State v. Ashish Kumar (2021) - Allegations u/s147/148/149/365/326/153-A/302/395/120-B IPC

• JUDGEMENT SUMMARY: State v. Ashish Kumar
• DATE OF JUDGEMENT: 08^th February, 2021
• JUDGES: Mr. Justice Judge Vinod Yadav
• PARTIES: State (Plaintiff)Ashish Kumar(Respondent)

SUBJECT

The following order deals withSections147/148/149/365/326/153­A/302/395/120­B under IPC.Section147 deals with punishment for rioting. “Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.” Section 148: Rioting, armed with deadly weapon. “Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both." Subsequently, observing that an innocent person was brutally murdered, just because of the fact that he belonged to other community, the Karkardooma Court (Delhi) on Monday (08th February) denied bail to the murder accused Ashish Kumar.

AN OVERVIEW

1. The learned counsel, for the applicant has very vehemently arguedthat the applicant has been falsely implicated in the matter by the investigating agency merely on the basis of disclosure statement of co­accused persons.
2. On the contrary, the learned Special PP for the State has very vehemently argued that the present case relates to the murder of one innocent person namely Suleman, S/ Shri Yusuf, who was brutally murdered by the “riotous mob” near Prem Vihar puliya within the jurisdiction of PS Karawal Nagar and his dead body was thrown into ganda nala.
3. A FSL team   was   called   on   the   spot,   who   also   examined   the   CCTV footage(s) and same were also shown to persons and informers near the place of occurrence.
4. An eye witness Sanober, S/o Rahisuddin (who is stated to be the friend/colleague of deceased and was present with the deceased at the time of incident) was also examined, who gave a clear, categorical and step­by­step account of the series of events which happened with them.
5. The learned Special PP has argued that at this stage, there is enough material available against the applicant, which clearly depicts him to be a part of the “riotous mob”, who had been “brutally murdered” deceased Suleman, just because of the fact that he belonged to a different community.
6. It is argued by the learned Special PP that there is no lawwhich mandates the investigating agency to obtain the CDRs of the witnesses.
7. Evidence of a number of witnesses recorded in the matter, it is prima facie  apparent that the “riotous mob” armed with “weapons” had abducted the deceased Suleman to commit his murder merely on account of the fact that he was from a different community.

IMPORTANT PROVISIONS

Indian Penal Code

• Section 147- Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
• Section 148- rioting, armed with deadly weapon. —Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
• Section149- It provides for vicarious liability of members of an unlawful assembly for the crime committed by any member of the assembly in furtherance of the common object and makes them liable for the same punishment.
• Section 302- Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.
• Section 120 (B)- Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted.
• Section 395- Punishment for dacoity. Whoever commits dacoity shall be punished with 1[imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.

ISSUES

• It was argued by the learned counsel on behalf of the applicant that a chargesheet has already been filed; the applicant is no more required for custodial interrogation; and no useful purpose would be served by keeping him behind bars in the matter, as trial of the case is likely to take long time. It is claimed that the applicant has clean past antecedents. Is that enough to prove him applicable for bail?
• The nature of allegations against the applicant are very serious and the possibility of the applicant threatening or intimidating witnesses, if released on bail at this stage cannot be ruled out.

ANALYSIS OF THE JUDGEMENT

1. It was argued that the applicant is not named in the FIR. No possible recovery of any sort has been effected from him.  No electronic evidence available against the applicant, either in the form of any CCTV footage(s)  or   his   CDR   location,   which   could prima facie show   his presence at the scene of crime on the date of incident.  Therefore, the ingredients of Section 302 IPC and 307 IPC are not made out against the applicant and theother sections invoked in the matter are bailable. Eye witness: Sanober, Sunil, Mamur and Neeraj are “planted witnesses”, as the police failed to obtain their CDRs. The counsel for the applicant has further submitted that “bail is not to be withheld as a punishment before the trial” and “presumption of innocence” of the accused remains till the time he is pronounced guilty by the Court and mere filing of chargesheet does not prove the guilt of an accused.
2. It was stated that when HC Purshottam along with Constable Shubham reached   the   said   hospital, where they were informed that the said patient/injured had already died during treatment.  It was revealed that the said patient had sustained grievous injuries at the hands of “riotous mob” at Shiv Vihar ganda nala patri during the communal riots and a PCR van had brought him to GTB Hospital. An investigation was conducted, CCTV cameras were checked, Eyewitness reports were taken, and two public witnesses were also investigated.
3. After all the above mentioned matters were efficiently investigated the learned Special PP has argued that at this stage, there is enough material available against the applicant, which clearly depicts him to be a part of the “riotous mob”, who had “brutally murdered” deceased Suleman, just because of the fact that he belonged to a different community. Thesubmissions in this regard can be broadly categorized into following: (i) Physical/OralEvidence: It has been stated that eye witnesses namely Sanober and Sunil Kumar, who were present with the deceased at the time of incident have given a clear,  categorical  and step­by­step account of the sequence of events which occurred at the scene of crime. (ii) CCTVfootage/photograph:It has been emphasized that the applicant is “clearly visible” in theCCTV   footage,   walking   behind   the   “riotous   mob”,   who   was prodding deceased Suleman with dandas. (iii) OtherEvidence: It has been emphasized that applicant has been duly identified by PW Neeraj Kumar through his photograph and CCTV footage as the person actively involved in the rioting incident on 26.02.2020.
4. It was argued then by the learned Special PP that there is no law which mandates the investigating agency to obtain the CDRs of the witnesses. The learned Special PP has taken me through page 47 of the chargesheet, which is copy of the “Attendance Register” of the O/o Yusuf, to emphasize that PW Sanober, deceased Suleman, PW Mamur and PW Sunil were working in his office at the time.
5. It was subsequently argued that,by the learned counsel for the applicant about Section 149IPC, it is argued that the proclamation under Section 144 Cr.P.C was in operation and the applicant has no reasonable justification as to what he was doing with the mob of rioters, which is categorically seen carrying, deceased Suleman towards Prem Vihar puliya on 33 foota road, where finally he was found dead. It is vehemently argued that the kind of demeanor being exhibited by the applicant in the CCTV footage, clearly evident that he was taking active part in abducting and subsequent killing of the deceased.
6. Bring into account the evidence of a number of witnesses recorded in the matter, it is prima facie  apparent that the “riotous mob” armed with “weapons” had abducted the deceased Suleman to commit his murder merely on account of the fact that he was from a different community.  Therefore, at this stage it cannot be said with certainty that the applicant did not have a common object with the other persons of unlawful assembly.  The “common object” of this kind of riotous mob can be easily inferred from their demeanor, depicted in the CCTV footage.  We are at pre­cognizance stage and this Court has limitations in making in­depth analysis of the statements of witnesses, which are yet to be tested on the anvil of trial. Whether the accused can be convicted in the matter with the aid of Section 149 IPC is a preposterous conclusion at this stage, as the evidence is yet to be led in the matter.  Consequently, from the aforesaid behavior of “riotous mob”, the “common object” can be inferred at this stage.
7. A clear identification of the applicant through the evidence of public/eye witnesses namely Neeraj Kumar.  He is also clearly visible in the CCTV footage walking behind the riotous mob that was prodding deceased Suleman with “dandas”.   Even in the photographs which were got developed from the CCTV footages, the applicant is clearly seen with co­accused Gaurav and apprehended juvenile being part of the “riotous mob” and taking active part in the rioting. 

CONCLUSION

The nature of allegations against the applicant are very serious. Public witnesses in   the   matter   are   residents of   the   same   locality   and   the possibility of applicant threatening or intimidating them, if released on bail at this stage cannot be ruled out. This Court has already dismissed the regular bail application of co­accused Hemant Pratap detailed order dated 02.09.2020 and the role assigned to applicant in the matter prima facie appears to be on same/identical footing. Hence, Bail applicant was denied. It was clarified that anything stated hereinabove shall not be construed as expressing any opinion on the final merits of the case, as the case is at “pre­cognizance/pre­committal stage”. 

Click here to download the original copy of the judgment