Delhi Riots: Bail Orders Narrate a Saga of ‘Doubtful’ Witnesses, ‘Concocted’ Evidence

New Delhi: Delayed registration of first information reports (FIRs), several inconsistencies in statements of prosecution witnesses (few of whom were described as “planted” witnesses), several of them not naming the accused in their initial statements but suddenly claiming to be identifying them after 10 days to at least a month or even 45 days without any test identification parade (TIP), no trace of the accused in the video evidence and call detail records (CDRs) establishing nothing have prompted courts in the national capital, while allowing bail applications, to seriously doubt the credibility of the Delhi Police’s investigation into the deadly communal violence in the city in February last year.

The courts have gone to the extent of observing in multiple bail orders that “wrong” and “factually incorrect” submissions were made by the prosecution, probes carried out were “perfunctory” and the chragesheets have been filed in “carelessness” and “lackadaisical” manner.

Of more than 3,000 bails granted since the investigation into the Delhi riots began, NewsClick reviewed 120 bail orders passed by different courts in the city in the past one year. These cases are being heard by four special courts (two magistrate courts and two sessions courts) in Karkardooma court complex as assigned by the Delhi High Court last year.

In over 40 cases wherein the investigators have relied on video footage obtained from CCTV cameras and other sources, 32 failed to pass basic judicial scrutiny — prompting the courts to conclude that the bail “applicants are not visible in any CCTV footage(s)”.

In at least 13 cases, the video footage presented before the courts either showed the alleged accused from behind with their faces covered — failing to specifically show the presence of the accused at crime scenes. Interestingly, the accused were proved as “bonafide bystander”. Some of the video evidence presented to establish the presence of the accused at the spot of crime was from a day before the day of the actual crime. There have also been cases where the video footage presented by the police was not of the crime scene but that of “around the place of occurrence”.

The second “crucial” evidence the Delhi Police put on record in over 56 of the 120 cases analysed is CDRs (Call Details Record) to corroborate the allegation against the accused. But the courts, after listening to the prosecution as well as the defense and considering the facts and circumstances of the cases, opined that the “CDR locations of the accused have not been found to be at the spot/SOC (scene of crime) on the date and time of the incident”. In several cases, the prosecution did not place it on records.

For example, while granting bail to one Rashid aka Monu (State Vs Rashid @ Monu; FIR No. 134/2020, PS Dayalpur), Additional Sessions Judge Vinod Yadav stated, “It is admitted position on record that applicant is neither visible in any CCTV footage(s) collected by the investigating agency nor his CDR location has been found to be at the spot/SOC on the date and time of the incident.”

He further said, “At this stage, it is fairly admitted by learned Special PP (public prosecutor) that while passing order dated September 26, 2020 (vide which the earlier bail application of the applicant was dismissed by this court) inadvertently wrong submissions were made by the prosecution that the applicant is visible in CCTV footage(s) and his CDR location was also found at the spot/SOC and that he was identified by PW (public witness) Anil Kumar and PW Himanshu Kumar, which in fact are factually incorrect as the same are not borne out from the perusal of final chargesheet filed in the matter.”

Allowing the bail application of one Anwar Hussain, who is accused of killing a person during the riots, the court found out that the prosecution submitted CCTV footage from a day before the actual incident that took place on February 24 last year.

Though the police claim to have used all scientific tools such as technology based on Artificial Intelligence (AI), facial recognition system software, CDRs, geo-location services, dumped data of phone calls and CCTV and video footage (recorded by individuals and the media) to ensure a “fair probe”, the Delhi High Court noted while granting bail to three accused that the prosecution’s case seemed like “conjecture” and “was not based on scientific facts.”

The prosecution has cited the statement of eyewitnesses — public witnesses or policemen — in at least 50 cases as “incriminating evidence” against the accused, but these disclosures have been recorded under Section 161 of the Criminal Procedure Code (CrPC), which is not admissible in a court of law. Of these 50 cases, the courts ruled the statements are “inconsequential” because they either kept changing or recorded after a gap ranging between 10 to 45 days of the crime. The prosecution failed to explain the “humongous delay in recording the statement of witness”.

In the cases wherein cops have reported an alleged crime and claimed to be an eyewitness but the FIRs were filed much later than when the alleged crime took place, the courts asked what stopped them from making a PCR call on the day they claimed to have witnessed the crime and report it without delay. In many of these cases, the prosecution witnesses are actually the policemen who reported the incident days after its occurrence.

There are cases where the witnessed who reported the crime did not mention the name of any accused in his first two statements made before the police (in one case even before a magistrate under Section 164 CrPC), but named the accused in his later statements. There are at least five cases where the court noted that the witnesses had not named the accused in previous FIRs but had “all of a sudden identified him in the present matter”, appearing to be prima facie “omnibus” or doubtful.

Doubtful Cases

In State Vs Gurmeet Singh, the court noted a delay of “about 46 days” between when the witness (one Rafiq) first named accused persons indulging in violence. Raising doubts over his testimony, the court allowed Singh’s bail application on November 19, 2020 — questioning as to how the accused was identified as a rioter by the said witness when his statement was recorded nearly two months after the alleged crime.

Nasir Ahmad, who has been selling fruits for the past 15 years and owns a godown at T-200, Main Road, Bhojpur, near Victor Public School, Delhi, registered a complaint before the police, stating that a group of more than 100 men came and looted the fruits worth Rs 2 lakh and burnt two reharis (hawkers’ cart) in the godown at 11 am on February 25, 2020. Based on his complaint, an FIR (No. 132/2020, PS Jafrabad) was lodged under sections 147, 148, 149, 427, 380, 436 and 34 of the Indian Penal Code (IPC).

As per the chargesheet, three men namely Osama, Gulfam alias Chikna and Aatir, who were arrested in another FIR (No. 107/2020) registered at the same police station, “disclosed their roles in the commission of the offense” in the present case. Accordingly, two of them (Gulfam and Aatir) were arrested on April 28, 2020 from Mandoli and Osama from Tihar Jail on April 10, 2020.

One Lalit, who is the complainant in a third case (FIR No. 113/2020, PS Jafrabad), pertaining to adjoining premises of the present case, has been cited as being an eyewitness in the this case as well. Moreover, the chargesheet states, statements of two more eyewitnesses were also recorded under Section 161 CrPC, and it will be filed in the supplementary chargesheet.

Granting bail to the three accused on January 4 this year, Additional Sessions Judge Amitabh Rawat said in his order, “After going through the bail applications, reply and particularly chargesheet, I cannot help but notice the carelessness with which the chargesheet has been prepared and filed. The investigation carried out is perfunctory. The list of witnesses filed mentions some witnesses. However, no statement under Section 161 CrPC of any of the witnesses has been filed with the chargesheet. The chargesheet was filed on May 22, 2020 in a very lackadaisical manner.”

While granting bail to one Mohammad Shahzad and Mohammad Shariq in FIR number 139/2020 registered at PS Welcome on March 21, 2020 for allegedly murdering one Prem Singh at Main Maujpur Road, Yamuna Vihar, New Delhi on February 25, 2020. The FIR does not mention the name of the accused. He was alleged to have been identified by three witnesses through the CAF form and arrested on November 2, 2020 — after a period of eight months of the registration of the FIR.

Though the eyewitnesses were there, yet purported identification took place on the basis of “unclear black and white photographs of the accused on CAF forms instead of conducting judicial test identification parade.

Even the policemen who have been recorded as prosecution witnesses did not name any accused in their initial statements, but their later testimonies (supplementary statements) recorded much after the alleged included the accused names.

There are at least 26 cases where the court found that the accused names neither found a mention in the FIRs nor in the testimonies of the public witnesses. Additionally, there is “no specific allegations” against them.

In another interesting case (FIR No. 145/2020, PS Welcome), Additional Session Judge Amitabh Rawat noted based on the testimony of a beat constable recorded on March 26 and April 8 last year, a prima facie case is made out against two Imran alias Teli and Babu for allegedly participating in rioting on February 25, 2020 at Maujpur Red Light. But when he sought to know if the same case is before him for consideration, the prosecution said no.

“The offences are magistrate triable, but the accused persons have done an act with intention or knowledge to cause the death of Rahul who had suffered a gunshot injury,” the prosecution replied.

Interestingly, the judge asked as to where the man who is said to have suffered the injury is. His statements are not on record. After long investigation, the police concluded Rahul, who is stated to have been shot by the rioting mob allegedly comprising the two accused, had given a wrong address as well as a wrong mobile number in his medico legal case (MLC). By the time the police arrived at the hospital, the alleged victim had vanished. Even the police never saw him.

“That being the case, who is going to say who shot whom and where. The alleged victim has never been seen by the police. He has never given any statement about any gunshot injury or about any mob/rioters. So, how is Section 307 of the IPC (attempt to murder) made out against the accused persons when the victim is absent from the police investigation? How is the gunshot injury established? There is no murmur on that,” the court noted, further saying that there is no recovery of weapon from the accused and ammunition and cartridge. Therefore, no case under Section 27 of the Arms Act is also made out against the accused. And thus, both the accused were discharged of the offences under Section 307 of the IPC and Section 27 of the Arms Act.

Responding to the state’s argument that it must be “presumed” that they committed the offense under Section 307 of the IPC because the accused persons were part of the rioting mob, the ASJ rapped the police, saying “presumptions cannot be stretched to take the shape of proof/evidence” as the “criminal jurisprudence states that there must be some material against the accused to frame a charge”.

Finding a ground for presuming that the accused persons have committed the offenses under sections 143, 144, 147, 148 and 149 of the IPC by taking part in an unlawful assembly, the court transferred back the matter to the concerned magistrate court as it was not triable by the Court of Sessions.

Another issue that came to the fore before the courts is that a number of suspects were arrested by the police based on “disclosure statements”, purportedly admitting to a role in the riots, recorded under Section 161 CrPC. Of the total cases analysed NewsClick, there are 10 such instances. In one such cases, the court made scathing remarks that the absence of a public eyewitness to the incident of alleged rioting apart from the disclosure “itself carries no meaning”.

For instance, Additional Sessions Judge Vinod Yadav granted bail to Khalid Saifi in FIR No. 101/2020 registered at PS Khajuri Khas (Crime Branch), noting that it has nowhere been the case of prosecution that the applicant was physically present at the crime scene on the date of incident; he is not visible in any CCTV footage/viral video(s) pertaining to the scene of crime on the date of incident; there is no identification of the applicant either through independent public witness or any police witness of he being present at the scene of crime on the date of incident, the CDR locations of the mobile phone of the applicant has not been found at the crime scene; the applicant has been merely roped in the matter on basis of his own disclosure statement and disclosure statement of co-accused Tahir Hussain.

“Even no recovery of any sort has been effected from the applicant pursuant to his disclosure statement. The argument that the applicant had been in regular contact/touch with co-accused Tahir Hussain and Umar Khalid over mobile phone and the same is evident from the fact that their CDR location on January 8, 2020 has been found to be at Shaheen Bagh is hardly of any consequences, as prima facie that does not in any way go on to establish the criminal conspiracy alleged against the applicant in the matter,” the court opined.

It further said, “Even the statement of public witness Rahul Kasana recorded under Section 161 CrPC in the matter merely talks about some meeting between the applicant and co-accused Tahir Hussain and Umar Khalid on January 8, 2020. However, the same does not disclose about the subject matter of such meeting.”

Notably, the public witness, Kasana, is also a witness in the case of larger conspiracy of the riots (FIR No. 59/2020 registered under stringent sections of anti-terror law UAPA) being investigated by the Special Cell. In his statement recorded under Section 161 CrPC on May 21, 2020, the said witness “did not utter a single word against the applicant qua ‘criminal conspiracy’ and now all of a sudden he vide his statement recorded under Section 161 of the CrPC in the matter on September 27, 2020 blew the trumpet of criminal conspiracy against the applicant. This is prima facie does not appeal to the senses”.

Even in Pinjra Tod activist Devangana Kalita’s case, the Delhi High Court granted bail in the case of murder and rioting primarily on the ground that the material against her was “disclosure statement” of co-accused Shahrukh recorded in the case of larger conspiracy and her presence at the scene of crime.

In over 25 cases, bails were granted on grounds of “parity” after noting that the “role assigned to the accused and the material being relied upon is the same” as that of another accused person who has already been granted bail in a previous case.