'How Agreement To Do Illegal Act Can Be Inferred Merely From WhatsApp Group Chat?': Court Drops Conspiracy Charge Against 12 In Delhi Riots

Observing that it was unfathomable how an agreement to do illegal act can be inferred merely from messages posted in a WhatsApp group chat, a Delhi Court has discharged 12 men of the charge of criminal conspiracy.

The accused allegedly murdered various persons belonging to the Muslim community during the North East Delhi riots of 2020. The Court has framed other charges against them in different FIRs, but refused to charge them for criminal conspiracy.

Additional Sessions Judge Virender Bhat noted that while the only evidence regarding hatching of the conspiracy by accused persons was chats on the WhatsApp group namely "Kattar Hindu Ekta", the same did not indicate that the group had been formed for any particular illegal object, which is to say, to kill the persons belonging to Muslim community as well as to vandalize or burn their properties.

"Careful analysis of these chats would reveal that the members were keeping themselves ready for any attack from other community," the Judge said.

The Court added "There is nothing in these WhatsApp chats to lead this Court to any conclusive or irresistible inference that the members of the group had agreed for any particular unlawful object and for accomplishment of that unlawful object. At best, these WhatsApp chats would indicate that the members were preparing themselves for their own defence against an onslaught to be launched against them and they were seeking each other's help."

"The messages posted in the group nowhere indicate that the members had formed the requisite mental state to launch an offensive against the members of the other community and to commit vandalization/arson of their properties and to kill them. It would be a totally far­fetched conclusion to say that these WhatsApp chats are indicative of the meeting of minds between the members of the group for accomplishment of any unlawful object agreed between them."

Passing a similar order in six different FIRs, all registered in Gokulpuri Police Station, the Court discharged the accused persons for the offence of criminal conspiracy under sec. 120B of IPC.

The common accused in the six FIRs were Lokesh Solanki, Pankaj Sharma, Sumit Chaudhary, Ankit Chaudhary, Prince, Rishabh Chaudhary, Jatin Sharma, Vivek Panchal, Himanshu Thakur, Sahil, Sandeep and Tinku Arora.

FIR No. 103/2020 was registered concerning murder of Aamin. FIR No. 149/2020 related to murder of Aas Mohammad. FIR No. 156/2020 related to murder of Mursaleen. FIR No. 38/2020 related to murder Mushraff. FIR No. 35/2020 related to murder of Hashim Ali and FIR No. 37/2020 concerned murder of Amir Khan.

All the above mentioned accused persons have been charged under Sections 144 (Joining unlawful assembly armed with deadly weapon), 147 (Rioting), 148 (Rioting, armed with deadly weapon), 302 (Murder) and 149 (Unlawful assembly) of IPC.

It was the case of the prosecution that the accused were members of an unlawful assembly, the object of which was to take revenge of the death of the several Hindus during riots and to teach Muslims a lesson.

It was alleged that in order to achieve the said object, they hatched a conspiracy in furtherance of which they bludgeoned to death innocent persons belonging to Muslim Community.

During the investigation, accused Lokesh Solanki admitted that he was a member of the said WhatsApp group "Kattar Hindu Ekta" and used to send messages in the group.

It was alleged that on a checking of his phone, it was found that he had deleted all the messages of the said group and had also left the group on 02.03.2020. He also disclosed the names of other co-accused ­who were arrested later.

It was thus argued by the prosecution that the said messages clearly revealed that they had hatched a conspiracy to take revenge from the members of the Muslim community of the violence committed upon the members of the Hindu community.

On the other hand, it was argued on behalf of the accused persons that even if the WhatsApp chats were presumed to be correct, no case for the charge of criminal conspiracy was made out for the reason that the WhatsApp chats did not indicate any agreement between the members of the group to commit any unlawful act much less murder of any Muslim.

It was also pointed that it was the case of prosecution that only one accused Lokesh Solanki was the member of the group and had been sending messages to the group whereas none of the remaining accused were member of the group and therefore, the prosecution cannot claim that any conspiracy had been hatched between accused Lokesh Solanki and the remaining accused on WhatsApp group to commit any unlawful act.

The Court was of the view that the essential ingredients of this offence are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing an illegal act or for doing by illegal means an act which itself may not be illegal.

"A major problem arises in connection with the requirement of an agreement in determining the scope of a conspiracy ­ who are the parties and what are their objectives. This determination is critical, since it defines the potential liability of each accused," the Court said.

It added "A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused with the commission of crime of criminal conspiracy. It has to be show that all means adopted and illegal acts done were in furtherance of the object of conspiracy hatched."

The Court was of the view that it was unfathomable as to how an agreement between all the accused to do an illegal act can be inferred merely from the message posted in the said WhatsApp group.

The Judge said that there was no other material on record to suggest or indicate that the accused persons had hatched a conspiracy and had agreed with each other to accomplish the object of the conspiracy.

"Ld. Special PP has failed to point out any evidence on record to show that the remaining accused other than accused Lokesh Solanki were aware about the formation of the WhatsApp group "Kattar Hindu Ekta", about the messages posted by the members of the said group or about any conspiracy alleged to have been hatched by the members of that group. In the absence of any such material on record, these accused cannot be linked to the said Whatsapp group at all. Therefore, the charge of the conspiracy must fail on this score also," the Court said.

The Judge also said that mere exhorting others to come out and indulge in criminal activities does not tantamount to any agreement between the person who holds out exhortation and the person to whom the exhortation is held out, to commit a crime.

Accordingly, relevant charges were framed against the accused persons while they were discharged of criminal conspiracy.

Case Title: State v. Lokesh Kumar Solanki @ Rajput & Ors.

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