delhi court acquittal delhi riots order.pdf

CNR No. DLNE01-000444-2021
State v. Mohd. Shahnawaz @ Shanu etc.
SC No. 42/2021, FIR No. 83/2020, PS Gokalpuri
Judgment dated 18.11.2022
DLNE01-000444-2021
IN THE COURT OF SH. PULASTYA PRAMACHALA
ADDITIONAL SESSIONS JUDGE-03,
NORTH-EAST DISTRICT
KARKARDOOMA COURTS: DELHI
INDEX
Sl.
No.
HEADINGS Page Nos.
1 Description of Case & Memo of Parties 1-2
2 The case set up by the Prosecution 3-4
3 Charges 5-6
4 Description of Prosecution Evidence 6-9
5 Plea of accused under Section 313 Cr.P.C. 10
6 Arguments of Defence & Prosecution 10-11
APPRECIATION OF LAW, FACTS AND EVIDENCE
7 Unlawful Assembly and Riots 12
8 Identification of accused 12-17
9 Conclusion and Decision 17
Page 1 of 17 (Pulastya Pramachala)
ASJ-03, North-East District,
Karkardooma Courts, Delhi

CNR No. DLNE01-000444-2021
Sessions Case No. : 42/2021
Under Section : 147/148/149/188/380/427/436 IPC
Police Station : Gokalpuri
FIR No. : 83/2020
CNR No. : DLNE01-000444-2021
In the matter of: -
STATE
V E R S U S
1. MOHD. SHAHNAWAZ @ SHANU
S/o. Mohd. Rashid,
R/o. H.No. A-528, Gali No.22,
Phase-10, Shiv Vihar, Delhi.
2. MOHD. SHOAIB @ CHHUTWA
S/o. Sh. Islam,
R/o. H.No. 93, Gali No.5/2,
Behind Rajdhani School,
Babu Nagar, Delhi.
3. SH. SHAHRUKH
S/o. Sh. Salauddin,
R/o. B-262, Gali No.7, Babu Nagar,
Near Shiv Mandir, Delhi.
4. SH. RASHID
S/o. Sh. Riyajuddin,
R/o. A-22, Gali No.1, Chaman Park,
Shiv Vihar Tiraha, Delhi.
…..Accused Persons.
Complainant: SH. RAVI SHANKAR
S/o. Sh. Naresh Kumar,
R/o. A-95, Gali No.8, Govinda
Vihar, Karawal Nagar, Delhi.
Date of Institution : 25.07.2020
Date of reserving order : 14.11.2022
Date of pronouncement : 18.11.2022
Decision : All accused are acquitted.
(Section 437-A Cr.P.C. complied with by accused)

CNR No. DLNE01-000444-2021
J U D G M E N T
THE CASE SET UP BY THE PROSECUTION: -
1. The above named accused persons have been charge-sheeted by
the police for having committed offences punishable under
Section 147/148/149/188/380/427/436 IPC.
2. Brief facts of the present case are that on 02.03.2020, FIR was
registered at PS Gokalpuri pursuant to receipt of a written
complaint, dated 29.02.2020 from one Sh. Ravi Shankar, S/o. Sh.
Naresh Kumar, R/o. A-95, Gali No.8, Govinda Vihar, Karawal
Nagar, Delhi. Complainant alleged that on 24.02.2020, at about
14:00 hrs., he had gone to attend one marriage ceremony.
Thereafter, he received one call from his neighbours about riots
near his shop of cold drink and some cloth works, situated at A-
53, Chaman Park, Shiv Vihar Tiraha, Main Johripur Road. On
26.02.2020, complainant went to his aforesaid shop and found
shutter of his shop in broken and burnt condition. Complainant
also found all his articles kept in the shop as well as his vehicle
make and model Bajaj G.C. bearing registration no.DL-1LH-
4228, meant for supplying cold drinks, parked at Jagat Parking,
Shiv Vihar Tiraha, Main Road, in burnt condition. This complaint
was marked to Insp. Bineet Kumar Pandey for necessary action.
On 01.03.2020, Insp. Bineet Kumar Pandey endorsed the
complaint for DO to register a case under Section
147/148/149/427 IPC and to hand over further investigation of
the case to SI L.N. Sharma.

CNR No. DLNE01-000444-2021
3. During investigation, SI L.N. Sharma prepared site plan at the
instance of complainant. On 07.03.2020, SI L.N. Sharma called
crime team and got inspected the spot. During investigation,
complainant handed over two photographs and one CD
containing video of his burnt shop. Police also collected ash from
the burnt shop of complainant and after discussion with senior
officers, Section 436 IPC was added in the present case.
Thereafter, on 06.04.2020 further investigation of the present
case was assigned to SI Satyadev, who recorded statement of
witnesses under Section 161 Cr.P.C. During further investigation,
SI Satyadev formally arrested accused Mohd. Shahnawaz @
Shanu, Mohd. Shoaib @ Chhutwa, Shahrukh and Rashid @ Raja
from Mandoli Jail, Delhi, on 25.04.2020. During further course
of investigation, Section 188 IPC was added in the present case.
4. After completion of investigation, on 25.07.2020 a chargesheet
was filed by SI Dinesh Kumar, before Duty ACMM (North East),
Karkardooma Courts, Delhi, against aforesaid four accused
persons. Thereafter, on 13.12.2020, ld. CMM (North East),
Karkardooma Courts, Delhi, took cognizance of offences
punishable under Section 147/148/149/380/427/436 IPC. Vide
this order, ld. CMM (North East) declined to take cognizance of
offence under Section 188 IPC, for want of complaint under
Section 195 Cr.P.C. Thereafter, case was committed to the
Sessions Court on 12.01.2021. On 27.09.2022, first
supplementary chargesheet was filed by SI Satyadev Panwar
before this court along with a complaint under Section 195
Cr.P.C.

CNR No. DLNE01-000444-2021
CHARGES :-
5. On 26.08.2021, charges were framed against aforesaid four
accused persons for offences punishable under Section
143/147/148/454/435/436 IPC read with Section 149 IPC, in
following terms: -
“That from the afternoon till the late evening of
24.02.2020, in the area of Chaman Park, Shiv Vihar Tiraha,
main Johripur Road, Karawal Nagar, Delhi-110094, within the
jurisdiction of PS Gokalpuri, all of you being from a particular
community along with your other associates (unidentified)
formed an unlawful assembly, the object whereof was to cause
maximum damage to the property and persons belonging to the
other community and committed criminal trespass, arson in the
shops, houses and other properties of the persons from other
community and also put on fire their vehicles by the use of force
or violence in prosecution of the common object of such
assembly and thereby committed offences punishable under
Section(s) 143/147/148 read with Section 149 IPC and within
my cognizance.
Secondly, on the aforesaid date, at time unknown, at
Shop No.A-53, Chaman Park, Shiv Vihar Tiraha, main Johripur
Road, Delhi-94, you all being members of the said unlawful
assembly in furtherance of your common object alongwith your
other associates (unidentified) committed lurking house-trespass
by breaking open the shutter of said shop belonging to
complainant Ravi Shankar, S/o. Shri Naresh Kumar, to commit
offences and thereafter committed mischief by fire or explosive
substance with the intent to destroy the aforesaid shop of
complainant and thereby committed offences punishable under
Section(s) 454/436 IPC read with Section 149 IPC and within
my cognizance.
Thirdly, on the aforesaid date, at time unknown, at
Jagat Parking, Shiv Vihar Tiraha, main Road, Delhi-94, you all
being members of the said unlawful assembly in furtherance of
your common object alongwith your other associates
(unidentified) committed mischief by fire or explosive substance
by putting on fire Bajaj G.C vehicle bearing Regn. No.
DL1LH/4228, belonging to said complainant, which at the
relevant time was lying parked in the aforesaid parking and
thereby committed an offence punishable under Section 435 IPC
read with Section 149 IPC and within my cognizance.”

CNR No. DLNE01-000444-2021
6. Thereafter, on 06.10.2022, additional charge was framed against
aforesaid four accused persons for offence punishable under
Section 188 IPC, in following terms: -
“That, on 24.02.2020 from afternoon till late evening,
in and around the area of Chaman Park, Shiv Vihar, main
Johripur Road, Karawal Nagar, Delhi-110094, within the
jurisdiction of PS Gokalpuri, you all accused persons being
member of an unlawful assembly alongwith your other associates
(unidentified) were present at aforesaid place, in prosecution of
the common object of an unlawful assembly and in violation of the
proclamation issued u/s 144 Cr.PC by the competent
authority/DCP, North East vide order dated 24.02.2020 bearing
no.10094-170 X-1, North East, Delhi dt.24.02.2020, which was
duly announced in all the localities of District North East
including area of PS Khajuri Khas, thereby you both committed
offence punishable under Section 188 IPC and within my
cognizance.”
7. Prosecution examined 12 witnesses in support of its case, as per
following descriptions: -
Sl. No. &
Name of
Witness
Role of witness & Description
of documents
Proved
documents/
case properties
PW1/ Sh.
Ravi Shanker
He was the complainant in the
present case. PW1 had given a
complaint in PS and identified his
signature at point A on the same.
He did not see the incident at his
shop and hence, he did not
identify any accused.
Ex.PW1/A
(complaint of
PW1);
Ex.PW1/B (site
plan);
Ex.PW1/C &
Ex.PW1/D
(memos of
collection of
sample of ash)
& DVD)
PW2/Sh.
Bobby
He was owner cum landlord of the property and had
given his shop bearing no.A-53, Chaman Park, Shiv
Vihar Tiraha, Main Johripur Road, to PW1 on rent.
PW3/ASI
Ram Dass
He was witness to formal arrest of
all four accused persons by IO/SI
Ex.PW3/A to
Ex.PW3/D

CNR No. DLNE01-000444-2021
Sl. No. &
Name of
Witness
of documents
Proved
documents/
case properties
Satyadev at Mandoli Jail, in the
present case. PW3 identified his
signature at point A on their arrest
memos.
(arrest memos of
Sharukh, Mohd.
Shoaib, Rashid
and Mohd.
Shahnawaz @
Shanu,
respectively)
PW4/HC
Mahesh
He made entry regarding deposit
of pullanda by SI L.N. Sharma at
PS in register no.19 vide entry
no.124, on 07.03.2020.
The said pullanda was sent to FSL
Rohini vide RC No. 166/21/21 on
07.09.21 and deposited by Ct.
Pushkar in FSL vide FSL No.
8799/ Chem./2936/21.
Ex.PW4/A
(relevant extract
of entry made
by PW4)
PW5/Ct.
Mohit
He took photographs at the spot
of crime on 07.03.2020, on the
pointing out of IO. PW5 produced
certificate under Section 65-B of
I.E. Act, in respect of photographs
and identified his signature at
point A on the same.
Ex.PW5/A
(colly) (two
photographs
taken by PW5)
&
Ex.PW5/B
(certificate
under Section
65-B of I.E. Act)
PW6/ASI
Mahavir
On 07.03.2020, he was posted as
Finger Print Proficient in Mobile
Crime Team, North-East District,
Delhi. On that day, PW6
inspected the spot of incident i.e.
A-53, Chaman Park and prepared
the report. PW6 identified his
signature at point A on the same.
Ex.PW6/A
(inspection
report
prepared by
PW6)
PW7/HC
Hari Babu
On 25.02.2020, he along with Ct. Vipin and other
police staff, were on patrolling duty in Bhagirathi
Vihar and Chaman Park area. PW7 witnessed arson
at shop no. A-53 by mob at 02:00 PM on Johripur

CNR No. DLNE01-000444-2021
Sl. No. &
Name of
Witness
of documents
Proved
documents/
case properties
Shiv Vihar Road.
PW7 identified only Shahnawaz before the court and
deposed that he was taking medicine for memory
loss.
PW8/SI
L.N. Sharma
He was initial IO and on 02.03.2020, he was handed
over copy of FIR and original rukka in this case by
ASI Rakesh Kumar in the PS. On that day, PW8
prepared site plan at the instance of complainant i.e.
PW1/Sh. Ravi Shanker.
FIR is Ex.A-1 and certificate under Section 65-B of
I.E. Act is Ex.A-2 (admitted documents).
On 07.03.2020, PW8 called crime team at the place
of incident i.e. A-53, got inspected the same and
received SOC report from crime team. PW8 lifted
burnt articles from the burnt shop, prepared two
pullandas, sealed them with seal of 'LNS' and seized
them vide memo Ex.PW1/C. PW8 also identified his
signature at circle X on the same. PW8 also seized
two photographs and one DVD of video pertaining to
burnt shop of PW1.
PW8 identified his signature at circle X on site plan
(Ex.PW1/B), seizure memo related to both pullandas
(Ex.PW1/C) and seizure memo related to CD as well
as photograph (Ex.PW1/D).
On 19.03.2020, on the instructions of SHO, PW8
handed over the case file to MHC(M).
PW9/Ct.
Vipin
In February 2020, he was posted in PS Gokalpuri.
He was on duty with PW7 near Shiv Vihar Tiraha.
PW9 witnessed pelting stones and arson by the mob
in the nearby houses and shops, in the area of
Chaman Park, in late night hours of 24.02.2020.
PW9 also witnessed setting on fire a Bajaj Goods
Carrier, which was standing in front of shop in
property no. A-49A, Chaman Park, Delhi, by the said
mob. PW9 also witnessed setting on fire the shop in
the name of “Sharma Hardwares and Electricals” in

CNR No. DLNE01-000444-2021
Sl. No. &
Name of
Witness
of documents
Proved
documents/
case properties
A-49A, Chaman Park.
PW9 also witnessed setting on fire the property no.
A-53, which was adjacent to A-49. There was shop
of cold drink in property no. A-53.
PW9 had seen all accused persons in that mob and he
identified accused persons before the court.
PW10/SI
Satyadev
On 06.04.2020, on the direction of SHO, he was
handed over case file for further investigation. PW10
examined HC Hari Babu and Ct. Vipin in the case.
PW10 formally arrested accused Shahnawaz @
Shanu on 24.04.2020 and accused Shahrukh, Shoaib
and Rashid on 25.04.2020, at Mandoli Jail. PW10
identified his signature at point X on Ex.PW3/D and
at circle X on Ex.PW3/A to Ex.PW3/C. Thereafter,
case file was handed over to MHC(R).
PW11/Insp.
Dinesh
On 14.07.2020, he was posted as Sub-Inspector in
PS Gokalpuri. On that day, on the directions of
Inspector (Investigation) case file of this case was
handed over to him for preparing chargesheet in this
case and to file the same before the court.
PW11 prepared chargesheet, which was filed before
the court on 23.07.2020.
PW12/HC
Pradeep
In February 2020, he was posted at PS Gokalpuri, as
reader to SHO.
On 24.02.2020, he received copy of order under
Section 144 Cr.P.C., issued by DCP (N/E), through
Dak. Copy of same is Ex.A-3 (Admitted document).
On the direction of SHO, PW12 announced
proclamation under Section 144 Cr.P.C. in the area of
PS Gokalpuri, through loud speaker.
A complaint under section 195 Cr.P.C was made by
the DCP/NE against all accused for violation of
aforesaid order, which is Ex.A-4 (Admitted
document).

CNR No. DLNE01-000444-2021
PLEA OF ACCUSED PERSONS U/S. 313 CR.P.C.
8. Accused Mohd. Shahnawaz @ Shanu, Mohd. Shoaib @
Chhutwa, Shahrukh and Rashid @ Raja, denied all the
allegations and pleaded innocence, taking plea that they were not
present at the spot and they have been falsely implicated in this
case. Accused persons did not opt to lead any evidence in their
defence.
ARGUMENTS OF DEFENCE & PROSECUTION
9. I heard ld. Special PP and ld. counsels for accused persons. I
have perused the entire material on the record.
10. Sh. Z. Babar Chauhan, ld. counsel for accused Mohd.
Shahnawaz @ Shanu argued that PW7/HC Hari Babu is not
credible witness. He further argued that PW7 did not identify this
accused in other case due to long lapse of time and in this case
PW7 took plea of memory loss. Ld. counsel further argued that
PW9/Ct. Vipin is the only witness of identification, who is a
tutored witness, as during his testimony, PW9 could not tell that
when he was examined for the first time by any IO. Ld. counsel
argued that this witness was cited in multiple cases. He further
argued that PW9 gave statement on 07.04.2020 before IO, though
he remained on duty for whole period till 07.04.2020 after riots.
PW9 participated in all briefing in the police station, still he did
not give his statement earlier before IO that he knew and
identified this accused in the mob. Ld. counsel further argued that
case law of Masalti & Ors. v. State of U.P. (1964) 8 SCR 133,
applies in this case.
11. Sh. Salim Malik, ld. counsel for accused Mohd. Shoaib @

CNR No. DLNE01-000444-2021
Chhutwa, Shahrukh and Rashid @ Raja, argued that there are
certain contradictions in the statement of PW7 and PW9. He
further argued that PW7 stated about gathering of around 500-
600 persons, whereas PW9 stated about gathering of 50-60
persons, in the mob. Though, PW7 and PW9 were present
together allegedly at a distance of 50-60 meters from the mob.
Ld. counsel further argued that all story was prepared afterwards
and the case is not proved beyond doubts.
12. Per contra, Sh. Nitin Rai Sharma, ld. Special PP for State
argued that PW1/Sh. Ravi Shanker proved burning of his shutter
and shop. He further argued that PW2/Sh. Bobby proved letting
out this shop to PW1. Ld. Special PP further argued that PW7
and PW9 are witnesses to identification of accused persons. He
further argued that PW7 proved incident of shop A-53, though
due to memory loss, he did not identify accused properly. He
further argued that PW9 also proved incident and identity of
accused correctly and defence did not suggest that accused were
not present there. He submitted that PW9 gave undisputed
description of Shahnawaz and his nearby shops. He further
argued that presence of PW7 and PW9 at the spot was very much
plausible and they are natural witnesses. He further submitted
that testimony of police witness should not be discarded or
looked at with suspicion.
13. In support of his contentions, ld. Special PP relied upon certain
case laws, which are as follows: -
(a) Parmod Kumar v. State Govt. of NCT of Delhi, (2013) 6 SCC
588.
(b) Baldev Singh v. State of Haryana, (2015) 17 SCC 554.

CNR No. DLNE01-000444-2021
APPRECIATION OF FACTS AND EVIDENCE
UNLAWFULASSEMBLY & RIOTS
14. The testimonies of PW7 and PW9 refer to a mob assembled near
Chaman Park, Johripur Shiv Vihar Road. They deposed that this
mob indulged into vandalism and arson in that area. They also
deposed that this mob set ablaze the shop in property no. A-53 on
that road. PW9 also deposed that this mob was pelting stones.
Such testimony of these two witnesses was not specifically
disputed by the defence. Defence has not taken plea that there
was no unlawful assembly or that no incident of riot had taken
place at all. Testimony of PW1, PW5, and PW8 mentions the
damage to the property/shop of PW1 and such fact was not
disputed by defence also. The combined effect of these evidence
proves that an unlawful assembly was formed, which indulged
into vandalism and arson in that area on 24.02.2020 during noon
time and onwards.
IDENTIFICATION OF ACCUSED
15. The foremost question is that whether accused persons named
herein were also involved in the aforesaid incident, as member of
above-mentioned unlawful assembly? For this purpose,
prosecution produced PW7 and PW9 before the court. Out of
these two witnesses, PW7 though vouched about being on duty
with PW9 in the area of Chaman Park and Johripur Road, but he
could not identify all accused before the court. It was mentioned
by the court that same witness was examined in other case
bearing FIR no. 40/20, just before examination in this case. In
that case, PW7 stated that he could not identify any of the rioters

CNR No. DLNE01-000444-2021
due to long lapse of mind. The accused in FIR 40/20 were the
same persons. PW7 thereafter, took plea that he was suffering
from memory loss and was also taking medicine for the same. He
was cross examined by ld. prosecutor, wherein he admitted the
suggestion that he was unable to identify four rioters correctly
because of memory loss. Thus, for whatever reasons PW7 did not
identify the rioters, it is for sure that identification of one of the
accused by him in this case, is also not safe to be relied upon.
16. In these circumstances, PW9 remains the only witness, to prove
the identity of the accused persons as member of the mob
responsible for incident in question. On perusal of his testimony,
I find that he simply stated that he had seen the accused persons
in the mob, which was pelting stones and indulging into arson in
the nearby properties in the area of Chaman Park. He stated that
he new the accused persons since prior to such incident, as he
had been beat constable of that area.
17. Though defence claimed that PW9 was a planted and tutored
witness, however, before dealing with such argument, I shall deal
with the argument that test referred in the judgment passed in the
case of Masalti (supra) applies to the facts and circumstances of
this case. In the case of Masalti, hon’ble Supreme Court dealt
with a case of multiple murder by an unlawful assembly. The
court while dealing with the aspect of identification of members
of that mob, made certain observations regarding test of
consistent testimony by four witnesses as applied by High Court.
The relevant part of the same is as follows: -

CNR No. DLNE01-000444-2021
“16. Mr Sawhney also urged that the test applied by the High
Court in convicting the appellants is mechanical. He argues that
under the Indian Evidence Act, trustworthy evidence given by a
single witness would be enough to convict an accused person,
whereas evidence given by half a dozen witnesses which is not
trustworthy would not be enough to sustain the conviction. That,
no doubt is true; but where a criminal court has to deal with
evidence pertaining to the commission of an offence involving a
large number of offenders and a large number of victims, it is
usual to adopt the test that the conviction could be sustained
only if it is supported by two or three or more witnesses who
give a consistent account of the incident. In a sense, the test may
be described as mechanical; but it is difficult to see how it can
be treated as irrational or unreasonable. Therefore, we do not
think any grievance can be made by the appellants against the
adoption of this test. If at all the prosecution may be entitled to
say that the seven accused persons were acquitted because their
cases did not satisfy the mechanical test of four witnesses, and if
the said test had not been applied, they might as well have been
convicted. It is, no doubt, the quality of the evidence that
matters and not the number of witnesses who give such
evidence. But sometimes it is useful to adopt a test like the one
which the High Court has adopted in dealing with the present
case.”
18. The test mentioned in the case of Masalti, was deliberated upon
by Supreme Court in the case of State of Maharashtra v.
Ramlal Devappa Rathod, (2015) 15 SCC 77, and the court
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

CNR No. DLNE01-000444-2021
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 same
common 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.
It is for this reason that in Masalti [Masalti v. State of U.P., AIR
1965 SC 202 : (1965) 1 Cri LJ 226 : (1964) 8 SCR 133] this
Court was cautious and cognizant that no particular part in
respect of an overt act was assigned to any of the assailants
except Laxmi Prasad. It is in this backdrop and in order to
consider
“whether the assembly consisted of some persons who were
merely passive witnesses and had joined the assembly as a
matter of idle curiosity without intending to entertain the
common object of the assembly”,
this Court at SCR pp. 148-49 in Masalti [Masalti v. State of
U.P., AIR 1965 SC 202 observed that his participation as a
member of the unlawful assembly ought to be spoken by more
than one witness in order to lend corroboration. The test so
adopted in Masalti [Masalti v. State of U.P., AIR 1965 SC 202
was only to determine liability of those accused against whom
there was no clear allegation of having committed any overt act
but what was alleged against them was about their presence as
members of the unlawful assembly. The test so adopted was not
to apply to cases where specific allegations and overt acts
constituting the offence are alleged or ascribed to certain
named assailants. If such test is to be adopted even where there
are specific allegations and overt acts attributed to certain
named assailants, it would directly run counter to the well-
known maxim that “evidence has to be weighed and not
counted” as statutorily recognised in Section 134 of the
Evidence Act.”
19. In the same case, Supreme Court explained the nature of cases
wherein test mentioned in the case of Masalti, can be applied,
while making following observations: -

CNR No. DLNE01-000444-2021
“26. We do not find anything in Masalti [Masalti v. State of
U.P., AIR 1965 SC 202 : (1965) 1 Cri LJ 226 : (1964) 8 SCR
133] which in any way qualifies the well-settled principle that
the conviction can be founded upon the testimony of even a
single witness if it establishes in clear and precise terms, the
overt acts constituting the offence as committed by certain
named assailants and if such testimony is otherwise reliable.
The test adopted in Masalti [Masalti v. State of U.P., AIR 1965
SC 202 : (1965) 1 Cri LJ 226 : (1964) 8 SCR 133] is required to
be applied while dealing with cases of those accused who are
sought to be made vicariously responsible for the acts
committed by others, only by virtue of their alleged presence as
members of the unlawful assembly without any specific
allegations of overt acts committed by them, or where, given the
nature of assault by the mob, the Court comes to the conclusion
that it would have been impossible for any particular witness to
have witnessed the relevant facets constituting the offence. The
test adopted in Masalti [Masalti v. State of U.P., AIR 1965 SC
202 : (1965) 1 Cri LJ 226 : (1964) 8 SCR 133] as a rule of
prudence cannot mean that in every case of mob violence there
must be more than one eyewitness.”
20. In the present case, PW9 only stated that he knew some members
of the mob and he named them before IO and before the court.
However, PW9 did not state about any overt act of the accused
persons. Though, above mentioned observations of Supreme
Court, make it 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, but at the same time rule of prudence has
been spoken about, for fastening vicarious liability with aid of
S.149 IPC. That rule of prudence is the genesis of test mentioned
in the case of Masalti. In that case also, it was approved as a
mark of precaution, rather than laying it down as a hard and fast
rule.
21. In the present case, PW9 stated that incident at Shop A-53 took
place after midnight, though PW7 mentioned the time of around
2 PM. There is mark difference in the testimony of these two

CNR No. DLNE01-000444-2021
witnesses, regarding the number of persons assembled at that
place. Keeping in view such varying account of same facts, I find
it desirable to apply the test of consistent testimony of more than
one witness, in present case also. Applying that test, I hold that
sole testimony of PW9 cannot be sufficient to assume presence of
accused persons herein in the mob, which set ablaze shop A-53
and the goods carrier, both belonging to PW1. In such situation,
accused persons are given benefit of doubt.
CONCLUSION & DECISION
22. In view of my foregoing discussions, observations and findings, I
find that charges levelled against the accused persons in this case
are not proved beyond doubts. Hence, accused Mohd. Shahnawaz
@ Shanu, Mohd. Shoaib @ Chhutwa, Shahrukh and Rashid @
Raja, are acquitted of all the charges levelled against them in this
case.
Announced in the open court (PULASTYA PRAMACHALA)
today on 18.11.2022 ASJ-03 (North- East)
(This order contains 17 pages) Karkardooma Courts/Delhi
PULASTYA
PRAMACHALA
Digitally signed
by PULASTYA
PRAMACHALA
Date:
2022.11.18
14:42:39
+0530

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