[Delhi Riots] There Is Difference Between Those Who Happened To Be At Crime Scene & Those Who Assembled With Common Object: Accused Tell Delhi HC

The Delhi High Court on Tuesday continued hearing a batch of bail applications in North-East Delhi riots case. Senior Advocate Salman Khurshid, appearing for few accused, concluded his arguments.

Khurshid told the Court that mere presence of the accused persons at the crime scene does not by itself mean that were part of the alleged unlawful assembly. 

"Their behaviour and conduct has to be seen...When there is a long gathering of people, it is difficult to determine who was there with common object and who would just happen to be there but could not be said to have common object...The Court has to distinguish the case of those who may be in the group but cannot be attributed of common object from those who assembled with a common object," Khurshid submitted.

He strongly relied on the case of Kuldeep Yadav v. State of Bihar, 2011 5 SCC 324, where the Supreme Court had held that without a clear finding regarding common object and participation therein by each one of the accused members, there can be no conviction with the aid of Section 149 (Unlawful assembly) IPC.

Khurshid also relied on State of Maharashtra v. Ramlal Devappa Rathod & Ors., 2015 5 SCC 77 where the Supreme Court observed:

"when the persons forming the assembly are shown to be having same interest in pursuance of which some of them come armed, while others may not be so armed, such unarmed persons if they share the same common object, are liable for the acts committed by the armed persons. But in a situation where assault is opened by a mob of fairly large number of people, it may at times be difficult to ascertain whether those who had not committed any overt act were guided by the common object. There can be room for entertaining a doubt whether those persons who are not attributed of having done any specific overt act, were innocent by-standers or were actually members of the unlawful assembly."

Khurshid was appearing before Justice Subramonium Prasad for accused namely Mohd. Ayyub and Saleem Khan, arrested in a case related to the death of Head Constable Ratan Lal during the riots.

On being asked if Ayyub was present at the site where the battle between police and protestors took place, Khurshid submitted,

"No, my presence at spot has been confirmed by police witnesses but nothing has come from the CCTV footage."

He clarified that Ayyub was spotted by a CCTV footage installed in his gully (lane) and later by another CCTV installed across the street, as he had rushed to bring his child from the school, given the violent clashes.

"After that I'm nowhere near scene of crime. I have not been seen carrying a weapon," Khurshid highlighted.

So far as Saleem Khan is concerned, the Court remarked that he is the "poster boy" of prosecution for disturbing the CCTV cameras.

"Allegation is that cameras were being dislodged because people didn't want crowd to be seen moving," the Court said.

Khurshid, while admitting that Khan had changed the angle of the cameras, stated that the same was done to prevent it from recording the activities of the gully (lane).

"Cameras were dislocated by people in their own gullies...Those cameras didn't do the role of spotting you going to the crime...In fact, after dislocating the camera, Saleem Khan is spotted on CDRs going away from crime scene. If he was encouraging people to protest, he'd go with them," Khurshid contended.

Last week, Senior Advocate Rebecca John appearing for accused Shadab Ahmed argued that there were loopholes and contradictions in Delhi Police's investigation with regards to a Delhi Riots case.

Earlier, the Court heard ASG SV Raju who told the Court that the violence did not occur in the spur of the moment but was a result of "meticulous planning". He stated that women and children were kept at the forefront of the mob, disabling police from taking any action against stone-pelting.

Case Title: Md. Arif v. State (BA 774/2021) and connected cases