The Delhi High Court on Friday granted bail to three persons accused in a Delhi riots FIR registered in connection with the death of one Shahid while stating that it in not conceivable that a communal riot can be used a front to cause the death of a person from the same community (Junaid vs State).
While admitting the three accused Junaid, Chand Mohd and Irshad (petitioners) on bail, a single-judge Bench of Justice Suresh Kumar Kait remarked,
“.. it is hard to believe that a communal riot can be used by the petitioners to cause death of the person of their own community. Moreover, when it is an admitted case of the prosecution that the petitioners actually let go off the witnesses of the different community and asked them to leave the scene of crime to save their lives. before climbing on the roof top of Saptarishi building. If, they were really 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.”
The Court also recorded that there was no evidence whatsoever, direct, or circumstantial or forensic, against the petitioners.
Neither was there any motive for them to commit the offence nor has the prosecution alleged any motive in the entire case, the Court added.
As per the case of the prosecution, on February 24, 2020, during the Hindu-Muslim rioting in North-East Delhi, some of the rioters went to the rooftops of certain buildings, from where they indulged in firing and stone pelting.
It was said that a Muslim mob took position on the rooftop of buildings like Saptarishi, Ispat and Alloy Private Limited etc and during the rioting, one Shahid received a gunshot injury which led to his unfortunate death.
As per the per the report under Section 173 CrPC and statement of eyewitnesses, it was contended that the accused/petitioners were part of the unlawful mob which not only entered forcefully inside the Saptarishi building after breaking the iron gate but also illegally overtook the Saptarishi building after getting it evacuated forcefully from the actual inhabitants i.e, the labourers and their family members.
The petitioners sought bail arguing that there was no evidence against them and contrary to the Prosecution’s version, they were not present on top of the Saptarishi building.
The Delhi Police, on the other hand, relied on the eyewitnesses to support its case.
It also relied on a video footage obtained from NDTV to state that the deceased sustained the gunshot injury at the rooftop of the Saptarishi building.
The presence of the petitioners was established based on CDR/Dump Data analysis.
To arrive at its decision, the Court analysed the post-mortem report of the deceased and observed that the wound on the body was caused by the long distance firing.
“.. there is no blackening, singeing or tattooing seen around the wound which established the fact that neither it was a contact wound, nor a short-distance wound.. it is a distant shot fired from any building which is in front of 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.”
The Court added that as seen from the chargesheet, even the Prosecution was not sure that from where the gunshot was fired.
“..the antemortem injury does not mention the shape of the wound and the colour of the initial part of the track which are essential to decide the range of the fire. The shape of the wound depends on the range and the weapon used. In this case, neither the shape has been mentioned nor the weapon has been discovered. So, the theory of close-range shot is just a conjecture of the investigating agency and is not based on scientific fact,” it was added.
The Court also considered the NDTV video to observe that the investigating agency focused only on one side of the building though rioters from both sides were pelting stones at each other.
“..it is seen that Ravish Kumar, NDTV primetime anchor saying that a person is firing rifle from Mohan Nursing Home Hospital and is wearing helmet, there is another person who is covering the weapon with handkerchief and later on, they can be seen in the videos as well..the investigating agency seems to have concentrated only on one side of the building, although it is an admitted case of 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 Saptarishi building,” the Court noted.
The Court further observed that the main assailant who has caused gunshot injury was yet to be arrested and admittedly, no recovery, either of firearm or of any other weapon, was obtained from the petitioners.
Ultimately, considering the above facts and the fact that charges were yet to be framed and trial would take substantial time, the Court opined that the petitioners deserved bail in the matter.
The Court clarified that the trial court should not get influenced from the present order.
Advocate Salim Malik appeared for the petitioners.
Additional Solicitor General SV Raju with SPPs Amit Mahajan, Amit Prasad, Rajat Nair.