Point of Law: Criminal Law - Offence of Rioting and Murder - Bail Application - Most important how petitioner will establish his innocence despite having been caught on camera damaging and destroying CCTV cameras installed in the area of riots, just one day before alleged incident, is subject to trial - Petitioner is a Bad Character (BC) of area and one case for attempt to murder is pending to his credit and in this FIR case also, a person has lost his life.

JUDGMENT :

SURESH KUMAR KAIT, J.

1. The present petition has been preferred by the petitioner seeking bail in FIR No. 138/2020, under Sections 147/148/149/435/186/ 353/188/302/201/120B IPC and Section 27 of Arms Act, 1959, registered at police station Welcome, Delhi.

2. The FIR in question pertains to the incident of riots in North-East Delhi on 25.02.2020 in which one person, namely, Mohd. Mudhasir, aged around 30 years, had lost his life. Upon a telephonic information received from GTB Hospital, Delhi that a person in injured and unconscious state has been brought to the hospital by his wife and was declared brought dead. Accordingly, pursuant to DD No. 53-A, the investigating team came into motion and reached the hospital and collected the MLC by the Investigating Officer. In the MLC it was mentioned that the patient was brought dead in main casualty in unconscious and unresponsive state with A/H/O lying unconscious due to a bullet shot. During investigation, post mortem of the deceased was conducted at GTB Hospital on 27.02.2020 and seizure memo of exhibits was prepared. In the post mortem report the doctor opined the cause of death as “shock as a result of ante mortem injury to head produced by projectile of fire arm.”

3. During the course of further investigation, on 28.03.2020 statements of Yasin Khan, father of deceased; Yusuf Khan, brother of deceased and Ashiya malik, wife of deceased was recorded.

4. Ashiya Malik, wife of deceased, who had taken her husband to GTB Hospital, in her statement stated that on 25.02.2020 at about 01:45 PM some unknown persons brought her husband in her gali and left him there in unconscious state and told her that her husband had sustained bullet injury near Shamshan Ghat, Kabir Nagar, Delhi and so, she took him to the hospital where the doctor declared him brought dead.

5. Further investigation in this case was carried out and various video, images and recordings were collected from Cyber Cell, Crime Branch and in one such video, the deceased was seen sustaining injury. In the said video, petitioner-accused can be seen as the person who had fired the shot on the deceased, who was standing right next to him. In the said fire, the deceased had sustained bullet injury on the right side of his head, above the ear, which took his life.

6. One accused, namely, Zahid who had allegedly participated in the riots, was apprehended by the investigating team, who during his police remand in his disclosure statement admitted of having participated in riots at Shamshan Ghat, Kabir Nagar area where the incident took place. On his disclosure, two more accused, namely, Imran @ Cheera and Asif were apprehended and produced before the Court on 14.04.2020. During interrogation, Imran @ Cheera and Asif admitted that they were part of rioting mob near Shamshan Ghat, Kabir Nagar and when during police custody they were shown the video of the alleged incident, they disclosed name of Mohd. Bilal and said he was firing on the day of incident and had also damaged CCTV cameras in the said area.

7. Thereafter, upon being duly identified by Constable Sunder and pursuant to recording of his statement under Section 161 Cr.P.C. notice was served upon petitioner herein and he joined the investigation on 11.06.2020.

8. In his disclosure statement petitioner admitted having participated in mob during riots on 25.02.2020 and the fact that he was firing towards the police party but received a push from the mob and deceased Mudhasir came into his firing line and sustained gun shot injury. He also confessed having damaged the CCTV cameras in the riotous areas on 24.02.2020. During PC remand, the investigation team searched for weapon of offence and the clothes which petitioner was wearing at the time of alleged incident but could not recover, however, the shoes he wore were recovered and seized.

9. At the hearing, learned counsel for petitioner submitted that the petitioner had no communication with any of the accused who were part of m