Point of Law: Offence committed subject of trial - Petitioner not seen carrying any weapon , no recovery of weapons at instance of accused.

JUDGMENT :

SURESH KUMAR KAIT, J.

1. Petitioner is seeking bail in FIR No. 138/2020, under Sections 147/148/149/ 186/188/353/435/302/201/120-B IPC and Section 27 of Arms Act, registered at police station Welcome, Delhi.

2. In the FIR it is recorded that a GD Entry 053/2020 dated 25.02.2020 was received from GTB Hospital that a person, namely, Mohd. Mudhasir, aged around 30 years, has been admitted in unconscious state and declared brought dead by the doctor. Upon receipt of above information, SI Amit Bansal reached hospital and obtained MLC No. 549/09/2020 of deceased Mudhasir, on which the doctor had opined that “patient brought dead in main casualty and unconscious, unresponsive state.” Post mortem of the deceased was conducted on 27.02.2020 and in the post mortem report it is recorded that the deceased was brought to the hospital on 25.02.2020, at around 02:00 PM. All clothes except underwear and socks were blood stained. The cause of death was opined “shock as a result of ante mortem injury to head produced by projectile of firearm. Injury No. 1 was ante mortem in nature and was sufficient to cause death in ordinary course of nature. Injury No. 2 was caused by blunt force impact.” After obtaining copy of MLC, post mortem report and completion of necessary formalities, the FIR in question was registered on 21.03.2020 at the behest of SI Amit Bansal.

3. During investigation, it transpired that on 25.02.2020, deceased Mudashir was brought to the GTB Hospital by his wife Ashiya, who stated that he was found in unconscious condition in Gali No. 1, at Kabir Nagar.

4. On 28.03.2020, statement of wife of deceased-Ashiya, brother of deceased-Yusuf Khan and father of deceased-Yasin Khan was recorded. In her statement, Ashiya, wife of deceased stated that on 25.02.2020 some unknown persons had brought her husband to her gali and told her that he had sustained bullet injury near Shamshan Ghat and thereafter, she took her husband to the hospital, where the doctor declared him brought dead. In their statements, brother of deceased-Yusuf Khan and father of deceased-Yasin Khan, stated that on 25.02.2020 they had received information from Muzammil, brother of deceased, that Mudhasir had been admitted to hospital by his wife.

5. Thereafter on 28.03.2020, FSL team inspected the scene of crime but no live or empty cartridge were recovered from the spot. During further investigation, though no CCTV footage from the Shamshan Ghat, nearby shops and houses could be obtained. However, various images, videos and recordings were obtained by Cyber Cell through social media and other sources and upon their scrutiny one video was found which clearly showed how the deceased had sustained bullet injury.

6. On the basis of afore-mentioned video, on 06.04.2020 the secret informer identified Zahid, the present petitioner, who was a part of mob and can be clearly seen in the video standing with the deceased. On the same day, i.e. on 06.04.2020, petitioner was apprehended from his house. During interrogation, he disclosed that some of the local leaders asked the people to gather in front of Shamshan Ghat on 25.02.2020 and he was a part of the mob and since the police was asking from the other side not to make unlawful assembly, as they were pelting stones on the police personnel.

7. On 07.04.2020, the investigating team took petitioner to the crime spot for the purpose of pointing out memo and on the same day, his statement under Section 161 Cr.P.C. was also recorded.

8. On enquiry, it revealed that the said video was recorded by ASI Satish and Constable Pushkar and Constable Sunder, Beat Officers, identified petitioner as being part of mob on the day of riots on 25.02.2020. Statement of ASI Satish and Constable Pushkar under Section 161 Cr.P.C. was recorded on 07.04.2020, whereas that of Constable Sunder was recorded on 12.06.2020.

9. All the exhibits i.e. clothes, mobile phone of deceased, petitioner and other accused in this FIR case, were seized and sent to FSL for