Delhi District Court
State vs Kuldeep And Others on 3 April, 2025
CNR No. DLNE01-000066-2021 CNR No. DLNE01-003428-2021 Both cases are arising out of
&
State v. Kuldeep & Ors. State v. Mohd. Furkan & Ors. FIR No. 78/2020,
SC No.03/2021, SC No. 345/2021 PS Karawal Nagar
IN THE COURT OF SH. PULASTYA PRAMACHALA
ADDITIONAL SESSIONS JUDGE-03,
NORTH-EAST DISTRICT
KARKARDOOMA COURTS: DELHI
INDEX
Sl. HEADINGS Page Nos.
No.
1 Description of Case & Memo of Parties 2-3
2 Case set up by the Prosecution 3-5
3 Charges 5-6
4 Description of Prosecution Evidence 7-10
5 Statement of Accused Persons 10-11
6 Arguments of Defence and Prosecution 11
7 Section 255 and 351 BNSS 11-17
8 Appreciation of Facts and Evidence 17-18
9 Vicarious Liability under Section 149 IPC 18-25
10 Conclusion and Decision 26
Digitally signed
by PULASTYA
PRAMACHALA
PULASTYA
PRAMACHALA Date:
2025.04.03
17:20:27
+0530
Page 1 of 26 (Pulastya Pramachala)
ASJ-03, North-East District,
Karkardooma Courts, Delhi
CNR No. DLNE01-000066-2021 CNR No. DLNE01-003428-2021 Both cases are arising out of
&
State v. Kuldeep & Ors. State v. Mohd. Furkan & Ors. FIR No. 78/2020,
SC No.03/2021, SC No. 345/2021 PS Karawal Nagar
Sessions Case Nos. : 03/2021 & 345/2021
Under Section : 147/148/149/153A/302/436/505/120-
B/34 IPC
Police Station : Karawal Nagar
FIR No. : 78/2020
CNR Nos. : DLNE01-000066-2021
DLNE01-003428-2021
In the matter of SC No.03/2021: -
STATE
VERSUS
1. Kuldeep
S/o. Sh. Mangal Sain,
R/o. H.No. B-87, Street No.1,
Prem Vihar, Shiv Vihar,
Karawal Nagar, Delhi.
2. Deepak Yadav
S/o. Sh. Ramesh Yadav,
R/o. H.No.375, Street No.5,
B-Block, Mahalakshmi Enclave,
Karawal Nagar, Delhi.
3. Deepak Thakur
S/o. Sh. Chander Pal,
R/o. H.No.364, B-Block, Gali No.6,
Maha Laxmi Enclave, Karawal Nagar, Delhi.
...Accused Persons
Name of the complainant ASI Sukhpal Singh
Date of Institution : 05.01.2021
Date of reserving Judgment : 03.04.2025
Date of pronouncement : 03.04.2025
Decision : All accused are acquitted.
(Section 481 BNSS complied with by all accused persons)
Page 2 of 26 (Pulastya Pramachala)
ASJ-03, North-East District,
Karkardooma Courts, Delhi
CNR No. DLNE01-000066-2021 CNR No. DLNE01-003428-2021 Both cases are arising out of
&
State v. Kuldeep & Ors. State v. Mohd. Furkan & Ors. FIR No. 78/2020,
SC No.03/2021, SC No. 345/2021 PS Karawal Nagar
In the matter of SC No.345/2021: -
STATE
VERSUS
1. Mohd. Furkan
S/o. Mohd. Yamin,
R/o. H.No. B-15, Gali No.8,
near Hussaini Masjid,
Babu Nagar, Delhi.
2. Mohd. Irshad
S/o. Mohd. Ifrahim,
R/o. H.No. A-71, Chaman Park,
Mustafabad, Delhi. ...Accused Persons
Name of the complainant ASI Sukhpal Singh
Date of Institution : 05.01.2021
Date of reserving Judgment : 03.04.2025
Date of pronouncement : 03.04.2025
Decision : All accused are acquitted.
(Section 481 BNSS complied with by all accused persons)
JUDGMENT
CASE SET UP BY THE PROSECUTION
1. Brief facts of the present case are that on 25.02.2020 at about
9.30 a.m., on being assigned DD no.18A, ASI Sukhpal visited
GTB hospital. He found one Salman s/o Sabir admitted in the
hospital vide MLC no. D-5/24, with the alleged history of
physical assault by a mob at Shiv Vihar at about 5 p.m. on
24.02.2020. Statement of Salman was not recorded at that time.
Subsequently on 27.02.2020, information of death of same
Salman was recorded in PS Karawal Nagar vide DD no.9A. ASI
Sukhpal prepared a rukka on the basis of DD no.9A and FIR in
this case was accordingly registered on 29.02.2020. Thereafter
Page 3 of 26 (Pulastya Pramachala)
ASJ-03, North-East District,
Karkardooma Courts, Delhi
CNR No. DLNE01-000066-2021 CNR No. DLNE01-003428-2021 Both cases are arising out of
&
State v. Kuldeep & Ors. State v. Mohd. Furkan & Ors. FIR No. 78/2020,
SC No.03/2021, SC No. 345/2021 PS Karawal Nagar
further investigation was assigned to Insp. Prakash Roy. Insp.
Roy visited Shiv Vihar tiraha alongwith ASI Sukhpal and
prepared a site plan at the instance of some public persons
present there and ASI Sukhpal. He also recorded statements of
Sabir (father of deceased), Sazid (uncle of deceased).
Postmortem examination was conducted on 29.02.2020 and
thereafter dead body was handed over to his family members. It
was found to be a case of death on account of gunshot injury.
2. During further investigation, Crime team and FSL team were
called at the alleged place of incident, who took photographs of
that place. CCTV footages were obtained from a mobile phone
shop belonging to one Shiva. His DVR was also taken into
possession. Meanwhile, on the basis of disclosure statement
made in FIR no.62/20 PS Karawal Nagar, accused Kuldeep s/o
Mangal Sain was arrested in this case. Some witnesses namely
Sunil, Sanjay and HC Patel were examined, who claimed to be
eye witnesses. On the basis of appearance in the video footages
of the riots, other accused persons namely Mohd. Furkan, Mohd.
Irshad and subsequently Deepak Yadav and Deepak Thakur, were
also arrested in this case.
3. DVR and pen-drive containing CCTV footages as obtained from
Shiva, were sent to FSL Rohini for examination. Photographs of
some accused persons Mohd. Furkan and Mohd. Irshad, and
sweat-shirt allegedly recovered at the instance of Kuldeep, were
also sent to FSL for comparison of the same with the visuals
appearing in the video. FSL gave its report. Scaled site plan was
Page 4 of 26 (Pulastya Pramachala)
ASJ-03, North-East District,
Karkardooma Courts, Delhi
CNR No. DLNE01-000066-2021 CNR No. DLNE01-003428-2021 Both cases are arising out of
&
State v. Kuldeep & Ors. State v. Mohd. Furkan & Ors. FIR No. 78/2020,
SC No.03/2021, SC No. 345/2021 PS Karawal Nagar
also prepared by the draughtsman.
4. After completion of investigation, on 16.06.2020 first
chargesheet was filed against accused Kuldeep, Furkan and
Irshad, for offences punishable u/s
147/148/149/153A/302/436/505/120B/34 IPC, before ld. CMM,
North-East District, Karkardooma Court, Delhi. On 16.10.2020,
ld. CMM (N/E) took cognizance of offences u/s
147/148/149/302/436/120B/34 IPC. Vide this order, ld. CMM
(N/E) declined to take cognizance of offence under Section 153A
and 505 IPC, for want of sanction u/s 196 Cr.P.C. Thereafter on
22.12.2020, ld. CMM (N/E) committed the case to the court of
sessions.
5. On 28.01.2021, first supplementary chargesheet was filed against
accused Deepak Yadav and Deepak Thakur before ld. CMM/NE.
This supplementary chargesheet was sent to the court of sessions
by ld. CMM (N/E) vide order dated 09.02.2021. On 29.09.2021,
second supplementary chargesheet was filed and same was sent
to the court of sessions vide order dt.21.10.2021. Thereafter third
and last supplementary chargesheet was filed on 16.09.2022 and
same was sent to the court of sessions vide order dt.03.11.2022.
CHARGES
6. On 14.09.2021, charges were framed against all five accused
persons, for offences punishable u/s 120B IPC r/w Section
143/147/148/149/302 IPC; 143/147/148 IPC r/w Section
120B/149 IPC; and 302 IPC r/w Section 120B & 149 IPC, to
Page 5 of 26 (Pulastya Pramachala)
ASJ-03, North-East District,
Karkardooma Courts, Delhi
CNR No. DLNE01-000066-2021 CNR No. DLNE01-003428-2021 Both cases are arising out of
&
State v. Kuldeep & Ors. State v. Mohd. Furkan & Ors. FIR No. 78/2020,
SC No.03/2021, SC No. 345/2021 PS Karawal Nagar
which they pleaded not guilty and claimed trial. Subsequently on
26.11.2021, additional charges were framed against accused
Deepak Yadav and Deepak Thakur for offences u/s 153A and 505
IPC. The charges were framed in following terms: –
“That from the afternoon till late evening of 24.02.2020, in
the area of Shiv Vihar Tiraha, Karawal Nagar, Delhi-110094,
within the jurisdiction of PS Karawal Nagar, you all alongwith
your other associates (unidentified) entered into a criminal
conspiracies and formed unlawful assemblies, the objects whereof
were to cause maximum damage to the property and persons
(including committing murder) and use force, violence and
firearms in prosecution of the common objects of such assemblies
and thereby committed offences punishable under Section 120-B
IPC read with Section(s) 143/147/148/149/302 IPC and within
my cognizance.
Secondly, on the aforesaid date, time and place, under the
said criminal conspiracies, you all alongwith your other associates
(unidentified) formed unlawful assemblies and used force,
violence and guns in prosecution of the common objects
committed rioting and you all knew being members of the
aforesaid unlawful assemblies that the conspired offences were
likely to be committed and as such committed offences
punishable under Section(s) 143/147/148 IPC read with Section
120-B IPC and Section 149 IPC and within my cognizance.
Thirdly, on the aforesaid date, between 4.30 PM to 5.00 PM
at Shiv Vihar Tiraha, Karawal Nagar, Delhi-94, under the
aforesaid criminal conspiracies, you all being members of the said
unlawful assemblies in furtherance of your common objects
alongwith your other associates (unidentified) committed murder
of Salman, S/o Shri Sabir, aged about 24 years, r/o House No.295,
Gali No.1, Alvi Nagar, Loni, Ghaziabad, U.P with gunshot injury
and thereby committed an offence punishable under Section 302
IPC read with Section 120-B IPC and Section 149 IPC and within
my cognizance.”
Page 6 of 26 (Pulastya Pramachala)
ASJ-03, North-East District,
Karkardooma Courts, Delhi
CNR No. DLNE01-000066-2021 CNR No. DLNE01-003428-2021 Both cases are arising out of
&
State v. Kuldeep & Ors. State v. Mohd. Furkan & Ors. FIR No. 78/2020,
SC No.03/2021, SC No. 345/2021 PS Karawal Nagar
DESCRIPTION OF PROSECUTION EVIDENCE
7. Before I proceed further, it is worth to mention here that on
14.09.2021 though common charges were framed against all 5
accused persons by my ld. Predecessor, but on same day he took
note of the fact that police had chargesheeted accused persons
from Hindu and Muslim community together. Ld. Predecessor
directed to separate the trial for accused persons from both these
communities. DCP was given direction to furnish complete set of
chargesheet, and Court-Ahlmad was directed to register that
chargesheet separately. It was further directed that the
chargesheet already filed by police, was to be treated against
accused Kuldeep, Deepak Thakur and Deepak Yadav. Additional
set of chargesheet to be filed by police, was to be treated as
chargesheet for accused Mohd. Furkan and Mohd. Irshad.
Charges framed in the case were directed to be placed in both
these files. Accordingly, the new set of chargesheet qua accused
Mohd. Furkan and Mohd. Irshad, was registered as SC no.345/21
and the proceedings in that chargesheet were conducted
separately.
8. However, subsequently on 06.09.2022, court was informed that
the legal issue arising out of members of two rival unlawful
assemblies being chargesheeted for same incident, was to be
resolved. Submissions were made in respect of that legal issue.
Thereafter from one set of accused i.e. Kuldeep preferred a
revision petition against order on charge, which was rejected by
Delhi High Court on 28.10.2022. Prosecution took adjournments
Page 7 of 26 (Pulastya Pramachala)
ASJ-03, North-East District,
Karkardooma Courts, Delhi
CNR No. DLNE01-000066-2021 CNR No. DLNE01-003428-2021 Both cases are arising out of
&
State v. Kuldeep & Ors. State v. Mohd. Furkan & Ors. FIR No. 78/2020,
SC No.03/2021, SC No. 345/2021 PS Karawal Nagar
on the grounds of raising same legal issues separately before
High Court and it was also informed that a Writ Petition was filed
in other FIR no.66/20 PS Bhajanpura, wherein same issue was
raised by prosecution, but nothing concrete happened in this case.
Finally, on 08.05.2023, when prosecution again sought
adjournment taking plea that a revision petition was
contemplated to be filed, this court recorded that time was being
wasted in the name of raising this legal issue before higher court.
This court directed that since common evidence was projected by
prosecution based on common charges against all the accused
persons, therefore, all the proceedings including recording of
evidence, would continue in the first file bearing SC no.03/21, in
respect of all the five accused persons.
9. Before 08.05.2023, nine witnesses were recorded in each of the
file of SC nos. 03/21 and 345/21. Some of them were examined
together in both the files. After 08.05.2023, all the witnesses were
examined in single file of SC no.03/21. Several witnesses were
dropped on the basis of admission of documents under Section
294 Cr.P.C.
10. Prosecution examined total twenty seven (27) witnesses in
support of its case. PW1/Sh. Sajid was uncle of deceased, who
had reached GTB hospital after receiving information about
injury of Salman. PW2/Mohd. Anis was employer of Salman and
he was also given information about admission of Salman in
GTB Hospital on 24.02.2020. PW3/Sh. Sabir was father of
deceased. He also reached GTB hospital after getting information
Page 8 of 26 (Pulastya Pramachala)
ASJ-03, North-East District,
Karkardooma Courts, Delhi
CNR No. DLNE01-000066-2021 CNR No. DLNE01-003428-2021 Both cases are arising out of
&
State v. Kuldeep & Ors. State v. Mohd. Furkan & Ors. FIR No. 78/2020,
SC No.03/2021, SC No. 345/2021 PS Karawal Nagar
about injury to Salman. He had also identified mobile phone of
Salman, which was recovered from one Asif. PW4/Sh. Ajit
Singh, PW5/Sh. Surender Kumar, PW10/Sh. Pawan Singh,
PW12/Sh. Prakash Saxena and PW13/Sh. Rajiv Vashisht were
nodal officers of different service providers, who proved certified
copy of CDR with CAF and location chart of different mobile
numbers. PW6/Sh. Asif was running a Gym at Brijpuri Road. He
had picked a mobile phone on 24.02.2020, when an injured was
being taken on a motorcycle and when the mobile phone had
fallen down on the road. Subsequently, police seized that mobile
phone from Asif. PW7/Sh. Shiva was running an optical and
mobile shop at Shiv Vihar Tiraha and he had furnished CCTV
footages as recorded by CCTV cameras of his shop, in a pen
drive. Hard disk of DVR of his shop was also taken by the police.
PW8/Dr. N.K. Aggarwal was one of the members of the Board,
which conducted postmortem examination on the body of
deceased Salman on 29.02.2020. PW14/Sh. L.K. Gautam had
signed the sanction order u/s.196 Cr.P.C. (Ex.PW14/A) against
Kuldeep, Mohd. Furkan and Mohd. Irshad, on receipt of approval
from competent authority on 11.12.2020. He was empowered to
sign Ex.PW14/A on behalf of Hon’ble LG, GNCT. PW16/Dr.
C.P. Singh had countersigned the reports (Ex.PW16/A and
Ex.PW16/B) as prepared by Mr. Geetesh Patel on 28.10.2020 and
24.09.2021.
11. PW22/Sh. Sunil Kumar was running a garment shop in front of
Hanuman Mandir, near Shiv Vihar Pulia. On 24.02.2020, he was
Page 9 of 26 (Pulastya Pramachala)
ASJ-03, North-East District,
Karkardooma Courts, Delhi
CNR No. DLNE01-000066-2021 CNR No. DLNE01-003428-2021 Both cases are arising out of
&
State v. Kuldeep & Ors. State v. Mohd. Furkan & Ors. FIR No. 78/2020,
SC No.03/2021, SC No. 345/2021 PS Karawal Nagar
present at his shop till about 04:30 PM. He left his shop because
mob of persons from Hindu and Muslim communities had
assembled near Shiv Vihar Tiraha. He came back to his shop at
about 5-6 PM and saw pelting of stones going on between afore-
said two mobs. He did not know anyone from afore-said mob and
he did not identify any one in the mob.
12. PW24/Sh. Subodh Saini was expert in FSL, Rohini, Delhi, who
had examined the hard-disk and pen-drive as taken by police
from PW7/Sh. Shiva. Nothing was found in the hard-disk and
data of pen-drive was copied in a DVD by this witness.
13. PW9/Ct. Sunil, PW11/HC Ravinder, PW15/ACP Mahesh Kumar,
PW17/Insp. Prakash Roy, PW18/ASI Jitender Kumar, PW19/SI
Sanjay Kumar, PW20/ASI Bijender Kumar, PW21/Retd. SI
Rajender Prasad, PW23/ASI Manoj Kumar and PW26/Insp.
Rajeev Ranjan were the police officials, who took part in the
investigation of the present case. PW25/Retd. ASI Sukhpal was
the person, who had prepared rukka in this case and had
accompanied 1st IO to Shiv Vihar Tiraha. PW17/Insp. Prakash
Roy was the first IO. PW27/Insp. Manoj Kumar was the last IO.
STATEMENT OF ACCUSED PERSONS
14. On closure of prosecution evidence, prosecution was asked to
furnish synopsis of incriminating evidence against the accused
persons, so that the relevant questions could be framed and could
be put before the relevant accused persons as per Section 351
BNSS (erstwhile Section 313 Cr. PC). A synopsis in the format of
Page 10 of 26 (Pulastya Pramachala)
ASJ-03, North-East District,
Karkardooma Courts, Delhi
CNR No. DLNE01-000066-2021 CNR No. DLNE01-003428-2021 Both cases are arising out of
&
State v. Kuldeep & Ors. State v. Mohd. Furkan & Ors. FIR No. 78/2020,
SC No.03/2021, SC No. 345/2021 PS Karawal Nagar
questions, was filed on behalf of prosecution. I perused the same
and the evidence on the record. Submissions were invited from
ld. SPP, to pinpoint any incriminating/inculpatory evidence,
which would connect any of the accused persons with the alleged
crime/charges of commission of murder of Salman and to explain
why not court should proceed u/s. 255 BNSS (erstwhile S.232
Cr.P.C.).
ARGUMENTS OF DEFENCE AND PROSECUTION
15. Sh. Shailendra Singh, ld. counsel for accused Kuldeep, Deepak
Yadav and Deepak Thakur and Sh. Abdul Gaffar, ld. counsel for
accused Irshad, submitted that there is no incriminating evidence
against any accused person at all.
16. Sh. Madhukar Pandey, ld. Special PP for State, could not point
out any evidence to connect accused persons with the alleged
charges, though he sought to defer the final decision in the case.
SECTION 255 AND 351 BNSS
17. It is appropriate to know the legal recourse, for a situation
wherein no incriminating evidence is found against the accused.
Section 255 BNSS (erstwhile S.232 Cr.P.C.) provides as under: –
“Acquittal- If, after taking the evidence for the prosecution,
examining the accused and hearing the prosecution and the
defence on the point, the Judge considers that there is no evidence
that the accused committed the offence, the judge shall record an
order of acquittal.”
18. Section 256 BNSS (erstwhile 233 Cr.P.C.) provides as under: –
“Entering upon defence. – (1) Where the accused is not acquitted
under section 255, he shall be called upon to enter on his defencePage 11 of 26 (Pulastya Pramachala)
ASJ-03, North-East District,
Karkardooma Courts, Delhi
CNR No. DLNE01-000066-2021 CNR No. DLNE01-003428-2021 Both cases are arising out of
&
State v. Kuldeep & Ors. State v. Mohd. Furkan & Ors. FIR No. 78/2020,
SC No.03/2021, SC No. 345/2021 PS Karawal Nagarand adduce any evidence he may have in support thereof. (2) If
the accused puts in any written statement, the Judge shall file it
with the record. (3) If the accused applies for the issue of any
process for compelling the attendance of any witness or the
production of any document or thing, the Judge shall issue such
process unless he considers, for reasons to be recorded, that such
application should be refused on the ground that it is made for the
purpose of vexation or delay or for defeating the ends of justice.”
19. Section 257 BNSS further provides that when examination of the
witness of accused, (if any) is complete, the prosecutor shall sum
up his case and thereafter the accused shall be entitled to respond
to the arguments of the prosecutor. Section 258 BNSS further
provides that after hearing arguments and points of law (if any),
the judge shall give a judgment in the case.
20. On the other hand, Section 351 BNSS (erstwhile S.313 Cr.P.C.)
provides as under: –
“Power to examine the accused – (1) In every inquiry or trial,
for the purpose of enabling the accused personally to explain
any circumstances appearing in the evidence against him, the
Court- (a) may at any stage, without previously warning the
accused, put such questions to him as the Court considers
necessary; (b) shall, after the witnesses for the prosecution have
been examined and before he is called on for his defence,
question him generally on the case: ……”
21. As it is evident from the language used in Section 351 BNSS,
this provision talks about “any circumstance appearing in the
evidence against the accused”. On the basis of such language,
practically the courts have been using the term of “incriminating
evidence”. The purpose or objective behind the provision under
section 351 BNSS is also evident from the language of the
Page 12 of 26 (Pulastya Pramachala)
ASJ-03, North-East District,
Karkardooma Courts, Delhi
CNR No. DLNE01-000066-2021 CNR No. DLNE01-003428-2021 Both cases are arising out of
&
State v. Kuldeep & Ors. State v. Mohd. Furkan & Ors. FIR No. 78/2020,
SC No.03/2021, SC No. 345/2021 PS Karawal Nagar
provision, wherein it is mentioned that ‘for the purpose of
enabling the accused personally to explain’. Hon’ble High Court
of Delhi in the case of Ranjan Dwivedi & Anr. v. CBI, 2008
Cri.L.J. 1440 (DHC), was examining the scope and content of
Section 313 Cr.P.C. and in that process, Delhi High Court
referred to following observations made by hon’ble Supreme
Court in the case of Jai Dev v. State of Punjab, AIR 1963 SC
612:-
“the ultimate test in determining whether or not the accused has
been fairly examined under Section 342 Cr.P.C. (similar
provision under old Act), would be to enquire whether, having
regard to all the question put to him, he did get an opportunity to
say what he wanted to say in respect of prosecution case against
him. If it appears that the examination of the accused person was
defective and thereby a prejudice has been caused to him, that
would no doubt be a serious infirmity.”.
22. Taking view of object behind Section 313 Cr.P.C., Hon’ble High
Court of Delhi observed that: –
“19. Thus, it is well settled that the provision is mainly
intended to benefit the accused and as it’s corollary to benefit
the court in reaching the final conclusion. 20. At the same time,
it should be borne in mind that the provision is not intended to
nail him to any position, but to comply with the most salutary
principle of natural justice enshrined in the maxim ‘audi
alteram partem’.”
23. Hon’ble High Court of Delhi further made observations in the
same case in the following terms: –
“24. We think that a pragmatic and humanistic approach is
warranted in regard to such special exigencies. The word ‘Shall’
in clause b to Section 313 (1) of the code is to be interpreted as
Page 13 of 26 (Pulastya Pramachala)
ASJ-03, North-East District,
Karkardooma Courts, Delhi
CNR No. DLNE01-000066-2021 CNR No. DLNE01-003428-2021 Both cases are arising out of
&
State v. Kuldeep & Ors. State v. Mohd. Furkan & Ors. FIR No. 78/2020,
SC No.03/2021, SC No. 345/2021 PS Karawal Nagar
obligatory on the court and it should be complied with when it is
for the benefit of the accused.”
24. Hon’ble High Court of Delhi was dealing with a different
situation in the concerned case, however, in that process, the
court did come up with clear cut observations that the principle
underlying Section 313 Cr.P.C. was “audi alteram partem” i.e. to
afford an opportunity to the accused to explain adverse material
or circumstances. The court further made it clear that the said
provision was intended for the benefit of the accused, to explain
circumstances, which might appear adverse to him, so that
accused could explain them.
25. In the case of Sivamani & Anr. v. State of Kerala, 1993 Cri.L.J.
23 (Kerala), while examining the scope of section 232 Cr.P.C.,
hon’ble Kerala High Court observed that an accused can be
acquitted u/s 232 only when there is no evidence that he
committed the offence. In that case, Kerala High Court dealt with
the term of ‘there is no evidence’ and in that process the court
referred to observations made by Division Bench of same court
in the case of State of Kerala v. Mundan, 1981 Cri.L.J. 1795
(Kerala), to the effect that where there is some evidence
connecting the accused with the commission of crime, it is the
duty of the judge to pass on to Section 233 and not to appreciate
that evidence and find out whether it was reliable or not, so as to
pass an order u/s 232 of the Code. In the case of Mundan (supra),
Kerala High Court had further observed that the words ‘no
evidence’ in Section 232 Cr.P.C. cannot be construed and
Page 14 of 26 (Pulastya Pramachala)
ASJ-03, North-East District,
Karkardooma Courts, Delhi
CNR No. DLNE01-000066-2021 CNR No. DLNE01-003428-2021 Both cases are arising out of
&
State v. Kuldeep & Ors. State v. Mohd. Furkan & Ors. FIR No. 78/2020,
SC No.03/2021, SC No. 345/2021 PS Karawal Nagar
interpreted to mean absence of sufficient evidence for conviction
or absence of satisfactory or trustworthy or conclusive evidence
in support of the charge. The judge has to see whether any
evidence has been let in on behalf of the prosecution in support
of their case that the accused committed the offence alleged, and
whether that evidence is legal and relevant. It is not the quality or
quantity of the evidence that has to be considered at this stage. If
there is any evidence to show that the accused has committed the
offence, then the judge has to pass on to the next stage. It is not
open to him to evaluate and consider the reliability of the
evidence at that stage.
26. In the case of Madan Mohan Jagga v. The State, 1984 Cri.L.J.
681 (Himachal Pradesh), even High Court of Himachal Pradesh
examined the scope of ‘no evidence’ as appearing in Section 232
Cr.P.C. to observe that “this term neither means total absence of
evidence, nor does it mean absence of cogent, convincing,
reliable and trustworthy evidence. All that it means is that there
is no inculpatory evidence against the accused in the sense that
even if the prosecution evidence adduced is accepted at it’s face
value, it would not amount to legal proof of the evidence,
charged against the accused. In such a case, the court is not
required to marshal the evidence with a view to find out if it
would be safe to act upon it or not.”.
27. In view of above-mentioned observations made by higher courts,
it has to be seen if at all examination of an accused u/s 351 BNSS
is necessary in all the circumstances. As per S.351 BNSS, the
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State v. Kuldeep & Ors. State v. Mohd. Furkan & Ors. FIR No. 78/2020,
SC No.03/2021, SC No. 345/2021 PS Karawal Nagar
inculpatory evidence appearing against the accused is to be put to
him, so as to enable the accused to give his explanation. As per
Section 255 BNSS, if the judge considers that there is no
evidence that the accused committed the offence, the judge shall
record an order of acquittal. On conjoint reading of Section 255
and Section 351 BNSS, it becomes amply clear that the focus of
the court has to be on inculpatory evidence. However, the
expression ‘no evidence’ as mentioned in Section 255 BNSS has
an important role to decide if examination u/s 351 BNSS is
mandatory in all circumstances. If there is no admissible
evidence on the record, so as to indicate towards the accused for
commission of alleged offence, then there remains no occasion to
seek any kind of explanation from the accused. In other words, if
there is no inculpatory evidence on the record to connect the
accused with the offences charged against him, then it is not a
viable situation to seek any kind of explanation from him. In
absence of inculpatory evidence on the record, examination u/s
351 BNSS shall be useless exercise, because accused is otherwise
not required to explain evidence of any such fact, which does not
connect him with the offences charged against him. Section 255
BNSS becomes relevant for such situation only. Therefore, it
cannot be said that in all the circumstances, accused must be
examined u/s 351 BNSS or that even before proceeding u/s 255
BNSS, accused must be examined u/s 351 BNSS. Examination of
accused u/s 351 BNSS becomes necessary only when the court
finds that there is some evidence on the record, which if taken on
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CNR No. DLNE01-000066-2021 CNR No. DLNE01-003428-2021 Both cases are arising out of
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State v. Kuldeep & Ors. State v. Mohd. Furkan & Ors. FIR No. 78/2020,
SC No.03/2021, SC No. 345/2021 PS Karawal Nagar
it’s face value, connects the accused with the offences charged
against him. For this purpose, as per law explained by higher
courts, appreciation of the evidence on the record has to be done
on limited para meters i.e. without looking into the credibility
and sufficiency of the evidence to convict the accused for the
offences charged with. On analysing the evidence on the record,
on the above-mentioned parameters, I did not find any
incriminating evidence against any of the accused persons, which
could connect them with the alleged riotous incident. Hence,
statement of all accused persons u/s 351 BNSS is being
dispensed with. The analysis of evidence is hereunder.
APPRECIATION OF FACTS, LAW AND EVIDENCE
28. It is worth to mention here that though the charges framed in this
case mentioned about forming unlawful assemblies and use of
force, violence and guns in prosecution of common objects and
about committing rioting (second charge), but keeping in view
the time period mentioned for this charge, I find such charge to
be too general and vague in nature. Though, the charge for
murder of Salman refers to time period as 24.02.2020 between
04:30 PM to 05:30 PM, but, for the second charge the time
period is mentioned as, from the afternoon till late evening of
24.02.2020. Thus, the second charge is not directly connected to
the rioting by any particular unlawful assembly leading to murder
of Salman.
29. The case in hand was registered on the basis of alleged murder of
Salman by a riotous mob. Investigation was carried out in respect
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CNR No. DLNE01-000066-2021 CNR No. DLNE01-003428-2021 Both cases are arising out of
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State v. Kuldeep & Ors. State v. Mohd. Furkan & Ors. FIR No. 78/2020,
SC No.03/2021, SC No. 345/2021 PS Karawal Nagar
of murder of Salman. However, since IO could not lay hand on
the culprit for murder of Salman, the accused persons were
chargesheeted on the basis of their alleged presence in the mob of
rioters. I would quote from the chargesheet: –
“Despite best efforts, the identity of the person who had fired on
the deceased is still obscure. This is a case where two parts of a
riotous mob had actively participated in attacking each other,
which resulted in a gunshot injury to the victim resulting in his
death. Hence, all the persons who had been part of the riotous
mob, irrespective of whichever side, are liable to be prosecuted
and punished for the death of the victim.”
“During investigation, it has been established that there was an
unlawful assembly, armed with deadly weapons, sticks, bricks
etc. on 24.02.2020 in the area of Shiv Vihar Tiraha, which
indulged in the commission of offences mentioned in the
chargesheet. It has also been established that all the arrested
accused persons were active members of the unlawful assembly
mentioned above.”
30. Prosecution has invoked S.149 IPC to show culpability of all
these accused persons. Therefore, it is expedient to look into the
scope of vicarious liability u/s 149 IPC.
VICARIOUS LIABILITY UNDER SECTION 149 IPC
31. In Ramachandran & Ors. v. State of Kerala, (2011) 9 Supreme
Court Cases 257, it was held by Supreme Court that “In order
that the case may fall under the first part of Section 149, the
offence committed must be connected immediately with the
common object of the unlawful assembly of which the accused
were members. Even if the offence committed is not in direct
prosecution of the common object of the assembly, it may yet fall
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State v. Kuldeep & Ors. State v. Mohd. Furkan & Ors. FIR No. 78/2020,
SC No.03/2021, SC No. 345/2021 PS Karawal Nagar
under the second part of Section 149 IPC if it can be held that the
offence was such as the members knew was likely to be
committed. The expression “know” does not mean a mere
possibility, such as might or might not happen. For instance, it is
a matter of common knowledge that if a body of persons go
armed to take forcible possession of the land, it would be right to
say that someone is likely to be killed and all the members of the
unlawful assembly must be aware of that likelihood and would
be guilty under the second part of Section 149 IPC. There may be
cases which would come within the second part, but not within
the first. The distinction between the two parts of Section 149
IPC cannot be ignored or obliterated.”
32. In L. Shah & Anr. v. West Bengol, (2001) 5SCC 235, a three
judges bench of Supreme Court held that “In this context it is
appropriate to refer to Section 142 IPC. It pertains to a person
who intentionally joins an unlawful assembly and continues to
involve himself in it. The only condition which the Section
envisages is that the person who joins the unlawful assembly
should have been aware of the facts which rendered such
assembly unlawful. If he knew that an unlawful assembly had
been formed with a common object and if he had chosen to join
it enroute to its destination the person joining midway can also
be fastened with the vicarious liability envisaged in Section 149
IPC, unless he drops himself out before reaching such
destination.”
33. In K. Madhvan v. Majeed & Ors. (2017) 5SCC 568, Hon’ble
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State v. Kuldeep & Ors. State v. Mohd. Furkan & Ors. FIR No. 78/2020,
SC No.03/2021, SC No. 345/2021 PS Karawal Nagar
Supreme Court observed that “presence of accused as part of
unlawful assembly, when not as curious onlooker or bystander,
suggests his participation in object of assembly. When the
prosecution establishes such presence, then it is the conduct of
the accused that would determine whether he continued to
participate in the unlawful assembly with the intention to fulfill
the object of the assembly, or not.”
34. Supreme Court in the case of State of Maharashtra v. Ramlal
Devappa Rathod, (2015) 15 SCC 77, made following
observations: –
“24. The liability of those members of the unlawful assembly
who actually committed the offence would depend upon the
nature and acceptability of the evidence on record. The difficulty
may however arise, while considering the liability and extent of
culpability of those who may not have actually committed the
offence but were members of that assembly. What binds them
and makes them vicariously liable is the common object in
prosecution of which the offence was committed by other
members of the unlawful assembly. Existence of common object
can be ascertained from the attending facts and circumstances.
For example, if more than five persons storm into the house of
the victim where only few of them are armed while the others are
not and the armed persons open an assault, even unarmed
persons are vicariously liable for the acts committed by those
armed persons. In such a situation it may not be difficult to
ascertain the existence of common object as all the persons had
stormed into the house of the victim and it could be assessed
with certainty that all were guided by the common object,
making every one of them liable. Thus, when the persons
forming the assembly are shown to be having same interest in
pursuance of which some of them come armed, while others may
not be so armed, such unarmed persons if they share the samePage 20 of 26 (Pulastya Pramachala)
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State v. Kuldeep & Ors. State v. Mohd. Furkan & Ors. FIR No. 78/2020,
SC No.03/2021, SC No. 345/2021 PS Karawal Nagarcommon object, are liable for the acts committed by the armed
persons. But in a situation where assault is opened by a mob of
fairly large number of people, it may at times be difficult to
ascertain whether those who had not committed any overt act
were guided by the common object. There can be room for
entertaining a doubt whether those persons who are not attributed
of having done any specific overt act, were innocent bystanders
or were actually members of the unlawful assembly.”
35. The above-mentioned observations of Supreme Court, make it
well clear that for inviting liability by virtue of Section 149 IPC,
it is not required to prove overt act on the part of every member
of the mob. However, it is important for the prosecution to show
that the alleged act was done by the members of that mob in
pursuance to the common object of that mob and accused was
member of such mob at the relevant time. Hence, common object
of an unlawful assembly plays important role in fixing the
vicarious liability.
36. It is case of the prosecution itself that two rival mobs belonging
to Hindu and Muslim community, were confronting each other at
Shiv Vihar Tiraha. In that situation, both these mobs could not
have same common object. In fact, both these mobs had to have
common object just opposite to the common object of the rival
mob. Common object of mob of persons from the Hindu
community would have been to attack and cause damage and loss
to the property of persons from Muslim community and to
physically assault persons from Muslim community. But, the
common object of mob of persons from Muslim community,
could not have been to cause damage and loss to the property of
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State v. Kuldeep & Ors. State v. Mohd. Furkan & Ors. FIR No. 78/2020,
SC No.03/2021, SC No. 345/2021 PS Karawal Nagar
persons from their own community or to physically assault a
person from their own community. Therefore, the stand taken by
IO in the chargesheet to prosecute member of both rival mobs for
culpable homicide of Salman, cannot be accepted to be in
consonance with the law.
37. If after due investigation, investigating agency was unable to find
the culprit of the alleged crime/offence, then the legal approach
to such situation was to file Untrace Report. In this case, court
has to look for culpability of accused persons, on the basis of
their connect with the incident leading to death of Salman. Other
instances of riotous incident could be clubbed in this case, only if
same were shown to be committed in the same transaction of acts
of the accused persons, which led to culpable homicide of
Salman.
38. However, in initial three chargesheets, IO kept taking stand that
“All possibilities are being explored to trace/identify the rioters
and actual person who had shot Salman dead. The other
supplementary charge sheet u/s 173.8 Cr.P.C. will be again
submitted after completion of investigation in this regard.” In the
fourth and last charge sheet, there was no mention about finding
the rioters and actual person who had shot Salman. It was filed
merely to add S.188 IPC on the basis of a complaint u/s 195
Cr.P.C. Thus, the conclusions of IO as given in all the charge
sheets filed in this case, would show that the rioters and actual
person/persons involved in the culpable homicide of Salman,
could not be traced. I have already indicated the legal approach
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CNR No. DLNE01-000066-2021 CNR No. DLNE01-003428-2021 Both cases are arising out of
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State v. Kuldeep & Ors. State v. Mohd. Furkan & Ors. FIR No. 78/2020,
SC No.03/2021, SC No. 345/2021 PS Karawal Nagar
for such kind of situation, hence, same need not be repeated here.
Suffice is to say that prosecution of all the accused persons in this
case, for culpable homicide of Salman, was not based on correct
appreciation of law. There was no evidence against any of the
accused persons, to connect them in any manner, either in
individual capacity or as member of the group of concerned
rioters, with the incident of gun fire at Salman. The liability to
cause culpable homicide of someone else, while intending to kill
a different person, can be fastened upon that particular person
only, who acted with intention of killing a person, but ended up
killing a different person with such act.
39. PW1/Sajid, PW2/Anis, PW3/Sabir, PW4/Ravi (in SC No.
345/21), PW6/Asif, PW7/Shiva (in SC No. 3/21), and
PW22/Sunil, were the public witnesses. None of them deposed
anything about the incident with Salman. PW6/Asif deposed
about one injured coming from the side of Shiv Vihar Tiraha
towards his Gym situated on Brijpuri road, with support of two
boys. That injured was taken on a bike by the two boys and in the
process of making that injured sit on the bike, mobile phone of
injured had fallen down, which was picked by PW6. However,
prosecution did not get identity of Salman being the same
injured, established in the examination of PW6. Still, on the basis
of the fact that mobile phone attributed to Salman, was picked by
PW6, if it is assumed that PW6 had seen Salman as that injured,
nothing more has come on the record regarding incident and
place of incident with Salman. PW6 did not identify anyone from
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CNR No. DLNE01-000066-2021 CNR No. DLNE01-003428-2021 Both cases are arising out of
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State v. Kuldeep & Ors. State v. Mohd. Furkan & Ors. FIR No. 78/2020,
SC No.03/2021, SC No. 345/2021 PS Karawal Nagar
the rioters at Shiv Vihar Tiraha. PW22 though deposed about
pelting of stones between two rival mobs near Shiv Vihar Tiraha,
but he did not say anything about incident with Salman, or even
about seeing Salman at any point of time.
40. PW7/Niranjana Singh (in SC No.345/21) was cited as the witness
with the role of taking Salman to GTB Hospital in an ambulance,
but she could not remember anything and turned hostile to the
case of prosecution. PW9/Ct.Sunil was examined on two
different dates in two files. He only deposed about rival mobs of
persons from Hindu and Muslim community pelting stones on
each other near Shiv Vihar Tiraha from 2.45 P.M. on wards. He
further deposed about hearing gunshot from the side of Rajdhani
School and from the side of Anil Sweets shop. He did not say
anything about Salman or incident taken place with Salman.
41. Next evidence relates to video footage as handed over by
PW7/Shiva to the police. PW7 claimed that he had a shop of
optical and mobile at Shiv Vihar Tiraha. He had installed CCTV
cameras in his shop. He had copied the video footages of CCTV
camera in his computer and had given a copy of the same in a
pen-drive to the police. Prosecution examined PW16/Dr. C.P.
Singh, who had counter signed the report of FSL, regarding
examination of that pen-drive. He proved that report as Ex.
PW16/A. In this report, opinion was given that the video files
contained in that pen-drive were not tampered. It was also opined
that orange color sweatshirt resembled with an image taken from
a video file. However, there is no evidence to show the place
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State v. Kuldeep & Ors. State v. Mohd. Furkan & Ors. FIR No. 78/2020,
SC No.03/2021, SC No. 345/2021 PS Karawal Nagar
covered by those videos and their connection with the incident of
gun fire at Salman. It must be borne in mind that first of all there
should have been evidence to show the exact place of incident
with Salman. No witness of the prosecution said anything about
this fact. Site plan prepared by IO/PW17 is not based on any
evidence of the incident. PW17 claimed that this site plan was
prepared by him at the instance of PW25/ASI Sukhpal, but
apparently PW25 was not the witness to this incident. On the
other hand, PW25 deposed that PW17 prepared this site plan at
the instance of some public persons, who informed about the
place of incident with Salman, but such public persons were
neither examined by PW17 nor were produced before the court,
to tell about the exact place of incident or about the incident with
Salman. In such situation, the relied upon video footages do not
serve any purpose in this case. Unless the place of incident is
proved on the record, video of riot of any other place, cannot lend
support to the case of prosecution. Prosecution had to show the
involvement of accused in the riotous incident with Salman.
Their appearance in the video of riot or mob at any other place,
cannot be helpful to prove charges in this case. Therefore, the
reports given by FSL experts in respect of video footages do not
help the case of prosecution. Lastly, it is also appropriate to add
that though allegations of criminal conspiracy leading to murder
of Salman, were levelled against the accused persons, but record
is totally silent in respect of any evidence to support such
allegations.
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CNR No. DLNE01-000066-2021 CNR No. DLNE01-003428-2021 Both cases are arising out of
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State v. Kuldeep & Ors. State v. Mohd. Furkan & Ors. FIR No. 78/2020,
SC No.03/2021, SC No. 345/2021 PS Karawal Nagar
CONCLUSION & DECISION
42. In view of my foregoing discussions, observations and findings, I
find that there is no evidence on the record to connect any of the
accused persons with the incident probed in this case. Other
charges are not maintainable in this case. Hence, all accused
namely: – 1. Kuldeep, 2. Deepak Yadav, 3. Deepak Thakur, 4.
Mohd. Furkan and 5. Mohd. Irshad, are hereby acquitted of all
the charges leveled against them, in this case.
Digitally signed by PULASTYA PULASTYA PRAMACHALA PRAMACHALA Date: 2025.04.03 17:20:46 +0530 Announced in the open court (PULASTYA PRAMACHALA) today on 03.04.2025 ASJ-03 (North- East)
(This Judgment contains 26 pages) Karkardooma Courts/Delhi
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