'Intended To Scare, Not Kill': Shahrukh Pathan Seeks Discharge For Pointing Gun At Police Officer During Delhi Riots

Shahrukh Pathan, the man who pointed a gun at a policeman during the North East Delhi riots, has sought to be discharged in the matter stating that his intention was to merely scare, not kill.

The accused on Thursday sought discharge from a Delhi Court in the FIR which relates to an incident wherein Pathan was captured pointing a gun on a policeman, pictures of which had gone viral on the Social Media and internet.

"Whatever be my preparation, it may be my preparation to scare. But it is not the preparation to kill," Senior Advocate Menaka Guruswamy appearing for Shahrukh Pathan told Additional Sessions Judge Amitabh Rawat who was hearing the arguments on charge.

Pathan was booked in FIR 51/2020 registered at Jafrabad police station. It involves charges under Sections 147 (rioting), 148 (Rioting, armed with deadly weapon), 149 (unlawful assembly), 153­A (Promoting enmity between different groups on grounds of religion etc), 186 (Obstructing public servant in discharge of public functions), 188 (Disobedience to an order lawfully promulgated by a public servant) 307 (Attempt to murder), 353 (Assault or criminal force to deter public servant from discharge of his duty), 505 (Statements conducing to public mischief), 120­B (Criminal conspiracy) and 34 (common intention) of IPC along with Section 27 (Punishment for using arms, etc) of Arms Act.

Guruswamy submitted that under Section 307 (Attempt to murder) IPC, the threshold of the "intention to kill" must co-relate to the intention of Murder under Section 300.

"One is the intention and two is doing that act. We will show there was no preparation. We will demonstrate there was no intention," she argued.

Guruswamy thereafter sought to show Pathan's conduct by playing the 26 seconds video in the Court, recorded by The Hindu journalist Saurabh Trivedi during the incident.

"As shocking as it might be to the citizens of Delhi including me, but at no point Mr. Pathan fired at Mr. Dahiya. I am firing in the air. I am shooting at a distance," submitted Guruswamy to argue that Pathan had no the intention to kill the officer.

Furthermore, she submitted that after Dahiya made his principal statement in the FIR, he also made five subsequent supplementary statements adding various details, thereby improving the same.

"…now I am not part of the crowd but I'm leading the crowd. This is not some ordinary crowd, this is the anti-CAA crowd. In three months, suddenly this has gone from one person shooting at me, from being part of a crowd to becoming the same person leading the crowd. Nine months after the incident, he says not only I'm firing but I'm also part of the crowd pelting stones. He also states there is another person. No TIP no parade, just like that this magic happens," she added.

"I ask myself, we have mechanisms in place which prevents exactly this. We have TIP for this reason so that you don't magically introduce yet another person. My issue is not condoning the conduct. It is about the kind of legal process. This is what these kinds of cases are a test of. Who are we? Do we not have a TIP? The hard cases of our times are never a test of the accused. It's the test of the judicial system, the bar and the city we live in."

She argued that while the principal complainant gave five supplementary statements, he also introduced two new accused persons qua whom neither any Test Identification Parade was done nor any MLC was done regarding the injury to the complainant. She also added that there was no indication of any elaborate investigation.

Guruswamy then gave a detailed break up of various timestamps in the video to argue that the threshold of Section 307 IPC was not met in the case against Shahrukh Pathan.

"Mr. Dahiya is in front of him. The accused is pointing towards the right and he is looking towards the right. This is per se a disturbing scene. No officer should face it but here we are on the point of charge. The accused is looking towards the right, pointing gun towards the right. We will now take it from here to where you will hear the gunshot. The hand is raised, pistol remains in his hands. This is when Mr. Dahiya ducks. He thinks that the accused is firing at him. But he is mistaken that he is firing at him. In fact, the accused is firing in the air. It's the act of firing the gun in the air. It's not the act of shooting at the complainant. He hears a gunshot, he sees someone running, it's happening very fastly. In fact, the gun is not aimed at him," she argued.

To show Pathan's subsequent conduct after firing the first gunshot, Guruswamy argued that Pathan had a conservation with the complainant, witnessed at the 15th second in the video, wherein it was also seen that the residue was on the right side of the complainant depicting that Pathan was shooting towards his right without having any intention to hurt or kill him.

"None of the two bullets were in fact pointed towards Mr. Dahiya. First gunshot is in the air. The second is on the right. The residue shows that," she continued.

"They have a conversation. Mr. Dahiya says he is telling him to maintain law and order. If I wanted to injure or kill, I had ample opportunity. This is conduct subsequent to the shot. Where is the intention to kill him? I am in no way justifying any of this. But I'm speaking of the threshold under Section 307. Close range. I am up close. If I intended to shoot him, I would have. Fortunately, it's not my intention. The accused also starts retreating. Even now there is a possibility of me injuring. I don't do it. I turn around and walk away. Or run away, as the case may be. My hand is on his shoulder. I looked to my right and take a shot to the right. The residue follows the barrel of the gun," she added.

However, at this juncture, the Court remarked:

"When he is moving, his hand was down. Then it was lifted up when he shoots. The intention has to be seen and not the shot. It is actually in the beginning which will show the intent and not when it's done. Intention has to be seen when he begins and not when he ends."

Guruswamy also argued that at best Shahrukh Pathan's intention was to scare the police officer and that in such a situation, the prosecution should have invoked a lesser charge i.e. Section 336 of the IPC which provides for the offence concerning the acts endangering life or personal safety of others.

"If I had an intention to kill him, would I not take the second shot at him? You will see he is doing everything very quickly. He is shooting in the air. Why does he not release the shot before? He doesn't do so because he has no intention of hitting Mr. Dahiya. If I intended to shoot someone and I had three rounds. Would I not have hit him? Would I tell him to fall back? Words have been exchanged. Look at the body language. I have my hand on his shoulder. Is this someone I intended to kill? I have had ample opportunity in this 26 seconds which I have shown you to kill Mr. Dahiya, or to say the least to injure him. I am trying to scare him. Objectionable as it is for a citizen to scare a police officer, it's not Section 307," she added.

Guruswamy also relied on the judgment delivered by the Delhi High Court in the case titled Bhim Singh vs. State (1992) SCC OnLine Del 320 wherein it was observed "The question which arises for consideration is that when the accused cannot prima fade be connected with the crime on the available documents and material on record, then why should the accused be compelled to undergo the rigmarole of a criminal trial for several years. Non interference by this Court at this juncture would lead to serious and grave consequences leading to manifest injustice. The accused shall have to face criminal prosecution of a futile trial for several years for prima fade commiting no offence."

Concluding her arguments, Guruswamy submitted:

"I want to end with this. I will say, what has happened is extremely distressing. These are tough cases from a tough time in the city. But our rule of law has to be impartial. The State has been unable to discharge burden under Section 307. That is what is before your lords. There is no direct movement even if you believe preparations were made. Because I shoot towards the right. My subsequent acts show that I said "piche hato". This is preparation to scare and certainly not murder."

The matter will now be heard on November 25.

Case Title: State v. Shahrukh Pathan