch as he is one of the members of the unlawful
assembly who had come to the scene of occurrence with the
common object of committing the murder of Gopal.
22.1. In Masalti v. State of U.P., AIR 1965 SC 202 :
(1965) 1 Cri LJ 226 , it was observed that any member of the
unlawful assembly can be prosecuted for the criminal act; it
need not be proved that he had committed an overt act: (AIR
pp. 210-11, para 17)
“17. … What has to be proved against a person who is
alleged to be a member of an unlawful assembly is that he
was one of the persons constituting the assembly and he
entertained along with the other members of the assembly the
common object as defined by Section 141 IPC. Section 142
provides that whoever, being aware of facts which render any
FIR No. 65/20
PS Dayalpur 83 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
assembly an unlawful assembly, intentionally joins that
assembly, or continue in it, is said to be a member of an
unlawful assembly. In other words, an assembly of five or
more persons actuated by, and entertaining one or more of
the common objects specified by the five clauses of Section
141, is an unlawful assembly. The crucial question to
determine in such a case is whether the assembly consisted of
five or more persons and whether the said persons
entertained one or more of the common objects as specified
by Section 141. While determining this question, it becomes
relevant 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. It is in that
context that the observations made by this Court
in Baladin [Baladin v. State of U.P., AIR 1956 SC 181 : 1956
Cri LJ 345] assume significance; otherwise, in law, it would
not be correct to say that before a person is held to be a
member of an unlawful assembly, it must be shown that he
had committed some illegal overt act or had been guilty of
some illegal omission in pursuance of the common object of
the assembly. In fact, Section 149 makes it clear that if an
offence is committed by any member of an unlawful
assembly in prosecution of the common object of that
assembly, or such as the members of that assembly knew to
be likely to be committed in prosecution of that object, every
person who, at the time of the committing of that offence, is
a member of the same assembly, is guilty of that offence; and
that emphatically brings out the principle that the punishment
prescribed by Section 149 is in a sense vicarious and does not
always proceed on the basis that the offence has been
actually committed by every member of the unlawful
assembly.”
22.2. This Court in Lalji v. State of U.P., (1989) 1 SCC
437 : 1989 SCC (Cri) 211 , observed as follows: (SCC pp.
441-42, para 9)
“9. Section 149 makes every member of an unlawful
assembly at the time of committing of the offence guilty of
that offence. Thus this section created a specific and distinct
offence. In other words, it created a constructive or vicarious
FIR No. 65/20
PS Dayalpur 84 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
liability of the members of the unlawful assembly for the
unlawful acts committed pursuant to the common object by
any other member of that assembly. However, the vicarious
liability of the members of the unlawful assembly extends
only to the acts done in pursuance of the common object of
the unlawful assembly, or to such offences as the members of
the unlawful assembly knew to be likely to be committed in
prosecution of that object. Once the case of a person falls
within the ingredients of the section, the question that he did
nothing with his own hands would be immaterial. He cannot
put forward the defence that he did not with his own hands
commit the offence committed in prosecution of the common
object of the unlawful assembly or such as the members of
the assembly knew to be likely to be committed in
prosecution of that object. Everyone must be taken to have
intended the probable and natural results of the combination
of the acts in which he joined. It is not necessary that all the
persons forming an unlawful assembly must do some overt
act. When the accused persons assembled together, armed
with lathis, and were parties to the assault on the complainant
party, the prosecution is not obliged to prove which specific
overt act was done by which of the accused. This section
makes a member of the unlawful assembly responsible as a
principal for the acts of each, and all, merely because he is a
member of an unlawful assembly. While 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 under
Section 149. It must be noted that the basis of the
constructive guilt under Section 149 is mere membership of
the unlawful assembly, with the requisite common object or
knowledge.”
22.3. These cases were followed in many subsequent
cases, including Shamshul Kanwar v. State of U.P., (1995) 4
SCC 430 : 1995 SCC (Cri) 753.
6.12.3 Further relying upon the judgment of Hon’ble Supreme
Court in Sucha Singh v. State of Punjab 2003 (7) SCC 643, he has
FIR No. 65/20
PS Dayalpur 85 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
contended that the purpose of the trial is the search of truth and in a
case where witness is found to have stated some falsehood at some
place but his entire testimony otherwise seems truthful then the court
cannot discard the entire testimony because of some small
exaggeration amounting to some false statement because latin maxim
falsus in uno falsus in omnibus is not applicable in India. He has
specifically relied upon following paras of this judgment:-
18. To the same effect is the decision in State of
Punjab v. Jagir Singh [(1974) 3 SCC 277 : 1973 SCC (Cri)
886 : AIR 1973 SC 2407] and Lehna v. State of
Haryana [(2002) 3 SCC 76 : 2002 SCC (Cri) 526], stress was
laid by the accused-appellants on the non-acceptance of
evidence tendered by some witnesses to contend about
desirability to throw out the entire prosecution case. In
essence, prayer is to apply the principle of ” falsus in uno
falsus in omnibus” (false in one thing, false in everything).
This plea is clearly untenable. Even if a major portion of
evidence is found to be deficient, in case residue is sufficient
to prove the guilt of an accused, notwithstanding acquittal of
a number of other co-accused persons, his conviction can be
maintained. It is the duty of the court to separate the grain
from the chaff. Where chaff can be separated from grain, it
would be open to the court to convict an accused
notwithstanding the fact that evidence has been found to be
deficient to prove the guilt of other accused persons. Falsity
of a particular material witness or a material particular would
not ruin it from the beginning to the end. The maxim ” falsus
in uno falsus in omnibus” has no application in India and the
witnesses cannot be branded as liars. The maxim ” falsus in
uno falsus in omnibus” has not received general acceptance
nor has this maxim come to occupy the status of a rule of
law. It is merely a rule of caution. All that it amounts to, is
that in such cases testimony may be disregarded, and not that
it must be disregarded. The doctrine merely involves the
question of weight of evidence which a court may apply in a
FIR No. 65/20
PS Dayalpur 86 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
given set of circumstances, but it is not what may be called
“a mandatory rule of evidence”. (See Nisar Ali v. State of
U.P. [AIR 1957 SC 366 : 1957 Cri LJ 550] ) Merely because
some of the accused persons have been acquitted, though
evidence against all of them, so far as direct testimony went,
was the same does not lead as a necessary corollary that
those who have been convicted must also be acquitted. It is
always open to a court to differentiate the accused who had
been acquitted from those who were convicted.
(See Gurcharan Singh v. State of Punjab [AIR 1956 SC 460 :
1956 Cri LJ 827] .) The doctrine is a dangerous one,
especially in India for if a whole body of the testimony were
to be rejected, because a witness was evidently speaking an
untruth in some aspect, it is to be feared that administration
of criminal justice would come to a dead stop. Witnesses just
cannot help in giving embroidery to a story, however true in
the main. Therefore, it has to be appraised in each case as to
what extent the evidence is worthy of acceptance, and merely
because in some respects the court considers the same to be
insufficient for placing reliance on the testimony of a
witness, it does not necessarily follow as a matter of law that
it must be disregarded in all respects as well. The evidence
has to be sifted with care. The aforesaid dictum is not a
sound rule for the reason that one hardly comes across a
witness whose evidence does not contain a grain of untruth
or at any rate exaggeration, embroideries or embellishment.
(See Sohrab v. State of M.P. [(1972) 3 SCC 751 : 1972 SCC
(Cri) 819] and Ugar Ahir v. State of Bihar [AIR 1965 SC 277
: (1965) 1 Cri LJ 256] .) An attempt has to be made to, as
noted above, in terms of the felicitous metaphor, separate the
grain from the chaff, truth from falsehood. Where it is not
feasible to separate the truth from falsehood, because grain
and chaff are inextricably mixed up, and in the process of
separation an absolutely new case has to be reconstructed by
divorcing the essential details presented by the prosecution
completely from the context and the background against
which they are made, the only available course to be made is
to discard the evidence in toto. (See Zwinglee Ariel v. State
of M.P. [(1952) 2 SCC 560 : AIR 1954 SC 15 : 1954 Cri LJ
230] and Balaka Singh v. State of Punjab [(1975) 4 SCC
FIR No. 65/20
PS Dayalpur 87 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
511 : 1975 SCC (Cri) 601 : AIR 1975 SC 1962] .) As
observed by this Court in State of Rajasthan v. Kalki [(1981)
2 SCC 752 : 1981 SCC (Cri) 593 : AIR 1981 SC 1390]
normal discrepancies in evidence are those which are due to
normal errors of observation, normal errors of memory due
to lapse of time, due to mental disposition such as shock and
horror at the time of occurrence and those are always there,
however honest and truthful a witness may be. Material
discrepancies are those which are not normal, and not
expected of a normal person. Courts have to label the
category to which a discrepancy may be categorized. While
normal discrepancies do not corrode the credibility of a
party’s case, material discrepancies do so. These aspects were
highlighted recently in Krishna Mochi v. State of
Bihar [(2002) 6 SCC 81 : 2002 SCC (Cri) 1220 : JT (2002) 4
SC 186] . Accusations have been clearly established against
the accused-appellants in the case at hand. The courts below
have categorically indicated the distinguishing features in
evidence so far as acquitted and convicted accused are
concerned.
20. Exaggerated devotion to the rule of benefit of doubt must
not nurture fanciful doubts or lingering suspicion and thereby
destroy social defence. Justice cannot be made sterile on the
plea that it is better to let a hundred guilty escape than punish
an innocent. Letting the guilty escape is not doing justice
according to law. (See Gurbachan Singh v. Satpal
Singh [(1990) 1 SCC 445 : 1990 SCC (Cri) 151 : AIR 1990
SC 209] .) The prosecution is not required to meet any and
every hypothesis put forward by the accused. (See State of
U.P. v. Ashok Kumar Srivastava [(1992) 2 SCC 86 : 1992
SCC (Cri) 241 : AIR 1992 SC 840] .) A reasonable doubt is
not an imaginary, trivial or merely possible doubt, but a fair
doubt based upon reason and common sense. It must grow
out of the evidence in the case. If a case is proved perfectly,
it is argued that it is artificial; if a case has some inevitable
flaws because human beings are prone to err, it is argued that
it is too imperfect. One wonders whether in the meticulous
hypersensitivity to eliminate a rare innocent from being
punished, many guilty persons must be allowed to escape.
Proof beyond reasonable doubt is a guideline, not a fetish.
FIR No. 65/20
PS Dayalpur 88 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
[See Inder Singh v. State (Delhi Admn.) [(1978) 4 SCC 161 :
1978 SCC (Cri) 564 : AIR 1978 SC 1091] .] Vague hunches
cannot take the place of judicial evaluation.
“A judge does not preside over a criminal trial, merely to
see that no innocent man is punished. A judge also presides
to see that a guilty man does not escape. Both are public
duties.” [Per Viscount Simon in Stirlandv. Director of Public
Prosecution [1944 AC 315 : (1944) 2 All ER 13 (HL)]
quoted in State of U.P. v. Anil Singh [1988 Supp SCC 686 :
1989 SCC (Cri) 48 : AIR 1988 SC 1998] (SCC p. 692, para
17).]
Doubts would be called reasonable if they are free from a
zest for abstract speculation. Law cannot afford any favourite
other than truth.
21. In matters such as this, it is appropriate to recall the
observations of this Court in Shivaji Sahabrao
Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973
SCC (Cri) 1033 : (1974) 1 SCR 489] (SCR pp. 492-93) :
(SCC p. 799, para 6)
“The dangers of exaggerated devotion to the rule of
benefit of doubt at the expense of social defence and to the
soothing sentiment that all acquittals are always good
regardless of justice to the victim and the community,
demand special emphasis in the contemporary context of
escalating crime and escape. The judicial instrument has a
public accountability. The cherished principles or golden
thread of proof beyond reasonable doubt which runs through
the web of our law should not be stretched morbidly to
embrace every hunch, hesitancy and degree of doubt. … The
evil of acquitting a guilty person light-heartedly as a learned
author (Glanville Williams in ‘Proof of Guilt’) has sapiently
observed, goes much beyond the simple fact that just one
guilty person has gone unpunished. If unmerited acquittals
become general, they tend to lead to a cynical disregard of
the law, and this in turn leads to a public demand for harsher
legal presumptions against indicted ‘persons’ and more
severe punishment of those who are found guilty. Thus, too
frequent acquittals of the guilty may lead to a ferocious penal
law, eventually eroding the judicial protection of the
FIR No. 65/20
PS Dayalpur 89 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
guiltless. … ‘a miscarriage of justice may arise from the
acquittal of the guilty no less than from the conviction of the
innocent….’
6.12.4 He has further contended that the defence is unnecessarily
trying to create confusion by raising a claim that FIR was ante-dated
and ante-timed on the ground that the FIR number was not mentioned
on inquest report and contending that this is a fatal defect in the case
of the prosecution. However, Hon’ble Supreme court in Shiv Ram &
Anr. v. State of UP (1998) 1 SC 149 had held that it does not effect
the prosecution story and such minor omissions only reflect that the
approach of the investigator was casual but it in no manner affects the
basic structure f the prosecution story. He has specifically relied upon
para 17 and 18 of this judgment, which are as under:-
17. It was then contended by Mr Sushil Kumar that the claim
of the complainant that he lodged the FIR at 9.05 p.m. is
false. According to him if the FIR was registered as alleged
there was no reason whatsoever why the copy thereof was
not sent to the Illaqa Magistrate at the earliest opportunity.
As regards the contents of the FIR he urged that it was
impossible for any human being to write down the complaint
with such details when four dead bodies were lying of which
three were without heads in the house. The contents of the
complaint manifestly suggest that it was an afterthought
exercise with the help of police or somebody to spread a
wide net and involve as many accused as possible to take
revenge. He, therefore, urged that the complaint lodged by
Mahendra Kumar (PW 1) be treated as a false document and
be not accepted for the purpose of seeking corroboration to
the evidence of PW 1. He also urged that the complainant at
the relevant time was serving at a different place and his
claim that he had come on leave for two days was totally a
concocted plea. According to him the complainant was
brought to the village at a later point of time and the police
FIR No. 65/20
PS Dayalpur 90 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
had manipulated the entire prosecution story. We see no
substance in any of these contentions for the simple reason
that the police machinery reached the place of incident within
a short time i.e. at about 11 p.m. and in fact the evidence of
SI Pandey (PW 14) would show that the wheels of
investigating machinery started moving during the same
night. The statements of some of the persons were recorded
during the same night. The inquest on the dead bodies was
carried out early in the morning of 24-6-1990. There is
nothing in the evidence of SI Pandey (PW 14) to indicate that
he had antedated all these documents to suit the
complainant’s version. There was no earthly reason for SI
Pandey (PW 14) to implicate and spread the net so wide as
contended for the accused to arraign 24 accused persons in
the present crime. To our mind it is only a figment of
imagination to contend that the investigation carried out by
the investigating machinery was antedated at the instance of
the complainant. It is true that the complainant at the relevant
time was posted at a far-off place but he testified that he had
come to Village Bajarkha on two days’ leave as he had not
come till then to his village after he joined the service. This
explanation given by the witness is quite plausible and the
courts below were right in accepting his presence at the time
of occurrence. It is also true that there was a delay in
forwarding the copy of the FIR to the Illaqa Magistrate but
that circumstance would not demolish the other positive and
credible evidence on record. This would only show how in
such a serious crime the investigating agency was not careful
and prompt as it ought to be.
18. It was then contended for the appellants that if really the
incident was reported at 9.05 p.m. then surely the inquest
reports which were prepared on the following day must
mention the title of the crime. But it was left blank and,
therefore, this omission was a serious infirmity and
demolishes the very substratum of the prosecution based on
the first information report which is a concocted document.
At the first blush the argument appeared to us attractive but
on scrutiny and consideration of the materials on record we
are unable to accept this submission. If really the complaint
was not lodged at 9.05 p.m. then the police could not have
FIR No. 65/20
PS Dayalpur 91 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
reached at the place of occurrence at 11.00 p.m. Such minor
omission is nothing but a bona fide error or casual approach
on the part of the investigating agency which does not affect
the substratum of the prosecution story. It was then urged
that Kamlesh was taken to the police station in an injured
condition but he was not sent to the hospital for treatment. In
fact Kamlesh was not traced for the whole night and only on
the following day he appeared and was admitted in the
hospital where he died after 17 days due to septicaemia. It
was, therefore, urged that neither Kamlesh nor the
complainant ever went to the police station to lodge a
complaint at 9.05 p.m. and this complaint was manufactured
at a later stage with the connivance of the police. We see no
substance in this contention also because the fact remains
that Kamlesh was injured during the incident in question. If
he was not sent to the hospital for medical examination and
treatment by the investigating agency no fault could be found
with the complainant’s evidence and the FIR (Ex. Ka-1). In
these circumstances we see no merit in all these contentions
raised on behalf of the appellants.
6.12.5 He has further contended that the claim of the defence
that the dropping of witness namely Shamshad Pradhan by
prosecution should result in adverse inference that he was not going to
support the story of the prosecution and he would have a different
story to tell which would have exonerated the accused is again beyond
the tenants of law and in this regard, he has relied upon the judgment
of Hon’ble Supreme Court in Dalbir Kaur & Ors. v. State of Punjab
(1976) 4 SCC 158. He has relied upon following portions of this
judgment:-
18. I shall now deal with two important points which were
vehemently pressed by Mr Anthony learned counsel for the
appellants. In the first place it was contended that the entire
FIR No. 65/20
PS Dayalpur 92 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
prosecution case should be thrown out because of non-
examination of four material witnesses in this case. It was
submitted that even according to the evidence of Jaswant
Kaur her neighbours Mohinder Singh and Daya Singh had
also witnessed the occurrence. Jaswant Kaur stated this fact
at p. 46 of paper-book II but she also added that even though
they were watching the occurrence they did nothing to help
the deceased nor did they raise any alarm. The counsel
further submitted that these two witnesses were interrogated
by the police and yet they have not been examined to prove
and corroborate the evidence of the eyewitnesses. This
omission is undoubtedly there and we have to see as to what
is its effect on the truth of the prosecution case. In the same
token it was also contended that two other witnesses, namely,
Mukhtiar Singh and Mohinder Singh who immediately came
to the house and to whom the eyewitnesses narrated the
occurrence have also not been examined. Particular comment
was made regarding the non-examination of Mohinder Singh
who had in fact accompanied the informant to the police
station. It was argued by Mr Anthony that in view of this
deliberate omission to examine material witnesses a
reflection is cast on the fairness of the trial so as to vitiate the
conviction of the appellants. Strong reliance was placed by
counsel for the appellants on the decision of this Court
in Habeeb Mohammad v. State of Hyderabad [(1953) 2 SCC
231 : AIR 1954 SC 51 : 1954 SCR 475 : 1954 Cri LJ 338] .
In that case what had happened was that the only witness
examined to prove the firing by the accused was a police
jamadar whereas a very senior police officer who is said to
be present at the time when the accused gave orders for firing
was not produced and what was more was that no
explanation for the omission to examine this witness was
given. In view of these circumstances and the other
infirmities appearing in that case generally, this Court held
that such an omission to produce a material witness was
sufficient to throw doubt on the prosecution case. In this
connection this Court observed thus:
“In this situation it seems to us that Biabani who was a
top-ranking police officer present at the scene was a material
witness in the case and it was the bounden duty of the
FIR No. 65/20
PS Dayalpur 93 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
prosecution to examine him, particularly when no allegation
was made that if produced, he would not speak the truth….
In our opinion, not only does an adverse inference arise
against the prosecution case from his non-production as a
witness in view of Illustration (g) to Section 114 of the
Indian Evidence Act, but the circumstance of his being
withheld from the court casts a serious reflection on the
fairness of the trial.”
The facts of that case are clearly distinguishable from the
facts of the present case. To begin with, in that case,
excepting the interested witness the police jamadar there was
no other eyewitness to support the occurrence. Secondly, this
Court clarified its observations that an adverse inference
could be drawn only if no explanation for the non-
examination was given or if no allegation was made that the
witness if produced would not speak the truth. Thirdly, it
appears that although an application was made to the trial
court for examination of the witness concerned under Section
540 of the Code of Criminal Procedure, the Court did not
accede to this prayer. In the instant case the prosecution has
given very reasonable explanation for not examining these
witnesses and there is nothing to show that the accused filed
any application before the trial court or even before the High
Court for examining these witnesses as the court witnesses
nor did they choose to examine them as the defence
witnesses. The Public Prosecutor in his statement before the
Sessions Judge clearly stated thus at p. 57 of paper-book II:
“I give up Inder Singh and Sadhu Singh PWs as the
uncles of Dalbir Singh accused, Mohinder Singh as maternal
uncle of Dalbir Singh, I also give up Mukhtar Singh, Nazir
Masih, Pursan Masih, Chanan Singh and Rabinder Singh
PWs as having been won over by the accused. They are not
likely to speak the truth and they are present in court.”
The reasons given by the Public Prosecutor are quite
understandable, because the witnesses who had been given
up either on the ground that they were relatives of the
appellant Dalbir Singh or that they had been won over by the
accused and were not likely to speak the truth. This statement
of the Public Prosecutor which was recorded by the trial
court on June 3, 1974 clearly takes the case out of the ambit
FIR No. 65/20
PS Dayalpur 94 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
of the ratio of the decision in Habeeb Mohammad
case [(1953) 2 SCC 231 : AIR 1954 SC 51 : 1954 SCR 475 :
1954 Cri LJ 338] .
19. Furthermore, in the instant case, there were two
independent witnesses PWs 3 and 4 who had proved the
actual occurrence and their evidence was fully corroborated
by the medical evidence and the evidence of the recovery of
the weapons at the instance of the appellants themselves. In
these circumstances, therefore, the principles laid down
in Habeeb Mohammad‘s case [(1953) 2 SCC 231 : AIR 1954
SC 51 : 1954 SCR 475 : 1954 Cri LJ 338] will not apply to
this case at all. Furthermore in Habeeb Mohammad’s
case [(1953) 2 SCC 231 : AIR 1954 SC 51 : 1954 SCR 475 :
1954 Cri LJ 338] there was a serious violation of procedure
because the trial court refused to summon those witnesses
who were cited by the defence which was by itself sufficient
to vitiate the trial. It was in view of these circumstances that
this Court was not prepared to convict the accused. In these
circumstances, therefore, the case relied upon by the learned
counsel for the appellants has no application to the present
case.
21. On the other hand in Narain v. State of Punjab [AIR 1959
SC 484 :1959 Supp (1) SCR 724 : 1959 Cri LJ 537] it was
pointed out by this Court that if non-examination of material
witnesses was deliberate and intentional then a serious
reflection was cast on the prosecution and the Court observed
as follows:
“We agree that if a material witness has been deliberately
or unfairly kept back, then a serious reflection is cast on the
propriety of the trial itself and the validity of the conviction
resulting from it may be open to challenge.”
In the instant case it has been seen that the Public Prosecutor
has given a statement that the witnesses concerned were
either relatives of the accused or that had been gained over
by the accused and were, therefore, not likely to speak the
truth. In view of this explanation it cannot be said that the
witnesses were deliberately withheld or unfairly kept back
and therefore no adverse inference could be drawn against
the prosecution for non-examination of those witnesses.
22. To the same effect is the decision of this Court in Masalti
FIR No. 65/20
PS Dayalpur 95 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
case [AIR 1965 SC 202 : (1964) 8 SCR 132 : (1965) 1 Cri LJ
226] which was also relied upon by Counsel for the
appellants on this point. In that case the Court observed as
follows:
“It is undoubtedly the duty of the prosecution to lay
before the court all material evidence available to it which is
necessary for unfolding its case; but it would be unsound to
lay down as a general rule that every witness must be
examined even though his evidence may not be very material
or even if it is known that he has been won over or terrorised.
In such a case, it is always open to the defence to examine
such witnesses as their witnesses and the court can also call
such witnesses in the box in the interest of justice under
Section 540 CrPC.”
From the observations made by this Court it is quite clear
that there is no duty on the prosecution to examine witnesses
who might have been gained over by the accused and even if
those witnesses are not produced by the prosecution there is
nothing to stop the accused from applying to the court for
examining such witnesses under Section 540 of the Code of
Criminal Procedure. No such application was ever made by
the appellants either before the trial court or the High Court
but for the first time it was made in this Court and that too
during the course of the arguments. This Court in its special
jurisdiction does not entertain such applications, particularly
because the accused had an opportunity to make a similar
application before the courts below and they have not availed
of the same. For these reasons, therefore, Criminal
Miscellaneous Petition No. 1291 of 1976 filed by the
appellants in this Court is rejected.
6.12.6 He has further contended that father of the deceased, as
far as the complaint was concerned, had turned hostile and in this
light, the defence had tried to argue that the entire case of prosecution
goes because the basis of FIR is gone and in fact the FIR is gone. He
has however contended that the issue has been settled by Hon’ble
FIR No. 65/20
PS Dayalpur 96 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
Supreme Court in Bable @ Gurdeep Singh v. State of Chhatisgarh,
(2012) 11 SCC 181 wherein Hon’ble Supreme Court had held that
even in case complaint turns hostile and does not support the
prosecution case about making the complaint, the FIR would still
stand. He has specifically relied upon following paras of the
judgment:-
13. Reverting to the submissions made on behalf of the
appellant, we may refer to the fact that the FIR had been
lodged upon the statement of PW 1. PW 1 did not completely
support the case of the prosecution and with the permission
of the Court he was declared hostile. The contention is that
the case of the present appellant would also stand equated to
the case of the two acquitted accused persons and the High
Court has fallen in error of law in not acquitting the
appellant-accused as well. It cannot be denied that the FIR,
Ext. P-1 was registered upon the statement of PW 1 and he
himself has not supported the case of the prosecution, which
creates a doubt in the case of the prosecution.
14. Once registration of the FIR is proved by the police and
the same is accepted on record by the court and the
prosecution establishes its case beyond reasonable doubt by
other admissible, cogent and relevant evidence, it will be
impermissible for the Court to ignore the evidentiary value of
the FIR. The FIR, Ext. P-1, has duly been proved by the
statement of PW 10, Sub-Inspector, Suresh Bhagat.
According to him, he had registered the FIR upon the
statement of PW 1 and it was duly signed by him. The FIR
was registered and duly formed part of the records of the
police station which were maintained in normal course of its
business and investigation. Thus, in any case, it is a settled
proposition of law that the FIR by itself is not a substantive
piece of evidence but it certainly is a relevant circumstance
of the evidence produced by the investigating agency. Merely
because PW 1 had turned hostile, it cannot be said that the
FIR would lose all its relevancy and cannot be looked into
for any purpose.
FIR No. 65/20
PS Dayalpur 97 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
15. In the present case, PW 11 and PW 14 are the two
persons who had reached the place of incident immediately
after the occurrence. They were instantaneously told by the
deceased as to who the assailants were. They have
substantially supported what had been recorded in the FIR
which further stands corroborated by the medical evidence
and the statements of other witnesses. In these circumstances,
we cannot discredit the statements of PW 11 and PW 14
merely because PW 1 has turned hostile. Besides this, in
furtherance of the statements of the accused persons,
recovery of the weapons used in the crime was effected.
6.12.7 He has further contended that the defence has repeatedly
tried to discredit the prosecution witnesses by citing them chance
witness. However in Rajesh v. State 1984 CRI.L.J (NOC) 38 (DEL),
Hon’ble Delhi High Court held that there is no concept of chance
witness in Indian Law and evidence of witnesses cannot be brushed
aside merely because they are chance witnesses. He has specifically
relied upon para 16, 17 and 18 of this judgment, which are as under:-
16. The next leg of the argument advanced on behalf of the
appellant is that the eye witness on whom the prosecution depends
are “chance witnesses”. It was clear during the course of
arguments, that this argument is pressed into service on the ground
that the presence of Phool Singh PW6 who is residing at Kailash
Nagar, Gandhi Nagar and PW12 Anand Kumar who is residing at
New Seelampur, at the scene of occurrence is most improbable and
unnatural particularly when the court takes into view the time of
the occurrence. We are of the view that this argument needs to be
examined in the light of the observation made by the Supreme
Court in Rana Pratap and Others v. State of Haryana, AIR 1983 SC
680 which is reported below:
We do no understand the expression “chance witnesses”.
Murders are not committed with previous notice to
witnesses; soliciting their presence. If murder is committed in
FIR No. 65/20
PS Dayalpur 98 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
dwelling house, the inmates of the house are natural
witnesses. If murder is committed in a brother, prostitutes
and paramours are natural witnesses. If murder is committed
in a street, only passer by will be witnesses. Their evidence
cannot be brushed aside or viewed with suspicion on the
ground that they are mere ‘chance witnesses’. The expression
‘chance witnesses’ is borrowed from countries where every
man’s home is considered his castle and every one must have
an explanation for his presence else where or in another
man’s castle. It is a most unsuitable expression in a country
whose people are less formal and more casual. To discard the
evidence of street hawkers and street vendors on the ground
that they are ‘chance witnesses’, even where murder is
committed in a street, is to abandon good sense and take too
shallow a view of the evidence.
17. In this case with which we are now dealing the learned counsel
for the appellant made sustained effort before us that since the two
eye witnesses Phool Singh and Anand Kumar reside at the places
far off from the scene of occurrence, their testimony should be
rejected on the basis of their being “chance witnesses”. From our
point of view the argument is not only misconceived but is also
without basis as both these eye witnesses together with PW7
Khairati Lal have sufficiently explained their presence at the scene
of occurrence. We are of the firm belief that in a murder trial or for
that matter of fact in any criminal trial the accused cannot extricate
himself simply by describing an independent witness as a ‘chance
witness’. Not very seldom, the expression ‘chance witness’ is being
pressed into service to persuade the court to treat such evidence
with suspicion and to declare his presence on the scene of
occurrence as doubtful.
18. We feel that the evidence of eye-witnesses cannot and should
not normally be brushed aside or looked at with suspicion simply
on the ground that they happen to witness the occurrence at a place
far away from their moorings. This will be so particularly, if their
presence on the scene of occurrence is properly and sufficiently
explained. The expression ‘chance witness’ is not at all suited to the
Indian conditions and setting. Academically speaking, if the
expression ‘chance witness’ has any meaning and if a witness is to
be treated as such, it must then be shown by cogent evidence that
his presence at the scene of occurrence is improbable; that he ought
FIR No. 65/20
PS Dayalpur 99 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
to have been present at some place other than the scene of
occurrence, or that it was something abnormal for him to be present
at the scene of occurrence at the crucial hour. This can even be
indicated by the defence from proved circumstances of the case.
The mere fact that an eye-witness to the occurrence is doubted as
‘chance witness’, however does not ipso facto render him
unreliable. This would be so more particularly, in cases where the
witness explains his presence and stands the test of cross-
examination and also where the witness does not own any grudge
to the accused. In our reluctant to assist the administration of
justice for a variety of reasons; uppermost being their own safety
and fear of reprisal at the hands of criminals. Under these
circumstances, it is necessary for the courts to refrain from
approaching the testimony of independent eye-witness with
suspicion as that might have effect of deterring genuine and
truthful witnesses to come forward and assist the law enforcing
agencies. Assuming though not granting that the expression ‘chance
witness’ has a place in our setting, its scope should not be
unreasonably stretched to an extent as to make the administration
of criminal justice a farce. The only assurance for an independent
and truthful witness to come forward in support of truth is a proper,
normal and balanced approach by the court for appreciating their
testimony, an approach which is helpful in discovering the truth
and does not enable a criminal to walk out on flimsy and hyper
technical ground. It must be borne in mind that in our social set up
the witnesses to crime are also in need of protective assurances
more than ever before. With these observations we reject the
contention of the learned counsel for the appellant that the eye-
witnesses are chance witnesses.
6.12.8 He has further contended that merely because the witness
has deposed beyond his statement u/s 161 Cr.P.C, it cannot be said the
witness has deposed falsely because of the alleged improvements that
have been made. He has contended that even without there being a
statement u/s 161 Cr.P.C, a witness can come and depose before a
FIR No. 65/20
PS Dayalpur 100 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
court. In this regard, reliance is placed on the judgment of Hon’ble
Supreme Court in Alamgir v. State of NCT, Delhi (2003) 1 SCC 21.
He has relied upon the following portion:-
12. The circumstances noticed above, if read with the
evidence of PW 6 Shamim Bano as to the date of departure
of the accused with his wife Hazra @ Halima from Bombay
to Delhi and the telephonic message after two days that
Halima had died in a bus accident and that she had been
cremated at a cremation ground in Nizamuddin — this piece
of evidence, as noticed above, if read along with the
circumstances noticed above, would form a chain without
there being any snap. Strenuous submissions have been made
as regards the admissibility of the handwriting expert’s
opinion as also a challenge thrown to the non-admissibility of
the entire evidence of Shamim Bano, PW 6. This evidence of
Shamim Bano has been challenged on two counts: on the
first, Shamim Bano, being the sister of Halima, was an
interested witness and secondly, she did not say so in a
statement before the police under Section 161 CrPC.
Interested witness by itself cannot possibly be a ground to
reject the evidence on record. The test of creditworthiness or
acceptability, in our view, ought to be the guiding factor and
if so, question of raising an eyebrow on the reliability of the
witness being an interested witness would be futile — in the
event the evidence is otherwise acceptable, there ought not to
be any hindrance in the matter of the prosecutor’s success.
The evidence must inspire confidence and in the event of
unshaken credibility, there is no justifiable reason to reject
the same. It is on this score the issue of interested witness
thus stands negated, as raised by the appellant. The second
limb pertains to the statement under Section 161 CrPC.
Admittedly, this piece of evidence was not available in the
statement of the witness under Section 161 CrPC, but does it
take away the nature and character of the evidence in the
event there is some omission on the part of the police
official? Would that be taken recourse to as amounting to
rejection of an otherwise creditworthy and acceptable
evidence — the answer, in our view, cannot but be in the
FIR No. 65/20
PS Dayalpur 101 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
negative. In that view of the matter, the evidence of PW 6
thus ought to be treated as creditworthy and acceptable and it
is to be seen the effect of such an acceptability.
6.12.9 He has further contended that there is no specific
established principle of law that opinion of an expert witness has to be
considered a weak evidence and should not be relied upon by the
court. He has further contended that opinion of FSL expert regarding
the voice of accused Salman @ Haseen @ Mullaji and the persons to
whom he was talking is definitely a reliable piece of evidence.
6.12.10 He has further contended that the defence has tried to
draw towards a lot of inferences from the testimonies of witnesses
where certain facts were not clear, however, no such exercise is
permissible under law and it is a settled position of law that if
questions were not put to a witness during his cross examination
seeking explanation of a particular issue, the correctness and legality
of those facts cannot be raised during the arguments. In this regard, he
has relied upon the judgment of Mahavir Singh v. State of Haryana,
(2014) 6 SCC 716. He has specifically relied upon the following
portions of the judgment:-
15. A large number of issues have been raised by the learned
counsel for the appellant particularly that independent
witness had not been examined. Various issues have been
raised regarding recovery of clothes of Suraj Mal, recovery
of V-shaped chappals, serious discrepancies in the inquest
report and recovery of the clothes of the appellant. In the trial
court, no question had been put to Ramphal (PW 15), the
FIR No. 65/20
PS Dayalpur 102 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
investigating officer or Lakhpal Singh (PW 11), ASI or any
other material witness who could furnish explanation for
such discrepancies.
16. It is a settled legal proposition that in case the question is
not put to the witness in cross-examination who could furnish
explanation on a particular issue, the correctness or legality
of the said fact/issue could not be raised. (Vide Atluri
Brahmanandam v. Anne Sai Bapuji [(2010) 14 SCC 466 :
(2012) 1 SCC (Civ) 644 : AIR 2011 SC 545]
and Laxmibai v. Bhagwantbuva [(2013) 4 SCC 97 : (2013) 2
SCC (Civ) 480 : AIR 2013 SC 1204] .)6.12.11 He has further contended that as far as the
contention that PW6 could not seen the incident, this is merely an
attempt to mislead the court. He has contended that it is nowhere
stated in the site plan that the small circles which are seen around
point D, where PW6 was shown to be standing, are humans. He has
contended that in fact the IO has shown the stones which were lying
on the road at the time of his inspection, a fact which the IO had
clarified to him. He has further contended that had these circles been
representing the human beings, these circles would have been shown
in the entire Karawal Nagar Road before and after Chand Bagh Pulia
as the mob was present before, on and after Chand Bagh Pulia towards
Karawal Nagar.
Findings
7.1 I have carefully considered the arguments and counter
arguments, the evidence on record and legal precedents cited at the
FIR No. 65/20
PS Dayalpur 103 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
bar.
7.2 Before proceeding to determine the issue relating to the
death of Ankit Sharma, it is necessary to deal with certain preliminary
contentions raised on behalf of the accused.
7.2.1 It has been contended by Sh. Rajiv Mohan, learned
counsel for accused Tahir Hussain, that the FIR is ante-dated and ante-
timed, and that even the original complaint made by the father of the
deceased had been changed. He further contended that Section 157
Cr.P.C. was also not complied with. On the strength of these
submissions, which have already been reproduced in detail in the
earlier part of this judgment, he has argued that the entire investigation
stands vitiated and in the eyes of law, is non est. In essence, he seeks
to strike at the very foundation of the prosecution case and thereby
bring down its entire edifice.
7.2.2 To substantiate these assertions, learned counsel has
contended that all the inquest proceedings as well as the post-mortem
proceedings were conducted pursuant to DD No. 63A and not on the
basis of the FIR in question, which, according to the prosecution, had
already been registered. It is pointed out that the documents
Ex.PW9/A, Ex.PW9/B, Ex.PW9/C and Ex.PW9/D, prepared by PW9,
bear the reference of DD No. 63A instead of the FIR number. It is
further argued that PW9 failed to explain this aspect. According to the
defence, had the FIR already been registered by the time the post-
FIR No. 65/20
PS Dayalpur 104 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
mortem was conducted, these documents would necessarily have
carried the FIR number. It is, therefore, contended that the FIR was in
fact registered at a later point of time but was shown to have been
registered on 26.02.2020.
7.2.3 Per contra Ld. SPP had contended that the Ld. defence
counsel is trying to draw a presumption where none are available. It
was the contention of Mr. Pandey that in the light of the judgment of
Hon’ble Apex Court in Shiv Ram(supra), this arguments has to be
summarily rejected.
7.2.4 The contention that PW9 failed to explain this issue
presupposes that an explanation was sought from him but that he
failed to furnish one. However, a bare perusal of his cross-
examination reveals that no explanation whatsoever was sought from
him regarding the reason for mentioning DD No. 63A instead of the
FIR number on these documents. Consequently, the submission that
PW9 failed to explain the discrepancy is factually incorrect.
7.2.5 In fact, the argument itself indicates that PW9 was the
only person who could have explained this aspect. If the defence
considered this circumstance significant, it was incumbent upon it to
confront the witness with the issue during cross-examination. Having
chosen not to do so, it cannot attempt to now derive a tactical
advantage from its own omission. In these circumstances, the mere
FIR No. 65/20
PS Dayalpur 105 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
fact that DD No. 63A, and not the FIR number, appears on these
documents cannot lead either to the conclusion or even to a reasonable
probability that the FIR had not been registered by then.
7.3 It has next been contended that at about 6:30 p.m. on
26.02.2020, when DD No. 63A was recorded, the police at PS
Dayalpur had already come to know that Ankit Sharma had been
murdered. Yet, neither DD No. 9A nor DD No. 63A was made the
basis of registration of the FIR. According to the defence, this
circumstance renders the FIR highly doubtful.
7.3.1 In my considered opinion, this circumstance by itself
cannot lead to the conclusion that the FIR lacks genuineness.
Arguments are equally available on either side. Had the FIR been
registered on the basis of the DD entries, the defence could very well
have argued that the FIR itself was doubtful because, despite the
identity of the deceased being known and his father being available to
make a statement, the police still chose to register the FIR merely on
the basis of a DD entry.
7.3.2 I have also considered the contention that the FIR was
registered on the basis of a fabricated complaint allegedly made by
PW28, as his original complaint had been changed to introduce the
name of Tahir Hussain in order to satisfy public sentiment and lend
credence to local rumours. Learned counsel has submitted that PW28
FIR No. 65/20
PS Dayalpur 106 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
categorically denied his signatures on the complaint forming the basis
of the FIR and that even during his cross-examination, the contents of
that complaint were not put to him to ascertain whether those
averments had in fact been made by him. It is, therefore, argued that
the FIR is founded upon a fabricated complaint.
7.3.3 On this aspect, PW28 Ravinder Kumar (father of the
deceased) deposed that on 26.02.2020 he had made a complaint at the
other police station (referring to PS Dayalpur), which was recorded by
the police. The complaint was related to the killing of his son Ankit
and the recovery of his dead body. According to him, the police had
obtained his signatures on that complaint.
7.3.4 When the complaint on the basis of which the rukka had
been prepared was shown to him, he stated that it did not bear his
signatures. He further deposed that the police had read over the
complaint to him and that one or two facts had been changed. One
such change, according to him, related to someone named Kalu being
shown as a witness. He stated that he had objected to the inclusion of
Kalu’s name but was informed by the police that whatever had been
written had already been recorded. PW28 further stated that he could
identify the complaint signed by him because he had affixed his
signatures on it. However, when the signatures encircled at point ‘A’
were shown to him, stating that those signatures were in English
whereas he ordinarily signed in Hindi, he denied that they were his
FIR No. 65/20
PS Dayalpur 107 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
signatures.
7.3.5 During his cross-examination by the ld. SPP, an attempt
was made to confront PW28 with the contents of the complaint upon
which he had denied his signatures. However, the very first question,
relating to his alleged statement regarding the protest against CAA-
NRC on Main Road, Karawal Nagar, was disallowed by my learned
predecessor on the ground that no such fact had been put to the
witness during his examination-in-chief and, therefore, it could not be
put to him by way of confrontation. Immediately thereafter, the
learned SPP gave up the line of questioning and made no further
attempt to confront the witness by rephrasing the questions or by
adopting any other permissible mode.
7.3.6 Thus, the prosecution did attempt to confront the witness
with the contents of the complaint in order to ascertain whether those
facts had indeed been stated by him to the police. That attempt,
however, did not succeed because of the ruling of my learned
predecessor. To that extent, therefore, the prosecution cannot be
faulted. Nevertheless, the fact remains that the person, on whose
complaint the FIR was allegedly registered, refused to identify his
signatures on that complaint. In the absence of any further effort by
the prosecution, a possibility does arise that PW28 may have signed
some other complaint.
FIR No. 65/20
PS Dayalpur 108 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
7.3.7 This brings me to PW46, who was the only witness
capable of clarifying this issue, as it was he who had recorded the
statement of PW28. He deposed that Ravinder Kumar Sharma(PW28)
came to the police station at about 10:00/10:30 p.m., whereupon he
recorded his statement, made an endorsement thereon and handed it
over to ASI Rajender for registration of the FIR. He further deposed
that his endorsement appeared at point A to A and bears his signatures
at point Y. The endorsement was exhibited as Ex.PW46/A.
7.3.8 During his cross-examination on this issue, no attempt
was made to elicit any factual clarification from him. He was merely
given suggestions, all of which he denied. He denied that the FIR had
not been registered till the post-mortem examination was conducted;
that he had fabricated the statement of Ravinder Sharma; that the FIR
had been registered only after returning from the mortuary and had
been ante-dated and ante-timed; and that Ravinder Sharma had never
made any statement before him.
7.3.9 Thus, no part of PW28’s testimony was put to PW46 to
confront him with the situation arising from PW28’s denial that the
statement forming the basis of the rukka bore his signatures. Only if
such a confrontation had been made could PW46 have offered an
explanation. Instead, he was merely confronted with bald suggestions,
which he naturally denied.
FIR No. 65/20
PS Dayalpur 109 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
7.3.10 Be that as it may, the testimony of PW28 does create a
doubt that there may have existed another statement made and signed
by him, which was not made the basis of the FIR. The question,
therefore, that arises is whether the possibility that the statement
forming the basis of the FIR may have been fabricated is sufficient to
demolish the entire prosecution case?
7.3.11 I have carefully considered the judgments of the Hon’ble
Supreme Court in Devender Pal Singh Bhullar (supra), Sudershan
(supra) and Meharaj Singh (supra), relied upon on behalf of accused
Tahir Hussain, as well as the judgments in Shiv Ram (supra) and
Bable (supra), cited by the prosecution.
7.3.12 A bare reading of the judgment in Meharaj Singh (supra)
makes it evident that the rationale behind insisting upon prompt
registration of an FIR is, that it brings forth the earliest and
unembellished version of the occurrence. Delay in lodging the FIR
may permit the introduction of exaggerated or improved versions
based upon afterthought or legal advice. Similarly, the object of
Section 157 Cr.P.C., as explained in Sudershan (supra), is to ensure
that the FIR is promptly recorded so as to eliminate the possibility of a
false case being set up or false witnesses being introduced. At the
same time, the failure to comply or a delay in complying with section
157 Cr.P.C does not automatically vitiate the entire investigation and
such an advantage can only accrue to the accused if the accused
FIR No. 65/20
PS Dayalpur 110 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
demonstrates that such a delay has prejudiced his or her case. [Rama
Devi v. State of Bihar, (2024) 10 SCC 462].
7.3.13 The legal principle that thus emerges is- that any
manipulation in the registration of an FIR becomes fatal to the
prosecution only where it is established that the delay or manipulation
was actuated by mala fides with the object of introducing a version or
witnesses which otherwise would not have been available, as was the
situation in Meharaj Singh (supra). Equally well settled is the principle
that an error, illegality or defect in investigation does not affect the
outcome of the trial unless it is shown that such illegality or defect has
resulted in serious prejudice to the accused or has occasioned a
miscarriage of justice. Reliance in this regard may be placed upon
Union of India v. Prakash P. Hinduja, AIR 2003 SC 2612.
7.3.14 The Hon’ble Supreme Court has also consistently held
that where the prosecution case is otherwise established by credible
evidence, any lapse or omission on the part of the investigating officer
cannot, by itself, render the prosecution case doubtful. Reliance may
be placed upon Amar Singh v. Balwinder Singh, AIR 2003 SC 1614
and Sambhu Dass v. State of Assam, AIR 2010 SC 3300.
7.3.15 Furthermore, under our criminal jurisprudence, an FIR is
not substantive evidence. It merely sets the criminal law into motion.
Consequently, even if an FIR is found to be fabricated, ante-dated or
FIR No. 65/20
PS Dayalpur 111 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
deliberately delayed, such a circumstance merely casts a greater
responsibility upon the Court to scrutinize the evidence with greater
care and circumspection. If, independent of the FIR, the prosecution
succeeds in proving its case beyond reasonable doubt through reliable
evidence, such defects cannot be regarded as fatal to the prosecution.
Reliance in this regard may be placed upon Sukhdev Yadav & Ors. v.
State of Bihar, AIR 2001 SC 3678.
7.3.16 Applying the aforesaid legal principles to the facts of the
present case, it is apparent that the FIR does not contain any elaborate
prosecution version capable of being manipulated or built upon. It
does not disclose how, where, when or by whom the deceased was
murdered. Nor does it project the complainant as an eyewitness or
contain any eyewitness account of the occurrence. In other words, the
FIR does not lay the foundation of the prosecution case in the manner
suggested by the defence.
7.3.17 However, it has been contended by learned counsel for
accused Tahir Hussain that the complaint of the father of the deceased
was altered solely to introduce the name of Tahir Hussain in order to
satisfy public sentiment.
7.3.18 However, the defence itself stops short of asserting that
the original complaint did not contain the name of Tahir Hussain.
Rather, it merely suggests that his name may have been subsequently
FIR No. 65/20
PS Dayalpur 112 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
incorporated. This argument stems from DD No. 9A (Ex. PW38/A),
wherein the father of the deceased had reportedly stated that he did not
suspect anyone, whereas the complaint forming the basis of the FIR
records his belief that Tahir Hussain and the persons assembled in his
office had murdered his son and thrown the body into the drain.
7.3.19 At this stage, it is significant to note that PW28
categorically deposed that on the night preceding the recovery of
Ankit Sharma’s body, he had accompanied the police to the house of
Tahir Hussain in search of his missing son. Neither Ankit Sharma nor
his body could be found there. This part of his testimony remained
unchallenged. It clearly establishes that even before the recovery of
the dead body, suspicion had already arisen regarding the involvement
of accused Tahir Hussain, which explains why his premises were
searched on the very day Ankit Sharma went missing.
7.3.20 Even learned counsel for the accused has argued that the
name of Tahir Hussain was inserted into the FIR to satisfy public
sentiment and lend credence to prevailing rumours. This submission
further acknowledges that suspicion regarding Tahir Hussain already
existed and that rumours concerning his involvement were circulating
at the relevant time.
7.3.21 Moreover, the original investigating officer, who is
alleged to have altered the complaint, admittedly conducted no
FIR No. 65/20
PS Dayalpur 113 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
effective investigation, as he himself conceded during his testimony.
The investigation was subsequently transferred to the Crime Branch
and a new investigating officer took over. It is also a matter of record
that the new investigating officer did not proceed with alacrity to
arrest Tahir Hussain merely because his name appeared in the FIR.
Consequently, whatever force the defence sought to derive from the
judgment in Devender Pal Singh Bhullar (supra) stands considerably
diluted, not only because the investigating officer was changed but
also because the investigation itself was transferred out of the local
police station.
7.3.22 Accordingly, I am of the considered opinion that even if,
for the sake of argument, the defence allegation that the FIR was ante-
dated, ante-timed and fabricated is accepted, no benefit can accrue to
the accused unless it is further established that such irregularity caused
serious prejudice to him or resulted in a miscarriage of justice. This
conclusion is inevitable because to discard the prosecution case solely
on account of such irregularities, without even making an attempt to
evaluate if the case is otherwise proved or not, would itself occasion a
miscarriage of justice and result in injustice to the victim.
7.3.23 In the present case, neither has the accused demonstrated
how he was prejudiced by the alleged irregularities, nor has any such
prejudice been established from the record. On the contrary, as already
noticed, the FIR neither introduces a detailed prosecution narrative nor
FIR No. 65/20
PS Dayalpur 114 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
plants any witness. Prima facie, therefore, the alleged irregularities in
the registration of the FIR do not, in any manner, prejudice the
accused.
7.4 Another submission advanced by Sh. Rajiv Mohan,
learned counsel for accused Tahir Hussain, is that no effective
investigation was conducted till 06.03.2020. According to him, the
only reasonable inference that can be drawn from this circumstance is,
that the investigating agency, in order to concoct a false prosecution
story, tutor the witnesses, and record their statements in conformity
with that fabricated version, deliberately refrained from carrying out
any meaningful investigation during this period.
7.4.1 I have given my thoughtful consideration to the aforesaid
submission. At the outset, it must be noted that the mere fact that no
substantial investigative steps were taken till 06.03.2020 cannot, by
itself, lead to the irresistible conclusion that the investigating agency
deliberately withheld the investigation with the object of fabricating a
false prosecution case. Such an inference cannot be drawn merely on
the basis of inaction unless it is further demonstrated, from the
material available on record, that the intervening period was in fact
utilized to create false evidence, tutor witnesses, or record statements
tailored to a preconceived prosecution narrative.
7.4.2 It has been contended that PW46 did not conduct any
effective investigation and, despite there being a high probability of
FIR No. 65/20
PS Dayalpur 115 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
witnesses being available, failed to examine any witness during the
first twenty-four hours. This contention itself makes it evident that the
only person who could have explained the reasons for such omission
was PW46. However, during his cross-examination, no such question
was put to him so as to afford him an opportunity to offer an
explanation, if he had one. It is entirely possible that he may not have
been able to furnish any explanation or that the explanation offered
may not have been found satisfactory. Equally, it is possible that he
could have satisfactorily explained the manner in which he conducted
the investigation during the said period. Unless such an opportunity
was afforded to him, accused cannot invite the court to draw an
adverse inference solely on the basis of the omission alleged by the
defence. Even otherwise, as per the deposition of PW79 during his
cross-examination, in the evening of 27/03/2020 itself a decision had
been taken that all cases of murders during the riots had to be
transferred to crime branch an the entire district (referring to police)
knew about it. This statement remained unchallenged. Hence it may
also be possible, that by the evening of 27/03/2020, PW46 might have
come to know that he was not to investigate this case and therefore the
laggardness. Be that as it may, unless an opportunity was afforded to
him to explain his conduct, the accused cannot be permitted to invite
the Court to draw a presumptive adverse inference solely on the basis
of the omission alleged by the defence.
FIR No. 65/20
PS Dayalpur 116 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
7.5 Coming now to the contention that PW79 deliberately did
not record the statement of any eyewitness till 06.03.2020 because he
was occupied in concocting a story to falsely implicate Tahir Hussain,
it has been argued that PW79 had admittedly conducted local inquiries
and had even prepared a rough site plan on the basis of information
gathered during those inquiries. Despite this, he neither recorded the
statements of the persons from whom such information was obtained
nor exercised the powers available to him under law to compel such
persons to make statements if they were unwilling to become
witnesses.
7.5.1 On this aspect, I find that the testimony of PW79 that the
persons from whom he obtained information during local inquiry did
not wish to become witnesses has remained unrebutted. Even
otherwise, it is not uncommon for persons to be reluctant to come
forward as witnesses, particularly in cases arising out of communal
riots. My view is fortified by the fact from 25/02/2020 i.e. the day
Ankit Sharma went missing, till the recovery of his dead body, no one
from the 500 to 700 persons who, as per the defence, were present
during the incident, came forward to report it. One must also bear in
mind that even though the Investigating Officer possessed the legal
authority to compel such persons to make statements, a reluctant
witness may ultimately prove to be an unreliable or hostile witness.
Whether or not to exercise such coercive powers was essentially a
FIR No. 65/20
PS Dayalpur 117 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
matter of investigative discretion and professional judgment, and
merely because the Investigating Officer chose not to exercise those
powers, it cannot be said that he acted with any ulterior motive.
7.6 It was next contended that the explanation offered by
PW79 that witnesses were not forthcoming is inherently improbable
because, during the relevant period, several victims of the riots from
the area had been approaching the police with complaints and PCR
calls. However, during his cross-examination, PW79 categorically
stated, in response to a question put by Sh. Rajiv Mohan, that till
05.03.2020 he had not come across any witness who disclosed the
identity of the persons involved in the murder of Ankit Sharma. This
testimony was allowed to stand without any further probing about the
possibility of the riot victims being available and a further possibility
of some of them being eyewitnesses to the present offence.
Consequently, not only did the explanation furnished by PW79 remain
unrebutted, but the absence of any further challenge to this aspect of
his testimony also amounts to a tacit acceptance thereof.
7.6.1 In these circumstances, I find no material on record to
either conclude or even hold it probable that the Investigating Officers
deliberately refrained from recording the statements of witnesses till
06.03.2020 because they were engaged in concocting a false
prosecution story or searching for witnesses to falsely implicate
accused. Mere delay in recording witness statements, in the absence of
FIR No. 65/20
PS Dayalpur 118 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
any cogent material indicating that the intervening period was utilized
for fabricating evidence or tutoring witnesses, cannot justify the
inference sought to be drawn by the defence.
7.7 The question which now needs to be decided is, whether
the death of Ankit Sharma was homicidal in nature?
7.7.1 In order to prove this fact, the prosecution has relied upon
the post-mortem report, prepared by the medical board which had
conducted autopsy upon the dead body.
7.7.2 On the other hand, it was contended by Sh. Rajiv Mohan,
ld. counsel for Tahir Hussain that that there had been discrepancies in
the depositions of witnesses with regard to the recovery of body.
According to him, PW27 and PW28 had stated that body was
recovered in the morning because according to PW28, on 26.02.2020,
he reached Chand Bagh Pulia at around 6 am and the divers arrived
about 10-15 minutes later. According to PW27 Sanjay Singh, at
around 8.30-9 am, he saw persons and police present at Chand Bagh
Pulia and that some divers were also present there. The divers had
taken out the body which was revealed to be that of Ankit Sharma.
However, PW17 and PW40 deposed that body was discovered
somewhere between 11.30 a.m – 12.00 p.m. On the other hand, PW23
Sudhir Kumar specified the time of recovery of body of deceased at
1.00 p.m whereas, MLC shows that body of Ankit Sharma had
reached the hospital at about 12.53 pm. However, the MLC did not
FIR No. 65/20
PS Dayalpur 119 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
reflect any injuries over the body. Even the rukka sent by Insp. Hukam
Singh, which was Ex.PW46/A, had not mentioned about any injury on
the deceased. Insp. Hukam Singh, during his cross examination,
deposed that he had only seen the face of the deceased and there was
no injury on the face. He was not aware about the injury to any other
part of the body. It is further contended that as per Insp. Hukam Singh
(PW48), PW9 had deposited the dead body in the mortuary but at that
time, no family member was present, who identified the dead body.
No mortuary ticket was placed on record and PW9 was silent about
the deposition of dead body on the mortuary. PW41, who had
prepared the MLC (Ex.PW41/A), was also silent about any injury on
the body and stated that the body was sent to mortuary through
hospital staff. The MLC does not reflect any injuries. The prosecution
made no efforts to solve this mystery of how the body of Ankit
Sharma reached the mortuary. It is further contended that the case of
the prosecution shows that a call was made by one Pooja Chaudhary at
6.34 pm informing, ‘yaha par musalman hindu ko maar kar naale mein
daal rahe hai’. The same caller at about 6.39 pm informed that ‘3-4
ladke maar diye hai’. In these circumstances, the version of
prosecution becomes doubtful. Furthermore, the prosecution is relying
upon FSL report, Ex.PW31/A. As per this report, blood lifted from the
wall towards Mazar Bhajanpura and the stone were found containing
the blood of the deceased, whereas the blood lifted from a plastic sheet
FIR No. 65/20
PS Dayalpur 120 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
and one poster were of some other person. It is further contended that
whatever be the number of the bodies, from the testimony of the
witnesses, it has come on record that at each time of recovery of body,
police was present but Ct. Sachin (PW40) is the only witness
examined, whose videos of alleged recovery of body has not been
proved.
7.7.3 I have considered this contention.
7.7.4 Interestingly, Mr. Rajiv Mohan had argued this point at
length, but never rendered the purpose of taking this line of argument
or the point sought to be proved through it and despite being asked
what argument, he wanted to develop by strenuously and at length
pointing towards the alleged discrepancies in the testimonies of
witnesses to the recovery of the body; he insisted that he would not
elaborate any further on it and it was for the court to make of it what
the court thought fit of it.
7.7.5 I am also unable to completely sure of the line of
arguments that ld. counsel for accused is trying to take. However, if I
were to take a guess, it appears to me that counsel for accused is trying
to put forward a two-body theory and that it is possible, that the body
which was recovered was not of Ankit Sharma and the post-mortem
was not conducted on his body. I say so because the three contentions
raised by ld. counsel for accused point towards this line of argument.
First is his reliance upon the FSL report where the blood groups of
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two different people were found near Chand Bagh Pulia. The second
is that the body, according to the father of the deceased and PW27,
was recovered in the morning hours of the day whereas, other
witnesses have stated that the body was recovered at around 11.30
a.m-12.00 p.m. and PW23 stated that the body was recovered at
around 1.00 p.m. The third is the assertion that “whatever be the
number of the bodies, from the testimony of the witnesses, it has come
on record that at each time of recovery of body, police was present”.
7.5.6 There are five witnesses to the recovery of body which
have been cited by the prosecution. These are PW17, PW20, PW23,
PW28 and PW40.
7.5.7 PW17 Shehjad Ali is the diver who had helped in
recovery of the dead body. As per his testimony, on 26.02.2020, he
reached for his duty at about 9.00 a.m. At around 11.00 a.m, his in-
charge, Harish Kumar, received a call about drowning of a boy at
Chand Bagh Pulia, Khajuri Khas. He alongwith Harish Kumar,
Saleemudin, Saddam, Rahees and Sarfaraz went to that place. He,
Saleemuddin and Sarfaraz entered into that drain in search of the boy
and after about 30 minutes, they found that boy in the drain. The body
was taken out from there. There was clothes (sic) on his body. On the
body, blood was found on the stomach, face, back etc. He did not
minutely notice all the injuries on his body.
7.5.8 During his cross examination, there were questions that
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were asked about the width of the boat which they had, why the boat
did not enter the drain, the depth of nala, the width of the nala, which
in my opinion are irrelevant. So in effect, his testimony, that on that
day i.e. on 26.02.2020 at around 11.30 a.m, he along with his team
members had recovered the dead body of a boy, has been unrebutted.
7.5.9 The defence has stressed that while the deceased’s father
(whose testimony will be discussed later) stated there was only
underwear on the body, this witness testified that the body had clothes
on. However, a review of the transcript reveals the use of phrase:
“there was clothes on the body”. In my view, this is a clear
typographical error. The use of the singular verb “was” strongly
indicates that the witness used a singular term, making it highly
probable that the letter “s” at the end of “clothes” was a typing
mistake. Furthermore, since this testimony was recorded in the
presence of the accused, it was also the defence’s duty, in all fairness,
to clarify this apparent grammatical error at the time. Rather than
seeking a clarification, the defence chose to let the mistake stand in an
attempt to leverage it later in an advantage although, there is none to
be taken.
7.5.10 The next witness is PW20. About the recovery of body,
he deposed that on the next day (26.02.2020), he was called by the
police at Chand Bagh Pulia. At that time, divers had gone inside the
drain and a dead body was found. It was revealed that it was dead
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body of Ankit Sharma and was so identified by his father. The body
was wearing an underwear and a black cloth was tied around its neck.
7.5.11 On this point, there was no cross examination of this
witness.
7.5.12 The next witness is PW23 Sudhir Kumar Sharma. He was
the maternal uncle of the deceased. Regarding the recovery of the dead
body, he deposed that during the search of Ankit Sharma they,
alongwith police, reached Chand Bagh Pulia when someone had
informed them that a body was lying in the drain. Police called some
divers. 3-4 divers reached who dived into the drain and after some
search, they came out with the dead body of Ankit Sharma. Some
stones were tied on the neck of Ankit Sharma with the help of rope or
some other material. The body, except for his underwear, was
completely naked. Ambulance was called and he accompanied the
body to GTB Hospital.
7.5.13 During his cross examination, he denied that he had seen
the dead body of Ankit for the first time at about 9-9.30 a.m and
volunteered, that the divers had come at about 10.00 a.m and he would
have seen the body of Ankit Sharma at around 1.00 p.m. He further
deposed that it was possible that dead body of Ankit Sharma might
have reached the hospital by 12.53 p.m. He further deposed that he
had mentioned the time of 3.00 p.m on the basis of estimation, but as
it had been 04 years, he did not have idea of exact time.
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7.5.14 The next witness is PW28 Ravinder Kumar, the father of
the deceased. On the point of recovery of dead body, he deposed that
on 26.02.2020 at around 5.00 a.m, he received a telephonic call from
someone who informed him that one boy was thrown in the drain at
Chand Bagh Pulia On reaching that drain, he found a number of
persons from Hindu community and he was informed that one boy
was thrown in that drain after being lifted above the water tank. He
again made a telephonic call to his officer (probably referring to his
superior) and was informed that by 6.00 a.m, police including senior
officers would reach. At about 5.30-5.45 a.m, he got a message that
police was summoning him at the drain. He reached that place again.
Divers came a bit late after around 10-15 minutes. He pointed the
place in the drain where body of a boy was stated to have been
thrown. 2-3 divers dived into the drain. Divers first took out hand of
the body. In that hand, there was a black thread and on the basis of the
black thread, he stated that it was the body of Ankit Sharma.
Thereafter, complete body was taken out. Body was in underwear
without any other cloth. Being overwhelmed with emotions, he could
not see that body any longer as the body had so many wounds on it.
There were wounds on his back, stomach and other parts of the body.
The dead body was thereafter taken to GTB Hospital.
7.5.15 He was also not cross examined on this point.
7.5.16 The next witness is PW40 HC Sachin. He was posted as
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Constable at PS Khajuri Khas at the relevant time. He deposed about
search for Ankit Sharma being made during the night of 25.02.2020
and that during the course of inquiry, they came to know that a dead
body was thrown in drain at Chand Bagh Pulia. They searched with
the help of torch in the drain till about 5.30 a.m on 26.02.2020 but
they could not find Ankit Sharma. On the same day, at around 10-11
a.m, SHO called some divers at Chand Bagh Pulia. 4-5 divers
searched for Ankit in the drain. At about 11.45 a.m -12.00 p.m, divers
brought a dead body from the drain. The body was only in underwear
and a torn vest was wrapped around his neck. There were several
injury marks over that dead body. Ravinder informed that it was the
body of his son. From his mobile phone, he had recorded two videos
during the process of dead body being recovered. On the directions of
the IO, he had transferred the videos in two DVDs which were seized
vide memo Ex.PW40/A. He also issued certificate u/s 65B of IE Act
which was Ex.PW40/B.
7.5.17 During his examination, the DVD, which was in open
condition, was sought to be played. However, my learned predecessor
disallowed the playing of DVDs on the ground that in absence of
forensic examination of the DVDs, they were not be admissible in
evidence.
7.5.18 During his cross examination, he deposed that he did not
know whether, any police staff from PS Dayal Pur was present at the
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place of recovery at around 10-11 a.m on that day. He denied that he
was not present at Chand Bagh Pulia during the recovery of dead
body.
7.5.19 A bare perusal of the aforesaid testimonies of the
witnesses reflects that none of the witnesses have stated that the body
was recovered at around 5-6 a.m or a little thereafter. The imputation
to PW28 is only an inference drawn by defence because according to
PW28, at around 5.30-5.45 a.m, he got a message that police was
calling him to the drain. He reached that drain and 10-15 minutes
thereafter, divers arrived. However, what is noticeable is, that he does
not state the time of his arrival at Chand Bagh Pulia and only states
about the time at which he receives message to reach Chand Bagh
Pulia. This information was not elicited from the witness during the
cross examination and therefore, it cannot tactically be used to raise an
inference where a specific information could have been gathered.
7.5.20 On the other hand, PW23 deposes about reaching the
house of PW28, who was his brother-in-law, at around 4.00 a.m on
26.02.2020. He further deposes about searching for the deceased at
hospitals near ISBT including St. Stephens Hospital, returning to PS
Khajuri Khas, then going to PS Dayalpur and then the divers being
called. He does not state the time of the recovery of the body in his
examination in chief but in his cross examination, he categorically
states that divers came at around 10.00 a.m, which would mean that as
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per him, the body might have been recovered after 10.00 a.m.
7.5.21 The testimony of PW17 has been entirely unrebutted
about the time when he discovered the dead body. Similarly, apart
from giving a bald suggestion to PW40 that he was not present at the
time of recovery of dead body, no cross examination of PW40 upon
his testimony that the dead body was recovered at 11.45 a.m -12 p.m,
has been conducted. This is coupled with the fact that the dead body
had reached the hospital at 12.53 p.m.
7.5.22 There is also no challenge to the time as recorded in the
MLC. This MLC had been proved by PW41 Dr. Nadeem Akhtar, who
was CMO of GTB Hospital on 26.02.2020. As per his testimony, this
MLC was prepared by Dr. Richa Verma who had worked with him
and he could identify her signatures and handwriting. On the date of
his testimony, Dr. Richa Verma was not working in the hospital and
her whereabouts were not known. He identified her signatures at point
X and the MLC was exhibited as Ex.PW41/A.
7.5.23 Throughout his cross examination, there is no challenge
that the time on the MLC was incorrect or that it was not of Ankit
Sharma. Therefore, it is completely improbable that the body, which
might have recovered at 6 a.m, would have been taken to hospital,
which was not too far away from the place of recovery at 12.53 p.m.
7.5.24 Furthermore, during the cross examination of PW17, he
was asked and he deposed that except on the date he had deposed
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about, he was not called by the police to dive in the same drain again
and that he was not aware whether his other team members were
called to dive in the same drain. At least this witness suggests that
never again had he dived into that drain to find another body.
Secondly this witness only deposes about taking out one body from
the drain. Had there been second dead body taken out by this diver, he
would have deposed about two bodies. It was never suggested to this
witness that on that day, he had taken out two bodies from the drain.
7.6 Similar is my observation with regard to the fact that
MLC did not mention the nature of injuries. PW41 specifically and
satisfactorily answered this question when during his cross
examination he deposed, that the description of injuries on the body of
a person, who is declared ‘brought dead’ is not mentioned in the MLC
of such person. This stand of his was not even controverted.
Furthermore, I find it to be correct approach or the usual approach
because once a person is declared brought dead, examination of body
is the job of the autopsy surgeon.
7.7 Similarly, an argument for the sake of arguments has
been raised on behalf of defence that the rukka did not mention the
nature of injuries. In my considered opinion, rukka need not mention
the nature of injuries because such injuries, wherever they are found,
are to be gleaned from the MLC or post-mortem report, as the case
may be.
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7.8 A further argument has been raised that this was not the
dead body which was recovered from the drain because the MLC
records that a dead body was found in unconscious condition near
Chand Bagh Pulia.
7.8.1 Here again, I must find that the consistent testimonies of
witnesses that body was recovered from the drain have remained
unrebutted.
7.8.2 In view of the consistent testimonies of witnesses in this
regard, not much weightage can be given to this argument.
7.9 Then there is an argument on behalf of the defence about
deposition of dead body in the mortuary.
7.9.1 As per the MLC (Ex.PW41/A) and emergency
registration card (Ex.PW41/C), the body was sent to mortuary for
post-mortem.
7.9.2 However, it has been argued on behalf of the defence that
according to PW46, it was PW9 who had deposited the dead body in
the mortuary but at that time, no family member was present to
identify it; no mortuary ticket had been placed on record either and
PW9 was silent about depositing the dead body on the mortuary.
7.9.3 Before proceeding to the testimony of these witnesses, it
is important to look at the testimony of PW41 which emerged during
his cross examination.
7.9.4 PW41 Dr. Nadeem deposed that as a safety measure,
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while shifting the dead body from emergency to mortuary, the staff of
the hospital takes the dead body to the mortuary. The name of such
staff is not mentioned in the MLC and nursing staff makes note of his/
her name in his / her record.
7.9.5 Therefore, it is a usual practice in the hospital, as is
visible from uncontroverted testimony of PW41, that from the
emergency, the dead body, for the deposition in the mortuary, is taken
to the mortuary in the custody of hospital staff. If the defence so
wanted, such record could have been summoned to confront the
witnesses.
7.9.6 Now coming on the testimonies of PW46 and PW9.
7.9.7 PW46 Insp. Hukum Singh deposed that on receipt of DD
no. 63-A, he along with ASI Rajender, went to GTB Hospital where
he collected the MLC in the name of Ankit Sharma who had been
declared brought dead. The dead body was shifted to mortuary of
GTB Hospital. He directed ASI Rajender to prepare documents for
proceedings u/s 174 Cr.P.C. After depositing the dead body in the
mortuary, he returned to casualty to look for Ankit Sharma’s father
but he could not find him.
7.9.8 During his cross examination, he deposed that at the time
when body of Ankit Sharma was being shifted from casualty to
mortuary, he did not find any family member of Ankit Sharma inside
the casualty. He admitted that the dead body of Ankit Sharma was
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shifted to mortuary in seal packed condition. He did not know about
the token number vide which the body would have been deposited in
the mortuary and volunteered, that ASI Rajender might have been
aware of such token number because, he had taken the dead body to
the mortuary. He met ASI Rajender outside the mortuary when he
came out of the same after depositing the dead body.
7.9.9 It is on this part of the cross examination of PW46 that it
is contended that it was ASI Rajender who had deposited the dead
body in the mortuary.
7.9.10 However, I cannot miss sight of the fact during his
examination in chief, PW46 stated that after depositing the dead body
in the mortuary, he came to the casualty to look for the father of Ankit
Sharma but could not find him and then during the part of his cross
examination, which has been relied, he again stated that at the time of
shifting the body of Ankit Sharma from casualty to mortuary, he did
not find any member of the family of Ankit Sharma inside the
casualty.
7.9.11 On the other hand, PW9 ASI Rajender deposed that on
receipt of DD No. 63-A, he alongwith Insp. Hukum Singh reached
GTB Hospital and obtained the MLC. The dead body was shifted to
the mortuary.
7.9.12 Therefore, a careful analysis of both these testimonies
reflects that both the witnesses have spoken about dead body being
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deposited in the mortuary. The mere fact, that PW9 did not say that it
was he, who had gone to mortuary to deposit the dead body, could not
lead to a conclusion that he had not so gone. It is an immaterial detail
which this witness missed and even the other witness also provided
these details when, during his cross examination, these were asked for.
Hence, there is no material contradiction regarding the deposition of
dead body in the mortuary.
7.9.13 This brings me to the next contention which is with
regard to two different DNAs found on the blood found near the place
of recovery of dead body.
7.9.14 It is correct that two different DNAs were found.
However, the contention of defence, that the DNA lifted from poster
sheet was of some other person, is absolutely false and is misleading
because the poster sheet was marked as Ex.4, as is visible from report
Ex.PW31/B and the DNA profile could not be generated from this
source.
7.9.15 However, as far as the contention with regard to Ex.3 i.e.
plastic sheet is concerned, it is correct that the DNA generated from
the blood found on the plastic sheet did not match the deceased.
However, only fact that is established from this report is, that from the
blood spots found at the place of recovery, there were two DNAs that
were generated. One was of the deceased and one was of an unknown
person. But how would it lead to a conclusion that there was a second
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body recovered from that place is beyond my comprehension.
7.9.16 Thus, I find that the two dead body theory is nothing but
an effort made by the defence to confuse the court. Therefore, I am of
the considered opinion that the prosecution has succeeded in proving
beyond all reasonable doubts that body of deceased Ankit Sharma was
recovered from the drain near Chand Bagh Pulia on 26.02.2020 and
was thereafter taken to GTB Hospital where MLC (Ex.PW41/A) was
prepared and he was declared ‘brought dead’.
7.9.17 The post-mortem upon the dead body was conducted on
27.02.2020.
7.9.18 Insp. Hukum Singh, appearing as PW46, deposed that on
26.02.2020, he was directed by the SHO to visit GTB Hospital and he,
along with ASI Rajender who had already been assigned DD No. 63A,
went to GTB Hospital. They collected the MLC. The body was shifted
to mortuary and he directed ASI Rajender to prepare documents for
proceedings u/s 174 Cr.P.C. Next day (which would be 27.02.2020),
he along with ASI Rajender again went to mortuary. ASI Rajender
had prepared inquest papers and submitted them before the mortuary.
On his directions, ASI Rajender summoned the videographer. A board
of doctors conducted the post-mortem, which was video recorded.
Prior to post-mortem, the dead body was identified by Ravinder
Sharma. After the post-mortem, the dead body was handed over
Ravinder Sharma. From the videographer, he collected CDs of the
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video of post-mortem, through seizure memo, Ex.PW2/B and
deposited one CD in malkhana and two CDs were kept on file.
7.9.19 When he was cross examined on this point, he deposed
that he did not remember the time of starting of post-mortem and its
end. He did not collect the copy of post-mortem report on that day. He
further deposed that on that day, ASI Rajender had handed over a
duplicate copy of inquest papers but he did not remember the time of
the same. He also did not remember whether he had gone through the
inquest papers. He had not conducted inquest proceedings himself and
information of Ankit Sharma was assigned to ASI Rajender. The
statements of identification of dead body were recorded by ASI
Rajender on a typed format. He did not seek any clarification from
ASI Rajender regarding inquest papers. He further deposed that all the
inquest papers were prepared on 27.02.2020.
7.9.20 On the other hand, PW9 ASI Rajender Kumar deposed
that on 27.02.2020, he got the dead body identified by father and uncle
of the deceased and prepared two identification memos, which were
exhibited as Ex.PW9/A and Ex.PW9/B. He filled inquest papers and
form 25.35 for conducting postmortem examination and handed over
the same to the doctors alongwith identification memos. The inquest
form was Ex.PW9/C. The form 25.35 was Ex.PW9/D. A videographer
was summoned by him to conduct videography. After the post-
mortem examination, dead body was handed over to the father of the
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deceased and a handing over memo was prepared by him. The doctor
had handed over him one sample seal, blood on gauze and pullanda of
underwear and handkerchief of the deceased. The blood on gauze was
in an envelope which was sealed with seal of AK. The pullanda was
also sealed with seal of AK. Sample seal was also of AK. He took
these items in his possession vide memo Ex.PW9/E and handed over
these items to Insp. Hukum Singh in the police station.
7.9.21 This brings me to the testimony of PW15, who was one
of the autopsy surgeons. He deposed that on 27.02.2020, he was
posted as Assistant Professor in UCMS and GTB Hospital in Forensic
Department. On that day, a board comprising of him, Dr. K.K.
Banerjee and Dr. S.K. Verma, had conducted postmortem examination
on the dead body of deceased Ankit Sharma s/o Sh. Ravinder Kumar
Sharma, in which they found 51 ante mortem external injuries on the
body. The cause of death was opined as ‘shock due to haemorrhage
due to injuries to lung and brain’. As per the opinion of the board,
injuries no.18, 19, 34 to 37 and 42 were sufficient to cause death
individually as well as collectively, in the ordinary course of nature.
The injuries no.1, 8 to 19, 25, 27, 29 to 31, were produced by sharp
edged weapon. Injury no.42 was produced by heavy cutting weapon.
Rest of the injuries were produced by blunt force. All the injuries were
found to have been caused within 24 hours of the death. Time since
death was found to be about 2 days. Report as prepared by them was
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having his signatures as point X, of Dr. S.K Verma at point Y and of
Dr. K. K Bannerjee at point Z. The report was exhibited as
Ex.PW15/A. He further deposed that after the postmortem
examination, they had preserved clothes of the deceased and his blood
on gauze. Both were converted into separate pullandas which were
sealed. However, he did not remember whose seal was applied on
them. Such pullandas were delivered to police by their staff, who
maintain a register in this regard and hand over the pullandas to the
police.
7.9.22 He was cross examined at length by ld. counsels for
accused. There were questions about who had taken notes or who had
not taken notes, whether the board together had conducted any other
post-mortem examination on that day or, whether he individually had
conducted any other post-mortem examination on that day or, whether
during the post-mortem the notes, which were being recorded, were
checked etc. These questions seem to be checking the memory of the
witness rather than his competence as autopsy surgeon. I accordingly
do not find them relevant to be taken up for discussion in this
judgment.
7.9.23 Further, during his cross-examination, he deposed that
apart from pointing out the injuries, they had examined organs, but he
did not remember which doctor had done which particular
examination. He further deposed that generally, two copies of
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postmortem report are prepared. In case viscera is preserved, third
copy of the report is prepared. The first copy was to be handed over to
IO. Second copy was to be kept in their record. Third copy was to be
sent to FSL alongwith viscera. He admitted that he had no personal
knowledge if the staff had handed over same report to the IO which
was prepared by their Board. In response to court query, he answered
that the report, as placed on the judicial case file, was the report
prepared by the board. He further deposed that he had received 08
inquest papers and deposed that in the inquest papers, there was no
reference of any drain rather there was reference of one pulia.
7.9.24 Further during his cross-examination, he deposed that
factors on the basis of which ‘time since death’ was ascertained, were
the changes in the dead body after death. Those changes were
mentioned in the postmortem report under heading of ‘General
Observations’. The recorded changes were ‘rigor mortis present over
lower limb’ and ‘no sign of decomposition’. There are different phases
of rigor mortis and different signs of decomposition. He admitted that
the report did not refer to any particular phase of rigor mortis and
volunteered, that it was the practice only to mention the place of
presence of rigor mortis rather than the phase of it. He denied that they
had not recorded the phase of rigor mortis in the report and rough
notings as they were inconsistent with time since death as given in the
postmortem report, or that the signs of decomposition and their place
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were not mentioned in postmortem report because it was inconsistent
with time since death as mentioned in the report and volunteered, that
since there was no sign of decomposition, there was no occasion to
mention any sign or place of the same. In the rough notes, they had
mentioned that there were no signs of decomposition and denied that it
was not mentioned in the rough notes. On being specifically suggested
that he had not mentioned the factors, features & characteristics of the
injuries to lung and brain bearing injury no.18, 19, 34 to 37 and 42,
which led the Board to conclude that the cause of death was ‘shock
due to hemorrhage’, he answered that all the features were mentioned
in the injuries and the internal hemorrhages were mentioned in the
column of internal injuries. He denied that it was to hide the correct
facts and to suit the narrative tutored to Board, by the police that the
details of injuries were not mentioned in the report. He denied that the
report did not mention the reasons for recording a particular injury as
ante mortem injury and volunteered, that the colour of the injuries and
the hemorrhages inside the injuries as mentioned in the description of
external and internal injuries were suggestive of the reasons to
indicate that they were ante mortem injuries. He denied that the
reasons for injuries to be ante mortem had not been mentioned in the
report, to hide the correct facts and to suit the narrative tutored to
Board by the police. The basis to record that all injuries were fresh
before death i.e. within 24 hours was the colour of the injuries and
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ASJ-03/NE/KKD: 13.07.26
absence of any sign of healing. He admitted that in their report, they
had not mentioned about absence of any sign of healing. He denied
that it was not so mentioned on the basis of tutoring of police officials.
They did not undertake any exercise to rule out that cause of death
could be other than which was mentioned in the report because, all
three of them were in agreement that the cause of death was same as
had been mentioned in the report. On being asked the reason for not
preserving the viscera, he deposed that it was not preserved because
the wall of stomach was found normal, there was no such history
given and no request was made by the police to preserve the viscera.
The heart of the deceased was reported as enlarged on the basis of
weight of the heart and not on the basis of its measurements. He
denied that the Board had manipulated the findings of the postmortem
at the behest and on the tutoring of the police, or that incomplete and
deceptive report was prepared at the behest of police.
7.9.25 It is apparent that except for asking whether they tried to
rule out the possibility that the cause of death could be other than what
was stated by them; the opinion of the Board that injuries no. 18, 19,
34 to 37 and 42 were sufficient to cause death individually as well as
collectively, has remained unchallenged. The defence did not come
with any alternate theory about the cause of death of Ankit Sharma
and did not bring their own expert to counter the finding of the Board.
Therefore, merely putting suggestion that the phase of rigor mortis
FIR No. 65/20
PS Dayalpur 140 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
was not mentioned because this could have shown that the time since
death, as provided in the report, was inconsistent with the phase of
rigor motis in body, without bringing anything to raise a probability of
it, will not discredit the post-mortem report.
7.9.26 I have carefully perused this report. The number of
injuries is reflective of the manner and the brutality inflicted upon the
deceased. On the face of it to any layman even, it could be a clear
indication of homicidal death, which was the purpose of framing this
question. At the same time, the purpose of reproducing the cross-
examination of PW15 in such detail was to reflect that except
constantly raising doubts about the integrity of the post mortem board
through suggestions, no serious scientific cross-examination of this
witness was conduct to discredit the opinion about the cause of the
death of Ankit Sharma.
7.9.27 In these circumstances, I have no reasons to disbelieve
the post-mortem report, Ex.PW15/A. I accordingly find that the death
of Ankit Sharma was homicidal in nature.
7.10 The next questions which then arise and need to be
answered are when, where, how and by whom was the homicide of
Ankit Sharma was committed?
7.10.1 In order to prove these facts, the prosecution had
examined as many as 10 direct witnesses. These are police witnesses
PW5 HC Rahul and PW33 HC Praveen Kumar and public witnesses
FIR No. 65/20
PS Dayalpur 141 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
PW6 Pradeep Verma, PW11 Deepak Pradhan, PW13 Aakash, PW14
Bharat, PW19 Vikalp Kochar, PW21Gyanendra Kochar and PW56
Priyanka Gaur. Therefore, the testimonies of these witnesses are
required to be considered in detail.
7.10.2 PW5 HC Rahul deposed that on 25.02.2020, while posted
at PS Dayalpur, he was on law and order duty in his beat on Main
Karawal Nagar Road and Wazirabad Road, where he reached at about
9-10 a.m. Between 4.30-5.00 p.m., he was at Main Karawal Nagar
Road near Chand Bagh Pulia. There was a mob of 1000-1200 people
near Chand Bagh Pulia on Main Karawal Nagar Road. At about 4.20-
4.25 p.m., due to the stone pelting and being unable to control the
mob, police retreated towards Bhajanpura Mazar on Main Wazirabad
Road.
7.10.3 At about 5.00 p.m., additional police force along with
outer force reached near Chand Bagh Pulia. There were two mobs: a
mob of persons from the Muslim community on Chand Bagh Pulia
and a mob of the Hindu community on Main Karawal Nagar Road
opposite Chand Bagh Pulia. The mob from Chand Bagh Pulia was
pelting stones at the opposite mob. He also saw shops on the left side
of Chand Bagh Pulia, including Bunny Bakery and a rickshaw shop,
being burnt.
7.10.4 The councillor of the area, Tahir Hussain, was present at
Chand Bagh Pulia and raised the slogan: “Sherpur chowk par hinduo
FIR No. 65/20
PS Dayalpur 142 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
ne hamare muslim bhaiyo ki dukano mein aag laga di hai aur hamare
muslim bhaiyo ko maar diya hai, in hindu kafiro ko sabak sikhana hai,
aaj inme se koi bhi bachna nahi chahiye.” On hearing these slogans,
the mob became aggressive, started pelting stones and setting ablaze
the shops.
7.10.5 At about 5.00 p.m., when the mob had become aggressive
and was pelting stones, it dragged one person from the Hindu mob
towards Chand Bagh Pulia. The mob then started pelting stones at the
police and they were pushed back.
7.10.6 He identified five persons in the mob at Chand Bagh
Pulia, whom he knew by name and face, namely Tahir Hussain,
Gulfam, Firoz, Javed, Shoiab Alam @ Bobby and Anas. According to
him, all these persons were part of the mob when it was pelting stones
and indulging in arson. He correctly identified Firoz, Anas, Gulfam,
Javed, Shoiab Alam @ Bobby and Tahir Hussain in court.
7.10.7 During cross-examination, he stated that his statement in
this case was recorded on 09.03.2020. Between 25.02.2020 and
09.03.2020, he regularly visited the police station but did not lodge
any DD entry regarding the incident. Although senior police officers,
including the ACP, visited the police station during that period, he did
not inform the ACP about having witnessed the incident. He did not
remember whether he had informed the SHO that during the incident,FIR No. 65/20
PS Dayalpur 143 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
he had seen the accused, named by him. Though he had a mobile
phone, on 25.02.2020 he did not call the Duty Officer to have an entry
of the incident recorded; did not make a PCR call and he also did not
take the photo or video of the incident.
7.10.8 He stated that since December 2019 he was posted in
Beat No. 7/F Block, Khajuri Khas and knew the accused persons by
their names. He knew the fathers’ names of Firoz and Tahir Hussain
and knew only Tahir Hussain’s address. He did not remember whether
he had informed the IO about Firoz’s parentage. He denied the
suggestions that he was not on duty on 25.02.2020, had not witnessed
the incident, or had falsely implicated the accused. His statement was
recorded in FIR No. 98/20 but he did not remember whether, prior to
09.03.2020, he had disclosed before the IO of FIR No. 98/20 the
names of the accused mentioned in this case.
7.10.9 He stated that he knew it was a case of murder of Ankit
Sharma though initially, he did not know the deceased’s name. The
fact that it was a murder case became known to him, when he was
examined by the IO. However, the information that Ankit Sharma was
an IB officer was received through the news. He could not recall
whether he had informed the IO that how did he know about Anas.
7.10.10 He denied the suggestions that he had not named Anas or
the other accused before the IO; that the IO had tutored him to includeFIR No. 65/20
PS Dayalpur 144 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
Anas’s name; that he had deposed falsely at the instance of his senior
officers; that he had falsely stated that a person was dragged by the
mob; that he had not given any statement before the IO; or that he had
been tutored by the IO before coming to court; that he had not seen
any incident on 25.02.2020.
7.10.11 He stated that, as far as he recalled, he had seen the
statement recorded by the IO. In response to a court query, he stated
that he did not remember whether he had noticed any mistake in it or
pointed out any mistake to the IO.
7.10.12 Regarding the method of recording statements, he stated
that IOs usually asked whether he knew anything about a particular
incident, whereupon he narrated the incident and answered any further
queries, and the same method was adopted by the IO of this case.
7.10.13 He stated that, to the best of his memory, this was the
only murder case arising out of the February 2020 riots in which he
was a witness. He did not remember whether he had given a statement
in FIR No. 114/20, PS Khajuri Khas, on 21.04.2023. He denied the
suggestion that, after his deposition on 21.04.2023, he had been
reprimanded by his superior officers for stating that on 25.02.2020 he
had reached Main Wazirabad Road near Bhajanpura Mazar at about
8.20-8.25 p.m. and remained on duty until about 12-12.30 midnight.
7.10.14 PW6 Pradeep Verma deposed that in February 2020, he
FIR No. 65/20
PS Dayalpur 145 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
was running a parking at E-98, Khajuri Khas. On 25.02.2020, riots
were taking place in that area. He reached his parking at about 12.30-
1.00 p.m. and though he was not static at one place, but more or less,
he remained in front of gali till about 5.30 p.m.7.10.15 At about 3.00 p.m., he was standing outside Gali No. 6,
Moonga Nagar. A mob of the Muslim community was on the side of
Chand Bagh Pulia and a mob of the Hindu community was in front of
Lakhpat School on the main Karawal Nagar Road. Both mobs were
pelting stones at each other.
7.10.16 At about 5.00 p.m., while standing in front of Gali No. 6,
he saw Ankit Sharma coming from the side of the Hindu mob and
going towards the Muslim mob with both hands raised- apparently to
end the quarrel. The Muslim mob advanced, surrounded him,
assaulted him, dragged him, and took him towards Chand Bagh Pulia.
Two other boys were accompanying Ankit Sharma, but they managed
to escape. He identified about six faces in the Muslim mob, but did not
know their names. However, later on he came to know their names.
He knew that Tahir Hussain was a Municipal Councillor. At no point
of time on 25.02.2020, did he see Tahir Hussain in the mob, though he
had later seen him in videos of the riots. Then contradicting this
statement, he deposed that at about 3.00 p.m., he felt that Tahir
Hussain was near Chand Bagh Pulia, but he did not actually see him in
the mob (“mujhe aisa laga tha ki wo wahan par hain lekin bheer mein
FIR No. 65/20
PS Dayalpur 146 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
maine nahi dekha tha”). During that time, both mobs were pelting
stones. A voice from the Chand Bagh Pulia side shouted ” kafiro ko
maaro.” Near his parking was the house of Tahir Hussain which had
been occupied by several persons who were pelting stones and petrol
bombs from its terrace.
7.10.17 On 11.03.2020, police inquired from him regarding the
incident involving Ankit Sharma. He informed the police of what he
had seen, read his typed statement, and found that it had been
correctly recorded. On that day, police showed him certain
photographs from which he identified about six or seven persons
whose faces he had seen in the Muslim mob, though he did not know
their names. Police informed him the names of those persons. At the
time of his testimony, he could only recollect four names: Firoz, Anas,
Musa and Javed.
7.10.18 On 30.03.2020, also some photographs were shown to
him by the police and on the same day, police had shown him two
persons at Chand Bagh Pulia whose names were disclosed as Nazim
and Kasim. He stated that he had seen both of them on 25.02.2020 as
part of the Muslim mob. He stated that when Ankit Sharma was being
taken away by the mob, Nazim and Kasim were in that mob, and
Nazim was carrying a knife. He did not remember whether any
document was prepared there, though Inspector Amlesh was writing
while making inquiries.
FIR No. 65/20
PS Dayalpur 147 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
7.10.19 He further deposed that, in the same year, on the 8th day
of either March or May, his statement was recorded before a Judge at
Karkardooma Courts. He stated true facts as seen by him. His
statement under Section 164 Cr.P.C. was taken out from a sealed
cover, he identified his signatures, and it was exhibited as Ex. PW6/A.7.10.20 After recording of that statement, at about 2.30 p.m.,
while travelling from Bhajanpura to Sherpur, he met police officer
Amit Prakash. They discussed the Ankit Sharma case. He was shown
some photographs, and he identified one person as a member of the
Muslim mob, who he had seen between 3.00 and 4.00 p.m. on
25.02.2020. Police disclosed his name as Musa, and his signatures
were obtained on that photograph.
7.10.21 In court, he identified accused Kasim, Firoz, Anas, Musa
and Nazim. He also identified accused Haseen @ Mullahaji by taking
his name as Nazim. He identified Javed, though he could not recall his
name. He could not identify Shoaib Alam @ Bobby. On seeing Tahir
Hussain, he stated that he knew him, but had not seen him in the mob.
He did not identify Sameer and Gulfam. He was shown photographs
Mark PW6/P1 to PW6/P7 and identified his signatures on them.
7.10.22 Found resiling from his earlier statements, he was cross
examined by ld. SPP.
7.10.23 During cross-examination by the learned SPP, he was
FIR No. 65/20
PS Dayalpur 148 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
asked why he had felt that Tahir Hussain was near Chand Bagh Pulia.
He answered: “Bheed mein mujhe jhalak lagi thi ki Tahir Hussain hain
lekin aage pura confirm nahi hu.” (I had a glimpse to feel that Tahir
Hussain was in mob, but I was not totally confirmed.) He clarified that
he had seen only the upper half of Tahir Hussain from the back,
including his face from side, and had not seen him doing anything in
particular. At that time both mobs were pelting stones. He did not
remember whether he had earlier stated before police that he had seen
Tahir Hussain at 3.00 p.m. and 5.00 p.m. instigating the mob by
saying “Hindu Kaafiro ko maarna hai.” He denied having clearly seen
Tahir Hussain instigating the mob to kill Hindus. He stated that when
he had the glimpse (referring to his earlier statement that he had a
glimps of Tahir Hussain), the Muslim mob was raising slogans and
shouting “Kaafiro ko maaro.”
7.10.24 He stated that he did not know the name of the person in
photograph Mark PW6/P-2 and therefore could not say whether he
had seen him in the mob. He knew Bharat @ Kalu, who had come to
Inspector Amleshwar on 30.03.2020 near his parking. Inspector
Amleshwar typed a document in his vehicle and obtained his
signatures, stating that it related to the identification of Nazim and
Kasim. He did not know whether arrest documents had been prepared.
On being shown the arrest and personal search memos of Nazim and
Kasim, he identified his signatures but stated that, due to lapse of time,
FIR No. 65/20
PS Dayalpur 149 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
he could not recollect when or where he had signed them. When
Shoaib Alam was shown to him, he stated that he could not recollect
whether Shoaib had been part of the mob and denied that he was not
deliberately identifying him.
7.10.25 During defence cross-examination, he stated that till that
day, he knew of only two riot cases in which he had been cited as a
witness: the present case and another relating to arson at his parking
on 24.02.2020. He did not remember how many times was it that his
statements had been recorded by police. He had not made any PCR
call or informed any authority that he had identified rioters involved in
the riots of 25.02.2020. He did not remember whether he himself had
gone to the police on 11.03.2020. He was directed to do so. A number
of photographs had been shown to him that day, but he could not
provide their estimated number.
7.10.26 He stated that the strength of Muslim mob at 3.00 p.m. as
well as 5.00 p.m. was of around 2,000 persons. The two mobs were
about 40-50 steps apart, while he himself was about 10-15 steps away
from the Hindu mob. He denied that he had not seen any of the
accused in the mob or that at the instance of senior police officers, he
had falsely identified the accused before the police and in the Court.
7.10.27 He stated that even prior to the day of the incident, Ankit
Sharma was known to him, but he did not know Ankit Sharma’s
FIR No. 65/20
PS Dayalpur 150 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
address. Before 25.02.2020, beat constables regularly visited his
parking. Between 25.02.2020 and 09.03.2020 also, beat constables
and other police officials visited his parking, though he did not
remember the dates of such visits. During this period also, they
inquired from him about the murder of Ankit Sharma. Between
26.02.2020 and 29.02.2020, police teams patrolled the area to restore
peace.
7.10.28 On 25.02.2020, the strength of Hindu mob could have
been around 800-1000, but he did not know anyone in the Hindu mob.
The Hindu mob was present on the main Karawal Nagar Road from
Gali Nos. 6 to 9 of Moonga Nagar. The distance between Gali Nos. 6
and 7 was about 60-65 feet. The documents that were signed by him
on 30.03.2020 were also signed by Bharat @ Kalu. He denied that
police force had remained present near Chand Bagh Pulia and his
parking continuously from the morning of 24.02.2020 till the evening
of 25.02.2020. He denied that on that day, he had not gone to his
parking because his parking having been burnt on 24.02.2020, he had
no business at his parking. He admitted that as compared to accused
identified by him, Tahir Hussain was better known to him. In
response to court query, he stated that the other accused identified by
him were not known to him at all. He deposed that in his statement u/s
164 Cr.P.C, he had stated that he was standing in front of Gali No. 6,
Moonga Nagar between 3.00 to 5.00 p.m. but it was not found
FIR No. 65/20
PS Dayalpur 151 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
mentioned in the statement Ex.PW6/A. In his statement u/s 164
Cr.P.C, he had not stated about identifying 6-7 rioters from the
photographs or signing any such photographs.
7.10.29 Then there was his cross examination about his parking
being run without valid permissions etc. and suggestion that he was
running illegal parking, he was under police pressure and deposed
falsely under such pressure, which he denied. However, nothing was
brought on record by defence to substantiate this claim.
7.10.30 PW11 Deepak Pradhan deposed that for about 18 years,
he had been residing at C-229, gali no.2, Chandu Nagar, Delhi. On
25.02.2020, at about 5.00 p.m., he had gone to Shiv Sanatam Mandir
in Moonga Nagar. He used to visit that temple at about 4 p.m.
everyday and hence, on that day also, he had gone to the temple. After
reaching the temple, he saw that stones and petrol bombs were being
pelted from the terrace of house of Tahir Hussain. This temple was
situated at the corner of the gali and house of Tahir Hussain was across
the road. Stones and petrol bombs were being pelted towards the road
and the temple. There was a mosque at Chand Bagh pulia on the side
of the temple itself and after 3 galis from this temple. Near this
mosque, there was Muslim mob. Tahir Hussain was going to the mob
and coming back to his house. He did not know what Tahir Hussain
said to those persons but probably he instigated (them) because after
his visit, all of a sudden, the mob combined together and while
FIR No. 65/20
PS Dayalpur 152 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
damaging the nearby shops and properties, moved towards Sherpur
chowk. He correctly identified Tahir Hussain in the court and deposed
that he had not identified any person in the said mob.
7.10.31 During his cross examination, he deposed that on
25.02.2020, he was carrying a mobile phone but did not make any
PCR call. He denied that he had not seen any incident on 25.02.2020.
The Shiv Sanatan mandir would be at a distance of about 500 meters
from his home and since the year 2015, he had been going to this
temple. He had gone to the temple on 23.02.2020 and 24.02.2020 and
admitted, that on those days also, riot had happened. He did not see
any police force on main Karawal Nagar road on 23.02.2020 and
24.02.2020 but he had seen them on this road on 25.02.2020. Before
the police, he had mentioned about stones being pelted on the temple
but did not mention about the petrol bombs. His statement u/s 161
Cr.P.C was exhibited as Ex.PW11/D-1. He had mentioned before the
police that tiles of the temple were damaged. He was confronted with
his statement, Ex.PW11/D-1, wherein this fact was not so recorded.
He had mentioned before the police that stones were coming at the
shop near the temple and had fallen on the tiles of the temple.
7.10.32 At that stage, ld. counsel for accused sought to confront
the accused with the portions from Ex.PW11/D1. However, my
learned Predecessor, in view of the judgment of Hon’ble Supreme
Court in Tehsildar Singh, did not find any case of confrontation.
FIR No. 65/20
PS Dayalpur 153 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
7.10.33 He further deposed that he had not stated before the
police that the temple was at the corner of gali and rather he had
mentioned before police that it was after 2 properties. The iron gate of
gali of the temple was closed since morning of 25.02.2020 and
generally it used to remain closed. He admitted that on 25.02.2020, he
had gone to the temple for the purpose of its protection. Two-three
other persons were present in the temple on that day. When he reached
the temple and went inside the temple, he did not close the door of
temple. When he was inside the temple, he could not see what was
happening outside. On that day, he remained in the temple till about 5-
5.30 p.m. He admitted that from the temple, he had gone to his house.
He had gone to his house via gali no.6, Moonga Nagar. He admitted
that if he stood in front of the temple in the gali, from that place he
could not see the mosque of Moonga Nagar. Similarly, mosque at
Chand Bagh pulia would also not be visible from that place. He had
reached the temple on that day at about 4.15 p.m. He denied that he
had made a false statement regarding pelting of stones on the temple,
or that from the house of Tahir Hussain, there was no pelting of stones
towards temple and nearby shops. He denied that he falsely deposed
about the activity taking place at Chand Bagh pulia, or that he
deposed falsely about involvement of Tahir Hussain in such activity,
or that he did not see Tahir Hussain coming or going out from his
house or meeting with the persons, or that he had given false
FIR No. 65/20
PS Dayalpur 154 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
observation regarding the activities of Tahir Hussain. He denied that
while being inside the temple, he heard a lot of noise coming from
outside and on the basis of hearing that noise, he presumed that riot
was taking place or that he did not witness any rioter.
7.10.34 PW13 Aakash deposed that he had been residing at H.
No. 51, Gali No. 1, Khajuri Khas Village, Delhi for about 15-16
years. On 25.02.2020 at about 4.30 p.m., he and his brother Bharat
were present near an iron gate at Chand Bagh Pulia on Nala Road for
some personal work. The bigger gate was closed and the smaller gate
was open. A Muslim mob of about 500-700 persons was present near
Chand Bagh Pulia, Nala Road and the mosque. This mob was raising
slogans of “Allah-hu-Akbar.”
7.10.35 According to him, Tahir Hussain was delivering an
instigating speech, stating that Hindus had vandalized and burnt
Muslim houses and shops and had molested Muslim women, and
therefore the ‘Kafirs’ should be taught a lesson (“Hinduon ne tumhare
ghar loote… un Kafiro ko sabak sikhana hai.”).
7.10.36 At that time, the mob set fire to a bakery/pastry shop or
factory situated nearby, the name of which he did not know. The mob
then vandalized and set ablaze shops on the Chandu Nagar side and
proceeded towards Sherpur Chowk. He explained that if one came
from Bhajanpura, Tahir Hussain’s house was situated on the left after
crossing Chand Bagh Pulia.
FIR No. 65/20
PS Dayalpur 155 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
7.10.37 Three boys were going in the lane immediately after
Tahir Hussain’s house. At about 5.00 p.m, around 15-20 persons from
the mob dragged one of those boys towards Chand Bagh Pulia. He and
his brother stepped back in to the smaller iron gate and closed it. The
mob assaulted the boy with knives, dandas, swords, bricks and iron
rods and then threw him into the drain from the opposite side. His
body was put over a tank and pushed in the drain.
7.10.38 When asked whether he identified anyone involved, he
stated that Tahir Hussain was holding a knife, participated in
assaulting the boy and in throwing him into the drain. He had also
identified one more person, though he did not know his name. Out of
fear, he and his brother retreated and thereafter, returned home. That
night, after seeing television news, he came to know that the boy
thrown into the drain was Ankit Sharma. Changing his stand, he
deposed that he learnt the deceased’s name on the evening of the
following day.
7.10.39 On 11.03.2020, near Lakhpat School and Tahir Hussain’s
house, he, of his own, informed the police about the incident. On
09.04.2020 at about 3.00 p.m., while going towards Chand Bagh Pulia
from Bhajanpura for personal work, he saw police officials with an
accused. He recognized that it was the same police officer to whom he
had given information on 11.03.2020. He called the IO aside and
informed him that the accused accompanying the police was one of
FIR No. 65/20
PS Dayalpur 156 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
the persons he had seen among the 15-20 assailants on the day of the
incident. That accused pointed out the tank in his presence and he
signed the pointing-out memo (nishandehi), which was exhibited as
Ex. PW10/C. He identified his signatures on the memo and identified
accused Tahir Hussain in Court. He further stated that the person
whom he had identified before the IO on 09.04.2020 was the same
person who introduced himself in Court as Sameer.
7.10.40 During his cross examination, he stated that his father and
brother sold chhole-kulche, cold drinks and later tea from a cart on
Khajuri Pusta Road in front of Rajkiya Uchatar Bal Vidyalaya and
Rajkiya Sarvodaya Bal Vidyalaya. He occasionally assisted them. By
25.02.2020, the new PS Khajuri Khas had become operational and it
was about 200-250 meters from their cart. He denied that police
officials regularly purchased cold drinks or water from their cart.
7.10.41 He admitted that neither he nor Bharat made any PCR
call between 25.02.2020 and 11.03.2020, but volunteered that he had
informed police personnel present near Lakhpat School. He did not
remember whether he visited PS Khajuri Khas during that period.
7.10.42 When confronted regarding his statements in FIR No.
114/20 and FIR No. 88/20, he stated that he could not recollect the
dates but admitted that police had recorded his statements on four
occasions in three cases. He admitted that FIR No. 114/20 related to
FIR No. 65/20
PS Dayalpur 157 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
Bunny Bakery and Aman E-rickshaw. He could not recall details
regarding FIR No. 88/20. He admitted that on all the three occasions,
when the police met, the meetings were unplanned. He did not
remember and thus, could not admit or deny whether, at the time when
these statements were recorded, lockdown restrictions were then in
force. He stated that on 09.04.2020 police asked him about the reason
for his presence at that place. He replied that he had gone for personal
work.
7.10.43 Between 25.02.2020 and 11.03.2020, he went out of his
house but did not take his vehicle anywhere. He did not remember
whether he visited Khajuri, Moonga Nagar, Sherpur Chowk, Chand
Bagh Pulia, Karawal Nagar, Chandu Nagar, Bhajanpura or Pusta
Road, or whether he saw police deployment or flag marches during
that period. He denied that he had not witnessed any incident on
25.02.2020 or that he had therefore failed to contact the police. During
this period he visited his father’s cart every day for about 30 minutes
and had seen police presence there. He denied that he had failed to
disclose the incident to police before 11.03.2020 because he had
witnessed nothing.
7.10.44 He stated that while giving his statement to police he had
not mentioned the time of returning home, although he had stated that
he remained at the spot for about one hour. He was confronted with
his statements Ex.PW13/D1 and Ex.PW13/D2, where these facts were
FIR No. 65/20
PS Dayalpur 158 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
absent.
7.10.45 He admitted that he had not told police that Tahir Hussain
was carrying a knife. However, he had stated, that he had informed
police that Tahir Hussain was involved in killing the boy and throwing
him into the drain. At this stage, learned counsel for the accused
sought to confront the witness with his previous statement, but it was
not allowed by my learned predecessor.
7.10.46 He stated that police met him near Lakhpat School around
noon on 11.03.2020. The school was about 150-200 metres from
Chand Bagh Pulia. He did not take the police to Chand Bagh Pulia
that day and remained with them for about one hour. He did not
remember whether his statement was recorded by hand, on a computer
or a laptop. Some police personnel were in uniform and others in civil
clothes.
7.10.47 He stated that on all four occasions, it was he who
approached the police and volunteered, that rather than responding to
questions, he narrated the facts.
7.10.48 He used to visit the area near Lakhpat School even before
the riots and stated that 11.03.2020 was not his first visit there. He,
however, did not remember if prior to 11.03.2020 also, he had seen
any police on main Karawal Nagar Road. He denied that he had never
disclosed the incident to police, that the police prepared statements on
FIR No. 65/20
PS Dayalpur 159 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
their own; that he was tutored to depose in Court; or that he falsely
implicated Tahir Hussain.
7.10.49 He further stated that in connection with this case, he met
police officials on 26.02.2020, 11.03.2020 and 09.04.2020. On
26.02.2020 he met an officer in front of Lakhpat School for about five
or six minutes but did not remember the officer’s name.
7.10.50 He stated that when he met police on 09.04.2020, other
persons were also present. He did not remember whether police asked
anyone else to join the investigation. He denied that he never met
police with an accused on that day or that he signed the pointing-out
memo subsequently without participating in the proceedings.
7.10.51 His attention was drawn to the last line of Ex.PW13/D1,
which he admitted to have read on 09.04.2020. He did not remember
raising any objection regarding any errors in that statement, or
whether he had gone through his other statement Ex.PW13/D2.
7.10.52 He denied that he had been tutored by police. He did not
remember whether he had told police that the assaulted boy had been
placed on a tank. He denied that he had not informed police that
besides Tahir Hussain he had identified one more person involved in
assaulting the boy and throwing him into the drain.
7.10.53 He denied that he had never identified any other person
besides Tahir Hussain, that this fact was subsequently introduced after
FIR No. 65/20
PS Dayalpur 160 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
tutoring; that he had not gone to Bhajanpura on 09.04.2020; that
police had asked him to memorize the photograph of accused Sameer
Khan; or that after being tutored, he falsely identified Sameer Khan in
Court.
7.10.54 PW14 Bharat deposed that for about 15-20 years prior to
his deposition, he had been residing at H. No. 51, Gali No. 1, Khajuri
Khas, Delhi. He, along with his father, had been selling chhole kulche
near Bal School, Khajuri Khas.
7.10.55 On 25.02.2020 at around 4:00-4:30 p.m., he and his
brother Akash (PW13) were going to fetch some articles from a place
beyond Chand Bagh Pulia. Due to the presence of a mob, they could
not reach that place and remained near Chand Bagh Pulia around an
iron gate situated on the nala road. There was a Muslim mob of
around 500-700 persons near the bakery shop, Chand Bagh Pulia and
a mosque. The mob was raising slogans of “Allah-hu-Akbar” and was
armed with stones, dandas, swords, knives, etc.
7.10.56 At a distance of about 15-20 steps from them, around 20-
25 persons were assaulting a boy. Tahir Hussain was standing in front
of the mosque saying “maaro maaro”. Those persons dragged the boy
to the corner of the drain on the opposite side and threw him into the
drain. At that time, Tahir Hussain was standing a little ahead of the
mosque, while the witness was standing near the gate and had stepped
FIR No. 65/20
PS Dayalpur 161 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
backwards out of fear. Thereafter, being afraid, he and his brother
returned home. The next evening, while watching the news, they came
to know that the boy was Ankit Sharma. Apart from Tahir Hussain, he
identified two boys who had climbed over the water tank to throw the
body into the drain.
7.10.57 One noon, about two months after the incident, police
along with two boys was present near the aforesaid bakery. He
identified them as the persons who had climbed over the water tank.
His signature was obtained on a blank paper which police described as
a Nishan Dehi. He identified Nazim and Kasim in court and stated that
the police officer had informed him that their names were Nazim and
Kasim and that they were the persons who had climbed over the water
tank. He also identified accused Tahir Hussain.
7.10.58 About 4-5 months later, the same police officer met him
near Bal Vidyalaya, Khajuri, obtained his signatures on another paper,
the contents of which he did not know. His statement was also
recorded by a Magistrate under Section 164 Cr.P.C. On being shown
the statement (Mark PW14/A), he identified his signatures at point X.
In response to a court query, he stated that he had narrated the true
facts before the Magistrate.
7.10.59 During his cross examination, he deposed that in
February 2020, both he and his brother Akash were using mobile
FIR No. 65/20
PS Dayalpur 162 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
phones and disclosed their numbers. He admitted that till the time he
had met the police, neither he nor his brother had made any call to the
police at 100 regarding the incident. He admitted that, apart from this
case, his statements were also recorded regarding the arson at Bunny
Bakery and Aman E-Rickshaw. In those statements, he had stated that
after stone pelting started, he and Akash left the place and went home.
7.10.60 He did not remember whether his statement was recorded
on the day he signed the paper described as Nishan Dehi. The police
officer who obtained his signatures introduced himself as being from
the Crime Branch and was in civil clothes. He admitted that prior to
that day, he had not met the police. Before that day, no police official
had made any inquiry from him regarding the riots.
7.10.61 He admitted that PS Khajuri Khas was only a 3-5 minute
walk from the place where he used to sell chhole kulche, and that
police officials used to visit his cart. Despite this, before signing the
Nishan Dehi, he had not informed any police official about the
incident he claimed to have witnessed. He denied that he had not seen
any such incident and this was the reason of him not informing the
police.
7.10.62 On 25.02.2020, he had come to know about riots in
Chand Bagh, Khajuri Khas and Sherpur, but had not seen any riot
between Bhajanpura Chowk and the place where he used to put up his
FIR No. 65/20
PS Dayalpur 163 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
cart. He did not remember the time at which they reached home.
7.10.63 When he signed the Nishan Dehi, his brother was not
with him. On that day, he had not been summoned to that place and
reached there of his own. He did not remember whether the police
asked him to point out any place and admitted that he did not take the
police to Chand Bagh Pulia, the gate, any gali, or any other place.
From that day until his statement u/s 164 Cr.P.C. was recorded, he had
not met any police official. However, on the day his statement u/s 164
Cr.P.C was recorded, he was accompanied by another person,
referring to that person as ‘parkingwala’ whose statement was also
recorded on that day.
7.10.64 He stated that during his statement u/s 164 Cr.P.C., he
had mentioned the purpose of leaving his house on 25.02.2020, though
he did not remember whether he had stated the same in his statement
u/s161 Cr.P.C. He denied the suggestion that he had falsely claimed to
have stated this fact in his statement u/s164 Cr.P.C.
7.10.65 He further stated that during his statement u/s 164 Cr.P.C.
he had stated that when the deceased was thrown into the drain, Tahir
Hussain was standing a little ahead of the mosque. He did not
remember whether he had stated that he himself was standing near the
gate, but remembered stating that he had stepped backwards out of
fear. He denied the suggestion that these facts were absent from his
FIR No. 65/20
PS Dayalpur 164 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
statement u/s 164 Cr.P.C.
7.10.66 He further deposed that during his statement u/s 164
Cr.P.C. he had mentioned that two boys climbed over the water tank
to throw the deceased into the drain. He did not recollect whether he
had also stated in that statement that he had identified those two boys;
or that after seeing them with the police he identified them as the same
boys who climbed the water tank; or that the police had informed him
that their names were Nazim and Kasim.
7.10.67 About three or four days after the murder of Ankit
Sharma, he came to know that the police was investigating the murder.
He did not remember whether, by the time he had first met the
investigating police officer, COVID lockdown had been imposed. He
denied the suggestion that he had falsely implicated Tahir Hussain at
the instance of the police or that he had not seen Tahir Hussain on
25.02.2020.
7.10.68 He denied the suggestions that the police forced him to
repeat a fabricated version, reprimanded him for not following a
tutored version in his statement u/s 164 Cr.P.C; repeatedly tutored him
after his statement u/s 164 Cr.P.C; repeatedly showed him
photographs of Nazim and Kasim; physically showed them to him
inside or outside the court; or that he identified them solely because of
police tutoring.
FIR No. 65/20
PS Dayalpur 165 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
7.10.69 PW19 Vikalp Kochar deposed that for about 5-6 years
prior to his testimony, his father had been running bakery shop at
E-17, Khajuri Khas, Chand Bagh pulia, Delhi, in the name and style of
M/s Bunny Bakers. During February 2020, he had been visiting this
shop. Riots in the area where his shop was situated, had started on
20.02.2020 and continued for 3 days and again said, that he did not
remember the date exactly. During the riots, his shop was burnt. On
that day, between 3-4 p.m, his shop and the shop adjacent to his shop
started catching fire and at around 5-6 p.m, he was present outside his
shop and was also going to his shop and upto the terrace of his shop.
Between 3-6 p.m, his father and his younger brother namely Sankalp
Kochar were also present. On specifically being asked the situation at
Chand Bagh Pulia and around and in front of his shop between 5-6
p.m, he became evasive and said that he could narrate the incident
without reference to time as he had not seen the time. However, on
being reminded by ld. predecessor, that he could very well answer that
question with reference to time because having stated his location with
reference to the same time period, he was very well aware of the time,
he stated; that during 5-6 p.m on that day, a big mob had gathered on
the road in front of his shop at Chand Bagh Pulia and this mob had
caught hold of one boy. The persons in the mob were assaulting that
boy with danda and one sharp/pointed object and this continued for
about 10-15 minutes. Then on being specifically asked that what that
FIR No. 65/20
PS Dayalpur 166 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
boy was doing during this beating, the witness sought to explain
something to form background and then deposed, that there was fire in
his shop; some kids had entered his shop, who were throwing
chocolate and other food items/articles outside the shop and other
elder boys were collecting the same. Some articles were flying out of
the shop due to impact of fire and gas. He then deposed, that
somewhere between 4-5.30 p.m., when the mob was looting the
articles pertaining to his bakery shop, one boy along with 2-3 boys
claiming to be belonging to IB, entered into that mob. His companion
boys were provoking him to go ahead and they were also carrying
danda in their hands. The IB guy was also carrying danda in his hand,
when he entered into the mob. The moment he entered the mob, he
was immediately surrounded by the persons in the mob. Thereafter, he
could only see that the said boy, while he was standing, was being hit
on his head with some danda and he was repeatedly being stabbed by
some pointed object. This continued for about five to ten minutes and
in the last five minutes, though he was not very sure about it, probably
that IB guy had already died. At that time, he was standing near an
iron gate situated just on the side of his shop. On the left side of this
gate, there was his shop and on the right side of this gate, there was
drain (nala). That gate was closed at that time. One end of this gate
was fitted into their shop and another end of that gate was fitted into
the boundary wall erected beside the drain. There was fencing over
FIR No. 65/20
PS Dayalpur 167 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
that boundary wall beside the drain. During the last five minutes, he
had mentioned to his father that the boy had probably died and in the
meantime, the body of that boy fell down just before him at a distance
of about half an arm. The persons from the mob, who were holding
him till this time, had moved away and as a result, his body fell down.
Even when he had fallen down, three or four or may be more persons
from the mob were badly hitting his body with danda and blood was
oozing out from his mouth. When the body had fallen down, it was
nude. Thereafter, one person wearing helmet came there from the mob.
Two boys handed to him a knot prepared of clothes. That knot of
clothes was put in the neck of body of IB boy. The person wearing
helmet tried to drag this body through that knot but he could not do so
as body of IB boy was heavy. Thereafter, he was joined by other 2
boys, who had handed over said knot of clothes to him. All three of
them dragged this body upto the middle of pulia over the drain. They
brought one wooden plank and with help of that plank, they tried to lift
that body and throw it in the drain. There was fencing around that
drain and due to the height of the fence at that place, the body could
not be thrown into the drain. These persons in the mob kept trying to
throw that dead body from that place into the drain, but could not
succeed. Thereafter, they took that body to the other side of
pulia/drain. He could not see as to how did they take that body to the
other end of that pulia/other side of drain. He remained on his side of
FIR No. 65/20
PS Dayalpur 168 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
drain. There was a similar kind of gate on the other side of drain. That
gate was in open condition and on that side, the boundary wall was
lower. That portion of boundary walls used by the people to throw
garbage into the drain. Using the plank, the mob threw body of IB guy
into drain from the side of lower fence. Due to continuous throwing of
garbage from that side, a slope had developed from that place upto the
water level of drain. The body of IB boy rolled over that slope, but the
time he had observed, body had not gone into the water and it had
stopped before the water level of the drain. He did not remember the
distance between the body and the water level of the drain.
7.10.70 He then deposed that throughout this process, he
did not identify any person in that mob as there was no person in that
mob who was already known to him. He deposed that he could not
identify anyone from that mob though he had seen some faces. He
only remembered that one of them was having red patch over his face,
who was having heavy built and was a person aged about 30 years.
That person was wearing blue colour shirt. One of the persons in the
mob, who had handed over the knot of clothes to the other person,
wearing helmet, was having music sign tattoo on his neck and he was
wearing a cap. That person would be below 25 years. It was the same
mob, which was involved in looting and setting ablaze the shops
including his shop. He did not remember but it was about three days
after the incident that police had come to make inquiries from him. On
FIR No. 65/20
PS Dayalpur 169 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
being asked whether he knew the month or the year of the incident, he
answered in negative. He further deposed that he had shown to the
police all the places at which the above mentioned incident had taken
place however, no site plan was prepared in his presence. Police had
recorded his statement but it contained few twists and turns and he
informed the police official that it did not reflect the correct position.
7.10.71 He was then cross examined by ld. SPP. During
such cross examination he deposed that during the entire incident, his
father was with him but not always. Due to the huge mob and
commotion, many times he could not see his father. As he did not
remember the date and year, he could not admit or deny that riot had
taken place in the area of his shop on 24/25.02.2020. He however
deposed that it was month of February.
7.10.72 He knew a person by the name of Tahir Hussain
who was something in Aam Aadmi Party and used to come to his shop
with his kids. He pointed towards Tahir Hussain and identified him in
the court. He further deposed that he had not seen Tahir Hussain
between 3-6 p.m on the day of the incident with IB boy. He had seen
Tahir Hussain after 6 p.m., but he did not remember the time. He
could not even tell the time gap between 6.00 p.m and him seeing
Tahir Hussain. House of Tahir Hussain was situated after some plots,
parking and shops from his shop. The house of Tahir Hussain would
be about 30 steps from his shop. Across the road and in front of his
FIR No. 65/20
PS Dayalpur 170 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
shop was a mosque. He then deposed that due to lapse of time, he
could not admit or deny that he had stated before the police that on
25.02.2020 between 4-6 p.m., he had seen Tahir Hussain near the said
mosque. He could not recall that after this incident, police had met
him for the first time on 06.03.2020. Though he reiterated that he had
narrated the whole incident and shown the police the places which he
had mentioned in his testimony; he denied that the site plan was
prepared in his presence. As far as he remembered, he would have
been shown about 7-8 photographs and therefore, he could not admit
that he was shown 30-35 photographs by the police. He admitted that
when he was shown photographs by police, he was present on Chand
Bagh pulia for the purpose of renovation of his shop. He did not
remember and therefore, he could not admit or deny that from the
photographs, he had identified the photograph of Tahir Hussain and
had informed the police that Tahir Hussain was Municipal Councillor.
He denied that he had pointed out photograph of any person to
mention before police that such person was present in the mob at
Chand Bagh pulia and on provocation of Tahir Hussain, had stabbed
IB boy namely Ankit Sharma; or that his name was disclosed to him
by police as Haseen; or that he had pointed out to one photograph to
mention before the police that the said person was also in the mob
which killed the IB guy; or that police had disclosed name of that
person in photograph as Anas and volunteered, that police officials
FIR No. 65/20
PS Dayalpur 171 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
were talking among themselves wherein they had taken name of 3-4
persons and name of Anas was taken during that process. He denied
that he had deposed falsely under influence of accused and their
family; or that he knew that the aforesaid incident of murder of IB
official Ankit Sharma had taken place on 25.02.2020; or that he had
seen Tahir Hussain in front of the mosque on 25.02.2020 between 4-6
p.m; or that Tahir Hussain was instigating the mob to kill Ankit
Sharma.
7.10.73 During his cross examination on behalf of accused, he
admitted that just beside his shop, there was a road going beside the
drain and on the other side of the drain also, there was a similar kind
of road. He denied that iron gate, besides his shop, was situated after
going some steps inside the aforesaid road. He admitted that said iron
gate was closed since the time riot had started. He denied that on the
day this incident had taken place, the mob had also assembled on
aforesaid road beside his shop.
7.10.74 PW21 Gyanendra Kochar deposed that he was the owner
of Bunny Bakery. Since the night of 22.02.2020 until about 5:00 p.m.
on 25.02.2020, rioting had happened in the area where his shop was
situated.
7.10.75 On 25.02.2020 at about 3:00 p.m., because of the riots, he
was present outside his shop along with his son. A mob of about 1,000
Muslims was present near Chand Bagh pulia Another mob of Hindus
FIR No. 65/20
PS Dayalpur 172 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
of similar strength was on the Karawal Nagar side about 10-15 houses
away. The two mobs were pelting stones at each other. The Karawal
Nagar mob was raising slogans of “Jai Shree Ram,” while no
particular slogans were raised from the Chand Bagh side. The Chand
Bagh mob was also throwing objects that burst into flames, and some
members of the mobs carried dandas, iron rods, and wore helmets.
7.10.76 The mob from the Chand Bagh side came to his shop,
threatened to set it on fire and despite his requests, approximately
between 3:00 p.m. and 4:00 p.m., attacked the shop It broke the
shutter and glass, looted articles from the shop, and set it ablaze. He
remained there until about 5:00-5:15 p.m., by which time, the police
had arrived, fired tear gas shells from the Karawal Nagar side, and the
stone pelting had stopped.
7.10.77 Around 5:00 p.m., while he remained outside the shop,
his son Vikalp went inside in an attempt to save whatever he could.
Before leaving, the witness saw that a person running from the
Karawal Nagar side towards Chand Bagh pulia, was surrounded and
attacked by the Chand Bagh mob. He saw the person fall on the road
near his shop. Frightened, he and his son fled together.
7.10.78 The witness stated that he personally did not know any
member of the Chand Bagh mob. Owing to the size of the mob and
because many of the persons were wearing caps or helmets, he could
FIR No. 65/20
PS Dayalpur 173 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
not properly see or remember anyone’s face and therefore, could not
identify any rioter. He also did not see the face of the person who was
attacked and fell near his shop.
7.10.79 He stated that Tahir Hussain was the Municipal
Councillor of the area. Although he had heard Tahir Hussain’s name,
he had never met him. He did not recognize Tahir Hussain by his face.
He knew the location of Tahir Hussain’s house as it had been pointed
out to him by others. He also stated that there was no parking after 6-7
shops from his bakery; the parking was adjacent to Tahir Hussain’s
house and approximately 15 shops from it.
7.10.80 He was cross examined by ld. SPP and during such cross-
examination, he initially stated that the police had not made any
inquiry from him regarding the incident. However, it was recorded by
the Court that, while the question was being explained, the witness
stated that the police had visited the place several times and spoken to
him regarding the incidents of 25.02.2020.
7.10.81 When confronted with the suggestion that Inspector
Amleshwar Rai of the Crime Branch had recorded his statement on
07.03.2020, the witness stated that although he did not know the
officer by name, he had gone to PS Khajuri Khas and narrated the
same facts to the police as he had stated before the Court, though he
did not remember the date.
FIR No. 65/20
PS Dayalpur 174 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
7.10.82 He denied having stated to the police that he had seen and
identified Tahir Hussain instigating the Chand Bagh mob; or Tahir
Hussain had made inflammatory statements against Hindus; or Tahir
Hussain repeatedly visited his house and returned to instigate the mob;
or that he knew that the person attacked by the mob was Ankit
Sharma; or that he saw Ankit Sharma’s body being dragged across the
pulia and thrown into the drain; or that Tahir Hussain was a customer
at his bakery and used to visit with his children etc.
7.10.83 When his attention was drawn to Tahir Hussain appearing
through video conferencing, he identified him at Tahir Hussain. On
being asked to clarify his earlier statement where he had stated that he
did not recognize Tahir Hussain by his face; he explained that he was
in fact aware of Tahir Hussain’s face and that his earlier answer had
been given out of confusion. He denied the suggestion that he had
deliberately changed his version because he had been won over by
Tahir Hussain’s family; or that he had falsely denied identifying Tahir
Hussain or other rioters.
7.10.84 PW33 HC Praveen Kumar deposed that on 25.02.2020 he
was posted as a Constable at PS Khajuri Khas. On that day, from 8.00
a.m., he was deployed on duty near Chand Bagh Pulia on Main
Karawal Nagar Road. At about 3:00 p.m., he was present near Chand
Bagh Pulia, where a mob comprising persons from the Muslim
community was pelting stones at persons belonging to the Hindu
FIR No. 65/20
PS Dayalpur 175 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
community and police officials, who were positioned near a private
school on the Karawal Nagar side of the road. The mob also indulged
in arson in shops situated in E-Block, Khajuri Khas, on the Karawal
Nagar side.
7.10.85 At about 5:00 p.m., he was again present near Chand
Bagh Puliya along with HC Rahul. Some persons from the mob on the
Chand Bagh side caught a person from the Hindu side and while
assaulting him, dragged him towards Chand Bagh Pulia. In response
to a Court query, he stated that he was standing about 7-8 steps from
Chand Bagh Puliya on the Karawal Nagar side and about 15-20 steps
away from the persons dragging the boy.
7.10.86 When asked whether he had identified anyone from the
mob assaulting the boy, he stated that he had identified 5-6 persons,
although he did not know them prior to the incident. He further stated
that he had also seen those persons on 24.02.2020 at Bhajanpura
Chowk and Wazirabad Road during daytime, though he did not
remember the exact time.
7.10.87 He stated that at about 4:30-5:00 p.m. on 25.02.2020, he
had seen Tahir Hussain, whom he already knew by face, at Chand
Bagh Puliya. According to the witness, Tahir Hussain was delivering
an instigating speech, saying that Muslim shops at Sherpur Chowk had
been burnt and some Muslims had been killed, and that on that day,
FIR No. 65/20
PS Dayalpur 176 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
they will not spare the Hindu kafirs. After hearing this speech, the
Muslim mob became aggressive and indulged in stone pelting and
arson. He also stated that Tahir Hussain was a Municipal Councillor.
7.10.88 He deposed that because the mob had become aggressive,
he and others stepped back. Although he tried to stop the mob from
dragging and assaulting the boy, he had to retreat due to the mob’s
aggression. At that time, HC Rahul was present about 4-5 steps away
from him.
7.10.89 He further stated that written proceedings were conducted
in respect of those persons. Their disclosure statements were recorded
in FIR No. 65/20 by Insp. Amleshwar Rai on 09.03.2020. He also
stated that further documentary proceedings (“Kagzi Karwai”) took
place, though despite repeated questioning, he could not remember the
number or nature of the documents.
7.10.90 He stated that he could identify those 5-6 persons as well
as Tahir Hussain. In court, he identified accused Bobby, Firoz,
Gulfam, Anas and Javed physically present, and identified Tahir
Hussain appearing through video conferencing.
7.10.91 During cross-examination by the learned Special Public
Prosecutor, he admitted that on 09.03.2020, Insp. Amleshwar Rai had
arrested accused Bobby, Firoz, Gulfam, Anas and Javed in his
presence, prepared their arrest memos, and that he had signed those
FIR No. 65/20
PS Dayalpur 177 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
arrest memos, identifying his signatures thereon.
7.10.92 During cross-examination by the defence, he stated that
he did not remember on which date Insp. Rajni Kant had interrogated
those 5-6 persons, whose disclosure statements were recorded by
Insp. Amleshwar Rai on 09.03.2020. He stated that Insp. Rajni Kant
was posted at PS Khajuri Khas. A Crime Branch team had come to PS
Khajuri Khas on 09.03.2020, though he did not know which of the
officers of that team were Investigating Officers. When the disclosure
statements were recorded, some members of the Crime Branch team
were present with Insp. Amleshwar Rai. He did not remember whether
Insp. Rajni Kant was also present, but admitted that the accused
persons were in Insp. Rajni Kant’s custody at that time. He did not
remember whether any Crime Branch officer had interrogated those
persons in his presence before 09.03.2020.
7.10.93 He stated that he might have taken Insp. Amleshwar Rai
to Chand Bagh Puliya to point out the place of occurrence in the
present case, though he did not remember the date or time. In response
to a Court query, he affirmed that he was certain he had taken Insp.
Amleshwar Rai there in connection with this case.
7.10.94 He deposed that after 09.03.2020, Insp. Amleshwar Rai
did not record any further statement of his in this case. On that date,
he had signed two documents prepared by Insp. Amleshwar Rai. He
FIR No. 65/20
PS Dayalpur 178 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
stated that Insp. Amleshwar Rai recorded his statement at PS Khajuri
Khas on 09.03.2020. He did not recollect whether he was ever called
to the Crime Branch office or to PS Dayalpur in connection with this
case after that date.
7.10.95 He admitted that in his statement to Insp. Amleshwar Rai
on 09.03.2020, he had neither mentioned that a Hindu boy was being
dragged towards Chand Bagh Pulia while being assaulted, nor had he
stated that he was standing 15-20 steps away. He volunteered, that he
had answered only the questions put by the Investigating Officer. He
also admitted that he had not mentioned seeing Tahir Hussain at 4:30-
5:00 p.m. at Chand Bagh Puliya in that statement. However, he stated
that he had informed the Investigating Officer that he stepped back
because the mob had become aggressive, but that fact was not
recorded.
7.10.96 He stated that he had not made any call to the police
control room (100 number) on 25.02.2020 and that he was not
carrying any wireless set.
7.10.97 He denied the suggestions that he was not present near
Chand Bagh Puliya on 25.02.2020, that he had not witnessed the
dragging of any boy; that he had not seen Tahir Hussain or the
accused persons; that he falsely implicated them at the instance of the
Investigating Officer or senior police officers; that he identified the
FIR No. 65/20
PS Dayalpur 179 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
accused after being tutored at the police station; that he never pointed
out the place of occurrence to Insp. Amleshwar Rai, that his statement
was fabricated to falsely implicate the accused; or that he had deposed
falsely. He denied the suggestions that the Investigating Officer or
other police officials had repeatedly showed him videos, photographs
of the accused persons to tutor him regarding their identity and
instructed him to falsely implicate or identify them, advised him to
take cues from the prosecutor, obtained his signatures on blank papers
or documents without actual proceedings, or that he had given false
evidence.
7.10.98 PW56 Priyanka Gaur deposed that up to April 2024 she
had been residing at H. No. 360, Gali No. 6, Moonga Nagar, Karawal
Nagar Road, Delhi, and in July 2024 she shifted to Gandhi Nagar.
While in Delhi, she worked as an Advocate.
7.10.99 Riots took place in the area of Moonga Nagar on 23, 24
and 25.02.2020. On 24 and 25.02.2020, she was at home. On
25.02.2020, she came out of her house on three or four occasions and
went up to the gate at the corner of her gali, which opened onto Main
Karawal Nagar Road. Lastly she went there at about 5.00-5.30 p.m.
and had previously visited that place at about 4.00 p.m.
7.10.100 Facing Main Karawal Nagar Road, Chand Bagh Pulia
was on the left of her street. A huge mob of at least 100-150 persons,
FIR No. 65/20
PS Dayalpur 180 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
or more, was present on and around Chand Bagh Pulia. In that mob
she saw her Municipal Councillor, Tahir Hussain. His house was
situated near Chand Bagh Pulia and he was standing on the road near
his house. From his body language and gestures, she inferred that he
was not asking the mob to disperse but was instead instigating them to
move towards the Dayalpur side. Other persons were also witnessing
these events.
7.10.101 The mob was carrying dandas, petrol bombs and stones.
Stones were lying on the road and were being thrown towards her
side, though she had remained inside the gali and was not hit. Petrol
bombs were also being thrown. She recognized some persons in the
mob from the Muslim community. The persons on her side were
residents of her gali and belonged to the Hindu community.
7.10.102 She made several calls to the police at 100. One call
connected around 4.00 p.m. and another around 6.00-6.15 p.m.,
during which she informed the police that riots were taking place and
sought help. These calls were made from mobile number 7982307564.
7.10.103 In the mob, apart from Tahir Hussain, she knew one
Tanvir and knew some others only by face. She stated that she could
identify Tahir Hussain and Tanvir. During her deposition through
video conferencing, she correctly identified Tahir Hussain as the
person wearing a white shirt and having a white beard. She also
FIR No. 65/20
PS Dayalpur 181 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
correctly identified Tanvir by name but could not identify the other
persons shown to her as members of the mob.
7.10.104 During her cross examination, she stated that in her last
call made around 5.30-6.00 p.m., she had taken the name of Tahir
Hussain. She denied the suggestion that she had never mentioned
Tahir Hussain’s name in any of her PCR calls.
7.10.105 She could not estimate the width of her gali. She admitted
that the gate of her gali was closed on that day. The mob from Chand
Bagh Pulia had spread up to the road in front of Gali No. 3, Moonga
Nagar, or slightly beyond, but not up to R.P. School.
7.10.106 She admitted that there was a market with several shops
between Gali No. 6 and Chand Bagh Pulia. She knew of Bunny
Bakery in front of Gali No. 1 on the Khajuri Khas side but did not
know whether Aman E-rickshaw shop was also nearby. Between her
second-last and last visit to the gate she could not observe activity at
Bunny Bakery because of the crowd.
7.10.107 She admitted that the mosque at Chand Bagh Pulia was
not visible from the gate of her gali and volunteered, that it was so
because it was in the same line.
7.10.108 She denied that police had shown her photographs on
15.09.2021; or that she identified Tahir Hussain in Court on the basis
of those photographs; or that she had not seen Tahir Hussain on
FIR No. 65/20
PS Dayalpur 182 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
25.02.2020. She also denied that police never recorded her statement
regarding the incident; or that she was tutored by police on 15.09.2021
about the statement to be given in the court. Police had not sent her
any statement to prepare her for court (deposition).
7.10.109 She further stated that stones thrown from the Chand
Bagh Pulia side were reaching up to Gali No. 5. At about 4.00 p.m.,
when she went to the gate of her gali, it was open, but it was during
her later visit, she found it to be closed. There were about 5-6 persons
standing ahead of her towards the main road and about 4-5 persons
standing behind her. She had known Tanvir for about 10 years.
7.10.110 She had read the statements recorded by the police, but
did not remember whether she had mentioned Tanvir’s name in those
statements and denied that she was deliberately pretending not to
remember this fact, because she had omitted his name.
7.10.111 She stated that she had informed police that the mob was
carrying dandas and petrol bombs and was throwing petrol bombs. It
was recorded by the learned predecessor that these facts were not
specifically mentioned in her statements recorded in FIR Nos. 65/20,
91/20 and 92/20, PS Dayalpur. She further stated that she had not
described before police in such detail that she knew some persons in
the mob only by face. She never attempted to ascertain what action
had been taken on the basis of her PCR calls. She had not submitted
FIR No. 65/20
PS Dayalpur 183 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
any written complaint regarding the incident, but volunteered that
police had come to her gali and inquired from her and at that time she
narrated everything she had seen.
7.10.112 She denied that she had not witnessed any incident on
25.02.2020, that she never went to the gate of her gali that day, that
she had not seen Tanvir in the mob, or that she falsely named and
identified him at the instance of the police.
7.10.113 I have carefully evaluated the testimonies of the witnesses
as summarized above and also considered the rival contentions.
7.11 In my considered opinion, for answering the questions –
when, where and how was it, that Ankit Sharma was killed, only one
testimony will suffice. This is the testimony of PW19 Vikalp Kochar.
The reason that his sole testimony will be sufficient to answer these
questions is, that he is one witness, who even the defence believes to
be truthful. My reason for so observing is, that after his examination in
chief was recorded, except for accused Tahir Hussain, Gulfam and
Shoaib Alam, no other accused chose to cross examine him. Even
during such cross-examination, his presence had not been challenged
and his narration of events also remained unchallenged. Even during
the course of final arguments, the veracity of this witness was not
challenged. On the contrary, time and again, during the final
arguments, the defence, more specifically Sh. Rajiv Mohan, asserted
FIR No. 65/20
PS Dayalpur 184 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
that he was the most natural witness of the incident.
7.11.1 However, an attempt has been made by Mr. Pracha to
impress upon the court that the testimony of PW19, cannot be
considered to be an eyewitness account of murder of Ankit Sharma
because, he failed to positively identify the deceased, and only
referred to to boy who claimed himself to be from IB and the witness
did not even recall the date of incident. I have weighed his contention.
7.11.2 Noticeably , as per PW19, the incident, as had been seen
by him, had happened between 4.00 to 5:30 p.m on the day his shop
was burnt and in respect of the arson at his shop, FIR No. 114/2020
was registered. I can take judicial notice of the fact that as per FIR No.
114/2020 of PS Khajuri Khas, M/s Bunny Bakers was set afire on
25/02/2020. Therefore, it can be safely concluded that as per the
testimony of PW19, the incident had happened on 25/02/2020
between 4.00 to 5:30 p.m, near Chand Bagh Pulia.
7.11.3 It is correct that during his entire testimony, PW19 did
not specifically take the name killing of Ankit Sharma and referred to
the one who was killed before his eyes as the ‘IB guy”. However,
there is no denial to the fact the Ankit Sharma was an IB official. It is
not the case either put up by Mr. Pracha, or proved by him that during
the North-East Delhi riots of 2020, more than one official of IB had
ben killed. Had it been the case, a he could have called upon the court
FIR No. 65/20
PS Dayalpur 185 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
to consider a possibility that this witness might have seen the
homicide of some IB official other then Ankit Sharma. It is also not
the case argued or set up by Mr. Pracha that apart from the body of
Ankit Sharma, any other body was also recovered from the place
wherefrom his body was recovered. On the contrary, the testimony of
the IO that no second body was recovered from this drain has
remained unrebutted. Moreover, an attempt made by Mr. Rajiv Mohan
to introduce a two-body theory, as already discussed, has not found
favours with the court. Therefore, in the light of the fact that there was
no other IB official who was killed during those riots and more
importantly, the fact that no other body was recovered from the nala
near Chand Bagh Pulia, a fact of which I have taken a judicial notice,
being special designated court for the trial of cases arising out of the
riots in North-East District, I find this attempt an to deflect the
attention from the real issue i.e. issue of homicidal death of Ankit
Sharma, must necessarily fail.
7.11.4 Hence, I find that through the testimony of PW19, it
stands established that on 25/02/2020 between 3.00 to 6.00 p.m, on the
main Karawal Nagar Road, upon which the shop of PW19 was
situated, a big mob was present in front of the shop of PW19 and
upon the Chand Bagh Pulia. During this period between 4.00 to 5:30
p.m, this mob sucked in Ankit Sharma, where after he was ruthlessly
assaulted for around five to ten minutes and by the time he collapsed
FIR No. 65/20
PS Dayalpur 186 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
to ground, he had, probably already died. His body was then dragged
to middle of Chand Bagh Pulia where an unsuccessful attempt was
made to push the body in to the drain. The body was then taken across
the pulia and from across the wall parallel to the drain, the body
thrown in to the drain.
7.11.5 Therefore, it stands proved that Ankit Sharma was killed
approximately between 4.00 to 5:30 p.m on 25.02.2020. That he was
killed on main Karawal Nagar Road, near Chand Bagh Pulia and that
his body was thrown in the drain upon which the said pulia was, and
that he was killed by a mob which was murderously armed.
7.11.6 The fact that this mob, armed with weapons, dragged
Ankit Sharma in its midst and then launched an attack with lathis,
dandas and sharp weapons reflects the intention to kill Ankit Sharma
or at the very least cause injuries to Ankit Sharma. It has also been
proved through PW15 that the injuries caused by this mob were
sufficient to cause his death in ordinary course of nature, making it
culpable homicide amounting to murder.
7.12 The next question which would arise for decision is,
whether this mob was an unlawful assembly as per the provisions of
section 141 IPC?
7.12.1 Here again, I find that I can decide this question only on
the basis of testimonies of witnesses which have remained
FIR No. 65/20
PS Dayalpur 187 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
unchallenged and about whose presence at the time of the incident, the
defence has not raised any questions or doubts. These are PW19
Vikalp Kochar, his father-PW21 Gyanendra Kochar and PW56
Priyanka Gaur.
7.12.2 As far as PW19 is concerned, he was only cross-
examined on behalf of accused Tahir Hussain, Gulfam and Shoaib
Alam. However, during the said cross-examination, no challenge was
raised to his presence at the place of incident and the fact that he had
seen the killing of Ankit Sharma and therefore, his testimony
regarding the description, nature, activities of the mob at Chand Bagh
Pulia has remained unchallenged.
7.12.3 PW21 Gyanendra Kochar was not cross examined by any
of the accused and therefore, whatever he has stated about this mob,
has to be taken to be a fact that stands proved.
7.12.4 Similarly, PW56 was cross examined only on behalf of
accused Tahir Hussain, Shoaib, Gulfam, Nazim, Kasim and Firoz.
Even during the cross-examination on behalf of these accused, except
bald suggestions, that she had not seen any incident on 25.02.2020 as
had been deposed by her, no substantial challenge was raised to her
presence at the place of the incident which otherwise stands
established by PCR forms, Ex.PW91/2 to Ex.PW91/4.
7.12.5 In order to qualify as an unlawful assembly, the assembly
at Chand Bagh Pulia will have to be proved to be an assembly of more
FIR No. 65/20
PS Dayalpur 188 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
than five persons and it will further be required to be proved that this
assembly was having one or more of the common objects as provided
in section 141 IPC.
7.12.6 With regard to the number of members of this assembly,
all these witnesses had stated that this mob, which constituted this
assembly, was huge. With regard to numbers, PW56 stated that there
would be around 100-150 persons or even more than that. PW19
stated that it was a huge mob but did not state any specific number.
However, if the tone and tenor of his testimony is seen, it is clear that
the number was definitely more than five. PW21 during his testimony
put the membership of this mob to be around a thousand. Therefore, in
view of the testimonies of these three witnesses, I can safely conclude
that the constituents of this assembly at Chand Bagh Pulia were more
than five in number.
7.13 The next question which comes up for decision is,
whether this assembly had a common object, and whether such shared
common object of this assembly was covered within the four corners
of the objects provided in section 141 IPC?
7.13.1 As is usual, in this case also, there is no direct evidence
whether this assembly had a common object and what was this object.
Therefore for answering the question, the nature of the assembly, the
activities and behaviour of the assembly, and whether this assembly
was armed or unarmed would be the relevant factors that can help in
FIR No. 65/20
PS Dayalpur 189 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
gathering the object of the assembly. (Chikkarange Gowda v. State of
Mysore, AIR 1956 SC 731 & Lalji v. State of U.P., (1989) 1 SCC 437)
7.13.2 The deposition of PW19 in totality reveals that this mob
was engaged in rioting, loot and arson at his and nearby shops, and
thereafter it is this mob that had attacked Ankit Sharma and thrown his
body in the nala. The mob was armed with heavy dandas and sharp
objects. PW21 has described this mob as a mob which was rival to the
mob of Hindu community and both these mobs were pelting stones on
each other. This mob i.e. the mob at Chand Bagh Pulia was throwing
objects which would burst into flames, members of the mob were
armed with weapons like danda and iron rods and some of them were
wearing helmets. This is the mob which had set his shop ablaze. PW56
in her deposition, stated that at around 5-5.30 p.m, she had seen this
huge mob which was on the pulia and has spread on both its side. The
mob was carrying danda, petrol bombs and stones and this mob was
throwing stones and petrol bombs towards her direction.
7.13.3 The testimonies of these witnesses establish that this
assembly, whose constituents were more than five in number:
(a) was an assembly whose members were armed with stones,
molotovs, iron rods, dandas and knives etc. or sharp weapons,
(b) some of the members of this assembly were wearing helmets,
(c) this assembly was clashing with another such assembly belonging
to the Hindu community,
FIR No. 65/20
PS Dayalpur 190 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
(d) this assembly was pelting stones and petrol bombs on the rival
mobs, and
(e) this assembly was indulged in rioting, loot and arson.
7.13.4 Hence, the members of this assembly were armed, were
indulging in crimes such as rioting, afray, arson and loot and at the
same time, clashing with the rival assembly and attacking it with the
arms it was carrying. Hence, it can be gathered that the shared object
of this unlawful assembly was to commit offences which would
include rioting, loot and arson and causing damage to the life and
property of the members of the rival community. Therefore, the
common object of this assembly was within the prohibition of section
141 IPC.
7.13.5 Resultantly, I hold that from the evidence on record, it
stands proved beyond all reasonable doubts that the mob, which had
attacked, killed and disposed of the body of Ankit Sharma, was an
unlawful assembly within the definition of section 141 IPC.
7.14 However, can it be said that the killing of Ankit Sharma
was in pursuance of the common object of this assembly? It can be
argued that the common object of this assembly did not include the
killing of Ankit Sharma because it would not have been specifically
aware about the existence of Ankit Sharma, and it can also be argued
that murder was not the common object of this assembly because such
an object is not visible from the activities of this assembly.
FIR No. 65/20
PS Dayalpur 191 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
7.14.1 Section 149 IPC fastens a vicarious criminal liability on
every member of unlawful assembly for any offence which is
committed in prosecution of the common object of such an assembly.
At the same time, such liability is also fastened upon the members of
unlawful assembly for an act which the members of the assembly
knew to be likely to be committed in prosecution of the object of the
assembly. Therefore, the members of an unlawful assembly are not
only liable for an offence which was directly committed to achieve the
object of the assembly but also for an offence, which they knew was
likely to be committed for achieving the common object of the
assembly. The likelihood of the commission of offence for the
prosecution of the object of unlawful assembly can only be gathered
from the nature of the assembly, the strength of the assembly engaged
in prosecution of the object and the weapons with which members of
such an assembly had armed themselves. In this regard, Hon’ble
Supreme Court while discussing the scope of application of section
149 IPC, in Gangadhar Behera & Ors. v. State of Orissa, (2002) 8
SCC 381 had held :
22. Another plea which was emphasized relates to the question
whether Section 149 IPC has any application for fastening the
constructive liability which is the sine qua non for its operation.
The emphasis is on the common object and not on common
intention. Mere presence in an unlawful assembly cannot render a
person liable unless there was a common object and he was
actuated by that common object and that object is one of those set
out in Section 141. Where common object of an unlawful assembly
is not proved, the accused persons cannot be convicted with the
FIR No. 65/20
PS Dayalpur 192 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
help of Section 149. The crucial question to determine is whether
the assembly consisted of five or more persons and whether the
said persons entertained one or more of the common objects, as
specified in Section 141. It cannot be laid down as a general
proposition of law that unless an overt act is proved against a
person, who is alleged to be a member of an unlawful assembly, it
cannot be said that he is a member of an assembly. The only thing
required is that he should have understood that the assembly was
unlawful and was likely to commit any of the acts which fall within
the purview of Section 141. The word “object” means the purpose
or design and, in order to make it “common”, it must be shared by
all. In other words, the object should be common to the persons,
who compose the assembly, that is to say, they should all be aware
of it and concur in it. A common object may be formed by express
agreement after mutual consultation, but that is by no means
necessary. It may be formed at any stage by all or a few members
of the assembly and the other members may just join and adopt it.
Once formed, it need not continue to be the same. It may be
modified or altered or abandoned at any stage. The expression “in
prosecution of common object” as appearing in Section 149 has to
be strictly construed as equivalent to “in order to attain the
common object”? It must be immediately connected with the
common object by virtue of the nature of the object. There must be
community of object and the object may exist only up to a
particular stage, and not thereafter. Members of an unlawful
assembly may have community of object up to a certain point
beyond which they may differ in their objects and the knowledge,
possessed by each member of what is likely to be committed in
prosecution of their common object may vary not only according to
the information at his command, but also according to the extent to
which he shares the community of object, and as a consequence of
this the effect of Section 149 IPC may be different on different
members of the same assembly.
23. “Common object” is different from a “common intention” as it
does not require a prior concert and a common meeting of minds
before the attack. It is enough if each has the same object in view
and their number is five or more and that they act as an assembly to
achieve that object. The “common object” of an assembly is to be
ascertained from the acts and language of the members composing
it, and from a consideration of all the surrounding circumstances. It
FIR No. 65/20
PS Dayalpur 193 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
may be gathered from the course of conduct adopted by the
members of the assembly. What the common object of the unlawful
assembly is at a particular stage of the incident is essentially a
question of fact to be determined, keeping in view the nature of the
assembly, the arms carried by the members, and the behaviour of
the members at or near the scene of the incident. It is not necessary
under law that in all cases of unlawful assembly, with an unlawful
common object, the same must be translated into action or be
successful. Under the Explanation to Section 141, an assembly
which was not unlawful when it was assembled, may subsequently
become unlawful. It is not necessary that the intention or the
purpose, which is necessary to render an assembly an unlawful one
comes into existence at the outset. The time of forming an unlawful
intent is not material. An assembly which, at its commencement or
even for some time thereafter, is lawful, may subsequently become
unlawful. In other words it can develop during the course of
incident on the spot eo instanti.
24. Section 149 IPC consists of two parts. The first part of the
section means that the offence to be committed in prosecution of
the common object must be one which is committed with a view to
accomplish the common object. In order that the offence may fall
within the first part, the offence must be connected immediately
with the common object of the unlawful assembly of which the
accused was a member. Even if the offence committed is not in
direct prosecution of the common object of the assembly, it may
yet fall under Section 141, if it can be held that the offence was
such as the members knew was likely to be committed and this is
what is required in the second part of the section. The purpose for
which the members of the assembly set out or desired to achieve is
the object. If the object desired by all the members is the same, the
knowledge that is the object which is being pursued is shared by all
the members and they are in general agreement as to how it is to be
achieved and that is now the common object of the assembly. An
object is entertained in the human mind, and it being merely a
mental attitude, no direct evidence can be available and, like
intention, has generally to be gathered from the act which the
person commits and the result therefrom. Though no hard-and-fast
rule can be laid down under the circumstances from which the
common object can be culled out, it may reasonably be collected
from the nature of the assembly, arms it carries and behaviour at or
FIR No. 65/20
PS Dayalpur 194 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
before or after the scene of incident. The word “knew” used in the
second branch of the section implies something more than a
possibility and it cannot be made to bear the sense of “might have
been known”. Positive knowledge is necessary. When an offence is
committed in prosecution of the common object, it would generally
be an offence which the members of the unlawful assembly knew
was likely to be committed in prosecution of the common object.
That, however, does not make the converse proposition true; there
may be cases which would come within the second part but not
within the first part. The distinction between the two parts of
Section 149 cannot be ignored or obliterated. In every case it would
be an issue to be determined, whether the offence committed falls
within the first part or it was an offence such as the members of the
assembly knew to be likely to be committed in prosecution of the
common object and falls within the second part. However, there
may be cases which would be within the first, offences committed
in prosecution of the common object would be generally, if not
always, within the second, namely, offences which the parties knew
were likely to be committed in the prosecution of the common
object.
7.14.2 Further, in Prabhu Dayal (supra), the Hon’ble Supreme
Court had held as under:-
22.2. This Court in Lalji v. State of U.P. [Lalji v. State of
U.P., (1989) 1 SCC 437 : 1989 SCC (Cri) 211] , observed as
follows: (SCC pp. 441-42, para 9)
“9. Section 149 makes every member of an unlawful
assembly at the time of committing of the offence guilty of
that offence. Thus this section created a specific and distinct
offence. In other words, it created a constructive or vicarious
liability of the members of the unlawful assembly for the
unlawful acts committed pursuant to the common object by
any other member of that assembly. However, the vicarious
liability of the members of the unlawful assembly extends
only to the acts done in pursuance of the common object of
the unlawful assembly, or to such offences as the members of
the unlawful assembly knew to be likely to be committed in
FIR No. 65/20
PS Dayalpur 195 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
prosecution of that object. Once the case of a person falls
within the ingredients of the section, the question that he did
nothing with his own hands would be immaterial. He cannot
put forward the defence that he did not with his own hands
commit the offence committed in prosecution of the common
object of the unlawful assembly or such as the members of
the assembly knew to be likely to be committed in
prosecution of that object. Everyone must be taken to have
intended the probable and natural results of the combination
of the acts in which he joined. It is not necessary that all the
persons forming an unlawful assembly must do some overt
act. When the accused persons assembled together, armed
with lathis, and were parties to the assault on the complainant
party, the prosecution is not obliged to prove which specific
overt act was done by which of the accused. This section
makes a member of the unlawful assembly responsible as a
principal for the acts of each, and all, merely because he is a
member of an unlawful assembly. While 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 under
Section 149. It must be noted that the basis of the
constructive guilt under Section 149 is mere membership of
the unlawful assembly, with the requisite common object or
knowledge.”
7.14.3 As has already been found that this unlawful assembly
was heavily armed with deadly weapons, it had a considerable
strength of hundreds of people and had a shared object of arson,
vandalism, rioting, looting and causing damage to property and person
of the members of the rival community. It has also been found that this
assembly was, since about 3.00 p.m, continuously engaged in
prosecuting these shared objects. Hence, any prudent person, being a
member of this assembly, would have known that as this unlawful
FIR No. 65/20
PS Dayalpur 196 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
assembly, which was heavily armed with dandas, stones, petrol bombs
and swords etc. and was clashing continuously with a rival assembly,
it was likely that in such clashes which were based upon communal
hatred, it was likely that a person belonging to the opposite
community could be killed in achieving the common object of causing
damage to person and property of the members of the rival
community. It also must be noted that neither does it appear to be the
case, nor has it been pleaded by the defence that the weapons were
concealed by some of the members of this assembly and the others
would not have been aware of it.
7.14.4 Hence, even though the members of this unlawful
assembly might not have specifically known that the killing,
particularly of Ankit Sharma, could be a likely offence committed in
the prosecution of the common objects of this assembly; but in my
considered opinion, they would have certainly known that a killing
was likely to be committed especially, when the object of the assembly
was causing damage/ injury to the persons of the opposite community
and when this unlawful assembly, heavily armed as it was, was
pursuing this object.
7.14.5 Before proceeding further, it is also appropriate to deal
with a contention raised on behalf of the accused that a mere presence
at the assembly site or in the assembly is not sufficient to attract
vicarious liability u/s 149 IPC unless some overt act or omission as a
FIR No. 65/20
PS Dayalpur 197 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
member of such assembly is proved on the part of the person upon
whom such liability is sought to be fastened.
7.14.6 I have considered this submission and I find that law in
this regard, has been settled by the Full Bench of Hon’ble Supreme
Court in Masalti (supra), where a similar similar proposition was
raised before hon’ble Supreme Court in the light of an earlier
judgment of Baladin v. State of U.P, AIR 1956 SC 181. The legal
principles that emerge from the judgment of Hon’ble Supreme Court
in Masalti (supra) are:
(a) it is not a general principle of law that a person cannot be said to
be a member of an unlawful assembly unless an overt act is proved
against him, and to hold so will not be correct in law;
(b) an overt act on the part of a person is required to be proved only in
case where a relevant consideration could be the fact that the assembly
could have consisted of some persons who were merely passive
witnesses and had joined the assembly as a matter of idle curiosity but
not intending to entertain the object of the assembly;
(c) where a large unlawful assembly acts in prosecution of its common
object, it may not always be possible to attribute specific overt acts to
each individual member of the assembly; and
(d) section 149 IPC clearly lays down that the punishment prescribed
by this section is vicarious and does not require that the offence or an
offence should have actually been committed by every member of the
FIR No. 65/20
PS Dayalpur 198 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
unlawful assembly.
7.14.7 These principles were further elaborated and consolidated
by Hon’ble Supreme Court in Gangadhar Behera (supra). Thus, it is
only in cases where it could be said that the persons seen in the
assembly could have been merely curious onlookers and were not
entertaining the object of the said assembly, would it be required that
an overt act against a person sought to be punished with the aid of
section 149 IPC is proved.
7.14.8 Therefore, whether the accused were curious onlookers or
mere bystanders and whether they did not share the common object of
the unlawful assembly is a question of fact and needs to be proved
before the court. By its nature, it is obvious, that this fact has to be
pleaded by the accused and then proved at least by preponderance of
probabilities. However, in this case, none of the accused has claimed
either during the prosecution evidence or their statements u/s 313
Cr.P.C. or by leading evidence in defence that they were innocent
bystanders or curious onlookers, or that they did not share the
common object of the unlawful assembly. Even a suggestion on these
lines was not given to any of the prosecution witnesses to at least
indicate an intent to set up such defence. On the contrary, by the
nature of the assembly and the activities it was engaged in and the
situation which existed at the relevant time, it is less than likely that
any person who was a part of this assembly would have been a mere
FIR No. 65/20
PS Dayalpur 199 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
curious onlookers.
7.14.9 At this stage it will be pertinent to take up the legal
proposition of special evidentiary requirement raised by the defence.
On the strength of Masalti(supra), Sh. Rajiv Mohan and Sh. Abdul
Gaffar have contended that this being case involving a large number of
accused upon whom vicarious liability is sought be fastened with the
aid of Sec. 149 IPC, the case of the prosecution can be accepted only
against those accused against whom two or more witnesses have given
consistent versions. In order to bring home this point they have relied
on the following portion of this judgment:
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.
FIR No. 65/20
PS Dayalpur 200 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
7.14.10 With all humility at my command, I must say that the Ld.
counsels have completely misinterpreted the the dictum of the
Hon’ble Apex Court. Here the Hon’ble Court was dealing with a
challenge mounted to the High court adopting a test, that a conviction
could be sustained only if it was supported by consistent version of
two or more witnesses. The fact that the the Hon’ble Supreme Court,
finding that such test was neither unreasonable nor irrational, shot
down this challenge doesn’t mean and cannot lead to a conclusion,
that the Hon’ble Court also held that that such a test has to be
mandatorily adopted.
7.14.11 The court opens its observations with a reiteration of the
cardinal principle of evidence, that is the quality of evidence, and the
not quantity that matters and then reemphasizes it before concluding
its observations. The choice of words of the court in concluding its
observations is of the most significance. The court said in such cases-
“sometimes it is useful to adopt a test like the one which the high
court has adopted”. The use of the words ‘sometimes’ and ‘useful’
makes it amply clear that the Hon’ble Supreme court did not intend to
lay down a law that the test adopted by the high court had to be
mandatorily followed. Had it so intended, instead of the words
‘sometimes’ and ‘useful’, it would have used always and necessary or
some other similar words to convey that for arriving at a finding of
FIR No. 65/20
PS Dayalpur 201 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
guilt in such cases, conviction can only be handed down by following
the special evidentiary test as had been laid down by the Hon’ble
Allahabad High Court. Resultant to the discussion herein above, I find
that there are no special rules of evidence that govern this case and the
time-honoured rule that it is the quality of evidence and not the
quantity that matters, has to govern this case also.
7.15 This brings me to the question whether the prosecution
has been able to successfully prove that the accused facing trial were
the members of the unlawful assembly which had killed Ankit
Sharma?
7.16 I shall now proceed with the case against each individual
accused.
Accused Tahir Hussain
7.17 The case of the prosecution against accused Tahir Hussain
is not only that he was a member of this unlawful assembly but it is
also alleged that he was actively instigating this assembly. In order to
prove its case against Tahir Hussain, the prosecution had cited PW5
HC Rahul, PW33 HC Praveen Kumar, PW6 Pradeep Verma, PW11
Deepak Pradhan, PW13 Aakash, PW14 Bharat and PW56 Priyanka
Gaur.
7.17.1 The testimonies of these witnesses have been briefly
summarized in the earlier part of the judgment.
7.17.2 I have evaluated the evidence and given my considered
FIR No. 65/20
PS Dayalpur 202 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
thought to the contentions advanced at bar.
7.17.3 As regards PW5 HC Rahul and PW33 HC Praveen
Kumar, both these witnesses have deposed about being on duty on
25.02.2020 at Main Karawal Nagar Road. They have also deposed
about seeing this unlawful assembly and witnessing the activities of
accused Tahir Hussain as well as the act of assault upon Ankit Sharma.
However, these are all improvements upon the statements u/s 161
Cr.P.C. In these statements, there was no mention of accused Tahir
Hussain or the incident as had happened with deceased Ankit Sharma.
Their statements u/s 161 Cr.P.C were generalized statements about the
rioting that had happened on 25.02.2020 at Chand Bagh Pulia and not
about any specific incident. They have not even stated the time of the
general riots seen by them.
7.17.4 PW5 HC Rahul, when asked about these improvements,
during his cross-examination, stated that he had not specifically
mentioned that the mob had started setting fire nearby shops including
Bunny Bakery and further, that he did not remember if he had
mentioned about a person from Hindu community (referring to Ankit
Sharma) being dragged by the other mob on the Pulia. He deposed
that as far as he remembered he had seen his statement recorded by the
IO but he did not find any mistakes or pointed out any mistakes to the
IO. Regarding the method of recording statements, he stated that IOs
usually asked whether he knew anything about a particular incident,
FIR No. 65/20
PS Dayalpur 203 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
whereupon he narrated the incident and answered any further queries,
and the same method was adopted by the IO of this case.
7.17.5 Similarly, PW33 HC Praveen Kumar in his cross-
examination deposed that he had not mentioned in his statement given
to Insp. Amleshwar about a boy from Hindu Mob being assaulted and
being dragged to Chand Bagh Pulia, or that 15-20 persons were
dragging that boy and volunteered, that he was answering the queries
of IO. He had also not mentioned about seeing Tahir Hussian at Chand
Bagh Pulia at around 4.30-5.00 p.m. He further went on to state that
though he had stated to the IO that as the mob was aggressive, he had
to step back, but IO did not record this fact.
7.17.6 It is evident that both these witnesses, while testifying in
the court, have made considerable improvements. However, when
asked, whether these facts which they had added, were stated in their
statements u/s 161 Cr.P.C; instead of putting forward an explanation
for not stating these facts, they either simply admitted not stating
these facts, or stated that they did not remember whether these facts
were stated or not. The improvements made by these witnesses are not
minor variations, embellishments or small additions. They have
significantly and without putting forward an explanation, deposed as
eye witnesses to the grabbing, assaulting and dragging of deceased
Ankit Sharma to Chand Bagh Pulia, facts which were completely
missing in their statements u/s 161 Cr.P.C. In their statements u/s 161
FIR No. 65/20
PS Dayalpur 204 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
Cr.P.C, they had stated about accused Tahir Hussain instigating the
mob but no time frame during which they had seen was provided.
However, while appearing as witnesses before this court, they put a
time to such instigation and that was of around the same time when as
per the case of the prosecution, Ankit Sharma was murdered.
7.17.7 However, ld. SPP had valiantly tried to defend these
testimonies and contended that it is not necessary to even record a
statement u/s 161 Cr.P.C and a witness, whose statement u/s 161
Cr.P.C has not been recorded, can still depose in the court and if his
testimony is found to be reliable, it has to be acted upon. He had
contended that in the present case, the court has to test the veracity of
these witnesses and cannot discard their testimonies merely on the
ground that they have made significant improvements. In this regard
he has relied upon the judgment in Alamgir(supra).
7.17.8 I have given my consideration to this argument of ld. SPP.
However, the reliance of ld. SPP on Alamgir(supra) is completely
misplaced. A witness whose statement u/s 161 Cr.P.C has not been
recorded stands on a completely different footing than a witness
whose statement u/s 161 Cr.P.C had been recorded. I say so because a
witness who deposes for the first time in the court, does not have
anything to improve upon. However, a witness who had been given
opportunity to narrate what he had seen regarding a particular incident
and who during the such first opportunity, completely omits to provide
FIR No. 65/20
PS Dayalpur 205 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
the vital details which he subsequently adds while testifying in the
court, owes an explanation for not disclosing such facts in the earlier
statement, failing which serious doubts would arise about his veracity.
Therefore, in my considered opinion, the fact that a witness owed an
explanation and failed to provide one, affects his veracity and dents
his credibility.
7.17.9 Even if the improvements are ignored, their testimonies
have established that they could not have seen the incident which they
have deposed about.
7.17.10 Both the witnesses claimed to have been on duty together
and specifically stated that they were with each other. As per PW5, he
was on duty on Main Wazirabad Road and main Karawal Nagar Road
and as per PW33, he was on duty on Main Karawal Nagar Road near
Chand Bagh Pulia. During the scene of crime inspection, I had
observed that Chand Bagh Pulia divides the Main Karawal Nagar
Road and on the one side of this Pulia is the road from Main
Wazirabad Road to Karawal Nagar i.e. the road that is called Main
Karawal Nagar Road. Taking into consideration the fact that they were
together, from the deposition of PW5, it is apparent that they were on
duty on Main Wazirabad Road and Main Karawal Nagar Road. As
there was a huge mob on Chand Bagh Pulia, which as per PW5 had a
strength of around 1000-1200, these two would not have been able to
cross the Chand Bagh Pulia and reach the second part of the Karawal
FIR No. 65/20
PS Dayalpur 206 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
Nagar Road beyond this Pulia. This fact is further established by the
testimony of PW5 that at around 4.20-4.25 p.m,, the mob succeeded in
pushing them onto Main Wazirabad Road and being so pushed, they
reached Bhajanpura Mazar on Main Wazirabad Road. So if at all, they
would have reached Chand Bagh Pulia at around 5.00 p.m, as had
been deposed by them, they would have only managed to reach the
Chand Bagh Pulia but could not have crossed over to the other side
because that would have required dispersing the huge mob which had
occupied the Pulia and the road a little beyond the Pulia towards
Karawal Nagar. Even otherwise, these witnesses had not deposed that
they crossed the Chand Bagh Pulia to reach the other side and hence,
in all probability, they would have remained near the Chand Bagh
Pulia on the side wherefrom the body of Ankit Sharma was thrown.
This being the case, they neither could have seen, beyond a crowd of
thousands, the apprehension of Ankit Sharma and him being dragged
towards them and the Chand Bagh Pulia, nor they could, in such
pandemonium, have been able to see or hear Tahir Hussain beyond the
mob of the thousands which was between them and Ankit Sharma and
Tahir Hussain because both Ankit Sharma and Tahir Hussain were
across Chand Bagh Pulia towards the place where the house of Tahir
Hussain and Lakhpat School etc. were situated.
7.17.11 I accordingly find that in view of the considerable
improvements made by these witnesses, their failure to explain these
FIR No. 65/20
PS Dayalpur 207 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
improvements and the improbability of them having seen the incident,
which formed a part of their improvements only, makes them
unreliable witnesses.
7.17.12 The next witness is PW6 Pardeep Verma. He has deposed
about the incident and has identified some of the accused but as far as
the identity of accused Tahir Hussain, he has turned hostile and has not
supported the case of the prosecution that Tahir Hussain was a part of
this unlawful assembly or was instigating this assembly. In view of
this fact, ld. counsel for accused Tahir Hussain has, during the course
of arguments, claimed that the presence of PW6 Pradeep Verma was
natural at the place of incident. In the light of his testimony, ld.
counsel has tried to discredit the testimonies of PW11 and PW56
claiming that of these witnesses and PW6, it is only he who could
have seen the incident.
7.17.13 Thus, evidently accused Tahir Hussain is relying upon
PW6 Pradeep Verma as a truthful and natural witness.
7.17.14 I have carefully considered the testimony of this witness.
Apparently, this witness almost completely supports the case of the
prosecution and deposes substantially on the lines of his earlier
statements u/s 161 Cr.P.C. and 164 Cr.P.C. However, when it comes to
accused Tahir Hussain, he resiles from his earlier statements and either
to attribute any role to him and to acknowledge his presence in the
unlawful assembly.
FIR No. 65/20
PS Dayalpur 208 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
7.17.15 As reproduced earlier, while narrating the incident, he
deposed that he had identified six faces in the mob from the Muslim
community, whose names were not known to him at that time and
there was no one in the mob whom he knew by name. Thereafter, in
response to a specific question, he answered that he knew that Tahir
Hussain was a Municipal Councilor at the relevant time but denied
having seen him in the said mob at any point of time. He then went on
to state that at about 3.00 p.m., he felt that Tahir Hussain was near
Chand Bagh Pulia, but he did not actually see him in the mob ( mujhe
aisa laga tha ki wo wahan par hain lekin bheer mein maine nahi dekha
tha) When questioned as to why did he so feel, he answered that he
had a glimpse in the crowd as if Tahir Hussain was present there but
beyond that he was not fully confirmed. He then further stated that he
had a glimpse of the upper half portion of Tahir Hussain from the back
side and the side portion of his face. He however stated that he had not
seen that person doing any particular act. Thus, even when he was
categorically stating about having seen Tahir Hussain, although
partially, he refrains from attributing any act to him.
7.17.16 Interestingly, he deposed that his statement u/s 164
Cr.P.C. had been recorded. The said statement was shown to him, he
identified his signatures thereon, it was proved as Ex.PW6/A. In that
statement, he had specifically assigned a role to Tahir Hussain by
stating that Tahir Hussain was joining the mob off and on and, in
FIR No. 65/20
PS Dayalpur 209 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
between, would return to his house. Significantly, while testifying in
the court, he had deposed that he had stated the true facts in his
statement u/s 164 Cr.P.C., and despite the statement having been
shown to him, he did not object to or disown any part thereof.
7.17.18 The fact that the said statement was indeed made by this
witness stands established not only from his own admission but also
from the testimony of PW47 Sh. Rakesh Kumar Rampuri, the then
learned Metropolitan Magistrate, who had recorded the statement.
Notably, there was no challenge during the cross-examination of
PW47 that PW6 had not made such a statement before him. As far as
the questions regarding voluntariness and free will of PW6, as asked
to PW47 are concerned, I find that they stand answered in view of the
fact that the deposition of PW6 does not indicate any pressure or
coercion upon him and on the contrary, his stand that he had stated
true facts reflects a voluntary act.
7.17.19 At the same time, the manner in which this witness
attempts to explain his earlier stand about seeing Tahir Hussain and his
involvement, is glaringly a well thought and rehearsed plan to escape
the pains of perjury. At one stage, he altogether denied having seen
Tahir Hussain on that day. He thereafter stated that he merely felt as if
Tahir Hussain was present. Subsequently, during his cross-
examination by Ld. SPP he stated that he had a glimpse of the upper
half portion of Tahir Hussain from the back side, including the side
FIR No. 65/20
PS Dayalpur 210 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
portion of his face. This assertion of his that he had seen the side
portion of Tahir Hussain’s face was independent and categorical.
Significantly, this part of his testimony remained unchallenged in
cross-examination, and no clarification whatsoever was sought by the
defence.
7.17.20 If the testimony of PW6 is wholistically seen, it is evident
that he supports the prosecution case almost in its entirety, except
insofar as it concerns the role of accused Tahir Hussain. This, coupled
with his feeble and unconvincing attempt to distance himself from his
earlier statements implicating Tahir Hussain, leads to an inference that
he had been won over by accused Tahir Hussain.
7.17.21 Moreover, the prosecution, during his cross-examination,
was able to extract from him that he had seen side view/profile of
Tahir Hussain’s face. It is now the appropriate stage to have look at his
statement u/s 164 Cr.P.C. which stands proved on record as Ex.
PW6/A and has been admitted by him to be his true statement. In this
statement he was categorical about the fact that Tahir Hussain was a
member of this unlawful assembly. Therefore, his statement recorded
under Section 164 Cr.P.C. corroborates his deposition where he
deposed that he had seen Tahir Hussain, albeit only his side profile.
7.17.22 I am further of the opinion that once this witness had
admitted that Ex.PW6/A was his statement u/s 164 Cr.P.C. and that it
FIR No. 65/20
PS Dayalpur 211 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
was a true statement, in view the fact that it is apparent that he had
been won over by the accused, this statement can be relied upon by
the court. The testimony of the Ld. magistrate who had recorded this
statement further enhances its credibility. For this opinion, I derive
strength from the judgement of Hon’ble Supreme Court in Vijay
Singh and Another v State of Uttarakhand, 2024 SCC OnLine SC3510
where it was held:
28. Considering the conceptual requirement of recording a
statement before a Judicial Magistrate during the course of investi-
gation and the utility thereof, as prescribed in Section 157 of Evi-
dence Act, it could be observed that a statement under Section 164,
although not a substantive piece of evidence, not only meets the
test of relevancy but could also be used for the purposes of contra-
diction and corroboration. A statement recorded under Sec-
tion 164 CrPC serves a special purpose in a criminal investigation
as a greater amount of credibility is attached to it for being
recorded by a Judicial Magistrate and not by the Investigating Offi-
cer. A statement under Section 164 CrPC is not subjected to the
constraints attached with a statement under Section 161 CrPC and
the vigour of Section 162 CrPC does not apply to a statement under
Section 164 CrPC. Therefore, it must be considered on a better
footing. However, relevancy, admissibility and reliability are dis-
tinct concepts in the realm of the law of evidence. Thus, the weight
to be attached to such a statement (reliability thereof) is to be deter-
mined by the Court on a case-to-case basis and the same would de-
pend to some extent upon whether the witness has remained true to
the statement or has resiled from it, but it would not be a conclu-
sive factor. For, even if a witness has retracted from a statement,
such retraction could be a result of manipulation and the Court has
to examine the circumstances in which the statement was recorded,
the reasons stated by the witness for retracting from the statement
etc. Ultimately, what counts is whether the Court believes a state-
ment to be true, and the ultimate test of reliability happens during
FIR No. 65/20
PS Dayalpur 212 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
the trial upon a calculated balancing of conflicting versions in light
of the other evidence on record.
29. In the present case, the statements of PW-3 and PW-4 were
recorded by the Judicial Magistrate on 09.10.2003 i.e. almost 25
days after the incident. Thus, their statements were recorded after
the passage of a considerable time and could not be termed as hasty
statements as there was sufficient cooling period for the witnesses
to think over and contemplate the consequences of their statements.
During this entire period, both PW-3 and PW-4 remained with their
family and it is not their case that they were kept under influence or
were tutored during this period. Pertinently, PW-1 has also deposed
that on certain occasions, PW-3 had accompanied the deceased De-
vaki to her maternal home, which indicates that PW-3 had a sense
of attachment with the deceased and the same could have been the
reason for giving a statement against her own brother and mother.
In fact, the retraction of these statements by PW-3 and PW-4 be-
fore the Court appears to be a result of tutoring and manipulation as
the said witnesses could have easily been won over by their family
members during the intervening period. Furthermore, the witnesses
have admitted that the statements were signed by them and there is
no suggestion to the effect that the witnesses could not have under-
stood the statements. The statements have been certified by the
concerned Magistrate to the effect that they have been read by the
witnesses and their consequences have been explained to the wit-
nesses.
30. PW-3 and PW-4 have deposed that they were under threat
from the concerned Investigating Officer who was present along
with them before the Magistrate. The concerned Investigating Offi-
cer has been examined as PW-8 in the present case and during his
examination, there is not even a suggestion from the appellants to
the effect that he was present along with PW-3 and PW-4 at the
time of recording their statement under Section 164 or to the effect
that he had threatened them to give incriminating statements
against the appellants. Furthermore, the concerned Magistrate
could have been examined as a witness in the present matter to
clear the controversy on this aspect and for unexplained reasons, he
was never called for examination especially when a completely
hostile version was being provided by the witnesses qua the pro-
ceedings which were conducted before him. The appellants failed
to place any material on record to justify the allegation of threat
FIR No. 65/20
PS Dayalpur 213 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
and as discussed above, the statements of PW-3 and PW-4
recorded under Section 164 CrPC reflected the correct version of
the events that transpired on the fateful day.
31. Having said so, we deem it fit to observe that a statement
under Section 164 CrPC cannot be discarded at the drop of a hat
and on a mere statement of the witness that it was not recorded cor-
rectly. For, a judicial satisfaction of the Magistrate, to the effect
that the statement being recorded is the correct version of the facts
stated by the witness, forms part of every such statement and a
higher burden must be placed upon the witness to retract from the
same. To permit retraction by a witness from a signed statement
recorded before the Magistrate on flimsy grounds or on mere asser-
tions would effectively negate the difference between a statement
recorded by the police officer and that recorded by the Judicial
Magistrate. In the present matter, there is no reasonable ground to
reject the statements recorded under Section 164 CrPC and reliance
has correctly been placed upon the said statements by the courts
below.
7.17.23 Present case of the prosecution stands on a much
better footing then Vijay Singh(supra). As against that case, the wit-
ness in this case has neither resiled from his statement, nor has he al-
leged it to have been made involuntarily. Contrary to it he has owned
it up as his truthful statement. Hence, I have all the more reason to
rely upon this statement. It is also to be observed that once the witness
admitted this statement to be his truthful statement, it was open for the
defence to cross examine him and discredit this statement. However,
no such effort was made by the defence.
7.17.24 Hence, this witness has placed accused Tahir Hussain in
the unlawful assembly on 25.02.2020 at around 5.00 p.m at Chand
Bagh Pulia.
FIR No. 65/20
PS Dayalpur 214 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
7.17.25 While we are at it, it will be apt to deal with the
contentions and stand of other accused with regard to the credibility of
this witness. It is necessary to do so because if the other accused
succeeded in denting the credibility of this witness, no part of his
testimony despite their being no challenge on behalf of Tahir Hussain,
can be used even against him. The sum and substance of the
contentions of other accused as far as this witness is concerned are:
(a) that he is a chance witness (accused Muntazim @ Musa)
(b) he is a stock witness as he has been cited witness in FIR numbers
91/2020, 92/2020, 88/2020, 65/2020, 80/2020, 114/2020, 98/2020,
101/2020 and 116/2020 pertaining to Police Stations Dayalpur and
Khajuri Khas. That in these cases, he gave contradictory statements
which were crafted and confined to that particular case only. (accused
Javed, Firoz, Anas)
(c) he is a partisan witness because he did not attribute any slogans to
the Hindu mob and stated that he did not identify anyone in the Hindu
mob (accused Firoz, Anas)
(d) he could not have observed the facts he deposed about because of
a huge crowd, smoke from petrol bombs etc., and the time of incident
being of dusk. Furthermore, he stated himself to be standing in front
of Gali no. 6. The site plan Ex.PW79/1 reflects his position at point D
which is beyond a huge number of people as have been shown by
small circles in site plan, (accused Firoz, Anas)
FIR No. 65/20
PS Dayalpur 215 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
(e) his conduct is unnatural as no ordinary person would stand for six
long hours between two clashing mobs which were constantly pelting
stones and hurling petrol bombs (accused Firoz, Anas)
(f) during his deposition, he had contradicted himself. (accused Firoz)
7.17.26 Before taking up these contentions, I find it interesting to
note that as per one set of accused, PW6 is one of the most natural
witness who could have clearly seen this incident whereas, to some
other accused, he not only is a chance and partisan, but he could not
have been in a position to see anything during this incident. Be that as
it may, as arguments have been advanced, it is my duty to answer
those.
7.17.27 The argument that he is a chance witness [point (a)
above] has been raised but is not supported by any reasoning. He is
the person who was running a parking lot which, as observed by me
during the scene of crime inspection, was hardly at a distance of
around 20 meters approximately from Chand Bagh Pulia. Although
the said parking had been set afire on the previous day, he still had
every reason to be in and around the area. Therefore, in the natural
course of things, his presence at that place and during the period he
states that he was present, would be more probable than not. Hence,
unless the defence during the trial demonstrated any special
circumstances which on that particular day would make his presence
FIR No. 65/20
PS Dayalpur 216 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
unnatural, there would be no substance in the argument that PW6 was
a chance witness. The defence has failed to prove or even put forward
any such special circumstances.
7.17.28 It is also contended that the again by chance meeting
between the IO and this witness happens when on 11.03.2020 IO was
investigating about this case and this witness meets him by chance.
The next chance meeting is stated to be that he meets the IO on
30.03.2020 when IO brings accused Nazim and Kasim at the scene of
crime and then by chance he meets the IO when he identifies the
photograph of Mutazim@ Musa.
7.17.29 I have considered these submissions as well, but I do not
find any merit in them for a very simple reason. As observed earlier,
the scene of crime was situated in close proximity to the place of
business of the witness. In such circumstances, it would be neither
unusual nor unnatural for him to notice the Investigating Officer
conducting the investigation. It is, therefore, entirely probable that the
attention of the witness, who was naturally present in the vicinity
owing to the location of his business, would have been drawn towards
the Investigating Officer carrying out the investigation. Consequently,
on this aspect, I do not find any basis to characterize him as a chance
witness.
7.17.30 It is also contended that being a stock witness [point (b)
FIR No. 65/20
PS Dayalpur 217 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
above] of the police, he had been cited as a witness in many cases
related to the riots, and in all these cases, he had given contradictory
statements. It was countered by ld. SPP by contending that before the
riots of 2020, this witness had never ever been cited by the police as a
witness and apart from riot cases, he has not been cited as a witness in
any case registered subsequently and hence, he cannot be said to be a
stock witness of the police.
7.17.31 I have considered the rival contentions. The basis of the
claim that this witness is a stock witness is, that he had been cited as a
witness in many riots cases. However, in my considered opinion, he is
not a stock witness but a stamped witness. I so hold because he was
running a parking lot which had been burnt down by the rioters on
24.02.2020 and he thus suffered injury to his property. This parking
lot was situated near the place of incident and as discussed earlier, he
would have naturally been present in the area on the day of incident.
7.17.32 I have also carefully perused the testimonies given by this
witness in various other cases, as have been placed on record on
behalf of accused Javed. What emerges from these testimonies is, that
all these cases pertained to 24.02.2020 and 25.02.2020 and are of the
area around his parking and Chand Bagh Pulia. Therefore, a person
who has been a victim of riot and whose presence would be natural at
the place where incident had happened, would if he comes forward, be
necessarily cited as a witness in multiple cases of riots which had
FIR No. 65/20
PS Dayalpur 218 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
happened in this area during the same duration. Hence, unless it was
shown that even prior to being cited as a witness in riot cases, he was
a regular witness for the police, the defence cannot even allege that he
was a stock witness.
7.17.33 Furthermore, it has been contended that there are
inconsistencies in his testimonies in the cases in which he appeared as
a witness. However, apart from minor variations, which are natural, I
do not find any significant departure or contradiction between his
testimonies inter-se, as had been given in various cases. There also
been a contention that in each case he has deposed about the incident
of that case only and this reflects that his testimony had been carefully
tutored to him for that specific case only because had he been a natural
witness, he would have narrated all the incidents that had been seen by
him in all the cases. However, a perusal of the certified copies of the
testimonies reflect that the tone and tenor of his testimonies about the
general incidents that had happened was more or less and to a large
extent consistent and thereafter, he had deposed particularly about the
incident which was the subject matter of the case in which he had
come to depose. This is exactly consistent with the process adopted in
courts as has been my experience in last 20 years. A witness, who
comes to depose in a a court, is only required to depose the facts
relevant to the case wherein he/she is deposing and is asked to
confine his statement to the particular incident about which he/ she
FIR No. 65/20
PS Dayalpur 219 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
appears in court to depose about. The exception could only be where a
general background of the incident is provided or where the facts
which would otherwise be irrelevant are so interwoven with relevant
facts that in their absence, the deposition would lose its meaning. My
view is fortified by the testimony of this witness in FIR No. 114/20
which is related to an incident dated 25.02.2020. During his
examination in chief in that case, he did not depose about this incident
and more or less confined his testimony to the facts relevant to that
case. However, during cross-examination by Sh. Mehmood Pracha, he
deposed that he had identified Ankit Sharma in the mob of persons
from Hindu community, and thus a reference to deceased Ankit
Sharma could only come on being specifically asked.
7.17.34 It has next been contended that he is a partisan witness
[point (c) above] and thus unreliable. The reason to so contend is that
this witness when asked about the Hindu mob he stated that this mob
was not raising any slogans and that he did not identify anyone in this
mob. However, in my considered opinion these facts are not sufficient
to hold that the witness is partisan and bring his deposition in doubt.
The fact that he does not make any imputations against his own
community may lead to a conclusion that he wants to save the
members of his community. It however cannot be deduced that
because he wants to save the members of his community, he would
conversely, irrespective of truth, be interested in having punishment
FIR No. 65/20
PS Dayalpur 220 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
being handed down to the members of the other community. Evidence
suggests to the contrary. Certified copy of the testimony of this
witness in FIR No. 116/20 of PS Khajuri Khas has been filed on
behalf of accused Javed. This FIR related to arson at his own parking
lot. However, he did not support the case of the prosecution and did
not identify any of the accused in his own case. Had he been actuated
by community feelings, he would not have done so as all the accused
in that case also were Muslims. Even otherwise, it has now been well
settled that deposition a of witness cannot be discarded merely on the
ground that he is an interested or as claimed in this case, a partisan
witness. The only word of caution is that such evidence has to be
evaluated carefully {Masalti(supra) para 14}.
7.17.35 Then there is the contention that because of a huge crowd,
smoke from petrol bombs etc. and it being dusk ([point (d) above], he
could not have observed the facts that he had deposed about. No
doubt, petrol bombs were being hurled and there was arson and it
would have resulted in smoke, but the question is, how much smoke
was generated? Was it of the level that it could have created a cloud of
smoke or a smokescreen which would reduce the visibility or, was it
that the smoke was of the level which could not have had much effect
upon visibility? I have no way of knowing it because no questions
were asked from any witness to establish the level or amount of smoke
that was generated wherefrom the level of visibility on that day and at
FIR No. 65/20
PS Dayalpur 221 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
that time could be inferred. With regard to contention that dusk could
have reduced the visibility, I find that at 05.30 p.m in February in
Delhi, the visibility is perfectly fine. This brings me to the contention
that the witness could not have seen anything because he was behind a
large crowd and to establish this, the reliance is placed upon site plan,
Ex.PW79/1. It is argued that the witness is shown to be standing
behind a large crowd as is depicted by many small circles drawn in
front of his position at point D in this site plan. I find this contention
to be completely presumptuous in nature because the IO was never
asked what this circles represented and the ld. counsel for accused
merely presumed that the circles, which had been drawn in front of
and around the position of this witness, depicted humans. Not only
was the IO, who prepared this site plan, not asked what these circles
depicted but even during arguments, no basis for contending that these
circles represented humans was provided. On the contrary, one look at
the site plan, and the explanation of these circles as given by ld. SPP is
found to be completely convincing because had it been humans, these
circles would have spread entirely upto Chand Bagh Pulia and beyond.
However, there is not even a single circle around Chand Bagh Pulia
where the witnesses have deposed, and to which there has been no
contest from the defence, there were hundreds of people. I accordingly
find that this contention is not based on facts but is a product of fertile
imagination.
FIR No. 65/20
PS Dayalpur 222 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
7.17.36 Then there is a contention that it is not natural that for six
long hours [point (e) above], a person would stand at a place where
there was a continuous rioting and stone pelting. Therefore, his
conduct is unnatural and he is unreliable. I do not find much force in
this contention because human bodies and minds act and react
differently in the same situation. At the same time, it was his area
where the riot was going on and he had also deposed that he was not
static at one place.
7.17.37 It has been contended on behalf of accused Firoz that
there have been internal contradictions in his own testimony [point (f)
above] which makes him an unreliable witness. It is contended that
during his examination in chief, he had deposed that on 30.03.2020
when inquiry was being made by Amlesh, there was no person known
to him in the public which had assembled whereas during his cross-
examination on 23.08.2023, he deposed that on 30.03.2020 he knew a
person namely Bharat @ Kalu who had come up to Insp. Amleshwar
on 30.03.2020 and further during his cross-examination, he deposed
that the documents, signed by him on 30.03.2020, were also signed by
Bharat. He further deposed that during his examination in chief that he
did not remember if any documents were prepared by Amlesh at
Chand Bagh Pulia on 30.03.2020, whereas during his cross-
examination by ld. SPP, he deposed that on that day, Insp. Amleshwar
typed document, brought it to him and obtained his signatures
FIR No. 65/20
PS Dayalpur 223 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
informing him that the said document was in respect of identification
of Nazim and Kasim. That in his examination in chief, he had stated
that he had gone through the statement which was recorded by the
police whereas during his cross examination done by Sh. Pracha, he
stated that he did not remember if police had shown him his statement
after recording it.
7.17.38 In my considered opinion, by no stretch of imagination,
these can be said to be contradictions. These are minor variations
which otherwise are unconnected to the substance of the testimony of
this witness and hence, cannot be used as a test to check the veracity
of this witness.
7.17.39 However, on the material aspect of his testimony, ld.
counsel for accused has sought to contradict him on the basis of
testimony of PW19. It is contended that PW19 in his examination in
chief had stated that there was a huge mob in front of his shop and he
(referring to the deceased), himself entered the mob whereas, this
witness (PW6) deposed that the mob had pulled him from near a tree.
It is therefore, contended that both these versions are materially
contradictory and strike at the root of the prosecution story which
renders the testimonies of both these witnesses unreliable.
7.17.40 I have considered this submission also and I find that the
no deposition as attributed to PW6 by ld. counsel for accused was
FIR No. 65/20
PS Dayalpur 224 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
made by him. He had nowhere stated that the deceased was pulled in
the mob from near a tree. On the contrary, on how the deceased fell
into the hands of the mob, he and PW19 are more or less
corroborating each other. According to him, deceased came from the
side of Hindu mob and approached the Muslim mob with his hands
raised. The Muslim mob came forward. The deceased could not retract
and was dragged in by the mob. He also talks about two other boys
accompanying the deceased who managed to flee. The deposition of
PW19 is also about the deceased walking towards the mob, him being
accompanied by two boys who were egging him on, him entering the
mob and being surrounded by the mob. Both these testimonies are
more or less on the same lines and the differences which appear are
natural because different person perceive the events differently. And
with regard to the intent of the deceased, both the witnesses are merely
speculating and thus, their testimonies to this extent have to be
disregarded.
7.17.41 The next witness cited against accused Tahir Hussain is
PW11 Deepak Pradhan. His testimony has been contested only by
accused Tahir Hussain. It is submitted that during his cross-
examination, he admitted that till about 5/5:30 pm, he had remained
inside the temple, situated in gali no. 5 and thereafter, he returned
home. Therefore this witness from the place he was i.e. inside the
temple could not have seen anything. By the further submission that
FIR No. 65/20
PS Dayalpur 225 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
he had not deposed about the incident with Ankit Sharma, the
intended argument appears to be that his testimony is irrelevant.
7.17.42 I have considered the testimony of this witness and
evaluated the challenge mounted thereto.
7.17.43 His presence at the temple which is situated in gali no.5.
Moooga Nagar has not been challenged by the defence, on the
contrary it has been reinforced during his cross-examination. It is
necessary to note here that the witness had nowhere stated that
throughout, from the time he reached the temple, till he left for his
home, he remained inside the temple. No attempt was made during his
cross-examination to elicit this information from him. Here again, Ld
counsel failed state the basis for his assumption but during oral
arguments,on a query of court, he indicated that his contention is
based on the part of the cross-examination of this witness where he
stated that- “When I reached there and went inside the temple, I did
not close the door for its protection.” It on the basis of this sentence
that the Ld counsel wants to lead the court to believe that immediately
on reaching the temple, the witness had gone inside the temple. Even
if this sentence is read as a complete standalone statement, the
inference attempted to be drawn by the Ld. counsel is not available.
However, the situation is completely clarified by the context in with
this statement was made by the witness. This statement came to be
made after he had admitted that he had gone to the temple to protect it
FIR No. 65/20
PS Dayalpur 226 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
and that two or three others were also present. Now, if the sentence is
read in this context, it becomes amply clear that it was on response to
the question that (as he gone to protect the temple) whether, after
reaching there and going inside the temple, he had closed the temple
door to protect it? Hence, the use of the word ‘and’ between the
phrases ‘reaching there’& ‘went inside the temple’ cannot be taken to
mean that immediately on reaching the temple, the witness proceeded
inside the temple. Hence, the creditworthiness of his testimony cannot
be challenged on the ground that, being inside the temple, he had no
vantage point. I further find that during the cross-examination of this
witness, the accused has not been able to dent his credibility. Thus, at
around 04.15 to about 5.30 p.m, this witness had placed accused Tahir
Hussain in the unlawful assembly that had gathered at Chand Bagh
Pulia. However, the assertion of this witness that Tahir Hussain was
instigating the mob is conjecture and an estimation of the witness
which does not have any evidentiary value.
7.17.44 Coming on to the testimonies of PW13 and PW14.
7.17.45 The primary challenge to the testimonies of PW13 and
PW14 is, that they are chance witnesses, who were discovered by the
IO by chance and who identified the accused by chance. The defence,
in order to consolidate its arguments, has relied upon the judgments of
Hon’ble Supreme Court in Puran (supra) and Suresh (supra) and
further has relied upon the judgment of Hon’ble Supreme Court in
FIR No. 65/20
PS Dayalpur 227 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
Baby (supra).
7.17.46 On the other hand, ld. SPP has contested this claim and
contended that the concept of chance witness is alien to Indian
jurisprudence. A witness is a witness and there is no concept of chance
witness. He has further contended that both these witnesses had
categorically stated that they were going beyond Chand Bagh Pulia for
their personal work and therefore, they had explained the reason for
being at that place. He has contended that in case of a murder at a
road, a passer-by would be a natural witness and not a chance witness.
In this regard, he has placed reliance about the judgment of Hon’ble
High Court of Delhi in Rajesh (supra).
7.17.47 I have considered the rival submissions and in order to
decide this issue, the first question which needs to be considered is
whether the presence of these witnesses at that place is ex-facie
unnatural, or whether the reason provided by them for being present
there is prima-facie improbable?
7.17.48 It is only if the answer to these questions comes in
affirmative that witnesses would be accepted as chance witnesses, and
only then it would have been incumbent upon the prosecution to
further satisfactorily account for their presence at the place of incident
as observed by Hon’ble Supreme Court in Baby (supra). Otherwise, it
would be upon the defence to demonstrate through the cross-
examination of the witnesses that their presence at that place was
FIR No. 65/20
PS Dayalpur 228 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
unnatural and they could not satisfactorily, despite being given an
opportunity, account for their presence.
7.17.49 On this issue, PW13 in his examination in chief deposed
that on 25.02.2020 at around 4.30 p.m, due to his personal work, he
along with his brother Bharat was present at Chand Bagh Pulia in
front of Noora Masjid. They were present near an iron gate at Chand
Bagh Pulia on a nala road. At that time, the bigger gate was closed and
the smaller was open. On the other hand, PW14 deposed that on
25.02.2020 at around 4-4.30 p.m, he along with his brother Akash was
going to fetch some articles from a place beyond Chand Bagh Pulia.
However, they could not reach that place and due to the presence of
the mob, remained around an iron gate on Chand Bagh Pulia.
7.17.50 The incident in question had happened on a public road
and during the afternoon/ evening hours of the day. Therefore, if a
person states that he was passing by and happened to see the incident,
he cannot be said to be a chance witness because a passer-by could be
said to be a natural witness to the incident which had happened in
broad day light and on a public road. Hence, their presence is not
found to be prima-facie improbable. A similar observation was made
by Hon’ble Supreme Court in Raju v. State of Maharashtra,
MANU/SC/0814/1998 wherein it was observed:
in absence of anything elicited in the cross-examination to indicate
that these two witnesses were interested in the prosecution of the
appellants, we are in agreement with the above quoted observation
FIR No. 65/20
PS Dayalpur 229 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
of the High Court. The other criticism levelled by the trial court
that they were chance witnesses is also wholly unmerited for in
respect of the incident that takes place at a public road, the passer-
by would be the best witness. We have, therefore, no hesitation in
concluding that the claim of above two witnesses that they had
seen the incident cannot be disputed at all.
7.17.51 Further guidance can be taken from the judgment of
Hon’ble Supreme court in Rana Pratap & Ors. v. State of Haryana,
AIR 1983 SC 680, wherein it was held:
3. There were three eyewitnesses. One was the brother of the
deceased and the other two were a milk vendor of a neighbouring
village, who was carrying milk to the dairy and a vegetable and
fruit hawker, who was pushing his laden cart along the road. The
learned Sessions Judge and the learned counsel described both the
independent witnesses as “chance witnesses” implying thereby that
their evidence was suspicious and their presence at the scene
doubtful. We do not understand the expression “chance witnesses”.
Murders are not committed with previous notice to witnesses,
soliciting their presence. If murder is committed in a dwelling
house, the inmates of the house are natural witnesses. If murder is
committed in a brothel, prostitutes and paramours are natural
witnesses. If murder is committed on a street, only passersby will
be witnesses. Their evidence cannot be brushed aside or viewed
with suspicion on the ground that they are mere “chance
witnesses”. The expression “chance witnesses” is borrowed from
countries where every man’s home is considered his castle and
every one must have an explanation for his presence elsewhere or
in another man’s castle. It is a most unsuitable expression in a
country whose people are less formal and more casual. To discard
the evidence of street hawkers and street vendors on the ground
that they are “chance witnesses”, even where murder is committed
in a street, is to abandon good sense and take too shallow a view of
the evidence.
7.17.52 Therefore, on the face of it and in the natural course of
things, merely because they were the passers-by, that too at a place not
FIR No. 65/20
PS Dayalpur 230 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
far away from their house, these witnesses cannot be termed as chance
witnesses to strike at their credibility. At the same time, it is to be
noticed that the reason for their presence at that place has been
provided by these witnesses in their examination in chief.
7.17.53 It has however been contended on behalf of the accused,
that because of on going riots, there was no reason for these witnesses
to venture out, and that they were also required to provide the route
which they had taken to reach this place from their house or place of
work.
7.17.54 Why they had ventured out of their house and the work
for which they had ventured out, could have been disclosed only by
them. The route which was taken by them could also have been
disclosed by them alone. However, during their cross-examination, no
attempt was made by the defence to elicit this information from the
witnesses. When despite having an opportunity to elicit this
information during the cross-examination of these witnesses, the
defence failed to do so; it cannot now use the absence of this
information to paint the witnesses as chance witnesses and then claim,
that they had not been able to satisfactorily account for their presence
at the place of incident. On the contrary, it appears that the defence
had chosen not to ask these questions. It can be illustrated from the
fact that when PW14 during his cross-examination, on being
specifically asked to state the reason for his presence at Karawal
FIR No. 65/20
PS Dayalpur 231 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
Nagar Road on 09.04.2020, stated that it was due to some personal
work that he was there; he was repeatedly asked to disclose the nature
of his work that would require him to be at that place.
7.17.55 It has next been contended that till, 11/03/2020, these
witnesses neither called the PCR, nor personally informed the police.
This conduct of witnesses despite having a cart near two police
stations is highly unnatural and this reflects that they were tutored and
planted in this case. I do not find much force in this contention
because their no universally accepted and standard conduct or reaction
which all humans should have in a given situation. On the contrary, it
is universally accepted that each individual reacts differently. Even
PW19, who has been accepted as truthful witness by defence, for his
testimony remained unchallenged, did not call the PCR or voluntarily
approach the police to offer the information he had. Thus, this cannot
even be a ground to challenge their credibility.
7.17.56 It has further been contended that the purpose of IO’s
visit at Karawal Nagar Road on 11.03.2020 was the identification of
the accused through their photographs. These photographs were
shown to Pradeep Verma as is visible from his statement u/s 161
Cr.P.C. However, despite examining PW13 and PW14 on the same
day, the IO did not show any photographs to these witnesses. This
portrays that these witnesses were not examined on 11.03.2020, but
were subsequently planted.
FIR No. 65/20
PS Dayalpur 232 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
7.17.57 I have considered this submission. It is correct that on
11.03.2020, the IO had shown certain photographs to Pradeep Verma
and had not shown those photographs or any photograph to these
witnesses. However, why he did not do so was for the IO to answer
who, during his cross-examination, was never asked to explain the
reason for not doing so. It was not even suggested to him that he did
not do so because on that day, these witnesses were not available and
they were planted later on. So the assertion that the photographs were
not shown to PW13 and PW14 because they were not available on
11.03.2020 and were planted later on, in absence of an explanation
being sought from the IO (PW79), would merely be a speculative
guess unless, it is the only inference that can be drawn from this
circumstance. However, there could be many other reasons for the IO
not showing any photographs to these witnesses. It could also be
speculated that photographs might have been shown to these witnesses
but the IO did not make it a part of their statements u/s 161 Cr.P.C,
because they did not identify any of the persons whose photographs
were shown by the IO on that day and this speculation would also
have a basis because none of the persons, whose photographs were
identified by PW6 on that day, were identified by these two witnesses
as the members of the unlawful assembly. Hence, it is clear that the
inference sought to be drawn by ld. counsels for accused is not the
only inference that can be drawn from this circumstance. Even
FIR No. 65/20
PS Dayalpur 233 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
otherwise, inferences are to be drawn where direct answers are either
not available, or the answers available are insufficient to form a
definitive conclusion. This is not the case here because the answers, if
the defence so wanted, could have been sought from PW 79 during his
cross-examination. Therefore, it is not now not open to the defence to
draw such inference and hope that the court will accept it.
7.17.58 It was also contended that PW13 and PW14 were
positioned around the same place where PW19 was positioned.
However, it is only PW19 who gives a vivid description of the
incident including the manner in which the body was thrown in the
nala, a fact which was not known to the police. The narration of PW13
and PW14 was limited to the events which were already in the
knowledge of the investigating agency i.e. the killing and dragging of
Ankit Sharma and throwing the body from the other side of Chand
Bagh Pulia.
7.17.59 I have considered this submission which was probably
made to indicate that these witnesses, being planted witnesses, only
had that much knowledge as was available to the police and had they
seen the incident, their narration of events would have been as detailed
as that of PW19.
7.17.60 It has to be kept in mind that prior to examining of PW13
and PW14 the IO, through PW19, had the entire picture of how, when
and where was it that Ankit Sharma was murdered. Therefore, if these
FIR No. 65/20
PS Dayalpur 234 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
witnesses had been tutored and planted, nothing stopped the police
from keeping their narration of events as close as possible – if not
exact, to the narration of PW19.
7.17.61 The credibility of both PW13 and PW14 has also been
challenged because their testimonies in the court lack the vividness
and the minute details of the gruesome incident which have been
provided by PW19. However, one cannot lose sight of the fact that
every individual has a different power or capability to perceive,
absorb, retain and reproduce the events of what has been witnessed by
him or her. An individual’s IQ, physical and mental health, the
functioning of sensory organs, age, and education etc. are few of the
factors which will have a bearing on the ability of an individual to
perceive, absorb, retain and reproduce the events seen by him/ her.
Reliance is placed upon the judgment of Hon’ble Supreme Court in
Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (1983) 3 SCC 217
wherein it was held:
5. …………We do not consider it appropriate or permissible to
enter upon a reappraisal or reappreciation of the evidence in the
context of the minor discrepancies painstakingly highlighted by
learned Counsel for the appellant. Overmuch importance cannot be
attached to minor discrepancies. The reasons are obvious :
(1) By and large a witness cannot be expected to possess a
photographic memory and to recall the details of an incident. It is
not as if a video tape is replayed on the mental screen.
(2) Ordinarily it so happens that a witness is overtaken by events.
The witness could not have anticipated the occurrence which so
often has an element of surprised. The mental faculties therefore
cannot be expected to be attuned to absorb the details.
FIR No. 65/20
PS Dayalpur 235 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
(3) The powers of observation differ from person to person. What
one may notice, another may not. An object or movement might
emboss its image on one person’s mind, whereas it might go
unnoticed on the part of another.
(4) By and large people cannot accurately recall a conversation and
reproduce the very words used by them or heard by them. They can
only recall the main purport of the conversation. It is unrealistic to
expect a witness to be a human tape-recorder.
(5) In regard to exact time of an incident, or the time duration of an
occurrence, usually, people make their estimates by guess-work on
the spur of the moment at the time of interrogation. And one cannot
expect people to make very precise or reliable estimates in such
matters. Again, it depends on the time-sense of individuals which
varies from person to person.
(6) Ordinarily a witness cannot be expected to recall accurately the
sequence of events which takes place in rapid succession or in a
short time span. A witness is liable to get confused, or mixed up
when interrogated later on.
(7) A witness, though wholly truthful, is liable to be overawed by
the court atmosphere and the piercing cross-examination made by
counsel and out of nervousness mix up facts, get confused
regarding sequence of events, or fill up details from imagination on
the spur of the moment. The sub-conscious mind of the witness
sometimes so operates on account of the fear of looking foolish or
being disbelieved though the witness is giving a truthful and honest
account of the occurrence witnessed by him — Perhaps it is a sort
of a psychological defence mechanism activated on the spur of the
moment.
7.17.62 In the present case, this big differentiator seems to be
education. PW19 holds a masters in journalism and mass
communication. Thus, by his education and training, he would,
without much effort, absorb each minute detail of the incident. He was
trained to reproduce and reproduce vividly so that his readers or
audience, as the case may be, could have a picture so clear of the event
FIR No. 65/20
PS Dayalpur 236 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
as if they themselves had seen it, and hence his graphic narrative
makes this murder comes alive before our eyes.
7.17.63 PW13, on the other hand, is only 9th pass and thus,
merely has had a basic education. When compared to PW19, his
depiction of the events misses a lot of details. His narration also lacks
the flow which is available in the narration of PW19. However, when
compared to PW14 who is illiterate, his testimony is much more
detailed. The testimony of PW14 is more sketchy than that of PW13
and PW14 only provides the major details and events.
7.17.64 Hence, it is apparent that of the three, the most educated
and with a specific kind of education had narrated the incident in most
detail and the uneducated has provided the least details but has given
the major event. Therefore, in my considered opinion, merely because
the narration of PW13 seems sketchy compared to PW19 and that of
PW14 seems sketchy as compared to PW13, it cannot be said that this
is because of the fact that PW13 and PW14 had not seen the incident
or that they had been planted as witnesses. At the pain of repetition, I
observe that had they been planted and tutored, they would have
parroted as close as possible to the deposition of PW19.
7.17.65 Another contention to portray that these witnesses were
planted witnesses is that the IO never attempted to check the veracity
of these witnesses by taking them to the location wherefrom they had
purportedly witnessed the incident and he mysteriously came to know
FIR No. 65/20
PS Dayalpur 237 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
about their position and marked it in the site plan. It is correct that as
per these witnesses, they had never taken the IO to Chand Bagh Pulia,
however, their position had been detailed by them in their testimonies.
It is also correct that the right approach for the IO would have been to
have the witnesses show him their position and then mark it on the site
plan, however, apparently the IO marked it in the site plan on the basis
of their narration of their position. Be that as it may, it is now well
settled that an irregularity in investigation conducted by the IO is in no
manner a reflection upon the veracity of a witness.
7.17.66 It has further been contended that as per PW13 the
incident of burning of Bunny Bakery and killing Ankit Sharma
occurred in close succession whereas as per PW19, burning of his
bakery and incident of killing of Ankit Sharma were neither
simultaneous, nor in close succession.
7.17.67 I have carefully considered both the testimonies and I find
that as per the testimony of PW19, it was somewhere around 4 to 5.30
that the mob started looting his bakery shop which was on fire and
thereafter, he narrates about Ankit Sharma approaching the mob, being
dragged in and killed around this time only. Therefore, this witness
also states in continuity about bakery being set on fire and Ankit
Sharma’s killing. However, his testimony that mob was looting his
bakery which was on fire indicates, that fire might have started during
this time only because had the fire been started much earlier, it would
FIR No. 65/20
PS Dayalpur 238 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
have been too ferocious making impossible to enter the shop. On the
other hand, PW13 also does not say that these events had happened in
quick succession. He states that after setting the bakery on fire , the
mob started setting fire to other shops and then proceeded towards
Sherpur Chowk and it is thereafter that he states about Ankit Sharma
being caught by the mob. Therefore, even though he speaks about
these events in continuity, but by nature of the events, it is apparent
that they would not have happened in very close proximity. Therefore,
I do not find any contradictions between the testimony of PW19 and
PW13 and on the contrary, I find that their narration, with the variance
in the style of narration, is more or less on the same lines.
7.17.68 It has also been contended that PW13 and PW14 could
not have seen the body of Ankit Sharma being thrown into nala from
the side opposite to which they were standing. It was contended that
the height of the wall of the nala was such that they could not have
been able to see it.
7.17.69 First of all, the witnesses were not questioned on these
lines and no suggestions were given on these lines. Second of all,
during the scene of crime inspection, I had found that while standing
inside the gate of the street, where the witnesses were standing, one
could have seen what was happening upon the wall of the nala on the
other side. Even otherwise, there were vents in that wall which were
big enough to give a clear vision of what was happening across the
FIR No. 65/20
PS Dayalpur 239 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
nala.
7.17.70 Another contention that had been raised was that these
witnesses had claimed that the iron gate at the end of the street besides
the nala was open, whereas PW19 had deposed that the iron gate was
closed. In the light of these facts, it was argued that these witnesses
were not present at the time of the incident and therefore, they
wrongly stated about the iron gate.
7.17.71 I have considered this submission and I find that in fact,
there is no contradiction on this account between the statement of
PW19 and those of PW13 and PW14. PW13 had stated that at the time
of incident, they were present near an iron gate at the Chand Bagh
Pulia on nala road. He spoke about the bigger gate being closed and
the smaller gate being open at that time. On the other hand, PW19
during his cross-examination admitted that the iron gate had been
closed since the time the riots had started. Interestingly, despite being
fully aware of the testimony of PW13 wherein he had talked about a
smaller gate within the big gate, ld. counsel for accused during the
cross-examination of PW19 did not seek to clarify whether PW19 was
stating about bigger gate or the smaller gate within. During the scene
of crime inspection, the fact, that there was a smaller gate within the
bigger iron gate,was confirmed by me. Hence, not only does the
argument advanced by the ld. counsel for the accused deserve no
weight, but the fact that the witness specifically referred to the smaller
FIR No. 65/20
PS Dayalpur 240 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
iron gate within the larger gate, lends credence to his testimony.
7.17.72 It has further been contended that there are inter-se
contradictions between the testimonies of PW13 and PW14 which
make them unreliable witnesses. These as per the accused are: that
PW13 speaks about the bakery being set ablaze and PW14 is silent
about this significant event; PW13 deposes to have seen the entire
sequence of events from Ankit Sharma being taken by mob to being
dragged to Chand Bagh Pulia and being assaulted. Whereas PW14
states that when they reached Chand Bagh Pulia, they saw mob
already assaulting a boy; according to PW13 when the boy was being
dragged to Chand Bagh Pulia he and PW14 stepped inside the gate
and closed it whereas according to PW14, when the boy was being
dragged, they stayed near the place of incident and entered the gate
only when the deceased was being thrown in the nala from the
opposite side.
7.17.73 I have considered this contention and on the face of it, the
alleged contradictions, as have been reproduced above, are variations
which do not strike at the root of the testimonies of these witnesses so
as to shake their credibility. Nevertheless, if these variations had been
absent from their statements, the argument of the defence would have
been that the extraordinary similarity in their statements being
unnatural was a result of tutoring, reflecting that they were planted
witnesses. As discussed earlier, both these witnesses have different
FIR No. 65/20
PS Dayalpur 241 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
capabilities to perceive, retain and reproduce, and hence, these
variations have a reasonable explanation. [Bharwada (supra)]
7.17.74 However, there is the question of a material improvement
made by PW13 when he stated that Tahir Hussain was having a knife
in his hand and had physically attacked Ankit Sharma. This indeed is a
significant improvement made by this witness as neither the
prosecution had attributed any such role to Tahir Hussain nor had this
witness ever stated so in any of his previous statements. It is insisted
by the defence that this material improvement is a falsehood on the
face of it and this erodes the credibility of this witness.
7.17.75 It is not unknown that witnesses are prone to
embellishments and sometimes in order to sound convincing, they
resort to embroidering their statements and such embroidery can even
extend to an outright false statement. However, their entire statements
cannot be completely disregarded because of such falsehood
[Gangadhar Behera (supra)]. The maxim falsus in uno, falsus in
omnibus has on application India as falsehood on a particular point
will not ruin the entire testimony from beginning to end. [Suchha
Singh supra and Lehna v State of Haryana (1971) 3 SCC 277.]
7.17.76 Therefore, to me it appears to be an over zealous attempt
by the witness to sound more convincing because in his cross-
examination, he admitted that he had not stated this fact before the
police. I also find that his statement in court about exhortations by
FIR No. 65/20
PS Dayalpur 242 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
Tahir Hussain is also substantially different from his statement u/s 161
Cr.P.C. In the statement u/s 161 Cr.P.C, the exhortations attributed to
Tahir Hussain was: ‘Hinduo ne humare kai Muslim bhaiyo ko maar
diya hai or humare bhaiyo ke ghar jala diye hai aaj koi kafir bachna
nahi chahiye.’ However, while appearing as PW13, he stated that the
instigation to the mob was provided by Tahir Hussain by stating:
‘Hinduo ne tumhare ghar loote, hinduo ne tumhari dukan looti or jalai.
Hinduo ne tumhari behan beti ki ijjat looti. Un kafiro ko sabka sikhana
hai.’ Hence, both these exhortations are materially different. On the
contrary as per PW14, the only exhortation by Tahir Hussain was that
he was shouting – ‘maaro, maaro’. It could be argued that this has so
happened because it is more difficult to remember the words spoken.
However, a complete dissimilarity cannot be justified by this
argument. Therefore, because of these variant versions, it would be
difficult to accept the testimonies of these witnesses about the exact
words used by accused Tahir Hussain to instigate the crowd.
7.17.77 Therefore, I am of the considered opinion that despite
their sustained cross-examination, the defence has failed to bring forth
any material contradictions in the testimonies of these witnesses that
would shake the credibility of their account of the murder of Ankit
Sharma and the surrounding events. Added to it is the fact that their
testimonies are largely corroborated by PW6 and PW19.
7.17.78 However, when it comes to believing that by virtue of
FIR No. 65/20
PS Dayalpur 243 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
coincidence these witnesses would be near the scene of crime on the
same days and at the exact at same time when the IO would bring
accused Sameer, Nazim and Kasim for spot identification, I find it too
serendipitous. I am further wary of accepting these parts of their
testimonies because on the days when they claimed to have met the IO
near Chand Bagh Pulia i.e. 30.03.2020 and 09.04.2020 a strict lock
down was in place, and it makes there presence highly improbable.
Even when they were asked about COVID restrictions being in place,
instead of explaining that how despite these restrictions they were on
open streets, they stated that they had no remembrance whether on
those two days, these restrictions were in place or not. Furthermore,
PW13 was specifically asked for his reason of being at the place
where he met the IO and he stated that he had been there because of
some personal work. However, despite being repeatedly asked what
this personal work was, he evaded to provide an answer and thus, as
far as the identification of accused Sameer by PW13 on 09.04.2020
and of accused Nazim and Kasim by PW14 on 30.03.2020 are
concerned; I will be wary of accepting their testimonies.
7.17.79 This brings me to the testimony of PW56. The presence
of this witness is established by PCR calls that had been made by her
and the PCR forms has been exhibited as Ex.PW91/2 to Ex.PW91/4.
There has been no challenge at least to the fact that she had made
these calls. As per her deposition, on 25.02.2020, she was residing in
FIR No. 65/20
PS Dayalpur 244 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
gali no 6, Moonga Nagar, Karawal Nagar Road, Delhi. On that day,
she had visited the corner of her gali which opened on the Main
Karawal Nagar Road. From that place, she had seen the rioting and the
mob that indulged in rioting. Her deposition is to the effect that she
had seen Tahir Hussain in the mob. As per her, apart from accused
Tahir Hussain, she had also recognized one more person namely
Tanvir in that mob.
7.17.80 Her testimony has been challenged on behalf of accused
Tahir Hussain on the ground that she had deposed that during this
time, she was present inside the gate of her gali no. 6, that gate was
closed at that time and it has been established during the site visit (by
the court), that from that position, the Pulia would not have been
visible. It is therefore, contended that she is not a witness to the
incident of murder or rioting at Chand Bagh Pulia as stated in her
statement u/s 161 Cr.P.C. At the most, she is a witness to the general
riot at Karawal Nagar Road on 25.02.2020. It is further contended
that although she testified that she had seen Tahir near his house and
that through his gestures, she could see that he was instigating the
mob to move towards Dayalpur but no description of such gestures
had been elicited and this statement of hers is mere conjecture. It is
also contended that in her PCR calls, she had not named Tahir Hussain
and thus, her allegations regarding presence of Tahir is an improved
statement which is liable to be discarded. It is further contended that
FIR No. 65/20
PS Dayalpur 245 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
her statement was recorded on 29.04.2020 and no explanation has
been brought on record for this delay.
7.17.81 I have considered these contentions and carefully
evaluated the testimony of PW56.
7.17.82 The fact that she is a witness to the riots of 25.02.2020
has not been challenged. What has been challenged is, as she was
inside the gate of her gali, she could not have seen the Chand Bagh
Pulia. It is contended that this fact was established during visit of the
scene of crime by me. However it is to be noticed that witness had
never stated in her examination in chief that she had witnessed this
incident from inside the gate of gali no. 6. Her statement, that she had
come up to the gate of her gali and then seen the incident, cannot be
interpreted that when she had come up to the gate, she remained inside
the gate. Her position near this gate, whether inside or outside the
gate, was never clarified from her. It is also not her deposition that the
gate of her gali was closed during all her visits, because she had stated
that it was open and only on her last visit, she found it to be closed.
7.17.83 From the corner of the street where it joins the Main
Karawal Nagar, Chand Bagh Pulia is very much visible. Even
otherwise, the witness had not stated that she had seen accused Tahir
Hussain at Chand Bagh Pulia. She had stated that she had seen him
near his house which was near Chand Bagh Pulia. During the scene of
crime inspection, I had observed that even if one stood inside the gate
FIR No. 65/20
PS Dayalpur 246 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
of gali no. 6, the house of Tahir Hussain and Pradeep’s parking were
visible and one could see upto 5/10 meters before the starting point of
Chand Bagh Pulia. It is this area wherein the rioting was going on and
up to which the mob had spread and thus, the said mob, even from
inside the gate, would be well within the vision of this witness and if
Tahir Hussain was in the mob near his house, she could have very well
seen him.
7.17.84 With regard to the contention that naming Tahir Hussian
is an improvement made by this witness because in the PCR calls, she
had not named Tahir Hussain as one of the rioters; I find that this is
stretching the concept of improvements too far.
7.17.85 About the contention that the deposition of this witness
that from the gestures of Tahir Hussain she could make out that he was
instigating the mob is a mere conjecture; I find that unless the gestures
of Tahir Hussain had been narrated by the witness so that the court
from those gestures could form its own opinion; it would merely be
the opinion of the witness and not a fact established.
7.17.86 As far as delay in recording her statement is concerned, I
find that the delay on the part of the IO is no reflection on the
credibility of the witness and the explanation was owed by the IO
which the defence did not seek from him.
7.17.87 Before concluding I deem it appropriate to deal with
another argument put forward on behalf of the accused Tahir Hussain.
FIR No. 65/20
PS Dayalpur 247 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
It is contended that the conduct of accused Tahir Hussain reflects that
rather than being involved in the riots, he was in fact a victim of the
riots and was frantically calling the police control room for help. It is
even reflected from the chargesheet that on 25/02/2020 from 3:55 PM
to 4:31 PM, Tahir Hussain had made around six calls to the PCR. Prior
to that on 24/02/2020 around 3:53 PM Tahir Hussain made a call to
the PCR stating, ‘caller ke ghar ki chhat par log chadh gaye hai aur
pathrav kar rahe hain.’ The same information was again given by him
to the PCR at 5:57 PM. It is also contended that the prosecution has
relied upon the CDR of mobile phone belonging to Tahir Hussain.
This record shows that on 25/02/2020 from 2:36 PM to 5:30 PM Tahir
Hussain was continuously making calls to KP Singh of Delhi Police,
several leaders of Aam Admi Party, correspondents of Indian Express,
Nigam Parshad of Karawal Nagar and other persons. During the
course of investigation, none of these persons, whose names were
mentioned in the CDR relied upon by the prosecution was examined.
7.17.88 I have weighted this contention and I find that as far as
the fact that Tahir Hussain had made these PCR calls is concerned, the
same is proved from the record placed on the file by the prosecution.
However, whether these PCR calls were made by the accused in
earnest or as the news had already started circulating about his terrace
being used by the rioters, this was a ploy to set up a defence for the
future?
FIR No. 65/20
PS Dayalpur 248 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
7.17.89 This could only have been established by the accused by
leading evidence in defence and specifically by stepping in to the
witness box as his intent would have been in his personal knowledge
and his conduct could only have been explained and proved by him.
However, he failed to do so and therefore merely on the basis of these
PCR calls, I am unable to draw a presumption that these calls were
made in earnest. With regard to the persons whom he had called on
that day, the prosecution may not have examined those persons, but
nothing stopped the accused from examining them as witnesses to
demonstrate through them that he in fact was calling them for seeking
their help and was not involved in any incident of which he is accused.
As it is an outright defence, the duty to prove it was of the accused
and the accused failed to do so.
7.17.90 The accused is also facing a charge u/s 153A r/w section
149 IPC. At this stage, it would be relevant to decide the question of
sanction u/s 196 Cr.P.C. The prosecution to prove this sanction
examined Sh. L.K Gautam who deposed on 22.06.2020, he was
working Deputy Secretary (Home) GNCT of Delhi. A proposal was
received from Delhi police headquarters seeking sanction under
section 196 Cr.P.C against accused Mohd. Tahir Hussain, Haseen,
Nazim, Kasim, Sameer Khan, Anas, Firoz, Javed, Gulfam and Shoaib
Khan. Along with it, copy of FIR, draft charge sheet, seizure memo,
arrest memo, etc. and statements of witnesses were also received. The
FIR No. 65/20
PS Dayalpur 249 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
proposal was sent to legal team and thereafter on 24/07/2020 and
11/09/2020, a request was sent to Delhi police seeking some
documents and information. The requisitioned information and
documents were received on 27/07/2020 and 22/09/2020. This
additional material along with the material earlier received was again
sent to the Legal team and a draft sanction order was also sent. After
the vetting of the Legal branch, an office note was prepared and
complete file with all materials, including the draft sanction order, was
sent to the competent authority i.e. The Hon’ble LG of Government of
NCT of Delhi. The file after his approval was received on 11/12/2020.
Accordingly sanction order was prepared on 16/12/2020 and was
signed by him. Thereafter, he conveyed the sanction to different
agencies, including the office of Hon’ble LG, Commissioner of Police,
DCP (Special Cell and HQ) Delhi police and Director of prosecution.
He identified his signatures upon the sanction order at point X and it
was exhibited as PW34/A.
7.17.91 During his cross-examination, he deposed that he had
personally not prepared any notes, and there was no case where his
office had prepared a note for denying the sanction. He was never
summoned by the Hon’ble LG for any clarification. Apart from the
disclosure statement of Haseen @ Mullaji, there was no evidence
against him on the file which could connect him to this crime. He
could not say how much time he had exactly spent on personally
FIR No. 65/20
PS Dayalpur 250 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
reading the file and going through the material. He denied that the file
was sent to Hon’ble LG in a mechanical manner and without
application of mind. He further admitted that the format of sanction
order in all cases of riots is similar. He denied that there was no due
application of mind before granting the sanction or that the
Sanctioning Authority had merely appended its signature on a pre
prepared draft order.
7.17.92 A careful consideration of the testimony of witness
reveals that along with the proposal the material required for
independently appreciating a case for grant of sanction was sent. It is
also revealed that additional information and documents were also
sought, a fact which has not been challenged. Therefore, on the basis
of mere suggestions that the sanction was granted without due
application of mind, or that it was granted in mechanical manner, the
defence cannot dent the credibility of this witness and the process of
grant of sanction. Hence, I find that by virtue of Ex.PW34/A, sanction
u/s 196 Cr.P.C against accused Mohd. Tahir Hussain, Haseen @
Mullaji@ Salman, Nazim, Kasim, Anas, Javed, Firoz, Sameer Khan,
Gulfam and Shoaib Alam @ Bobby stands proved.
7.17.93 There is also a charge against this accused u/s 188 IPC for
violating the prohibitory order u/s 144 Cr.P.C.
7.17.94 In order to prove the prohibitory order, prosecution
examined PW8 ASI Naresh Pal from Record Branch, North East Distt.
FIR No. 65/20
PS Dayalpur 251 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
7.17.95 He had brought the office record of the original order u/s
144 Cr.P.C, passed by the then DCP (NE) Sh. Ved Prakash Surya. He
deposed that as he had worked with Sh. Surya and had seen him
signing and writing in the course of his official duty, he could identify
his signatures. He identified the signatures of Sh. Surya at point X.
The order u/s 144 Cr.P.C was exhibited as PW8/A (OSR). He had also
brought the office record of complaint u/s 195 Cr.P.C dated
07.10.2022 against accused Mohd. Tahir Hussain, Haseen @
Mullaji@ Salman, Nazim, Kasim, Anas, Javed, Firoz, Sameer Khan,
Gulfam, Shoaib Alam @ Bobby and Mutazim @ Musa pertaining to
this FIR. He recognized the signature of Sh. Sanjay Kumar Sain, the
then DCP (NE) upon the complaint u/s 195 Cr.P.C at point X and the
complaint was exhibited as PW8/B.
7.17.96 During his cross-examination, he deposed that he had
worked under Sh. Ved Prakash Surya from June 2020 to February
2021 and with Sh. Sanjay Kumar Sain from February 2021 to
February 2023. He did not know about any register being maintained
in the office of DCP regarding the issuance of order u/s 144 Cr.P.C. he
came to know about this order in the evening of 24.02.2020 through
news. On being asked whether there is any record in his department or
in his knowledge to reflect that this order was signed on 24.02.2020,
he answered that the dispatch record is maintained in HAX Branch
which can show that the order was signed on 24.02.2020. He had not
FIR No. 65/20
PS Dayalpur 252 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
maintained any record in HAX Branch. The order was not signed in
his presence. He did not have any conversation with Sh. Sain with
regard to this complaint. He denied that he was deposing falsely on
behalf of his senior officers.
7.17.97 PW7 Ct. Pawan Kumar deposed that on 24.02.2020, the
duty officer of the police station and the Reader to the SHO informed
him that section 144 Cr.P.C had been invoked in the area. He was
instructed to make announcement of section 144 Cr.P.C imposition in
the area. He collected a loud hailer from malkhana, thereafter, went to
Chand Bagh Mazar, Karawal Nagar Road to Sherpur Chowk, Moonga
Nagar, and made announcements in these areas that section 144 Cr.P.C
had been imposed and two or more than two persons should not stand
together and that they should not keep anything in hand with which
violence can take place and failure to comply would call for legal
action. Next day, also he along with Ct. Sudan undertook the same
exercise. During his cross-examination, he deposed that he had not
asked the duty officer to record his departure entry and he had not
recorded his arrival. On both 24/02/2020 and 25/02/2020 he had seen
public at some places and that he had collected loud hailer from the
malkhana, but did not make any entry to this effect. He had made the
announcement from Chand Bagh to Sherpur Chowk and in the lanes
of Chand Bagh and Chandu Nagar. Further, during his cross-
examination, he denied that he had not stated about making
FIR No. 65/20
PS Dayalpur 253 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
announcement until he had been asked by the prosecutor because on
that day he had not made any such announcement and volunteered,
that earlier he had not mentioned about making announcement on
25.02.2020 because the court had asked him about 24.02.2020. He
further deposed that he was carrying a smart phone, but did not record
any audio or video of the announcements made by him. He denied that
he had not made any such announcement and was merely deposing on
the instructions of his superiors
7.17.98 From the analysis of testimony of PW8, it is evident that
there is no substantial challenge to the fact that an order u/s 144 Cr.P.C
was passed by the then DCP (NE), Delhi on 24.02.2020 or that
Ex.PW8/A was the said order. Furthermore, there is no challenge to
the fact that the complaint u/s 195 Cr.P.C was signed by Mr. Sanjay
Kumar Sain.
7.17.99 As far as the pronouncement of the proclamation is
concerned, from the evaluation of the testimony of PW7, I find that no
material contradiction has emerged which would make me disbelieve
his testimony about the fact that he had made the announcement of
imposition of section 144 Cr.P.C in the areas of Chand Bagh and
Karawal Nagar Road up to Sherpur Chowk.
7.17.100 I accordingly find that the prosecution has successfully
proved that on the date of incident, section 144 Cr.P.C had been
imposed in the entire North East District including the place of
FIR No. 65/20
PS Dayalpur 254 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
incident i.e. the Chand Bagh Pulia.
7.17.101 From the discussion, already undertaken, it is apparent
that the mob at Chand Bagh Pulia was very huge in number and thus,
the assembly was in violation of section 144 Cr.P.C and hence, being a
member of this assembly, accused Tahir Hussain had committed an
offence punishable u/s 188 IPC and is liable to be convicted for the
same.
7.17.102 In view of these afore-said discussions, I find that through
the testimonies of PW6, PW13, PW14, which were duly corroborated
by PW11 and PW56, the prosecution has successfully proved beyond
all reasonable doubt that at the time of the incident, accused Tahir
Hussain at around 5.00 p.m on 25.02.2020, was a member of a large
crowd and unlawful assembly which, with animus against Hindus, had
assembled at Chand Bagh Pulia with a common object to commit
rioting, loot, arson and to cause damage to the property and person of
the members of the Hindu community; and that the members of this
assembly knew that it was likely that in prosecution of the objects of
this assembly, death could result and someone could be killed.
7.17.103 It is further proved beyond all reasonable doubts through
the testimonies discussed above that the members of this assembly,
being heavily armed, had used violence and indulged in rioting, arson
and loot. It is further established that the members of this assembly
had surrounded and dragged Ankit Sharma towards Chand Bagh Pulia
FIR No. 65/20
PS Dayalpur 255 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
and had thereby abducted him where after in a savage and relentless
assault upon his person, had murdered him. I accordingly find that
being a member of this unlawful assembly, accused Tahir Hussain, in
view of section 149 IPC, is vicariously liable for the afore-said
offences.
7.17.104 I accordingly find that the prosecution has proved
its case beyond all reasonable doubts against accused Tahir Hussain
for commission of offences punishable u/s 188 IPC, u/s 153A r/w
section 149 IPC, section 147 r/w section 149 IPC, section 148 r/w
section 149 IPC, section 365 r/w section 149 IPC and section 302 r/w
section 149 IPC.
7.17.105 However, I find that prosecution, through the
evidence led during the trial, has not been able to establish beyond all
reasonable doubts that accused Tahir Hussain by instigation had
abetted the offences committed by this assembly and had committed
offences punishable u/s 109 and 114 IPC. The accused is also entitled
to be acquitted for the charge u/s 505 IPC as the exhortations allegedly
made by him, which would fall foul of section 505 IPC, have not been
proved.
7.17.106 With regard to the charge of conspiracy, I find that
the fact that the CCTV cameras around the area had either been
damaged or had been covered or turned away, points towards a pre-
planning and thus the fact, that a conspiracy might have been afoot.
FIR No. 65/20
PS Dayalpur 256 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
However, no evidence had been led by the State to prove when, where
and how this conspiracy was formed and who all were the conspirators
and therefore, there is no evidence against accused Tahir Hussain and
for that matter, against any of the accused which can lead to their
conviction u/s 120B IPC.
Accused Haseen @ Mullaji @ Salman
7.18 Against accused Haseen @ Mullaji, there is no ocular
evidence which has been led by the prosecution to establish that
accused Haseen @ Salman@ Mullaji was a member of this unlawful
assembly. This despite the fact that very specific role had been
assigned to this accused. During the investigation, Vikalp Kochar was
the only witness who had identified this accused as a part of the
unlawful assembly in question. However, during his deposition in the
court he refused to identify the accused as the member of this
unlawful assembly at Chand Bagh Pulia. Despite his sustained cross-
examination, Ld. SPP failed to elicit anything that could support his
case against the accused.
7.18.1 Hence, as far as ocular evidence goes, I do not have any
evidence which would place accused Hassen @ Salman@ Mullaji in
that unlawful assembly.
7.18.2 However, the prosecution has also relied upon recovery of
a knife and clothes at the instance of accused Haseen @ Mullaji and
some telephonic conversations, which as per the prosecution he had
FIR No. 65/20
PS Dayalpur 257 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
with different persons.
7.18.3 As per the case of the prosecution, accused Haseen @
Mullaji was arrested by SI Jaiveer of Spl. Cell on 11.03.2020 u/s
41.1(b) of Cr.P.C. Appearing as PW76, he deposed that they were
searching for Salman because his mobile had been on interception and
his intercepted conversations revealed that he had killed a person
during the riots. It was also found that this accused was also wanted in
the murder of Ankit Sharma. A secret informer met them near a park
in Sunder Nagri and pointed towards accused Salman who was then
apprehended. He was intensively interrogated till 12.03.2020 when his
disclosure was recorded. Thereafter, he was arrested vide DD No. 2A
and a kalandra was prepared. A mobile phone was recovered in his
personal search and was deposited in malkhana of PS spl. Cell. He
proved the arrest memo of this accused vide Ex.PW76/A and personal
search memo vide Ex.PW76/B. The information of his arrest was
given to Crime Branch, and on 13.03.2020, he was produced before
the court.
7.18.4 IO PW79 Insp. Amleshwar deposed that on 13.03.2020,
he received an information that accused Haseen @ Mulla had been
arrested and he would be produced before the court on 13.03.2020. On
13.03.2020, he reached the court and with the permission of the court,
interrogated and then arrested accused Haseen @ Mulla vide arrest
memo Ex.PW79/9. During his interrogation, he disclosed that he
FIR No. 65/20
PS Dayalpur 258 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
could get a knife recovered but pursuant to that disclosure, no
recovery could be effected. On 16.03.2020, he again disclosed that the
knife used and the clothes worn by him in the incident had been
hidden by him in his house, and he could get them recovered. Pursuant
to the disclosure, on 17.03.2020, accused Haseen led him and other
staff members to H. No. 3435, Gali No. 3, Shani Bazar, Sunder Nagri.
He requested the people in the locality to join the investigation but
none agreed. The house was found locked. Accused informed that the
key would be with a neighbour namely Baby Zubeda. She was
summoned and she led them to the second floor of the said house
where the accused had a rented accommodation. From the middle rack
of an almirah in the room, he took out a white round neck T-shirt, one
red colour full sleeves shirt and blue greyish jeans trouser. From the
lowest portion of the almirah, he took out a knife which was hidden
between the clothes. He observed blood stains on the knife as well
clothes. He prepared the sketch of the knife, kept it in a cloth parcel
and sealed it with the seal of AR. Clothes were also kept in a parcel
which was sealed with the seal of AR. The knife was seized vide
memo Ex.PW12/E. The sketch of knife having his signatures at point
Y was Ex.PW12/C. He also prepared the site plan of the place of
recovery which was Ex.PW79/10.
7.18.5 During his cross-examination, he deposed that after the
recovery, the seal was handed over to ASI Birender and on reaching
FIR No. 65/20
PS Dayalpur 259 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
the office, he returned it to him on the same day. The fact that the
accused informed that the key would be with Zubeda was not recorded
in the charge sheet and in response to court query, he answered that it
was mentioned in the case diary. He denied that no person by the name
of Baby Zubeda existed, her address and the fact that the key was with
her were not mentioned in the charge sheet. The names of persons
who had refused to join investigation were not recorded in charge
sheet. He had a smart phone but did not record any video. He denied
that no recoveries as described in Ex.PW12/D and Ex.PW12/E were
effected, or that the site plan Ex.PW79/10 was prepared while sitting
in the police station.
7.18.6 The second witness is PW12 SI Birender Singh. He
deposed that in March 2020, he was posted as ASI in AHTU, Crime
Branch, Sector 16, Rohini. On 16.03,2020, he had joined the
investigation of this case and in his presence the IO had recorded the
disclosure statement of accused Haseen. The said disclosure had his
signatures at point X and was Ex.PW12/B. Pursuant to the disclosure,
he along with IO and other members of the team had taken accused
Haseen to his rented accommodation in house bearing no. 34/35, Gali
No. 3, Shani Bazar Road, Sunder Nagari. Accused led them to his
room on the second floor which was found locked. IO summoned a
relative of accused namely Baby Zubeda who brought the keys to this
room. Haseen took out one white T shirt, one red colour shirt and one
FIR No. 65/20
PS Dayalpur 260 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
blue jeans from the middle rack of an iron almirah which was in that
room. He also took out a knife from the lower rack and presented it
before the IO. IO made a pullanda of the clothes and sealed it with the
seal of AR. A pullanda of knife was also prepared which was also
sealed with the seal of AR. The knife was seized vide seizure memo
Ex.PW12/E. The sketch of the knife was also prepared which was
Ex.PW12/C. He also deposed that IO had prepared a site plan of place
of recovery which was signed by him and then again said, that he did
not remember whether he had signed it or not.
7.18.7 During his cross-examination, he deposed that on the next
day, he returned the seal to the IO. He denied that no recovery
proceedings had taken place, or that all the documents were prepared
and signed by him in the office, or that accused Haseen was never
taken to any place as stated by him. He did not record any video of the
proceedings. Baby Zubeda had not informed her name to him or to the
IO in his presence. In his presence, IO did not record any statement of
Baby Zubeda.
7.18.8 On being asked if he could produce any document to
prove that on the dates stated by him, he had joined the investigation
of this case; he answered that whenever he had joined the
investigation arrival and departure entries were recorded and he could
produce them. On being so directed, he produced these entries. The
relevant departure and arrival entries were exhibited as PW12/D3 and
FIR No. 65/20
PS Dayalpur 261 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
PW 12/D4 respectively. He was then asked to produce the original
Roznamacha register of these entries.
7.18.9 He produced this register when he next appeared before
the court. It was then pointed to him that a page between page no. 006
and 007 had been torn and removed and he was asked if he would
admit this fact. While admitting this fact he explained that each page
in the roznamcha register was in duplicate. A carbon paper was placed
between two such pages and the carbon copy was taken out and sent to
senior officers. In answer to a court question he said that he stated that
all second pages with same serial number would be found torn
away/taken out from the register.
7.18.10 It has been contended on behalf of the accused that the
recovery of the knife has not been proved as per law and the knife has
been planted upon him. Challenging this recovery, the first contention
of the accused is that admittedly, as per the statement of PW12,
pursuant to the initial disclosure of the accused, no recovery could be
made and the law does not recognise the concept of supplementary
disclosure.
7.18.11 I have considered the argument and I find that there is no
legal bar to recording of more than one disclosure of the accused, and
accept for arguing that the second disclosure is not permissible, the
learned counsel has failed to provide any legal basis or precedent to
support this contention.
FIR No. 65/20
PS Dayalpur 262 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
7.18.12 It is not uncommon for accused to try and mislead the
investigator by provide false information. If such information on
verification is found to be false, as was in this case, law does not stop
the police from further interrogating the accused and if during such
interrogation, accused provides any further information that can lead
to discovery of a fact, the necessary consequence has to be recording
of this information /disclosure.
7.18.13 The next contention of ld. counsel for the accused is that
under section 27 of the Indian Evidence Act, the discovery of a fact
must be pursuant, to a free, frank and full disclosure. However,
beyond so stating, no effort was made to, demonstrate that the
disclosure, pursuant to which the alleged recovery of the knife had
happened, was not full or fair. However, it was argued that as the
accused had been in police custody for almost 36 hours, that is illegal
custody of 12 hours, the disclosure and recovery were hit by section
24 of the Indian Evidence Act.
7.18.14 I have carefully considered the submission and evaluated
the evidenced on record. It is correct that as per the testimony of
PW76 Insp. Jaiveer, the accused was apprehended on 11/03/2020 and
was produced before the court on 12/03/2020. Hence, on the face of it,
before being produced in court accused had been kept in custody for
more than 24 hours. Therefore, prima facie the contention the he was
in illegal custody for 12 hours cannot be brushed aside. However, it
FIR No. 65/20
PS Dayalpur 263 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
cannot be lost sight of that during this period he was not in the custody
of IO Inspector Amleshwar but he was in custody of SI Jaiveer. It
must be also noticed that SI Jaiveer was in Special Cell and the IO
was posted in Crime Branch. The office of SI Jaiveer was in Janakpuri
and that of the IO was in Rohini. It is neither an assertion of the
accused, nor has it been proved that from the time of his arrest and till
his production in the court, the IO of this case had any access to or
contact with this accused. Furthermore, it is also not a case of the
accused, argued or proved, that during the period he was in custody of
Special Cell, the accused was taken to the house from where the
recovery was effected and the knife and the clothes were planted at
that place. Hence, any illegality committed by the arresting officer,
upon whom the IO of this case had no direct control or supervision,
can in no manner affect the investigation conducted by the IO of this
case. It is not even argued that the alleged disclosure of the accused
was a result of any threat, coercion or torture etc. Hence, it has not
been established and I have no reasons to believe that the disclosure
Ex.PW 12/B was made by the accused under threat, coercion etc.
7.18.15 During the course of arguments and also during the cross-
examination of witnesses, a lot of stress has been laid by the accused
on the fact that the name of baby Zubaida was neither mentioned in
any seizure memo, nor did if find mention in the statement of any
witness to the recovery. Furthermore, no statement of alleged Miss
FIR No. 65/20
PS Dayalpur 264 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
Zubaida was recorded. On factual aspect of this contention, I have no
contest with the submission made on behalf of the accused. I also find
that in the scheme of things, it would have been proper if the IO, at
least on the documents, would have mentioned that the key to the
room of the accused was provided by Miss Zubeda. However, the
mere omission of this name would not vitiate the recovery if it is
otherwise proved. It is more so because during his testimony in the
court, the IO had stated that this fact had been mentioned by him in
the case diary. This claim has been verified by me and found to be
correct. The case diary dated 16.03.2020 has been initialed by me.
7.18.16 It is also to be noted that during the cross-examination of
PW 12, conducted on behalf of this accused, to check the veracity of
the witness and verify whether on 16/03/2020 the police team had in
fact left its office with accused Haseen and thereafter returned with the
recovered articles; the ld. counsel had asked if the witness could
produce any documentary evidence of it. The witness stated that in the
Roznamcha DD entries of their departure and arrival had been
recorded, and he could produce them. The counsel for accused asked
for the production of these entries, and when the witness appeared
next, he produced the DD entries which were exhibited as
Ex.PW12/D3 and D4 respectively.
7.18.17 Faced with this situation, in order to discredit these daily
diary entries ld. counsel for accused further sought, the original
FIR No. 65/20
PS Dayalpur 265 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
Roznamcha register to be produced. Next time when the witness
appeared before the court, he produced the original register where in
these entries were recorded. The learned Counsel then made an effort
to discredit the Roznamcha register and through it discredit these DD
entries. He did so by suggesting that as there was a page that had been
torn from this register, there were manipulations in it. The explanation
of the witness defeated the effort as he stated that every page number
the Roznamcha register was, as a practice, in duplicate. In between the
pages with having the same serial number, a carbon would be placed
so that a carbon copy of each entry could be prepared. Thereafter, the
page having the carbon copy would be torn off and sent to senior
officers. In response to a question of my learned predecessor, he
answered that all second pages with the same serial number would be
found torn away/taken out from the register. Further effort made to
discredit these entries was that there was an over writing upon these
DD entries. However, the perusal of these entries by me reveals that
there is no overwriting on any material part.
7.18.19 I, therefore, find that through the evidence on record, the
prosecution has successfully and beyond all reasonable doubts proved
that the knife exhibit article PW 15/Art1 was recovered at the instance
of accused Haseen@ Mulla.
7.18.20 However, the prosecution has failed to link this knife to
the commission of the offence in question. The first attempt was made
FIR No. 65/20
PS Dayalpur 266 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
by the prosecution through PW 15 Dr. Arvind Kumar during whose
testimony this knife was first produced in court and exhibited. This
knife was sent to him for his opinion if the injuries upon the body of
the deceased had been caused by this knife. He had opined that
injuries number 1, 10, 17 17 and 29 were possible by this weapon. His
report to this effect was exhibited as PW 15/B.
7.18.21 However, this opinion merely raises a probability and is
not a definitive conclusion that this in fact was the knife that had
caused these injuries and hence on the basis of this opinion alone, it
does not stand proved that the injuries upon the person of the deceased
had been caused by the use of this knife.
7.18.22 The second attempt to connect this knife to the murder of
the deceased was made through the report of the DNA expert, and the
knife was sent to FSL Rohini to examine whether it had any blood on
it, and if there was blood, did it belong to the deceased? The report of
the DNA expert had been proved by him when appeared as PW31.
The said report is Ex.PW31/B and the allelic data chart is Ex.PW31/C.
From this report it is evident, that the blood found on the knife was not
that of the deceased. Therefore, the recovery of this knife is also not
sufficient to connect him with the commission of this offence.
However, the allelic data chart, Ex.PW31/C, reveals that the human
DNA generated from the blood found on the knife recovered at the
instance of accused Haseen @ Mullaji and his clothes was matching
FIR No. 65/20
PS Dayalpur 267 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
with the DNA found on the knife alleged to be recovered at the
instance of accused Nazim. This circumstance does point towards a
connection between both the accused as the weapons recovered at
their instance had the same DNA, but this circumstance also is not of
much consequence as far as the present case is concerned. Sadly,
despite this curious coincidence, this connection was not further
investigated by the IO to rule out the possibility of another crime.
7.18.23 The next evidence to link the accused to the murder of the
deceased that has been pressed into service by the prosecution is the
recordings of intercepted phone calls of the accused. As per the
prosecution the recordings of these calls were also recovered from the
phone of accused. It was contended that in these calls the accused is
confessing to the murder of Ankit Sharma. It has been contended by
ld. SPP that at the relevant time when these calls were made, the
location of this accused, as per his call detail records, was near the
place of incident. The fact that in one of these calls he’s asking
someone to come near the mosque and also states that a person has
been loaded (banda lad liya hai). He can be further heard asking for a
gunny bag which reflects that he had been asking for the bag to
dispose the body of Ankit Sharma. More shocking are his
conversations with someone he addresses as Bhabhi and with Faheem
Chikna (PW75) and Nadeem (PW58), where he confesses to
murdering a person. This confession is also in close proximity to the
FIR No. 65/20
PS Dayalpur 268 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
murder of Ankit Sharma.
7.18.24 He has further contended that two of the persons with
whom he had conversations, namely Faheem, Chikna and Nadeem
while deposing in court, having been won over by the accused, had
refused to identify their voices in these conversations and denied
having any calls with accused. In the circumstances, with the
permission of the court, the voice samples of both these accused were
sent for matching their voices with the voices in the telephone
conversation, which Haseen @Mulla was having with them. As per
the FSL report, duly proved on record, the voices in the telephonic
conversation matched with these two. Also the sample voice of
accused Haseen @ Mullaji had been found to be matching with his
alleged voice in these conversations. In the circumstances through the
confessional statements of accused, the prosecution has proved that
the accused had murdered Ankit Sharma.
7.18.25 On the other hand, learned counsel for accused, as
detailed earlier, had countered the arguments of ld. special prosecutor
and through his own arguments attempted to demonstrate that this
evidence in the form of call recordings and voice analysis results is a
fabricated and manipulated evidence. He had also contended that the
evidence being violative of Telegraph Act was not admissible.
7.18.26 Without even referring to the arguments of learned
counsel for the accused, I cannot find myself in agreement with the
FIR No. 65/20
PS Dayalpur 269 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
assertion of ld. SPP that through these recorded conversations, the
prosecution has proved its case against this accused. It has been well
settled by now that an extrajudicial confession is, more often than not,
of corroborative value only. A finding of conviction cannot be handed
down solely on the basis of such a confession, which is generally
considered to be a weak evidence. In the present case, this confession
in the form of recorded conversations is further weakened by the fact
that there is no clear statement attributable to the accused where he has
confessed to the murder of Ankit Sharma. No doubt, there are
conversations, imputed to the accused where he allegedly boasts of
killing a person, of participating in the riots and sounds as if he had
been fighting a war. However, there is nothing on record that would
establish that the person who is stated in those conversations to have
been killed, was Ankit Sharma. Hence this confession is not even a
complete confession of the crime in question. In absence of an
unequivocal confession, the fact that at the as per the call detail
records of the number attributed to this accused, his location at the
relevant time is of the area of Chand Bagh will also be of no help to
the prosecution.
7.18.27 Therefore, I am of the opinion that evidence adduced by
the prosecution is not sufficient to prove that accused was a member
of the unlawful assembly in furtherance of whose common object
Ankit Sharma was murdered.
FIR No. 65/20
PS Dayalpur 270 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
7.18.28 Coming onto the charge against accused Haseen under
the provisions of Arms Act. It is correct that a knife has been
recovered at the instance of this accused. However, this accused was
not found carrying this knife in a public place and therefore, he could
only be found to be in possession of a prohibited weapon if the blade
of this knife was either having a length of more than 9 inches or
having a width of more than 2 inches so as to be covered within
category V of part A of Schedule 1 to the Arms Rules 2016. However,
as per sketch Ex.PW12/C, the length of the blade is 21.5 cms and its
breadth is 3 cms and hence, the knife does not fall within the
prohibited category of weapons and no case is made out for convicting
this accused for violation of Arms Act.
Accused Sameer Khan
7.19 As against accused Sameer, the only witness that has
deposed about him being a member of the lawful assembly is PW13
Aakash. However, as already discussed, I have found it difficult to
rely upon the testimony of PW13, as far as it relates to identification
of Sameer. At the cost of repetition, the reasons for not believing this
identification are, that it was too convenient a coincidence that PW13,
notably during the period when a very strict lock down was in place,
would be on a public street and that too at the same time when the IO
would be bringing accused Sameer at that place for spot identification.
It was also found by me that if at all the coincidence was to be
FIR No. 65/20
PS Dayalpur 271 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
accepted, PW13, on being asked, was required to explain why and
how during the lock down, he was present at the place of the incident
to identify accused Sameer. As already observed, despite repeated
questioning, PW13 could not satisfactorily account for his presence. I
accordingly find that the identification of this accused by the witness
in court would also not inspire much confidence and certainly require
corroboration which is absent. I therefore, find that the prosecution
has failed to prove its case against this accused.
Accused Nazim & Kasim
7.20 The case against accused Nazim and Kasim stands on the
sole testimony of PW6 Pradeep Varma. This is because as already
discussed, I have found it unsafe to rely upon the testimony of PW 14,
with respect to identification of these accused.
7.20.1 As per the deposition of IO(PW79), it is during the
interrogation of accused Haseen @ Mulla that the names of these two
accused had emerged. On 30/03/2020, these accused were
apprehended from their houses in Mia Saria Sambhal, Uttar Pradesh.
On the same day after being brought to Delhi, they were taken to the
place of incident where a lot of public persons gathered around and
two of them, Bharat and Pradeep Verma, identified the accused as the
persons who had been involved in this crime. Thereafter, they were
arrested in this case vide memos Ex.PW50/A and Ex.PW/50/B.
7.20.2 During his cross-examination, he denied that prior to
FIR No. 65/20
PS Dayalpur 272 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
30/03/2020, there was no disclosure of Salman @ Haseen @Mulla
where he had named Nazim and Kasim. He denied that the statement
of Pradeep Verma under section 161 Cr.P.C had been inserted after
30.03.2020, or that Nazim and Kasim had been falsely implicated in
this case.
7.20.3 The testimony of PW6 Pradeep Varma has already been
discussed in detail. To recapitulate his deposition specific to these
accused, he had stated that on 30.03.2020 at around 5:30 PM, he was
in his parking when the IO reached there and started making inquiries
outside his parking. He also went there and saw that IO was making
inquiries from the public persons. Nazim and Kasim were with him.
During this time, and he pointed them to the IO. He further deposed
that when Ankit Sharma was being taken by the mob, Nazim and
Kasim were present in that mob, and Nazim was having a knife in his
hand. He had informed the IO of these facts.
7.20.4 During cross-examination on behalf of these accused and
specifically on his testimony related to these accused, he deposed that
the documents which were signed by him on 30/03/2020 were also
signed by Bharat @ Kalu in his presence. He did not remember that
how many days prior to identifying Nazim and Kasim was it that he
had identified their photographs before the police.
7.20.5 The challenges to the testimony of this witness, insofar as
they are common to all the accused, have already been considered and
FIR No. 65/20
PS Dayalpur 273 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
answered.
7.20.6 With regard to Nazim and Kasim specifically, it was
contended that this witness in his statement and section 164 Cr.P.C
had stated that his identification of the accused was only through
photographs and he completely remained silent about the alleged
identification proceedings dated 30/03/2020 at the scene of crime.
7.20.7 However, a perusal of his statement u/s 164 Cr.P.C
reveals that this assertion is absolutely incorrect as he had stated in
Ex.PW6/A, that he identified accused Nazim and Kasim in their
photographs and also stated that, he had physically identified them
before the police near the nala.
7.20.8 It is further contended that during his deposition in court,
he had wrongly identified Haseen@ Mullaji as Nazim. This seriously
dents the credibility of his identification. It is contended that none of
the accused were subjected to judicial TIP and no explanation has
been furnished by the prosecution for non-conducting the TIP.
7.20.9 I have considered this argument and the perusal of the
part of his testimony where he identified the accused during his
deposition in the court reflects, that it has been recorded that he had
identified accused Kasim, Firoz, Anas, Musa and Nazim. It is only
thereafter that he stated Haseen’s name also as Nazim. However, what
is noticeable is, that prior to that he had correctly identified accused
Nazim by his name. Sadly, no effort was made by ld. SPP to clarify
FIR No. 65/20
PS Dayalpur 274 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
this issue. At the same time, no effort was also made by ld. counsel for
accused Nazim on this point. Merely because a confusion appeared
and it was allowed to remain by the defence as well as the
prosecution, the original identification of accused Nazim by this
witness cannot be wished away.
7.20.10 A further contention is that this witness in a statement
under section 161 Cr.P.C has not attributed any specific role to any of
the accused. However, while deposing in the court, he suddenly
attributed specific roles to the accused and this indicates material
improvement and tutoring.
7.20.11 On consideration of this contention, I find that it is not
supported by the material on record. During his testimony, PW6 has
not assigned any specific role to any of these accused as a member of
the unlawful assembly or in the murder of deceased Ankit Sharma.
During the cross-examination also, no such material improvement was
put to the witness and he was not confronted with his earlier statement
to project that he had made any material improvement. However, I
myself had gone through the statement u/s 161 Cr.P.C of this witness
dated 30.03.2020 and in comparison to it also, there is no material
improvement in his testimony before the court.
7.20.12 With regard to the contention that a judicial TIP was not
conducted, I find that the sum and substance of law cited at bar is, that
not having the judicial TIP conducted does not affect the identification
FIR No. 65/20
PS Dayalpur 275 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
in court.
7.20.13 In view of the testimony of the witness particularly
against accused Nazim and Kasim and his cross-examination on
behalf of these accused, it is apparent that no material contradiction
could be brought out which could discredit the testimony of this
witness as far as these two accused are concerned. As already
discussed, in the earlier part of this judgment while analysing the
evidence qua the case of the prosecution against Tahir Hussain, this
witness has been found to be a natural and credible witness to the
rioting, loot, arson and murder of Ankit Sharma by the unlawful
assembly that had assembled on Chand Bagh Pulia at around 5.00 p.m
on 25.02.2020.
7.20.14 In view of these afore-said discussions, I find that through
the testimony of PW6, the prosecution has successfully proved beyond
all reasonable doubt that at the time of the incident, accused Nazim
and Kasim at around 5.00 p.m on 25.02.2020, were both members of a
large crowd and unlawful assembly which, with animus against
Hindus, had assembled at Chand Bagh Pulia with a common object to
commit rioting, loot, arson and to cause damage to the property and
person of the members of the Hindu community; and that the members
of this assembly knew that it was likely that in prosecution of the
objects of this assembly, death could result and someone could be
killed.
FIR No. 65/20
PS Dayalpur 276 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
7.20.15 It is further proved beyond all reasonable doubts through
the testimonies discussed above that the members of this assembly,
being heavily armed, had used violence and indulged in rioting, arson
and loot. It is further established that the members of this assembly
had surrounded and dragged Ankit Sharma towards Chand Bagh Pulia
and had thereby abducted him where after in a savage and relentless
assault upon his person, had murdered him. I accordingly find that
being a member of this unlawful assembly, accused Nazim and Kasim,
in view of section 149 IPC, are vicariously liable for the afore-said
offences. As already discussed, the prosecution has successfully
proved the sanction u/s 196 Cr.P.C(Ex.PW34/A). I further find that as
they had violated the prohibitory order u/s 144 Cr.P.C and the
complaint u/s 195 Cr.P.C (Ex.PW8/B) against them as been proved,
they are liable to be convicted for an offence punishable u/s 188 IPC.
They are further liable to be convicted for offence punishable u/s
153A r/w section 149 IPC.
7.20.16 There is also a charge under Arms Act framed against the
accused Nazim for violation of section 7 Arms Act. However, the
knife allegedly recovered at the instance of the accused could not be
connected to the crime as the DNA found on the knife did not match
with that of the deceased. Furthermore, even if it is admitted that the
button actuated knife was recovered at the instance of accused Nazim,
prosecution has not led any evidence to show that the accused had
FIR No. 65/20
PS Dayalpur 277 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
knife in his possession for the purpose of sale of that knife and the size
of the knife is not covered within the definition of prohibitive arm as
per category V of part A of Schedule 1 to the Arms Rules 2016.
Therefore, for the possession of this knife by the accused, even if it
admitted to have been proved, no offence punishable u/s 7 of the Arms
Act is made out. The accused is entitled to an acquitted for the charge
u/s 7 r/w section 25 of Arms Act.
7.20.17 I accordingly find that the prosecution has proved its case
beyond all reasonable doubts against both the accused Nazim and
Kasim for commission of offences punishable u/s 188 IPC, u/s 153A
r/w section 149 IPC and section 147 r/w section 149 IPC, section 148
r/w section 149 IPC, section 365 r/w section 149 IPC and section 302
r/w section 149 IPC.
7.120.18 With regard to the charge of conspiracy, it has already
been found in earlier part of this judgment that the prosecution has not
led any substantive evidence to prove the charge of section 120B IPC
against any of the accused. I accordingly find that these accused are
entitled to an acquittal for the offence punishable u/s 120B IPC.
Accused Gulfam, and Shoaib Alam
7.21 The only evidence that had been brought on record during
the trial against these accused was in the form of testimonies of PW5
HC Rahul and PW33 HC Praveen, who had identified these two
accused as the members of the unlawful assembly which was involved
FIR No. 65/20
PS Dayalpur 278 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
in the killing of Ankit Sharma. Apart from their ocular testimonies,
there is no other witness or evidence against these accused. However,
in the earlier part of this judgement, these two witnesses have not been
found to be credible and therefore, a finding of guilt cannot be given
against these accused on the basis of these two testimonies. I
accordingly find that both these accused are entitled to benefit of
doubt and are therefore, acquitted of all the charge framed against
them.
Accused Anas, Firoz and Javed
7.22 The only witness to establish the membership of these
accused of the unlawful assembly is PW6 Pradeep Verma. His
testimony in detail and the common challenges thereto have already
been considered and answered in the earlier part of this judgment.
7.22.1 These accused were arrested in this case 09/03/2020.
Giving account of their arrests, the IO.(PW79) deposed that on
9/03/2020, after the FSL team had concluded the inspection of scene
of crime, he reached his office at Khajuri Khas. At the office, he met
Insp. Rajnikant, who informed him that he had apprehended five
persons who were involved in rioting at Chand Bagh Pulia on
25/02/2020. He interrogated and arrested accused Anas, Gulfam,
Firoz, Javed and Shoaib Alam in this case. During his deposition, he
identified his signature on the arrest memo of accused Anas (which
was proved by PW 18 as PW18/B) at point Z. He identified his
FIR No. 65/20
PS Dayalpur 279 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
signatures on the arrest memo of accused Firoz (which was proved by
PW 18 as Ex.PW18/C) at point Z. He identified his signatures on the
arrest memo of accused Javed (which was proved by PW 18 as
Ex.PW18/D) at point Z.
7.22.2 As per the deposition of PW6 on 11/03/2020, the police
had inquired from him about the incident with Ankit Sharma. His
statement was recorded by the police. He was shown certain
photographs to identify the rioters. He identified about six or seven
persons in these photographs. He had seen their faces, but he did not
know their names. However, he had seen them in the Muslim mob.
The police had informed him of the names of those persons. During
his deposition, he was only able to recollect four names. These were
Anas, Firoz, Musa, and Javed. He correctly identified accused Firoz
and Anas. He pointed towards accused Javed as the person he had
seen in the mob but was unable to recall his name.
7.22.3 During the cross-examination on behalf of accused Javed,
PW6 deposed that there were a number of photographs that were
shown to him on 11.03.2020 but he could not tell the total number of
such photos and also could not give estimation of their numbers. He
denied that he had not seen any accused in the mob at Chand Bagh
Pulia or that he had falsely, at the instance of senior police officers,
identified the accused in court and some of their photographs before
the court as well as before the police.
FIR No. 65/20
PS Dayalpur 280 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
7.22.4 It has been contended on behalf of accused Javed that
PW6 had been made a witness in more than six cases and his
testimony in these cases suffer from serious infirmities. The certified
copies of his testimonies in other cases were filed with written final
submissions.
7.22.5 I have carefully considered this contention. As far as the
allegation that PW6 is a stock witness is concerned, the same has
already been rejected in earlier part of the judgment. The contention
that there are serious discrepancies between his statement in this case
and between his statements as he had given in other cases deserves to
be rejected on a simple ground that during his cross examination he
was never confronted with his earlier statements and never given an
opportunity to explain. However, I still have perused those statements
and I find that all those statements are on similar lines as far as the
common facts are concerned. There are no material contradictions
between these statements inter-se and the statement given in this case.
Hence, I do not find any force in this contention.
7.22.6 It has been further contended that the photo identification
of the accused was not proper as at least 10 photographs should have
been shown which is the requirement of the law. However, in my
considered opinion, there is no such requirement of law. Even
otherwise, as is visible, the witness stated that he had been shown a
number of photographs but he could not tell the exact number. It was
FIR No. 65/20
PS Dayalpur 281 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
not even asked from him whether number of such photographs was
around 10 or less or more than 10 and therefore, on what basis it has
been argued that 10 photographs were not shown is unfathomable.
7.22.7 It has further been contended on behalf of accused Javed
that PW6 is not a credible witness because he was cited as a witness in
FIR No. 98/20 where he had identified accused Javed as one of the
offenders. However, in that case, accused Javed was discharged by the
predecessor of this court and this casts a serious doubt upon his
credibility. The certified copy of that order was filed during the final
arguments. A bare perusal of that order reveals that there is not a
single sentence written about the credibility of this witness. The
discharge order came to be passed on the ground that this witness was
the sole witness against accused Javed and as per the judgment of
Masalti (supra), the requirement was that there had to be two or more
witnesses, an interpretation to which I have not found myself be in
agreement. Hence, this contention does not hold water.
7.22.8 In view of these afore-said discussions, I find that through
the testimony of PW6, the prosecution has successfully proved beyond
all reasonable doubt that at the time of the incident, accused Javed at
around 5.00 p.m on 25.02.2020, was the member of a large crowd and
unlawful assembly which, with animus against Hindus, had assembled
at Chand Bagh Pulia with a common object to commit rioting, loot,
arson and to cause damage to the property and person of the members
FIR No. 65/20
PS Dayalpur 282 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
of the Hindu community; and that the members of this assembly knew
that it was likely that in prosecution of the objects of this assembly,
death could result and someone could be killed.
7.22.9 It is further proved beyond all reasonable doubts through
the testimonies discussed above that the members of this assembly,
being heavily armed, had used violence and indulged in rioting, arson
and loot. It is further established that the members of this assembly
had surrounded and dragged Ankit Sharma towards Chand Bagh Pulia
and had thereby abducted him where after in a savage and relentless
assault upon his person, had murdered him. I accordingly find that
being a member of this unlawful assembly, accused Javed, in view of
section 149 IPC, is vicariously liable for the afore-said offences. As
already discussed, the prosecution has successfully proved the
sanction u/s 196 Cr.P.C(Ex.PW34/A), he is further liable to be
convicted for offence punishable u/s 153A IPC r/w section 149 IPC
and I further find that as he had violated the prohibitory order u/s 144
Cr.P.C and the complaint u/s 195 Cr.P.C (Ex.PW8/B) against him as
been proved, he is liable to be convicted for an offence punishable u/s
188 IPC.
7.22.10 I accordingly find that the prosecution has proved
its case beyond all reasonable doubts against accused Javed for
commission of offences punishable u/s 188 IPC, u/s 153A r/w section
149 IPC and section 147 r/w section 149 IPC, section 148 r/w section
FIR No. 65/20
PS Dayalpur 283 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
149 IPC, section 365 r/w section 149 IPC and section 302 r/w section
149 IPC.
7.22.11 With regard to the charge of conspiracy, it has already
been found in earlier part of this judgment that the prosecution has not
led any substantive evidence to prove the charge of section 120B IPC
against any of the accused. I accordingly find that this accused is
entitled to an acquittal for the offence punishable u/s 120B IPC.
Accused Anas
7.23 During his cross examination on behalf of accused Anas,
PW6 was asked whether he had any NOC from fire department,
permission from MCD, Police or pollution control board for running
his parking lot, and he had answered that he had no knowledge about
such NOCs or permission. He further deposed that at no point of time,
any official from fire department, police, MCD visited his parking and
demanded to see any NOC or permission to run the parking. He was
then asked whether he remembered the facts deposed by him during
his examination by a prosecutor before some other Judge Saheb in the
year 2020 and he deposed that he did not remember what all he had
stated during that examination. He denied that he did not remember
that statement because that had been given on the basis of tutoring by
the police. On being asked to give explanation, he stated that he did
not remember those facts because it had been three years. Then he was
specifically asked about what he had stated in his statement u/s 164
FIR No. 65/20
PS Dayalpur 284 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
Cr.P.C by putting each fact and if found to be incorrect, confronted
with that statement and it is only then it became clear, that the counsel
was referring to statement u/s 164 Cr.P.C. He denied the suggestions
that he was repeatedly tutored by the police by showing the photos of
the accused, or that despite being repeatedly shown the photos, he
could not identify all the accused because he neither knew them, nor
had seen them. He denied the suggestion that he was illegally running
the parking and therefore, came under the pressure of police in this
case to depose false facts about seeing and identifying the rioters in
the incident with Ankit Sharma. He denied that he had not identified
photograph of any rioter before the police at any point of time.
7.23.1 The contentions on behalf of accused Anas with regard to
PW6 being a stock witness, a partisan witness and the circumstances
to show that he could not have seen the incident have already been
considered in the earlier part of the judgment and answered.
7.23.2 It is further contended on behalf of accused Anas that
statement of PW6 was recorded on 11.03.2020 but the witness has not
mentioned regarding the present case. However, I find this contention
to be incorrect as in his first statement u/s 161 Cr.P.C. he has spoken
about this incident and identified the photographs of some rioters.
7.23.3 I have also considered the testimony of this witness and
the cross examination on behalf of this accused. It is apparent that
there was not material contradiction which had emerged in the cross
FIR No. 65/20
PS Dayalpur 285 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
examination of this witness which would make me disbelieve his
testimony. However, it is clear that from the very beginning when the
cross examination of this witness was started on behalf of this
accused, an attempt was made to overawe this witness and make him
nervous. I say so because initially it was asked whether he had good
memory or not and on the question being overruled, he was asked
whether he had taken any treatment for his memory and other ailment
and when that question was also disallowed, it was suggested to him
that he was feigning loss of memory to avoid telling the truth to the
court. If that was not enough, he was questioned about his parking and
whether it was legal or illegal and thereafter, it was suggested that as
he was running an illegal parking, he had deposed falsely under the
pressure of the police. At the same time, it must be remembered that
no evidence was brought on record even to establish that this witness
needed any permission for running a parking lot at his own premises.
Not surprisingly, even during the final arguments, this point was not
stressed. It is in the light of this cross examination that the next cross
examination by the same counsel is to be read where he was unable to
recall the exact facts of his statement u/s 164 Cr.P.C. However, be that
as it may, the witness, as already discussed in detail, has been found to
be credible as far as his testimony with regard to the incident relating
to murder of Ankit Sharma is concerned. I accordingly find that I have
no reasons to disbelieve his testimony where he has placed this
FIR No. 65/20
PS Dayalpur 286 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
accused amongst the rioters and as a member of the unlawful
assembly at Chand Bagh Pulia on 25.02.2020 at around 5.00 p.m.
7.23.4 In view of these afore-said discussions, I find that through
the testimony of PW6, the prosecution has successfully proved beyond
all reasonable doubt that at the time of the incident, accused Anas at
around 5.00 p.m on 25.02.2020, was the member of a large crowd and
unlawful assembly which, with animus against Hindus, had assembled
at Chand Bagh Pulia with a common object to commit rioting, loot,
arson and to cause damage to the property and person of the members
of the Hindu community; and that the members of this assembly knew
that it was likely that in prosecution of the objects of this assembly,
death could result and someone could be killed.
7.23.5 It is further proved beyond all reasonable doubts through
the testimonies discussed above that the members of this assembly,
being heavily armed, had used violence and indulged in rioting, arson
and loot. It is further established that the members of this assembly
had surrounded and dragged Ankit Sharma towards Chand Bagh Pulia
and had thereby abducted him where after in a savage and relentless
assault upon his person, had murdered him. I accordingly find that
being a member of this unlawful assembly, accused Anas, in view of
section 149 IPC, is vicariously liable for the afore-said offences. He is
further liable to be convicted for offence punishable u/s 153A r/w
section 149 IPC and as already discussed, the prosecution has
FIR No. 65/20
PS Dayalpur 287 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
successfully proved the sanction u/s 196 Cr.P.C(Ex.PW34/A). I
further find that as he had violated the prohibitory order u/s 144 Cr.P.C
and the complaint u/s 195 Cr.P.C (Ex.PW8/B) against him as been
proved, he is liable to be convicted for an offence punishable u/s 188
IPC.
7.23.6 I accordingly find that the prosecution has proved its case
beyond all reasonable doubts against accused Anas for commission of
offences punishable u/s 188 IPC, u/s 153A r/w section 149 IPC and
section 147 r/w section 149 IPC, section 148 r/w section 149 IPC,
section 365 r/w section 149 IPC and section 302 r/w section 149 IPC.
7.23.7 With regard to the charge of conspiracy, it has already
been found in earlier part of this judgment that the prosecution has not
led any substantive evidence to prove the charge of section 120B IPC
against any of the accused. I accordingly find that this accused is
entitled to an acquittal for the offence punishable u/s 120B IPC.
Accused Firoz
7.24 The case of the prosecution against this accused also
stands on the testimony of PW6. However, with regard to accused
Firoz, it has been argued that the witness due to his personal reasons
has falsely implicated this accused. In order to prove this point, it was
argued by ld. Counsel for accused that this witness during his cross
examination dated 28.03.2023, was suggested that in comparison to
other accused persons, Tahir Hussain was better known to him and he
FIR No. 65/20
PS Dayalpur 288 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
admitted this suggestion. Thereafter, in response to a court query, he
stated that he did not at all know the other accused persons whom he
had identified in this case. However, later on during his testimony
recorded in this court itself in FIR no. 98/20 of PS Khajuri Khas, he
deposed that he had known accused Firoz for about 10-12 years prior
to 24.02.2020 because Firoz had a tea stall in the locality. On being
asked by the court, why he did not tell the name of Firoz or his
profession to the IO when the IO first met him; he answered that
nobody asked him. He has filed certified copy of that statement and
contended that this reflects that accused has been falsely implicated.
7.24.1 Countering it, ld. SPP has contended that the witness was
not confronted with this statement and had no opportunity to explain
and thus, it cannot be used to discredit his testimony.
7.24.2 I have considered the rival submissions and also gone
through the certified copy of the statement of this witness in FIR No.
98/20, PS Khajuri Khas.
7.24.3 As far as the contention of ld SPP that the witness was not
confronted with his statement in FIR No. 98/20 is concerned, I find
that as this statement was recorded subsequent to the deposition of the
witness in this case, the accused did not have any opportunity to do so.
At the same time, the rigors of section 145 Evidence Act will also not
be applicable as section 145 IE Act applies to previous statements.
7.24.4 A bare perusal of the statement of this witness in FIR No.
FIR No. 65/20
PS Dayalpur 289 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
98/20 reflects that he had categorically stated that he had known the
accused even about10-12 years prior to the riots. This being the case,
his testimony in this case that he did not know accused Firoz at all
creates a serious doubt about his identification of accused Firoz. This
becomes more specific because of the intent of question of my learned
predecessor, as he had recorded, was to know whether the witness had
any acquaintance with other accused persons or had prior knowledge
of any of the other accused persons and, this witness answered with an
emphatic no. I accordingly find that a probable circumstance has been
established on behalf of accused Firoz that the witness may have
deposed against him due to ulterior motives and it will be unsafe to
convict this accused solely on the basis of the testimony of this
witness, without there being any corroborative evidence.
7.24.5 I accordingly find that accused Firoz is entitled to a
benefit of doubt and to be acquitted for all the charges framed against
him.
Accused Muntazim @ Musa
7.25 With regard to accused Muntazim, the case of the
prosecution again rests solely on the testimony of PW6. However, as
far as this accused is concerned, his testimony has to be looked at very
cautiously because the identification of accused Muntazim @ Musa
was done by this witness on 8.11.2022 i.e. after more than two years
and eight months of the incident. By then the accused had already
FIR No. 65/20
PS Dayalpur 290 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
been declared a proclaimed offender and I am unable to understand
that why before the apprehension of the accused, at least his photos
could not have been identified by this witness. The identification of
this accused after his apprehension by the witness more than two years
after his arrest does not inspire confidence and in my considered
opinion cannot be acted upon without any corroboration. The alleged
conversation of this accused with Haseen @ Mullaji cannot be of
corroborative value because those conversations could not even prove
the case against Haseen @ Mullaji against whom the evidence was
primarily cited.
7.25.1 There is an additional charge against this accused which
is u/s 174A IPC. However, the prosecution has not led any evidence to
prove this charge. Even the process server, who had executed the
process u/s 82 Cr.P.C, was not examined.
7.25.2 I accordingly find that for accused Muntazim @ Musa is
entitled to a benefit of doubt and to an acquittal for all the charges
framed against him.
Conclusion
7.26 In view of my above discussion:
(i) Accused Haseen @ Salman @ Mullaji, Firoz, Gulfam, Shoaib
Alam @ Bobby, Sameer Khan and Muntazim @ Musa are hereby
acquitted of all the charges framed against them. Their bail bonds
stand cancelled. Sureties stand discharged.
FIR No. 65/20
PS Dayalpur 291 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
(ii) Accused Tahir Hussain is convicted for commission of offences
punishable u/s 188 IPC, u/s 153A r/w section 149 IPC, section 147 r/w
section 149 IPC, section 148 r/w section 149 IPC, section 365 r/w
section 149 IPC and section 302 r/w section 149 IPC. He is acquitted
of the charges u/s 120B IPC, 505 IPC and 109/114 IPC.
(iii) Accused Nazim is convicted for commission of offences
punishable u/s 188 IPC, u/s 153A r/w section 149 IPC, section 147 r/w
section 149 IPC, section 148 r/w section 149 IPC, section 365 r/w
section 149 IPC and section 302 r/w section 149 IPC. He is acquitted
of the charges u/s 120B IPC and 7 r/w section 25 of Arms Act.
(iv) Accused Kasim is convicted for commission of offences
punishable u/s 188 IPC, u/s 153A r/w section 149 IPC, section 147 r/w
section 149 IPC, section 148 r/w section 149 IPC, section 365 r/w
section 149 IPC and section 302 r/w section 149 IPC. He is acquitted
of the charges u/s 120B IPC.
(v) Accused Javed is convicted for commission of offences
punishable u/s 188 IPC, u/s 153A r/w section 149 IPC, section 147 r/w
section 149 IPC, section 148 r/w section 149 IPC, section 365 r/w
section 149 IPC and section 302 r/w section 149 IPC. He is acquitted
of the charges u/s 120B IPC.
(vi) Accused Anas is convicted for commission of offences
punishable u/s 188 IPC, u/s 153A r/w section 149 IPC, section 147 r/w
section 149 IPC, section 148 r/w section 149 IPC, section 365 r/w
FIR No. 65/20
PS Dayalpur 292 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
section 149 IPC and section 302 r/w section 149 IPC. He is acquitted
of the charges u/s 120B IPC.
7.26.1 The convicts be heard separately on the point of sentence.
Pronounced in open court (Parveen Singh) on 13.07.2026. ASJ-03, North East Distt., (This judgment contains 293 pages Karkardooma Court, Delhi. and from page no. 294 to 320 are the annexure 1 to annexure 5 each page bears my signatures) FIR No. 65/20 PS Dayalpur 293 of 320 (Parveen Singh) ASJ-03/NE/KKD: 13.07.26 ANNEXURE -1 LIST OF PROSECUTION WITNESSES Prosecution Name of Witness Description Witness No. PW1 ASI Ram Prakash He was the DO and proved the FIR. PW2 Sh. Gautam Khanna He was running photo studio in the name of 'Impression Photo Studio' and video recorded postmortem examination of a dead body. PW3 ACP Mahesh He was working as draughtsman and at the instance of IO, he prepared scaled site plan on the basis of his rough notes. PW4 SI Ishwar Prakash He was working as photographer in photo section of crime branch and took the photographs of the scene of crime. PW5 HC Rahul He was the material eye witness of the incident and his detailed testimony shall be discussed later on. PW6 Sh. Pradeep Verma He was an eye witness of the incident and his detailed testimony shall be discussed later on. PW7 Ct. Pawan Kumar He made announcement of order u/s 144 Cr.P.C. in the FIR No. 65/20 PS Dayalpur 294 of 320 (Parveen Singh) ASJ-03/NE/KKD: 13.07.26 area. PW8 ASI Naresh Pal He was the formal witness and proved copy of order u/s 144 Cr. PC and complaint u/s 195 Cr.PC. PW9 ASI Rajender Kumar After receipt of DD no.63A in respect of Ankit Sharma being brought dead in GTB Hospital, he got the dead body identified by father Ravinder and uncle Rajiv. He filled the request form and form 25.35 and also seized the items which were handed over to him. PW10 ASI Joginder Singh He participated in investigation of this case on 09.04.2020 alongwith other team members, proved arrest & p/search memo of accused Samir and also proved pointing out memo at his instance. PW11 Sh. Deepak Pradhan He witnessed the riots taking place on 25.02.2020 and after reaching Shiv Sanatam Mandir in Moonga Nagar, he witnessed that stones and petrol bombs were being pelted from the terrace of house of Tahir Hussain. PW12 SI Birender Singh He participated in investigation of this case on 14.03.2020 alongwith other team members. He proved pointing FIR No. 65/20 PS Dayalpur 295 of 320 (Parveen Singh) ASJ-03/NE/KKD: 13.07.26 out memo at the instance of accused Haseen, disclosure statement of Haseen, sketch & seizure memo of knife, seizure memo of container containing soil/earth control, seizure memo of mobile phone Realme and seizure memo of title documents of building of Tahir Hussain. PW13 Sh. Aakash He was an eye witness of the incident and proved pointing out memo. PW14 Sh. Bharat He was an eye witness of the incident. PW15 Dr. Arvind Kumar He alongwith a board comprising of Dr. K.K. Banerjee, Dr. S.K.Verma , had conducted postmortem examination on the dead body of Ankit Sharma. He has proved postmortem report and subsequent opinion. PW16 Sh. Sushil Kumar He was a witness of recovery of dead body from the drain near Chand Bagh Pulia. PW17 Sh. Shehjad Ali He being a diver under supervision DM (East), took out dead body of a boy from the drain and handed over to the police. PW18 Insp. Karamveer He participated in investigation of this case on 28.02.2020 FIR No. 65/20 PS Dayalpur 296 of 320 (Parveen Singh) ASJ-03/NE/KKD: 13.07.26 alongwith IO and other team members. He proved seizure memo of blood lifted from 2 places & one piece of cement block, mobile phone of Gulfam, mobile phone of Firoz and mobile phone of Shoeb. He also proved arrest memo of accused Anas, Firoz, Javed, Gulfam & Shoiab Alam. PW19 Sh. Vikalp Kochar He witnessed his shop M/s Bunny Bakers, being burnt & looted in chand bagh pulia during the month of February 2020. He also witnessed the incident happened with deceased with danda and sharp object. His detailed testimony shall be discussed at a later stage. PW20 Sh. Rahul Kumar He was a witness of recovery of dead body. PW21 Sh. Gyanender Kumar He witnessed his shop M/s Kochar Bunny Bakers, being vandalized, looted and set on fire. His detailed testimony shall be discussed later on. PW22 ASI Praveen He was a formal witness in whose presence two mobile phones make Samsung were collected and he has proved the seizure memo of said mobile phones. FIR No. 65/20 PS Dayalpur 297 of 320 (Parveen Singh) ASJ-03/NE/KKD: 13.07.26 PW23 Sh.Sudhir Kumar He was the maternal uncle Sharma (mamaji) of the deceased and was a witness of identifying & recovery of dead body from the drain near chand bagh pulia. PW24 Sh. C.P. Singh He was the expert of the Forensic Lab in Physics division and has proved the voice comparison of accused Haseen @ Mullaji @ Salman. PW25 Sh. Geeetesh Patel He was the expert of the Forensic Lab in Physics division and has checked the continuity of PD-A i.e. the data retrieved by Sh. Vikas Kumar, Assistant Director (FSL). PW26 Sh. Ajay Kumar He was the Nodal Officer of Bharti Airtel Ltd. and has proved CDRs of 4 mobile numbers alongwith certificate u/s 63 BSA and Cell ID chart. PW27 Sh. Sanjay Singh He was a witness of recovery of dead body from the drain near chand bagh pulia. PW28 Sh. Ravinder Kumar He was the father of the deceased Ankit Sharma. His testimony shall be discussed at a later stage. PW29 ASI Jaiveer He was a formal witness and has proved the seizure memo of mobile phone make I-Tel. PW30 SI Satbir Singh He was a witness of depositing the exhibits in FSL Rohini, on FIR No. 65/20 PS Dayalpur 298 of 320 (Parveen Singh) ASJ-03/NE/KKD: 13.07.26 the instructions of IO/Insp. Amleshwar. He has proved the true photocopy of R/C no.20/21/20 & case acceptance acknowledgment of FSL. PW31 Dr. Indresh Kumar He was a witness of visiting Mishra scene of crime i.e. Chand Bagh pulia, Khajuri nala alongwith other officials of FSL. He has proved biological inspection report. PW32 ASI Pramod Singh He was a witness of collecting the exhibits from malkhana Crime branch and depositing the same in FSL Rohini. He has proved acknowledgment letter. PW33 HC Praveen Kumar He was an eye witness of the incident. His testimony shall be discussed at a later stage. PW34 Sh. L. K. Gautam He was a witness of according sanction u/s 196 Cr. PC for offences u/s 153A/505 IPC and has proved the sanction order dt. 16.12.2020. PW35 Sh. Vikas Kumar He was an expert of Forensic Lab, who retrieved the data from exhibits and copied the same in a pendrive. He has proved the certificate in respect of CD. PW36 HC Kuldeep He deposited the exhibits in FSL Rohini. FIR No. 65/20 PS Dayalpur 299 of 320 (Parveen Singh) ASJ-03/NE/KKD: 13.07.26 PW37 Sh. Surendra Pal Singh He was a formal witness. PW38 ASI Sanjay Kumar He was the duty officer and has proved DD no.9A. PW39 ASI Jasbir Singh He handed over the exhibits to Ct. Kuldeep for depositing the same in FSL. He has proved R/C no.59/21/20 PW40 HC Sachin He was a witness of recovery of dead body from the drain near chand bagh pulia. He has proved seizure memo of DVDs and certificate u/s 65B of IE Act. PW41 Dr. Nadeem Akhtar He had prepared the MLC of Ankit Sharma and has proved his death certificate. PW42 W/HC K.M. Neetu He uploaded the FIR of this case on CCTNS. PW43 Sh. Prakash Saxena He was the Nodal Officer of Reliance Jio Infocom Ltd and has proved the CDRs & CAFs of different numbers. He has also proved the Cell ID chart and certificate u/s 63 of BSA. PW44 Sh. Shashank Tyagi He was the Nodal Officer of Vodafone Idea Ltd.and has proved the CDRs & CAFs of different numbers. He has also proved the Cell ID chart and certificate u/s 63 of BSA. PW45 SI Ravi Kumar He was a witness of apprehension of accused Muntazim @ Musa (PO). FIR No. 65/20 PS Dayalpur 300 of 320 (Parveen Singh) ASJ-03/NE/KKD: 13.07.26 PW46 Insp. Hukam Singh He was the first IO and was a witness of inquest and transfer of case to SIT. PW47 Sh. Rakash Kumar On 08.05.2020, being posted as Rampuri ld. MM, he has proved proceedings u/s 164 Cr. PC. PW48 HC Veeresh On 31.10.2022, he was working as MHC(M) and has proved the RC no.411/21/22 and seizure memo of two mobile phones. PW49 ASI Yogender On 12.10.2022, he joined the investigation of this case with IO/Insp. Amit Prakash. He has proved the arrest memo of Muntajim @ Musa & pointing out memo of place of incident. PW50 ASI Sanjeev Kumar He was a witness of recovery of dead body and knife. He has proved the arrest & p/search memo of accused Nazim & Kasim and seizure memo of knife. PW51 SI Satender Malik On 20.04.2010, he was working as MHC(M), who handed over mobile phone to ASI Jaiveer Singh from SIT, AHTU, Crime branch. He has proved R/C no.96/21/20. PW52 Sh. Hamender Kumar He was a surveillance witness, who proved intercepted calls and linkage of accused Salman. PW53 Sh. Satya Gopal He was Addl. Chief Secretary FIR No. 65/20 PS Dayalpur 301 of 320 (Parveen Singh) ASJ-03/NE/KKD: 13.07.26 (Home), GNCT, who had passed order, permitting interception of incoming and outgoing calls and messages. PW54 Sh. Rajeev Kumar He was a witness of Sharma identification of dead body of Ankit Sharma. PW55 ASI Kuldeep Singh He participated in investigation of case alongwith IO and other team members. He was a witness of FSL proceedings, seizure of exhibits lifted from the place near the boundary wall of the drain, as well as arrest of accused Tahir Hussain. PW56 Ms. Priyanka Gaur She was an eye witness, who had seen Tahir Hussain instigating the mob. PW57 Ct. Sohanveer He deposited the exhibits to FSL Rohini. PW58 Nadeem Khan He used to have telephonic conversation with Haseen. PW59 Dr. Parshuram Singh He was an expert of FSL PW60 Shakeel Anwar He was a formal witness, whose two government cameras, affixed on outer wall of his factory were found in damaged condition. PW61 Akram He was a public witness, who obtained one SIM card for one Mahender, who was working with him. FIR No. 65/20 PS Dayalpur 302 of 320 (Parveen Singh) ASJ-03/NE/KKD: 13.07.26 PW62 Insp. Ram Kumar He took the 2 mobile phones from malkhana of Special Cell PS Lodhi colony, seized them and deposited the same in the malkhana of crime branch. PW63 Rahisuddin He was a witness, who had seen a person covering the cctv camera which was facing towards chand bagh pulia. PW64 ASI Pankaj On 13.04.2020, he was working as MHC(M) in PS Dayalpur, who has proved custody and despatch of case properties. PW65 HC Harender Kumar He was a witness of seizure of mobile phone of accused Shoiab Alam, Gulfam and Firoz. PW66 Sh. Neeraj Singh He was a witness who recorded the riots on video and has proved the seizure memo of his mobile phone. PW67 Ms. Nidhi He was an expert of FSL. PW68 Sh. Rohtash Singh He received one video on his WhatsApp, wherein 3 persons were seen throwing something in the drain and thereafter forwarded the same through WhatsApp to one police official. PW69 HC Sanjay Kumar He was a witness of seizure of mobile phone of accused Javed. FIR No. 65/20 PS Dayalpur 303 of 320 (Parveen Singh) ASJ-03/NE/KKD: 13.07.26 PW70 Sh. Dharmender Kumar He was examined to produce the kalandra vide DD n.2A, PS Special Cell. PW71 Sh. Anil Kumar Tripathi He was also examined to produce the kalandra. PW72 ASI Naresh Kumar He was a witness of arrest of accused Muntajim @ Musa (PO) from Telangana. PW73 ASI Ashok He was the MHC(M) in PS Dayalpur. PW74 Sh. Brajesh Kumar He was an expert of RFSL, Bihar PW75 Sh. Faheem @ Chikna He was a public witness. He did not support the case of prosecution. PW76 Insp. Jaiveer He was a witness who proved arrest of accused Salman @ Mullaji, under kalandra vide DD no.2A. He has also proved certificate u/s 65B of IE Act and seizure memo of intercepion of mobile phone of Salman. PW77 Rajan Bhatnagar He was a witness of conveying the prosecution sanction (accorded by Hon'ble LG) to DCP, HQ-II, DCP Crime-I, HQ and the Commissioner of Police, Delhi. PW78 Sh. Kaushlendra Kumar He was an expert of SFSL, Patna, Bihar. PW79 Insp. Anleshwar Rai He was the IO of this case. His FIR No. 65/20 PS Dayalpur 304 of 320 (Parveen Singh) ASJ-03/NE/KKD: 13.07.26 detailed testimony shall be discussed at a later stage. PW80 Sh. Sanjeev Yadav He authorized the interception of mobile no.9891167837 alongwith 3 other numbers. PW81 Insp. Amit Prakash He was the IO of this case, who filed the suplementary chargesheet. He has proved the digital analysis, transcripts and arrest of absconding accused. PW82 Sh. Dattatray Atmaram He was a witness, who collected the result and exhibits from the CFSL, Lodhi Colony and thereafter deposited the same in malkhana Crime branch and malkhana PS Dayalpur. PW83 SI Vikash Kumar He was a witness, who recorded the voice of Faheem @ Chikna. PW84 W/Ct. Ankita He was a witness, who collected the exhibits and deposited the same with CFSL, Lodhi Colony. He has proved R/C no.625/21/25. PW85 HC Somesh He was also a witness, who after collecting the exhibits deposited the same with CFSL, Lodhi Colony. He has proved R/C no.88/21/25. PW86 SI Manoj He was a witness in whose presence, recording of voice of Nadeem was done. FIR No. 65/20 PS Dayalpur 305 of 320 (Parveen Singh) ASJ-03/NE/KKD: 13.07.26 PW87 Ct. Nishant He was a witness of collection of original FSL result and deposition of the same in malkhanas of Dayalpur and Crime branch. PW88 Sh. Arun Kumar Gupta He was an expert of CFSL, Lodhi Colony. PW89 Sh. Amitosh Kumar He was an expert of CFSL, Delhi PW90 Insp. Priyanka She was the supervisor of the procedure in voice sample proceedings of Nadeem and Faheem @ Chikna. She has proved the transcript of Nadeem and Faheem. PW91 ASI Praveen Kumar He downloaded some event IDs from server and taken out a printout of the same. He has proved a certificate u/s 65B of IE Act and PCR forms. FIR No. 65/20 PS Dayalpur 306 of 320 (Parveen Singh) ASJ-03/NE/KKD: 13.07.26 ANNEXURE -2 LIST OF PROSECUTION DOCUMENTS Exhibit No. Description of the Exhibit Proved/Attested by Ex.PW1/A Copy of DD no.63A PW1 Ex.PW1/B Endorsement on rukka PW1 Ex.PW1/C FIR PW1 Ex.PW1/D Kayami DD entry no.82A PW1 Ex.PW2/A Certificate u/s 65B of IE Act PW2 Ex.PW2/B Seizure memo of DVD PW2 Ex.PW3/A Site plan PW3 Ex.PW4/A Certificate u/s 65B of IE Act PW4 Ex.PW4/P1 to Photographs PW4 Ex.PW4/P11 Ex.PW6/A Statement u/s 164 Cr. PC PW6 Ex.PW8/A Copy of order u/s 144 Cr.PC PW8 Ex.PW8/B Complaint u/s 195 Cr.PC PW8 Ex.PW9/A & Identification memos signed by PW9 Ex.PW9/B Ravinder and Rajiv Ex.PW9/C Request form PW9 Ex.PW9/D Form 25.35 PW9 Ex.PW9/E Seizure memo of sample seal, blood PW9 on gauze, pullanda of underwear and handkerchief of deceased Ex.PW10/A & Arrest memo and p/search memo of PW10 Ex.PW10/B accused Samir Ex.PW10/C Pointing out memo of the place of PW10 incident at the instance of accused Samir FIR No. 65/20 PS Dayalpur 307 of 320 (Parveen Singh) ASJ-03/NE/KKD: 13.07.26 Ex.PW12/A Pointing out memo of the place of PW12 incident at the instance of accused Haseen. Ex.PW12/B Disclosure statement of accused PW12 Haseen Ex.PW12/C Sketch of the knife PW12 Ex.PW12/D Seizure memo of pullanda of apparels PW12 Ex.PW12/E Seizure memo of knife PW12 Ex.PW12/F Seizure memo of container containing PW12 soil/earth control. Ex.PW12/G Seizure memo of mobile phone PW12 Realme Ex.PW12/H Seizure memo of title documents of PW12 building of Tahir Hussain Ex.PW12/I Seizure memo of mobile phone of PW12 Javed Ex.PW15/A Postmortem report PW15 Ex.PW18/A Seizure memo of plastic box PW18 containing blood and one piece of cement block Ex.PW18/B Arrest memo of accused Anas PW18 Ex.PW18/C Arrest memo of accused Firoz PW18 Ex.PW18/D Arrest memo of accused Javed PW18 Ex.PW18/E Arrest memo of accused Gulfam PW18 Ex.Pw18/F Arrest memo of accused Shoaib Alam PW18 Ex.PW18/G Seizure memo of mobile phone of PW18 accused Gulfam Ex.PW18/H Seizure memo of mobile phone of PW18 accused Firoz Ex.PW18/I Seizure memo of mobile phone of PW18 FIR No. 65/20 PS Dayalpur 308 of 320 (Parveen Singh) ASJ-03/NE/KKD: 13.07.26 accused Shoeb Ex.PW22/A Seizure memo of mobile phones PW22 Ex.PW24/A Report in respect of conducting PW24 auditory analysis of recorded speech sample of speakers
Ex.PW25/A Report in respect of conducting frame PW25
by frame analysis by using Video
Analyst System
Ex.PW26/A & Certified copy of CDR of mobile PW26
Ex.PW26/B no.9871938081 & certified copy of
scanned CAF
Ex.PW26/C & Certified copy of CDR of mobile PW26
Ex.PW26/D no.9911275010 & certified copy of
DKYC
Ex.26/E & Certified copy of CDR of mobile PW26
Ex.PW26/F no.9810363925 & certified copy of
scanned CAF
Ex.PW26/G & Certified copy of CDR of mobile PW26
Ex.PW26/H no.9958106778 & certified copy of
DKYC
Ex.PW26/I Certificate u/s 63 BSA PW26
Ex.PW26/J Cell ID chart PW26
Ex.PW29/A Seizure memo of mobile phone PW29
Ex.PW29/B Copy of entry in register no.21 PW29
Ex.PW30/A True photocopy of R/C no.20/21/20 PW30
Ex.PW30/B Case acceptance acknowledgment of PW30
FSL
Ex.PW31/A Report in respect of proceedings PW31
conducted by FSL team
Ex.PW31/B Report dt. 09.06.2020 PW31
FIR No. 65/20
PS Dayalpur 309 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
Ex.PW31/C Report of Allelic data PW31
Ex.PW32/A Acknolwledgment letter from FSL PW32
Ex.PW34/A Order dt. 16.12.2020 as passed by PW34/A
Hon’ble LG
Ex.PW35/A FSL report dt. 30.09.2020 in respect PW35
of Mobile Phones Ex.MP1 to MP6
with its memory cards & Sim cards
Ex. SC1 to SC5.
Ex.PW35/B FSL report dt. 31.08.2020 in respect PW35
of Mobile Phones Ex.MP1 & MP2
with Sim cards Ex. SC1 and SC2.
Ex.PW35/C Certificate u/s 65B of IE Act in PW35 respect of CD Ex.PW36/A True photocopy of RC no.139/21 PW36 Ex.PW38/A DD no.9A PW38
Ex.PW39/A True photocopy of R/C no.59/21/20 PW39
Ex.PW40/A Seizure memo of DVD PW40
Ex.PW40/B Certificate u/s 65B of IE Act PW40
Ex.PW41/A MLC PW41
Ex.PW41/B Carbon copy of death certificate of PW41
Ankit Sharma
Ex.PW41/C Emergency registration card of Ankit PW41
Sharma
Ex.PW43/A & CDR of mobile no.9354042257 and PW43
Ex.PW43/B certified copy of EKYC
Ex.PW43/C CDR of mobile no.6395632069 and PW43
and certified copy of EKYC
Ex.PW43/D
Ex.PW43/E Certificate u/s 63 BSA in respect of PW43
mobile no. 9354042257
FIR No. 65/20
PS Dayalpur 310 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
Ex.PW43/F Certificate u/s 63 BSA in respect of PW43
mobile no. 6395632069
Ex.PW43/G Cell ID chart in respect of mobile no. PW43
9354042257
Ex.PW43/H Cell ID chart in respect of mobile no. PW43
6395632069
Ex.PW44/A & CDR of mobile no.8588924129 & PW44
Ex.PW44/B certified copy of scanned CAF
Ex.PW44/C & CDR of mobile no.9891967512 & PW44
Ex.PW44/D certified copy of DKYC
Ex.PW44/E & CDR of mobile no.9990263650 & PW44
Ex.PW44/F certified copy of EKYC
Ex.PW44/G & CDR of mobile no.8512013294 & PW44
Ex.PW44/H certified copy of DKYC
Ex.PW44/I & CDR of mobile no.9891167837 & PW44
Ex.PW44/J certified copy of EKYC
Ex.PW44/K & CDR of mobile no.7055907361 & PW44
Ex.PW44/L certified copy of DKYC
Ex.PW44/M & CDR of mobile no.7290014859 & PW44
Ex.PW 44/N certified copy of DKYC
Ex.PW44/O CDR of mobile no.7290014859 PW44
Ex.PW44/P Certified copy of DKYC in respect of PW44
mobile no.9278935412
Ex.PW44/Q Certified copy of DKYC in respect of PW44
mobile no.9540206037
Ex.PW44/R Certificate u/s 63 BSA PW44
Ex.PW44/S Cell ID chart PW44
Ex.PW45/A & Arrest memo and p/search memo of PW45
Ex.PW45/B accused Muntazim @ Musa.
Ex.PW45/C Receiving on application for grant of PW45
FIR No. 65/20
PS Dayalpur 311 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
transit remand of accused Muntazim
@ Musa
Ex.PW45/D Kalandra u/s 41.1 Cr. PC PW45
Ex.PW46/A Endorsement on statement of PW46
Ravinder Sharma
Ex.PW47/A Proceedings u/s 164 Cr. PC PW47
Ex.PW47/B Proceedings u/s 164 Cr. PC dt. PW47
08.05.2020
Ex.PW48/A True photocopy of RC no.411/21/22 PW48
Ex.PW49/A Arrest memo of accused Muntajim @ PW49
Musa
Ex.PW49/B Pointing out memo of place of PW49
incident
Ex.PW50/A Arrest memo of accused Nazim PW50
Ex.PW50/B Arrest memo of accused Kasim PW50
Ex.PW50/C P/search memo of accused Nazim PW50
Ex.PW50/D P/search memo of accused Kasim PW50
Ex.PW50/E Pointing out memo of place of PW50
incident
Ex.PW50/F Sketch of the knife PW50
Ex.PW50/G Seizure memo of knife PW50
Ex.PW50/H Disclosure statement of Nazim PW50
Ex.PW50/I Seizure memo of DVD containing PW50
call interception records of mobile no.
9891167837, copy of interception
order issued by DCP/Spl.Cell,
certificate u/s 65B of IE Act and
sample seal
Ex.PW50/J True photocopy of RC no.39/21/20 PW50
Ex.PW50/K Seizure memo of the cassettes PW50
FIR No. 65/20
PS Dayalpur 312 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
Ex.PW50/L True photocopy of RC no.143/21 PW50
Ex.PW50/M Acknowledgment of case acceptance PW50
dt. 05.05.2020
Ex.PW53/A Copy of order dt. 23.01.2020 passed PW53
by Addl. Chief Secretary (Home),
GNCT.
Ex.PW55/A Seizure memo of two exhibits lifted PW55
from near the boundary wall of the
drain in front of bunny cake shop.
Ex.PW55/B Arrest memo of accused Tahir PW55
Hussain
Ex.PW55/C True photocopy of RC no.101/21/20 PW55
Ex.PW57/A True photocopy of RC no.137/21 PW57
Ex.PW57/B True photocopy of RC no.138/21 PW57
Ex.PW57/C & Two acknowledgment receipts PW57
Ex.PW57/D dt.23.04.2020 in respect of exhibits of
two forwarding letters
Ex.PW57/E Carbon copy of R/C no.62/21/20 PW57
Ex.PW57/F Seizure memo of mobile phones of PW57
Nazim and Kasim
Ex.PW59/A FSL report in respect of handkerchief, PW59
underwear and soil material.
Ex.PW64/A Entry made in register no.19 in PW64
column no.5 against S.No.122
Ex.PW64/B Entry made in register no.19 in PW64
column no.5 against S.No.135
Ex.PW64/C Entry made in register no.19 in PW64
column no.5 against S.No.120
Ex.PW64/D Entry made against S.no.58 PW64
Ex.PW64/E Entry made against S.no.83 PW64
FIR No. 65/20
PS Dayalpur 313 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
Ex.PW64/F Entry made against S.no.99 PW64
Ex.PW64/G Entry made against S.no.49 PW64
Ex.PW67/A Certificate dt. 08.05.2025 PW67
Ex.PW67/B Hash value of the mirror copy PW67
Ex.PW69/A Carbon copy of R/C no.63/21/20 PW69
Ex.PW73/A Entry made in register no.19 vide PW73
S.no.49
Ex.PW73/B Entry made in register no.19 vide PW73
S.no.58
Ex.PW73/C Entry made in register no.19 vide PW73
S.no.83
Ex.PW73/D Entry made in register no.19 vide PW73
S.no.99
Ex.PW73/E Entry made in register no.19 vide PW73
S.no.120
Ex.PW73/F Entry made in register no.19 vide PW73
S.no.122
Ex.PW73/G Entry made in register no.19 vide PW73
S.no.135
Ex.PW74/A Report in respect of inspection taken PW74
place on 09.03.2020
Ex.PW76/A & Arrest and p/search memo of accused PW76
Ex.PW76/B Salman @ Mullaji
Ex.PW76/C Kalandra vide DD no.2A PW76
Ex.PW76/D Certificate u/s 65B of IE Act PW76
Ex.PW77/1 Copy of sanction order PW77
Ex.PW78/1 Crime scene report dt. 29.9.2020 PW78
Ex.PW79/1, Three Site plans PW79
Ex.PW79/2 &
Ex.PW79/3
FIR No. 65/20
PS Dayalpur 314 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
Ex.PW79/4 Application moved before FSL for PW79
inspection of scene of crime
Ex.PW79/5 Certificate u/s 65B of IE Act in PW79
respect of photos
Ex.PW79/6 to Photographs PW79
Ex.PW79/8
Ex.PW79/9 Arrest memo of accused Haseen @ PW79
Mulla
Ex.PW79/10 Site plan of the place of recovery PW79
Ex.PW79/11 Another site plan of the place of PW79
recovery
Ex.PW79/12 Transcripts of version of accused PW79
Haseen @ Salman
Ex.PW79/13 Seizure memo of DVD PW79
Ex.PW79/14 White envelope containing cotton PW79
wool swab
Ex.PW80/1 Copy of forwarding letter dt. PW80
28.01.2020
Ex.PW81/1 & Transcripts of the conversation PW81
Ex.PW81/2 between Haseen and Saira
Ex.PW81/3, Transcripts of the conversation PW81
Ex.PW81/4 & between Haseen and Nadeem
Ex.PW81/5
Ex.PW81/6 & Transcripts of the conversation PW81
Ex.PW81/7 between Haseen and Faheem @
Chikna
Ex.PW81/8 Transcripts of the conversation PW81
between Haseen and Muntajim @
Musa
Ex.PW81/9 & Transcripts of the conversation PW81
Ex.PW81/10 between Haseen and Sameer Khan
FIR No. 65/20
PS Dayalpur 315 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
Ex.PW83/1 Seizure memo of SD card PW83
Ex.PW83/2 White envelope bearing mark S-1 PW83
Ex.PW83/3 The original packing of SD card make PW83
Sandisk 16 GB
Ex.PW83/4 Folder 01 containing one audio file PW83
Ex.PW84/1 True photocopy of RC no.625/21/25 PW84
Ex.PW85/1 True photocopy of RC no.88/21/25 PW85
Ex.PW86/1 Seizure memo of micro SD card PW86
Ex.PW86/2 White envelope PW86
Ex.PW86/3 Original packing of SD card make PW86
Sandisk 16 GB
Ex.PW86/4 Folder 01 containing one audio file PW86
Ex.PW87/1 True photocopy of RC no.782/21/25 PW87
Ex.PW87/2 True photocopy of RC no.294/21/25 PW87
Ex.PW87/3 True photocopy of RC no.121/21/25 PW87
Ex.PW88/1 & Print outs of generated hash value PW88
Ex.PW88/2
Ex.PW88/3 Opinion with regard to the fact that PW88
questioned voices matched with
sample voice.
Ex.PW88/4 The envelope Exhibit S1 PW88 Ex.PW89/1 FSL opinion PW89 Ex.PW90/1 Transcript of Nadeem PW90 Ex.PW90/2 Transcript of Faheem PW90 Ex.PW91/1 Certificate u/s 65B of IE Act PW91 FIR No. 65/20 PS Dayalpur 316 of 320 (Parveen Singh) ASJ-03/NE/KKD: 13.07.26 ANNEXURE -3 LIST OF ARTICLES PROVED BY PROSECUTION Exhibit No. Description of the Exhibit Proved/Attested by Ex.PW2/Article-1 DVD PW2 Ex.PW15/Article-1 Weapons i.e. knives PW15 & Ex.PW15/Article-2 Ex.PW24/Article-1 DVD PW24 Ex.PW24/Article-2 Audio cassette PW24 Ex.PW25/Article-1 Pendrive PW25 Ex.PW35/Article-1 CD PW35 Ex.PW35/Article-2 Mobile phones with Sim cards PW35 & Ex.PW35/Article-3 Ex.PW35/Article-4 Mobile phone with memory PW35 card
Ex.PW35/Article-5 Mobile phone with keypad PW35
make Samsung and One SIM
card bearing endorsement of
SC-2
Ex.PW35/Article-6 Mobile phone with keypad PW35
make I-Tel and one SIM card
bearing endorsement of SC-3.
Ex.PW35/Article-7 Mobile phone make Samsung, PW35
one SIM card and one memory
card bearing endorsement of
SC-4 and MC-2.
Ex.PW35/Article-8 Mobile phone with keypad PW35
FIR No. 65/20
PS Dayalpur 317 of 320
(Parveen Singh)
ASJ-03/NE/KKD: 13.07.26
make I-Tel, one SIM card
bearing endorsement of SC-5 &
one memory card bearing
endorsement of MC-3.
Ex.PW59/Article-1 Handkerchief PW59 Ex.PW59/Article-2 Underwear PW59 Ex.PW59/Article-3 Soil material PW59 Ex.PW67/Article-1 Pendrive PW67 Ex.PW79/Article-1 Jeans Trouser PW79 Ex.PW79/Article-2 Round neck T-shirt PW79 Ex.PW79/Article-3 Red shirt PW79 Ex.PW79/Article-4 Plastic container box PW79 Ex.PW79/Article-5 Cement stone piece PW79 Ex.PW79/Article-6 Cotton wool swab PW79 Ex.PW83/Article-1 Micro SD card PW83 Ex.PW86/Article-1 Micro SD card PW86 FIR No. 65/20 PS Dayalpur 318 of 320 (Parveen Singh) ASJ-03/NE/KKD: 13.07.26 ANNEXURE -4 LIST OF DEFENCE WITNESSES Defence Name of Witness Description witness no. DW-1 Dr. Parshuram Singh He was the witness from FSL, Rohini (Physics Division) and had brought the quality manual and printout of International Standard ISO/ ISE 17025. D.W-2 Dr. Reeta R Gupta She was the witness from CFSL, N.Delhi and had brought the working procedural manual of the physics division as is applicable for voice sampling and auditory analysis. FIR No. 65/20 PS Dayalpur 319 of 320 (Parveen Singh) ASJ-03/NE/KKD: 13.07.26 ANNEXURE -5 LIST OF DOCUMENTS PROVED DURING DEFENCE EVIDENCE Exhibit No. Description of the Exhibit Proved/Attested by D.W1/1 Quality manual DW-1 D.W1/2 Printout of International Standard D.W-1 ISO/ ISE 17025. D.W2/1 Working procedural manual of the D.W-2 physics division. FIR No. 65/20 PS Dayalpur 320 of 320 (Parveen Singh) ASJ-03/NE/KKD: 13.07.26
