Delhi Riots: After Acquittal In Two FIRs, Court Convicts Accused Men On Basis Of Evidence Of Cop Who Earlier Cited Memory Loss

Months after acquitting various accused persons in two cases of 2020 North-East Delhi riots for lack of evidence as a head constable failed to identify them citing memory loss, a Delhi Court has convicted the accused in another case after the cop gave a detailed description regarding them being members of a mob.

On Monday, Additional Sessions Judge Pulastya Pramachala convicted nine men namely Mohd. Shahnawaz, Mohd. Shoaib, Shahrukh, Rashid, Azad, Ashraf Ali, Parvez, Md. Faisal and Rashid alias Monu of rioting and being part of unlawful assembly in FIR 53/2020 (P.S. Gokalpuri).

The accused have been convicted for offences punishable under sections 147, 148, 380, 427, 436, 149 and 188 of Indian Penal Code, 1860. While three of them were in jail, six others were out on bail. The court has directed all of them to be taken into judicial custody and the matter has now been fixed for arguments on sentence on March 29.

The same court acquitted all nine accused in FIR 40/2020 (P.S. Gokalpuri) on February 23. In FIR 83/2020 (P.S. Gokalpuri), the court had acquitted four of them on November 18 last year. Both the FIRs were registered for offences similar to FIR 53/2020.

In all three cases, the prosecution presented two policemen, Head Constable Hari Babu and Constable Vipin Kumar as primary witnesses for identification of the accused.

The FIRs were registered based on the complaints moved by three private individuals alleging that members of a mob, of which the accused were alleged to be a part, committed vandalism in their shops and house on February 24 and 25 2020.

In both the FIRs resulting in acquittal, the Head Constable Hari Babu failed to identify the accused persons before court taking the plea of lapse of time and memory loss. The court then acquitted all of them observing that the sole testimony of constable cannot be sufficient to assume their presence in the mob.

The prosecution evidence in all the three cases took almost a year to conclude. In FIR 83/2020, it started on October 07, 2021 and concluded on October 18, 2022.

In FIR 40/2020, the prosecution evidence commenced on December 16, 2021, and concluded on January 07. In FIR 53/ 2020, the process began on April 02 last year and concluded only on January 17.

Earlier Cases

During the examination in FIR 83/2020, the head constable stated that on February 25, 2020, he along with the constable and other police staff, were on patrolling duty in Chaman Park area when he saw a mob at 2 PM on Shiv Vihar road. He identified only accused Shahnawaz before the court and deposed that he was taking medicine for memory loss. As he did not identify all the accused, judge Pramachala observed that identification of one of the accused by him is not safe to be relied upon.

In FIR 40/2020, Babu deposed that on the day in question, he saw a mob of 500 to 600 persons committing vandalism and arson in the shops on main Brijpuri Road at around 1-2 PM. Although he took name of three accused namely Shahnawaz, Parvej and Azad, he was not consistent as per the prosecution’s case on the point of identification of all the accused persons. 

Since Babu failed to identify anyone before the court taking plea of long lapse of time and the constable wrongly identifying the accused persons, the court said that the testimonies did not help the prosecution in establishing the identity of accused persons as member of the mob.

Latest Case

However, in FIR 53/2020, Babu gave a detailed description of the incidents that occurred on February 24, 2020, and deposed that he saw a mob which started assembling at Shiv Vihar road after 12 PM. He said that the mob was raising slogans against Hindu community and also set houses and shops on fire.

He also deposed that on the intervening night of 24/25 February, 2020, between 12 AM to 01 AM, he saw that a mob broke open the gate of the house of the complainant in that case. 

He later identified accused Shahnawaz, Azad, Parvez Faisal and Rashid and also identified faces of other members of the mob, including accused Shahrukh and Mohd. Rashid. He then identified Shahnawaz, Rashid, Azad, Faisal and Parvez before the court and also pointed out to Rashid, Shoiab and Shahrukh without taking their names.

The counsel appearing for the accused persons questioned the testimony of the head constable based on his stand taken in other two cases by arguing that he was tutored.

However, the prosecution contended that even though the cop stated that his memory was not in fit condition in the past, he took medicine for five months and was fit thereafter. It was also submitted that ideally the head constable should not have been examined at that time because of his poor medical condition.

On court’s query, Babu explained that at the time of his examination in FIR 40/2020, his memory was not in a fit condition and that he was taking "medicine for mind".

After Babu was directed to produce relevant medical document before the court, the defence took the plea that the documents did not show any mental illness and hence the plea of memory loss due to medical problems was not sustainable.

The court said that while it was correct that the medical documents showed Babu was suffering from problem related to his ear including the problem of vertigo, it said that it is not necessary that the person would be suffering from mental illness for not being able to recollect any fact or face of a person correctly.

“In fact, even without suffering from any particular illness, it is a normal tendency of any person that he does not recollect an incident taken place in the past completely and very accurately. If I compare the condition of PW6 (head constable) with such normal person, then apparently his condition was worse than others,” the judge said.

The court took note of Babu’s medical history based on the documents showing that he was admitted in hospital and was undergoing treatment of acute vertigo, cervical spondylosis with Covid-19 in January last year. It also noted that the last prescription produced was dated March 21, 2022. 

“As per common knowledge of medical science, the problem of vertigo does make a person unstable and very uncomfortable because of severe giddiness etc. In that state of mind, it can be possible with anyone that he does not recollect all the things very correctly and accurately,” it said.

The court also agreed with prosecution’s submission that it was not an ideal decision to examine the head constable in such peculiar situation and it should have waited for his recovery. However, it added that the reason was probably because Babu could not afford to remain on medical leave for longer period and was produced as witness in routine manner, “thereby compelling him to depose before court.”

It also said that the subsequent identification of accused persons by the head constable could be because he would have occasion to recollect the faces during his cross examination in FIR 40/2020.

“Thus, on overall appreciation of testimony of PW6 (head constable), I do not find any material contradiction or infirmity appearing in respect of the presence of PW6 at the concerned place during intervening night of 24/25.02.2020 and him witnessing the incident at A-49. I also do not find any material contradiction in respect of identification of accused persons by this witness in that mob, which was there during incident at A-49,” the court observed.

The court also noted that in some other cases decided by it involving the head constable and the constable as prosecution witnesses, it had taken a view that non recording of vital information regarding involvement of various persons at the earliest point of time "invited adopting rule of prudence" as done in Masalti case.

However, it said that on the basis of additional material and consequent explanations related to credibility of the head constable and overall assessment of the evidence, the situation is “altogether different” where there is no occasion to continue with the past approach.

“On the basis of assessment of evidence in this case and further reasoning, I am convinced with the version of prosecution against the accused persons. I find it well established that all the named accused persons in this case did become part of an unruly mob, which was guided by communal feelings and was having a common object to cause maximum damage to the properties of persons belonging to Hindu community,” it said.