10 Jun 2023 6:06 AM GMT
While acquitting a Muslim man in a 2020 North-East Delhi riots case, a Delhi Court pulled up the Delhi Police for "falsely" citing the complainant as a witness who could identify accused as the offender. Chief Metropolitan Magistrate Shirish Aggarwal of Karkardooma Courts also disbelieved the testimony of an alleged Police witness observing,“It appears that his statement was procured...
While acquitting a Muslim man in a 2020 North-East Delhi riots case, a Delhi Court pulled up the Delhi Police for "falsely" citing the complainant as a witness who could identify accused as the offender.
Chief Metropolitan Magistrate Shirish Aggarwal of Karkardooma Courts also disbelieved the testimony of an alleged Police witness observing,
“It appears that his statement was procured and prepared falsely and belatedly to solve this case.”
The court acquitted Noor Mohammad of the offences of rioting and unlawful assembly punishable under Sections 147, 148, 188, 323, 394, 427 and 149 of Indian Penal Code, 1860.
“The fact that the State falsely cited the complainant as a witness who can identify the accused as the offender, indicates that the case of the prosecution that the offence was committed by the accused Noor Mohammad is false,” the court said.
The judge also questioned identification of Noor Mohammad by a Head Constable who claimed to be an eye-witness to the alleged rioting.
“It is hard to fathom that a police officer who is courageous enough to make efforts for stopping the mob just stood there as a mute spectator when the rioting and plundering was taking place...No explanation has been given by the said witness who is a police officer for standing by and just watching and waiting...He did not even deem it fit to make a video of the offence being committed, even though he was at a relatively safe distance.”
It was the prosecution’s case that the complainant, Mohd. Rashid, had come to Khajuri Khas police station and identified Noor Mohammad as one of the persons who vandalized his shop and was part of the mob.
Noor Mohammad was already present in the police station and was being interrogated in another case. The complainant’s statement was recorded by the IO on April 02, 2020 and Noor Mohammad was then arrested the same day.
However, during the trial, the complainant, who was the first prosecution witness, was declared hostile by the prosecution since he failed to identify Noor Mohammad as the offender. The complainant denied that Noor Mohammad was arrested in his presence or that he identified him in the police station on April 02, 2020.
Another prosecution witness, a head constable who was the beat officer posted at the area in question, deposed that he was present at the spot and identified some persons in the mob. He also said that he had tried to stop the mob, but could not control the same.
However, during cross examination, he admitted that he never informed the IO or any superior officer that he had witnessed the offence being committed and that he can identify some of the offenders.
Discarding the testimony of the head constable, the court said that it finds it unsafe to rely on the uncorroborated testimony of a “single purported eye witness” as his testimony was found to be in contradiction with other evidence and also because of the other deficiencies, drawbacks and infirmities in his own testimony.
“It is hard to believe that a police officer who has witnessed an offence being committed in his area of posting did not make any complaint in this regard. He never reported the matter at his police station for registration of FIR. He did not call up 100 number for seeking immediate police aid. He did not make any attempt to arrest any of the offenders. In his examination-in- chief, he has claimed that he tried to stop the mob, but could not control the same. If he have the courage of making efforts to stop the mob, he could have also made attempt to arrest the offenders or to atleast report the crime if he had indeed witnessed it. He did not even bother to ask the complainant whether the complainant had reported the matter to the police,” the court said.
The judge added that if the head constable could not do his duty at the time when the offence was committed, he could have reported it later on the same day or on a subsequent day.
“He ought to have given a written complaint to the police station. He did not do so even at any point of time in the future when the volatility subsided,” the court observed.
It also said that it was too much of a coincidence that the head constable and the complainant were present at the police station on April 02, 2020, at the time when Noor Mohammad was being interrogated by the IO in another case.
“Admittedly, the complainant did not frequent the police station and it was only the first time after registration of FIR that the complainant had come to the police station to enquire about his case,” the court said.
Furthermore, the judge said that the fact that there was a substantial delay on part of the head constable in disclosing material information to the IO “creates a doubt” on the veracity of his version that he can identify the offender.
Regarding the identification by the complainant, the court said that the victim usually has a better opportunity to see offenders from a closer distance and to note their appearance and facial expressions.
Observing that the complainant in the FIR did not identify Noor Mohammad as the offender, the court noted that as per the testimony of the complainant, he cannot identify any of the offenders and also denied telling the police that he could identify them.
“It is the tendency of the police witnesses to speak in line with the police case. Delhi police being a disciplined force, a Head Constable is under the influence of the SHO and the supervisory police officers. It appears that his statement was procured and prepared falsely and belatedly to solve this case,” the court said.
It added that no efforts were made by the police to keep Noor Mohammad away after he was identified by the head constable and before the complainant could see him so that the Test Identification Parade could be carried out.
Observing that it creates a doubt in the prosecution’s case, the judge said: “Since TIP of the accused was not conducted by the police for identification by the complainant, it can be inferred that it was not carried out since the police was already aware that its case is fabricated and the accused has been shown as the offender only for solving of this case.”
While acquitting Noor Mohammad, the court said that the accused cannot be convicted on the basis of mere probabilities or presumptions and that suspicion, howsoever grave may be, cannot take place of proof.