Delhi Riots: Court Questions "Incongruous Investigation" Where Injured Complainant Was Himself Made An Accused

A Delhi Court has questioned the investigation in a 2020 riots case where a man namely Sajid, who was a complainant in the matter, was himself arrayed as an accused after investigation.

Sajid had alleged that he suffered a gunshot injury on February 25, 2020.

"…curiously, Sajid during investigation was made an accused. One of the primary reasons was that since he had suffered a gunshot injury during the riots, he can be held to be the part of the riotous mob. By this logic, every injured person in a riots case can be made an accused," Additional Sessions Judge Amitabh Rawat observed.

He added "…the investigation begs question as to how the prosecution, on the one hand, has charged 6 accused persons under sec. 307 IPC which is an attempt to murder for the attempted murder of injured Sajid who has also been made as an accused in this case for the offence of rioting."

Noting that Sajid was one of the main witnesses and also one of the accused persons who had to face trial as per prosecution, the Court observed that without proving the gunshot injury, attempt to murder charge could not be proved.

"…..but how will Sajid appear as a witness in a case in which he himself is an accused," the Court said.

It added,

"These aspects of investigation are incongruous in as much as if Sajid is stated to be an accused in this matter, he can't be made as witness as then he would be as a witness who will give the testimony on behalf of prosecution and also the accused who does cross-­examination of himself."

The FIR was registered on the basis of Sajid's complainant under various offences of the Indian Penal Code involving sec. 143, 144, 145, 147, 148, 149, 307 and 188.

Sajid alleged that on February 25, 2020, while trying to escape a riotous crowd, some people ran after him, after which something hit him from behind. He was later taken to hospital and was informed that he was hit by a gunshot.

During investigation, Sajid was examined and since he had suffered injury in riots, it was deduced that he was part of the riotous mob.

In March 2020, a constable gave statement identifying all six accused persons as being part of the riotous mob. While five of them were arrested on the principle of unlawful assembly, another accused was later after being identified by the constable.

Perusing the chargesheet, the Court opined:

"Thus, it seems that the entire focus of the investigation has been to show the involvement of 06 accused persons as involved with the riotous mob which led to a gunshot injury to Sajid."

The Court was of the view that the purpose of proving offence of attempt to murder, the prosecution had to show that a gunshot injury was caused to Sajid.

"Either Section 307 IPC can't be made the way prosecution seeks to make it or if the prosecution's case is that all 07 accused persons were part of the riotous mob due to their presence, Section 307 IPC cannot be attracted but only sections attracting riots," the Court said.

The Judge further added that since only the constable's statement was left who claimed that he identified all accused persons as participating in the riots, all of them cannot be charged under sec. 307 IPC. However, the Court added that it could be argued that all accused persons participated in the riots.

"Hence, the way the investigation has been done and the charge­sheet prepared, I am of the view that Section 307 IPC is not made out and thus, this case is not exclusively triable by the Court of Sessions," the Court ordered.

Accordingly, discharging all seven accused of attempt to murder charge, the Court remanded the matter back to the designated magisterial court for the purpose of framing of charges qua other offences.