2007 Jamia Nagar rioting case: Delhi court discharges 12, slams probe, frames charges against 13

A Delhi court on Friday discharged 12 surviving accused in the 2007 Jamia Nagar rioting case, rapping the prosecution for ''concocted investigation'' having ''stock involvement of police witnesses'' for identification, while terming several arrests as ''contrived and pre-determined''.

In a 95-page order, Special Judge Vishal Gogne, who also ordered framing of charges against 13 accused, further slammed Delhi Police for serious lapses, particularly the failure to conduct a test identification parade, which he termed a ''requirement of essence and not just prudence''.

According to the prosecution, on September 22, 2007, a riotous mob of around 1,500 people attacked the Jamia Nagar police post personnel.

It said the local police had taken steps to remove a market which was creating a hindrance to people going for offering Namaz during the month of Ramzan.

The prosecution claimed that 12 local leaders instigated the mob to kill the policeman and burn down the police station, following which the post was set ablaze, several vehicles were torched, a service pistol, 10 live cartridges, valuables and a wireless set were looted, and multiple police officials were injured, of whom five suffered grievous injuries.

The judge rapped the prosecution while discharging the accused persons.

He said, ''In the present investigation, it does weigh with the court that not only did the police officials avoid conducting a test identification parade (TIP) of the 11 persons who were arrested at the identification of at least two police persons each; the investigating officer (IO) even failed to consider the possibility of seeking arrest upon identification by one police witness while enabling TIP through the second police witness.''.

The judge underlined that the absence of TIP proceedings creates substantial doubts on the validity of the identification of these accused through police witnesses.

He said, ''Any interpretation of the evidence and the circumstances in which evidence has been collected or projected, which probablises a high-handed and blanket implication of accused persons, would certainly lower the aspersion of culpability from grave suspicion to mere suspicion. Such latter prospect entitles the accused to discharge.''.

The judge said the arrest of two more accused persons later was similar to the 11 arrested earlier, and these arrests have the ''hallmarks of a contrived and pre-determined arrest'' which did not occur in the manner asserted in the charge sheet or through the statements of these (police) witnesses''.

''It does weigh heavily with the court that in the scenario of the mob having been disbursed after the incident and the arrest of these thirteen accused having been effected only on the next day from multiple public places, the arrest was neither spontaneous nor within any exclusive knowledge of the cited police persons who identified the thirteen accused persons at the point of arrest. In the peculiar facts, the TIP was a requirement of essence and not just prudence,'' the judge said.

Underlining the absence of public witnesses, the judge said the non-availability of public witnesses has the ''classic imprint of a concocted investigation'', at least in relation to the implication of these 13 accused persons.

''With the passage of almost 20 years since the incident, the seemingly stock involvement of police witnesses for identifying a large number of persons as rioters seems quite distant from evidence capable of incrimination,'' the judge said.

''It is not the probity of the evidence which the court is attempting to ascertain. It is rather the sheer improbability of the sequence of events relating to the arrest of thirteen accused which convinces the court not to condemn them to the rigours of a fruitless trial,'' he added.

Yet another anomaly in the case, the judge said, was the generic statements of the witnesses who seemingly identified the assailants but did not describe the role of the accused in the incident.

The same ambivalence prevails regarding the circumstances in which the last of the two accused was identified as alleged members of the unlawful assembly, and the evidence is equally bare in the context of the duo, he said, adding, ''The cited evidence falls short of the standard of grave suspicion.''.

''The arrest proceedings have all the hallmarks of a contrived documentation of arrest using the same set of rotating witnesses. The fact that no public person was involved in the arrest of any of these 15 accused further aggravates the doubts about the presence and participation of these accused in the incident of rioting,'' the judge said.

Concluding the observations, he said, firstly, the identifying witnesses do not inspire confidence as having either been present at the place of the incident or having witnessed the incident in question.

Secondly, the judge said, it seems equally probable to the court that these identifying witnesses have been roped in as stock witnesses for creating a semblance of identification of purported members of the unlawful assembly.

Thirdly, he said, it appears strongly probable to the court that the investigation team collected a host of police persons as witnesses to accompany the identifying witnesses to provide a contrived picture of verifiability of the arrest proceedings.

''Fourthly, the witnesses who accompanied the identifying witnesses are not to be treated as identifying witnesses and have, in fact, not even rendered an eye witness account of the incident of violence themselves. Lastly, the court follows the adage that evidence must be weighed and not counted,'' the judge said.

Discharging the 12 surviving accused persons, he added, ''Thus, the mere circumstance of the existence of as many as six identifying witnesses and two accompanying witnesses does not create a volume of incriminatory evidence.''.

The court, meanwhile, directed framing of charges against 13 other accused persons for the penal offences of unlawful assembly, rioting, arson, dacoity, attempt to murder, obstructing, causing grievous hurt to and assaulting a public servant, along with the Damage to Public Property Act provision.

''The court finds that being the leaders of the mob, named in the FIR, and being the persons exhorting the other members of the unlawful assembly to burn down the police post and to kill the police persons, the 11 accused who are named in the FIR by the complainant and subsequently by other eyewitnesses had the common object to overrun and damage the police post,'' Judge Gogne said.

He said that the assailants emerge prima facie as having possessed the common object to inflict deadly force upon the police persons and to cause widespread damage, including by fire, to the infrastructure, vehicles and other objects or documents kept at the police post.

In its order, the court noted that proceedings had abated against five other accused persons who died during the trial, while one accused remains a proclaimed offender.

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