[Delhi Riots] 'Hatched Conspiracy To Kill Hindus, Harm Their Properties': Court Frames Charges Against Tahir Hussain And 5 Others

A Delhi Court has framed charges against former Aam Aadmi Party Councillor Tahir Hussain, his brother Shah Alam and four other men in a case of North East Delhi riots of 2020, observing that the mob hatched a conspiracy "to kill Hindus and harm (their) properties" and as part of that a gunshot injury was caused to one Ajay Jha.

Additional Sessions Judge Pulastya Pramachala on Thursday framed charges against Tahir Hussain, Shah Alam, Gulfam, Tanveer Malik, Nazim and Kasim under Section 147, 148, 153A, 302, 307, 120B, 153A and 149 of IPC. Additional charges under Section 27 of Arms Act have been framed against accused Gulfam and Tanveer Malik.

"Indiscriminate firing at others makes it clear that this mob consciously wanted to even kill Hindus. It cannot be said that accused persons were oblivious of such objective of this mob. Apparently, this was an unlawful assembly, acting in pursuance of aforesaid object. Tahir Hussain or for that matter, any other accused are not supposed to be static in their movement. Different witnesses hence, saw them in different manner," the court said.

The FIR 91/2020 was registered at Dayyalpur police station after an information was received from Shushrut Trauma Centre regarding fire arm injury to Ajay Jha in Chand Bagh area in February 2020.

Jha told the police that on February 25, 2020, he reached near Tahir Hussain's house, he saw a number of persons present on the terrace who were firing gunshots and pelting petrol bombs and stones on nearby houses.

He also alleged that Tahir Hussain and his brother Shah Alam along with others were pelting stones and throwing petrol bombs on the houses of Hindus and were also occasionally firing weaopons. As per Jha, the mob was raising religious slogans.

Jha further alleged that he was shot by accused Gulfam which injured him on his shoulder and chest. He also claimed that he had identified Gulfam because he knew him. He also named others from the mob who are accused in the FIR. It was Jha's case that he could not give statement to the police the same day as he was in pain.

Framing charges against the six accused, the court observed that merely because statements of eye witnesses were recorded at a belated stage, it cannot declare them to be unreliable without affording an opportunity to the prosecution and the witnesses to explain the reasons.

"Secondly, one must not forget that at the relevant time riots continued in Delhi for some days. Delhi Police and other security forces were pressed into service to stop the riots. Hence, focus of police was more on the aspect of controlling the riots rather than start investigating each incident of the riots. At a time of panic, everything cannot be expected to happen in very streamlined manner. Even the victims and witnesses did not have courage to make complaints against anyone. They were more concerned about their safety," the judge added.

As the prosecution referred to FIR 59/20 which concerns the allegation of a larger conspiracy to commit the riots (UAPA case), the court observed that there is a concept of an "Umbrella Conspiracy" wherein there are several smaller conspiracies under the larger conspiracy.

"Therefore, FIR 59/20 as referred herein above is to be treated to cover the aspect of Umbrella Conspiracy. The allegations and evidence in this case, have to be assessed to find out existence of smaller conspiracy peculiar to incident covered in this case," the court said.

Perusing the statements of prosecution witnesses, the court observed that presence of all the accused in the mob was well reflected.

"It is also well apparent that this mob continuously indulged into firing of gunshots, pelting of stones and petrol bombs towards Hindus and houses of Hindus. These acts of the mob make it clear that their objective was to harm Hindus in their body and property to maximum possible extent," the court said.

It added "Indiscriminate firing at others makes it clear that this mob consciously wanted to even kill Hindus. It cannot be said that accused persons were oblivious of such objective of this mob. Apparently, this was an unlawful assembly, acting in pursuance of aforesaid object. Tahir Hussain or for that matter, any other accused are not supposed to be static in their movement. Different witnesses hence, saw them in different manner."

The judge further said that statements of witnesses also reflect that because of indiscriminate as well as pointed firing by members of the mob, several persons were hit by bullet, Ajay Jha being one of them.

"Therefore, if police are prosecuting accused persons separately for separate incidents, it cannot be said that they are being prosecuted for same facts and for same cause of action in different cases," the court said.

However, the judge discharged accused persons under Section 436 and 505 of IPC for lack of specific allegations, description or evidence.