The Single Bench of Justice Suresh Kumar Kait has recently granted bail to the accused(s) namely Junaid, Chand Mohd and Irshad arrested in North Delhi Riots Case for killing Shahid by gunshot.
“The prosecution has failed to establish the presence of the petitioner at the scene of the crime or in that area. Further, there is no blackening, singeing or tattooing was seen around the wound which established the fact that neither it was a contact wound, nor a short-distance wound. Rather it was a wound caused by the long-distance firing which indicates the fact that it is a distant shot fired from any building which is in front of the Saptarishi building and is at a distance or it is fired from Mohan Nursing Home because, in the video relied by the prosecution, it has been categorically shown that how some anti-social elements were firing gunshots by using a rifle from the roof of the Mohan Nursing Home building towards Saptarishi building and at other places. This fact has been further admitted by the prosecution when the use of the word possibility provided on page No.37 of the charge-sheet. Because they are not sure that from where this gunshot injury came then how can they be sure that it is a close-range shot when they are already mentioning that this is a possibility but not a surety or certainty.”, the Court said.
In the present matter, an FIR was filed against the petitioners/accused(s) for the offences punishable under Sections 147/148/149/153-A/302/395/397/452/454/505/506/120-B of the Indian Penal Code,1860 for their alleged involvement in Hindu Muslim riot on 24.02.2020 and unfortunate death of Shahid on receipt of gunshot injury.
The Petitioner’s/accused(s) Counsel contended that no relevant statement was provided from the building’s owner against the petitioner. The owner made no call at number 100 even after getting information of a problem at his godown of Saptarishi building. Further, he contended that there was no proof in the charge sheet or in the call data records to prove the petitioner's involvement in the case.
“To prove the involvement of the petitioner, the prosecution has relied upon a video of an NDTV prime time show, about which the prosecution themselves have admitted that it fails to establish the identity of any of the accused”, petitioner’s counsel further argued. The counsel also submitted that the accused(s) were not present at the crime scene and placed reliance on Supreme Court’s judgement in Parvat Singh vs. State of Madhya Pradesh (Criminal Appeal No.374/2020) to submit that the statement under Section 161 Cr.PC,1973 was inadmissible in Evidence and could not be relied upon for conviction.
Petitioner’s Counsel also submitted that the prosecution did not have any cogent evidence against the petitioners to bring home their guilt as the police did not have any evidence against the petitioners except their confessional statement in policy which was inadmissible in evidence. The presence of the petitioner was not established at the crime scene nor any identification through dossier and Test Identification Parade was done.
Mr S.V Raju, Learned ASG submitted that the present case was squarely covered by the judgement dated 06.07.2020 passed by the Coordinate Bench in Bail Appln.922/2020 titled as Raiees Khan vs State of NCT Delhi, wherein the Court dismissed the co-accused(s) bail application whose case was also situated similarly as the petitioner’s case.
The Bench observed that the antemortem injuries did not mention the shape of the wound as well as the colour of the initial part of the track which was essential for deciding the range of the fire. Further, the Bench observed that the wound’s shape depended upon the range and weapon used and in the present case neither the shape nor the weapon was discovered. Thus the theory of close-range shot was just a conjecture of the investigating agency. It was not based on scientific fact.
“Simply because copper-like pieces were found near the exit wound of the body, as per the post-mortem report, it would not signify a close-range shot. But it was only on this basis, the investigating agency concluded that the firing was possibly from proximity, which is not scientifically possible.”, the Court said.
Justice Suresh Kumar Kait further observed that in the post mortem report the direction of the wound in which it has entered the body was given to be from the left side which was going downwards and exiting from the right side. This meant that the injury was from a height, at a distant range which established the possibility of the bullet coming from Mohan Nursing home or any building which was on the left side of the Saptarishi building and was on more height than that of Saptarishi building. Further, Justice Kait noted that the bullet would’ve gone straight if it was fired from a close range rather than entering the body from the left side and exiting downwards from the right side. In the case of close-range shot gunshot residues like lead, Carbon Monoxide, Carbon Dioxide was bound to be present at the entry of the wound, but no such residue was mentioned to be available in the post-mortem report.
In this context, the Bench further noted that
“The investigating agency seems to have concentrated only on one side of the building, although it is an admitted case of the prosecution that rioters from both the sides were pelting stones at each other and were firing. Further, in this video, the firing is seen to be done only from Mohan Nursing Home and not from the Saptarishi building.”
The Bench while allowing the bail application filed u/s 439 r/w 482 CrPC,1973 observed that,
“It can be seen that there is no evidence whatsoever, either direct or circumstantial or forensic against the petitioners. Neither there was any motive whatsoever either for them or for any other person allegedly present on the roof of the Saptarishi building, to commit the offence, nor has the prosecution alleged any motive in the entire case. Thus, it is hard to believe that a communal riot can be used by the petitioners to cause the death of the person of their community. When it is an admitted case of the prosecution that the petitioners let go of the witnesses of the different community and asked them to leave the scene of the crime to save their lives, namely, Mukesh, Narayan, Arvind and their families, before climbing on the rooftop of Saptarishi building. If they were involved in this communal riot and wanted to cause harm to the members of the other community/Hindu community, they would not have tried to save the lives of the above-named members of the other community.”
Case Title: Junaid v. State
Law Point/Statute Involved: Section 439 r/w Section 482 of the Code of Criminal Procedure,1973