How to chargesheet a dead man in his own murder case

New Delhi: Money was tight, his third child born a couple of months ago, Babbu Mohammed, 34, left his home in Khajuri Khas' Shree Ram Colony on February 25, last year hoping to have a productive day behind the steering of his autorickshaw. He'd heard about what was happening on the streets but he needed the money. He never came back home.

Babbu was brutally assaulted by a mob of Hindu rioters at Khajuri Chowk the same afternoon and had died from his injuries two days later on February 27 at the GTB Hospital — one of the 53 people killed in the deadly north-east Delhi riots last year.

The Delhi Police have, after investigating the case for months, decided to charge Babbu and 19 others (both Hindus and Muslims) in his own killing, accusing all of them of conspiring together with the common intent to commit rioting and murder Babbu among other crimes.

Importantly, the specific charge for murder (IPC Section 302) has not been slapped against Babbu but he has been charged with all other IPC Sections his co-accused have been charged with.

According to Babbu's elder brother, Pappu (38), his sibling was returning home after a shift of driving his autorickshaw around 2 pm on February 25 when, "He was caught by a mob at the pushta near Khajuri circle. He was hit on the head. I got a call that my brother was injured," Pappu said.

To a point, the police's and Pappu's version of events add up. The FIR in the case has been registered based on his complaint after all. However, beyond this, whatever narrative the Delhi Police have tried to weave in this case is bizarre, to say the least, and on thin ice.

While Babbu's family and locals in the neighbourhood told Millennium Post that it was a few locals who had managed to rescue him from the mob that day and bring him to Jag Prakash Hospital. But the Delhi Police's version says that one ASI Subhash had brought him to the hospital after which his colleague ASI Devendra informed the Khajuri Khas police station about the victim through a PCR call.

The fishing trips:

According to the primary chargesheet filed by the Delhi Police in Babbu's murder case (FIR number 119/20 PS Khajuri Khas), the police were first intimated of Babbu's assault through a PCR call from the hospital (made by ASI Devendra) where Babbu was first taken, after which SI Jeewanand was assigned to visit the hospital.

Two days later, after Babbu had been referred to the GTB Hospital, he died, following which SI Naveen took over the case and traced his family to Shri Ram Colony, where on February 28, he took Pappu's statement, which forms the basis of the FIR registered in the case.

But how did the police end up charging 20 people, including the murder victim, in his own murder case?

The Delhi Police, in their primary chargesheet, have spelled out a version of events about how they started their probe in the case. As per this, the investigators first tried to backtrack the case with information from the first hospital he was brought to on February 25. After a couple of failed leads, the police stumbled upon a viral video on social media, where two men — one appearing to be a maulana (cleric) — were seen being beaten up by a mob. While the maulana can be seen escaping, the other man — identified as Babbu by his brother Pappu - could not. Head Constable Anil and Constable Bhupinder saw the video and authenticated it too saying they were "eye-witnesses" to the incident.

Soon, the police jump and say HC Anil and Const Bhupinder had "through their investigation" identified 12 accused — Rizwan, Israr, Tayyab, Imran, Iqbal, Zubair, Marouf, Shamim, Adil, Shahabuddin, Farman and Bharat Bhushan — all of whom were apparently already arrested in a separate case of rioting by SI Naveen on February 26 itself and in judicial custody.

But HC Anil's and Const Bhupinder's written statements betray this — showing that the arrests were made on what may be described as fishing trips to the general area of the crime scene.

Firstly, neither of the cops' statements mention the instance of Babbu's assault at Khajuri Chowk that day or that of any other specific instance of anyone being assaulted by mobs. Both statements, under Section 161 of the CrPC, and nearly identical to each other, say that they were at the spot for duty when the rioting began. Without naming anyone, both cops say that stone-pelting had started from both sides as they were trying to pacify the mobs and an unknown object hit Constable Amit's right hand. Following this, both HC Anil and Const Bhupinder took Const Amit to the nearest hospital and left the area of rioting for the day. There is no mention of them being at the crime scene that day in their initial statements.

Firstly, according to both of their statements, they visited the crime scene with SI Naveen on March 8 after this, where they simply happened to see the first nine of the above mentioned accused loitering in the streets together, identified them, brought them to the police station and arrested them after questioning them. Both mention identifying the nine people in exactly the same order.

The next trip to the crime scene for HC Anil was on March 9 again with SI Naveen and this time, HC Anil says they again happened to stumble upon three more accused roaming in the street and brought them to the police station, interrogated them and arrested them. These three were Shahabuddin, Farman and one Ashok.

Constable Bhupinder next visited the crime scene on March 11, also with SI Naveen, when he again happened to simply spot suspect Bharat Bhushan, who was also brought to the station and arrested.

Crucially, both cops in their statements maintain that they were shown the viral video of Babbu's assault only after these arrests had been made, whereas the chargesheet claims the video was first shown to them and then the accused were identified.

The case so far:

Of the around 20 accused charged in the case by the Delhi Police, at least 10 have been granted various types of bail by local courts and the Delhi High Court. All the charges against 19 accused, except for those under Sections 505 and 153A of IPC (for which sanction is pending), were taken cognizance of by the Chief Metropolitan Magistrate of the North-East district in October last year.

Moreover, the court while taking cognizance of these charges, abated all charges against Babbu, who it noted was deceased as informed by the police. However, the court did not indicate whether it is aware that Babbu — the dead accused, is also the murder victim in this case.

In the various bails granted in this case, multiple courts have at the stage of bail ruled out the statements of at least five witnesses — Sandeep Kumar, Virender Kumar, Deepak Kumar, Dalip Sharma and Munna — as unreliable.

Munna, Sandeep, Virender, Deepak and Dalip have among themselves testified against and "identified" at least 11 of the accused persons. Of these, Kuldeep, Rizwan, Iqbal, Zubair, Israr, Shahabuddin, Adil, Marouf and Tayyab have been granted bail — either on the unreliability of witnesses or on grounds of parity. Two of those identified by these witnesses — Shamim and Farman — remain in jail.

For instance, in Kuldeep Singh's bail order by Additional Sessions Judge Vinod Yadav, the court calls Munna's testimony doubtful and also throws out the testimonies of HC Anil and Const Bhupinder.

While granting bail to Zubair, Justice Suresh Kumar Kait of the Delhi High Court had called into question the reliability of witness statements made by public witnesses Sandeep and Virender Kumar.

Justice Kait's order granting bail to Shahabuddin noted that Deepak Kumar and Dalip had recorded their statements with the police 40 days and 57 days after the murder respectively and had not made a PCR call or police complaint after having claimed to "witnessed" the murder.

The courts' observations, in this case, have so far established the sanctity explicitly of just one public witness — Sabir — who had identified accused Sandeep among others. The court of ASJ Vinod Yadav had denied bail to Sandeep citing the strength of Sabir's testimony.

What further supports the cops' admission of arresting most of the accused on what were essentially fishing trips to the neighbourhoods is that locals and family members of some of the Muslim men arrested and charged for Babbu's murder have claimed that as a result of their procedure, the police ended up arresting and charging many people who had actually helped Babbu get to a hospital after being assaulted that day.

Perhaps this is why the FIR contradicts the complainant's version of how Babbu got to the hospital.

What is more bizarre is that a review of the charges filed against the 16 persons in the primary chargesheet essentially showed that as per the police, five Hindus and 11 Muslims had all conspired together with the common objective to commit rioting and eventually murder Babbu — a Muslim man himself. All accused have been charged under identical sections of the IPC — except for Babbu, for whom the police dropped IPC Section 302.

The futility of charging Babbu:

The charges against Babbu are under Sections 147 (Punishment for rioting), 148 (Rioting with deadly weapon), 149 (Every member of unlawful assembly is guilty of crimes committed by other members with common objective), 505 (Statements conducing public mischief), 153A (Promoting enmity on religious grounds), 120-B (Punishment for criminal conspiracy), 34 (Acts committed by multiple people with common objective) of the IPC — all abated.

What this essentially means is that Babbu cannot be tried for these charges now as he has expired.

And even according to the chargesheet filed in this case, the Muslim men accused in the murder have not mentioned Babbu in their purported disclosure statements (under Se 161 Cr PC — inadmissible evidence) — all of which use identical language. Of nine of these disclosures that Millennium Post has seen, seven say the accused did not know anyone involved in the riots and two say they

knew the others involved and would help police identify them. None of the disclosures of Muslim men identify Babbu or an instance of Babbu indulging in violence or Babbu being assaulted.

Other than this, the only mention of Babbu being part of the riots comes from purported disclosure statements of the Hindu accused in the case, who identify each other as beating up a Muslim man, whom they did not even know at the time. Their disclosures are also identical save for a few names and are also inadmissible evidence. Nevertheless, they claim that Babbu was a part of the opposite mob and rushed to pelt stones at Hindu rioters, who then beat him up — eventually killing him. They said they found out only later that the man was Babbu and had died.

Legal experts have said now that charges against Babbu have been abated, the accusations against him have nowhere to go. He will not get a trial and cannot be acquitted of these charges precisely because he cannot be tried — leaving just an official document accusing him of being part of the riots last year.

Senior Advocate Rebecca John said, "They (the accusations) will not be worth the paper they are printed on. There is a Delhi High Court judgment from the Bofors case which set down clearly that the allegations against a dead accused (Rajiv Gandhi) will have no merit as there will be no room to test them in a court of law. So, legally, they don't mean a thing after charges are abated."

So why then file the charges if the police knew they will not get a chance to prove them in court?

All evidence of destruction and loss has shown that the riots had taken a heavier toll on the Muslim community, which had been leading small, hyperlocal anti-CAA protests in the area. Delhi Police's affidavit showed that 40 of the 52 civilian deaths were of Muslims.

But a charge from the Hindu right-wing and the Bharatiya Janata Party has constantly been that of justifying this heavier death toll with absurd and warped claims that the Muslim men killed in the riots were all "violent, anti-national rioters themselves".

In fact, in an interview earlier this year to The Wire, BJP leader Kapil Mishra, after whose incendiary speech the riots had begun, had presented a similar argument while rebutting questions about why the toll on the Muslim side was heavier if, as he claimed, the riots were "anti-Hindu" in nature.

When asked about the 40 Muslims killed in the riots and who was responsible for it, he defended the Delhi Police's probe in these cases and had said, "Just because someone is killed, it does not mean they are victims. We must see case to case… Hitler was also killed in World War II. Was he a victim of the war?"

Hence, it becomes pertinent to ask the question again — Why would the Delhi Police accuse a dead man in his own murder case and charge him with rioting and conspiracy — only for them to be abated, leaving a legally meaningless document of allegations? This especially when the prosecutors arguing this particular case, have on multiple occasions referred to Babbu as an "innocent young auto driver" — a premise accepted by the courts as well and recorded in official orders.