2020 Delhi riots: Court says murder charge not made out against 6 members of riotous mob

New Delhi: A court here has ruled that the charge of murder was not made out against six men, who were accused of killing a fellow rioter during the 2020 communal violence here.

Instead, it has said the accused are liable to be tried for the offences of rioting, theft, house trespassing and criminal intimidation.

Additional Sessions Judge Pulastya Pramachala was hearing a case against Mohammed Firoz, Chand Mohammed, Rais Khan, Mohammed Junaid, Irshad and Akil Ahmed, against whom the Dayalpur police station had registered a case.

In an order dated February 13, the court said, "The case presented by the prosecution reflects that allegedly, deceased Shahid died of a gunshot injury when he was present along with companion rioters on the roof of Saptarishi Building (Saptarishi Ispat and Alloy Private Limited in Chand Bagh)."

It noted that according to the prosecution, the fellow rioters had fired gunshots, one of which hit Shahid.

The court, however, said according to the chargesheet, none of the accused was found firing gunshots and they were held liable for the offence of murder under Indian Penal Code (IPC) section 149 (unlawful assembly). This section made them vicariously liable for the death of Shahid.

According to the Supreme Court, each member of an unlawful assembly would be held vicariously liable for a crime committed by any member of such assembly, if it was proved that the offence was committed in pursuance of a common object.

"Thus, there are two main angles involved. The first question is, in such a case, would section 149 of the IPC be applicable? The second question is, was it a case of having received gunshot injury from a short range?" the court said.

Taking note of the facts of the case, it said two rival mobs were pelting stones and firing against each other.

"Thus, the act of alleged stone-pelting or gun-firing was intended against the rival mob only. In that situation, it cannot be a case that Shahid was shot with gunfire in pursuance of the common object of an alleged unlawful assembly," the judge said.

He added that if the common intention of the mob was taken into consideration, then even the deceased would be held vicariously responsible for his death.

The court said if it was presumed that Shahid was accidentally hit by a gunshot fired by someone from his companions, it could have been a case under section 304A (causing death by negligence) of the IPC.

"Being rash or negligent is an individual act and it cannot be part of the common object of any unlawful assembly. The alleged unlawful assembly could not have the common object to be rash or negligent. It shall be illogical to presume so," it said.

The court said the prosecution's case was not made out against the accused for murder or causing death by negligence by being members of an unlawful assembly.

It said according to the post-mortem and Forensic Sciences Laboratory (FSL) reports, the gunshot injury sustained by the deceased was not fired from close range.

"Therefore, the theory of having sustained the gunshot injury out of firing done from the roof of this building also stands overruled," it said.

The court noted that as there were higher buildings on all four sides of the Saptarishi Building, the geographic direction of the shot could not be ascertained and therefore, the exact direction of the firing was a matter of speculation or probability.

"I have no hesitation to say that no case for an offence under section 302 (murder) of the IPC, read with section 149 of the IPC, is made out against any of the accused persons," the judge said.

The court, however, said it was established that the accused were part of a riotous mob that damaged the gates of the building and looted a gas cylinder and cash, besides threatening the occupants of a room on February 24, 2020.

It said a prima facie case was made out against them under IPC sections 149, 148 (rioting, armed with a deadly weapon), 427 (mischief causing damage of at least Rs 50), 380 (theft), 451 (house trespass) and 506 Part 2 (criminal intimidation with severe threats).

As these offences are triable by a magisterial court, the sessions court sent the matter back to the competent court.