Devinder Kumar vs The State Of Nct Of Delhi
- Court
- Delhi High Court
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 09.10.2026
Pronounced on: 27.10.2026
Uploaded on: 27.10.2026
# CNR No. DLHC010040432025
+ CRL.A. 133/2025 & CRL.M.A. 24325/2026, CRL.M.(BAIL)
224/2025
AMAN KASHYAP .....Appellant
Through: Mr. Faraz Anees and Mr. Kartik
Vashisht, Advs.
versus
THE STATE OF NCT OF DELHI .....Respondent
Through: Mr. Rajat Nair, SPP with Mr. Dhruv
Pande, Mr. Imon Bhattacharya and
Mr. Sarthak, Advs.
IO Inspr. Pawan Kumar
# CNR No. DLHC010070312025
+ CRL.A. 180/2025 & CRL.M.A. 24645/2026, CRL.M.(BAIL)
304/2025
DEVINDER KUMAR .....Appellant
Through: Mr. Faraz Anees and Mr. Kartik
Vashisht, Advs.
versus
THE STATE OF NCT OF DELHI .....Respondent
Through: Mr. Rajat Nair, SPP with Mr. Dhruv
Pande, Mr. Imon Bhattacharya and
Mr. Sarthak, Advs.
IO Inspr. Pawan Kumar
# CNR No. DLHC010070322025
+ CRL.A. 181/2025 & CRL.M.A. 24856/2026, CRL.M.(BAIL)
Signature Not Verified
CRL.A. 133/2025 and connected matters Page 1 of 37
Signed By:BHARTI
Signing Date:27.10.2026
18:34:24
305/2025
PRADEEP RAI .....Appellant
Through: Mr. Faraz Anees and Mr. Kartik
Vashisht, Advs.
versus
THE STATE OF NCT OF DELHI .....Respondent
Through: Mr. Rajat Nair, SPP with Mr. Dhruv
Pande, Mr. Imon Bhattacharya and
Mr. Sarthak, Advs.
IO Insp. Pawan Kumar
# CNR No. DLHC010070362025
+ CRL.A. 185/2025 & CRL.M.(BAIL) 310/2025
ASHISH @ GOLI .....Appellant
Through:
versus
STATE GOVT. OF NCT OF DELHI .....Respondent
Through: Mr. Rajat Nair, SPP with Mr. Dhruv
Pande, Mr. Imon Bhattacharya and
Mr. Sarthak, Advs.
IO Insp. Pawan Kumar
# CNR No. DLHC010127302025
+ CRL.A. 289/2025 & CRL.M.(BAIL) 539/2025
ARUN KUMAR .....Appellant
Through:
versus
STATE OF NCT OF DELHI .....Respondent
Through: Mr. Rajat Nair, SPP with Mr. Dhruv
Pande, Mr. Imon Bhattacharya and
Mr. Sarthak, Advs.
IO Insp. Pawan Kumar
Signature Not Verified
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Signed By:BHARTI
Signing Date:27.10.2026
18:34:24
CORAM:
HON’BLE MS. JUSTICE MADHU JAIN
JUDGMENT
MADHU JAIN, J.
1. The present batch of five criminal appeals, being CRL.A. 133/2025,
CRL.A. 180/2025, CRL.A. 181/2025, CRL.A. 185/2025 and CRL.A.
289/2025, has been preferred by the appellants, namely Aman Kashyap,
Devinder Kumar, Pradeep Rai, Ashish @ Goli and Arun Kumar,
respectively, assailing the common judgment of conviction dated
30.11.2024 and order on sentence dated 13.01.2025 passed by the learned
Additional Sessions Judge-03, North-East District, Karkardooma Courts,
Delhi, in Sessions Case No. 199/2021, arising out of FIR No. 87/2020
registered at Police Station Dayalpur.
2. Vide the order on sentence dated 13.01.2025, the appellants were
sentenced to undergo simple imprisonment for a period of one year for the
offence punishable under Section 148 IPC and rigorous imprisonment for
a period of seven years, along with a fine of Rs. 30,000/-, for the offence
punishable under Section 304 Part I IPC. In default of payment of fine, the
appellants was directed to undergo simple imprisonment for a further
period of two years. Both substantive sentences were directed to run
concurrently.
3. Since all five appeals arise out of the same judgment of conviction
and order on sentence, involve common questions of fact and law, and
were heard together, they are being disposed of by this common judgment.
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Signed By:BHARTI
Signing Date:27.10.2026
18:34:24
BRIEF FACTS
4. The present case arises out of an incident which took place on
25.02.2020 during the communal violence in North-East Delhi. As per the
prosecution, at about 5:00 PM, a young man was assaulted by a mob near
Gali No. 3, Brijpuri, in the vicinity of Peer Baba Mazar, Chand Bagh,
Delhi. The injured was subsequently taken to Guru Teg Bahadur Hospital
(hereinafter referred to as “GTB Hospital”), where he succumbed to his
injuries. He was later identified as Monish, aged about 22 years, son of
Ali Sher (hereinafter referred to as the “deceased”).
5. The matter first came to the notice of the police through information
received from GTB Hospital on 25.02.2020. The information was
recorded vide General Diary (GD) No. 165-A at about 8:40 PM and
concerned two injured persons brought to the hospital, including an
unidentified male aged approximately 22 years. ASI Vijyant Kumar
thereafter visited the hospital and collected MLC No. D-52/2020
pertaining to the unidentified injured person, who was reported to have
been assaulted by a mob near Chand Bagh. Information regarding his
death was subsequently recorded vide GD No. 45-A dated 26.02.2020.
The MLC of the deceased is reproduced hereinbelow:
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Signing Date:27.10.2026
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6. On 29.02.2020, the dead body was identified by Ali Sher, father of
the deceased. The post-mortem examination was conducted vide Post-
Mortem Report No. 366/2020. The medical opinion attributed the death to
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shock resulting from ante-mortem injuries to the brain caused by blunt
force impact.
7. On 01.03.2020, ASI Vijyant Kumar prepared a rukka on the basis
of the information received from the hospital and the medical record.
Consequently, FIR No. 87/2020 was registered at Police Station Dayalpur
for the offences punishable under Sections 147, 148, 149, 427, 436 and
302 IPC, along with Sections 3 and 4 of the Prevention of Damage to
Public Property Act, 1984. The investigation was initially entrusted to
Inspector Hukam Singh and was subsequently transferred to the Crime
Branch, where Inspector Ritesh Kumar took over the investigation.
8. During investigation, the Investigating Officer obtained the Call
Detail Records (CDRs) of the mobile phone used by the deceased. The
records indicated that the phone was active on 25.02.2020 until
approximately 5:07 PM, with its last recorded location in the vicinity of
Brijpuri Road. The Investigating Officer also examined Ibrahim, a cousin
of the deceased, who stated that the deceased had spoken to him over the
telephone while travelling towards his residence but had not reached there.
9. The Investigating Officer thereafter examined Manoj Kaniyal, who
claimed to have witnessed the incident. According to the prosecution,
Manoj Kaniyal identified certain local residents, including the present
appellant, Arun Kumar @ Munna, Ashish @ Goli, Pradeep Rai and
Devender Kumar, as persons who were leading the mob involved in the
assault. He also identified the deceased from the CCTV footage obtained
from GTB Hospital.
10. During further investigation, the police examined the duty roster
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and departure entries of the police personnel deployed at Brijpuri T-Point
on 25.02.2020. The Investigating Officer recorded the statements of the
officials who were stated to be present near the place of occurrence.
Among them, Ct. Piyush, HC Deepak and Ct. Vineet claimed to have
witnessed the incident. According to their statements recorded during
investigation, the deceased, wearing a red T-shirt and yellow lower, was
chased and assaulted by a mob before being rescued by the police officials
and sent to GTB Hospital in an autorickshaw.
11. The prosecution further alleged that Ct. Piyush, being the beat
constable of the area, was acquainted with certain members of the mob
and identified the appellant and four other accused persons. It was alleged
that these persons were present towards the front of the mob, carrying
weapons and exhorting others to assault the victim. On 01.04.2020, the
appellant, along with Arun Kumar and Ashish @ Goli, was apprehended
during investigation.
12. Upon completion of investigation, the charge-sheet was filed on
25.06.2020 against seven accused persons, namely Arun Kumar, Aman
Kashyap, Ashish @ Goli, Pradeep Rai, Devender Kumar, Krishan Kant
and Rahul Bhardwaj, for offences under Sections 147, 148, 149, 302, 120-
B, 379, 411 and 34 IPC. The learned Chief Metropolitan Magistrate took
cognizance on 07.11.2020, and the case was committed to the Court of
Sessions on 16.03.2021.
13. On 31.07.2021, charges were framed against the accused persons
for offences relating to criminal conspiracy, unlawful assembly, rioting
and murder, including the offence punishable under Section 302 read with
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Sections 120-B and 149 IPC. Separate charges under Section 379 read
with Section 34 IPC were framed against Krishan Kant and Rahul
Bhardwaj concerning the alleged removal of the deceased's mobile phone.
An additional charge under Section 188 IPC was framed on 16.01.2023.
The accused persons pleaded not guilty and claimed trial.
14. In support of its case, the prosecution examined 18 witnesses. The
principal witnesses concerning the occurrence and identification of the
appellant were Shashi Kant (PW-1), Manoj Kaniyal (PW-5), Ct. Piyush
(PW-10), HC Deepak (PW-12) and Ct. Vineet (PW-13). The prosecution
also relied upon the medical evidence, CCTV footage from GTB Hospital,
call records, site plans and the evidence of the investigating officers. The
relevant portion of the testimonies made by the witnesses is reproduced
hereinbelow:
Witnesses Statement In Chief
Statement In Cross
Examination
Examination
PW-1 SHASHI
On dated 25.02.2020 I was
present in my house.
…It is correct that I had
deposed on 21.08.2021 that I
had identified some of boys,
who had inflicted injuries
upon the victim, as Ashish,
Arun, Pradeep, Devender,
Aman etc. I can identify all of
these five boys. (The witness
points towards accused
Ashish, Arun, Aman,
Pradeep and
Devender saying that these
are those boys whose names I
had taken in my deposition
dated 21.08.2021. (Vol. I had
KANT
XXX
I was going to Police
picket for taking help. That
I was in knowledge that
someone is beating one
boy in the Gali no. 3
Brijpuri and the said boy
had worn red colour t -
shirt and out of these
person I know the five
persons they were beating
the said boy and these are
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Signing Date:27.10.2026
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politician type person of
our colony.
seen them only as part of the
mob but I did not see them
beating or hitting the
victim). It has been recorded
incorrectly in my deposition
dated 21.08.2021 that I had
seen these boys inflicting
injuries upon the victim. It
has happened for the reason
that my deposition was
recorded on that day through
VC.
PW- 5
XXX
… He had shown me some
pictures on the computer
screen and out of them I
have identified the five
persons. Ashish, Arun,
Devender, Pradeep.
On 25.02.2020 at about 5
pm, when I was present at
my house, I heard some
noise from
outside. Accordingly, I left
my house and went towards
Brijpuri Pulia. There was
a large mob present at that
spot. The persons in the
mob were having wooden
rods, petrol bombs and
other arms in their
hands. They set on fire
several shops on the
road. Some Hindu persons
also gathered at the spot
and a fight started between
the two groups. On seeing
the fight and stone pelting,
I ran towards Aggarwal T-
Point and called police
officials. Upon seeing
police officials, all the
persons in the mob fled
from the spot. I did not
It is wrong to suggest that I
gave statement to the police
to this effect that on
30.03.2020 when I saw some
video footage related to the
incident dated 25.02.2020, I
identified the accused
persons namely Aman,
Ashish @ Goli, Devender,
Pradeep and Munna. It is
wrong to suggest that I had
seen these accused in the
mob on 25.02.2020 and had
identified them as I knew
them before the incident. It is
wrong to suggest that I am
deposing falsely regarding
the identification of the
accused as I have been won
over by the accused.
MANOJ
KANIYAL
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identify any of those
persons in the mob.
PW- 10 CT.
On 25.02.2020, I was
posted as beat officer of
Brijpuri in PS Dayalpur.
On this day, I was on duty
since about 7 am at main
Wazirabad road. Brijpuri T
point, alongwith ASI
Shyam Sunder, ASI
Vijayant. HC Naresh, HC
Ashok. HC Krishan Pal. Ct.
Vineet. Ct. Nikesh, Ct.
Subhash, Ct. Deepak and
other staff from P.S. On
this day, at about 5 p.m., I
was present
alongwith aforesaid
officials at Brijpuri T point
itself. I saw one boy
running towards us from
the side of Brijpuri and a
mob chasing him. This boy
had worn red colour T-
shirt and yellow lower and
probably he would be
around 22-23 years old.
There was police barricade
beside the wall of water
plant at some distance from
Brijpuri T point. That boy
fell down near that police
barricade and the mob kept
assaulting him at that place
with danda, iron rod. He
was bleeding from his
head. We the police team
When this incident of the
boy running towards us
took place, my position
was at point C in site plan
Ex. PW 10/A. The boy
had fallen down at point
B, as shown in the site
plan. This point B was in
front of gali no.2, A block,
Brijpuri.
PIYUSH
XXX
I was using a smart phone
during those days. I did
not prepare any video of
aforesaid incident,
because we were more
concerned about saving
that boy, rather than
making video of the
same. I did not make any
written complaint, or DD
entry about aforesaid
incident. I had only
informed SHO.
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rushed towards him and
the mob was driven away
from that place.
Thereafter, I stopped one
auto TSR and with the help
of HC Natech Tyagi and
Ct. Rohit, I lifted this boy
info that auto. Thereafter,
auto driver was asked to
take this boy to GTB
hospital.
XXX
I had seen and identified 5
person in that mob, which
chased this boy upto the
police barricade and which
was assaulting that boy.
These 5 persons were Arun,
Ashish, Aman, Pradeep @
Sandeep and Devender. I
knew all these 5 persons
since prior to aforesaid
incident, as being beat
officer I had seen and met
them in my area. All these
5 persons were in front of
this mob and were shouting
'maaro maaro'. They were
carrying danda and iron
rod, as well as sword. All
the accused persons are
present in the court today
(correctly identified).
PW- 12 HC
At around 5 p.m., HC
Naresh Tyagi, HC
Ashok, Ct. Piyush, Ct.
The aforesaid accused
persons identified by me were
leading that mob, which
DEEPAK
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Vineet and Ct. Rohit
were present with
me at Brijpuri T
point. At that time, I
saw one boy aged
about 22 years,
who was wearing red
T-shirt and yellow
lower came towards
the picket from the side
of Brijpuri. That boy
sat near the wall of the
water plant at a
distance of about 20-25
feet from the picket. I
saw that the boy was
bleeding from his head
and a mob comprising
of 300-400 persons
were following him and
were shouting 'maaro
maaro'. The rioters in
the said mob were
carrying sticks, iron
rods and swords in
their hands. The said
mob reached near the
boy and started beating
him. I had identified
some of rioters, whose
names were revealed
by Ct. Piyush. They
were Aman, Munna,
Devender, Sandeep,
Pradeep and Ashish.
assaulted the boy and when
they were assaulting the boy,
at that time itself Ct. Piyush
had told me about their
respective names. I had
never been beat constable of
the area of Brijpuri. I was
called at crime branch,
Chanakyapuri at 01.04.2020
for the purpose of
identification of accused
persons, but I was never
called for TIP of accused
persons before any
Magistrate. I had not given
information in writing to any
of my senior officer, so as to
mention the name of accused
persons, whom I had seen in
aforesaid incident. It is
wrong to suggest that I was
introduced name of the
aforesaid accused persons
for the first time in the office
of crime branch. I had not
explained description of
aforesaid accused persons,
before any of my officers in
the past.
PW- 13 CT.
I did not know any
member of this mob
The names of accused
persons were informed to
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VINEET
personally, but Ct.
Piyush, who was beat
constable of that area,
identified and informed
us about 5 persons,
who were members of
this mob. He had
pointed out to those
persons telling their
names as Arun @
Munna, Ashish @ Goli,
Aman, Pradeep
@Sandeep &
Devender. I had seen
faces of these persons
and I can identify these
5 persons even today.
These 5 persons are
present in the court
today (witness has
identified these 5
accused persons
correctly by pointing
out to them with their
correct names).
me by Ct. Piyush, when
they were assaulting the
injured. After the incident
was sent to the hospital in
auto, the same mob was
again coming forward
and were being pushed
back. During this
process, Ct. Piyush had
pointed out to the
respective persons,
whose names were told by
him.
XXX
I had not handed over
name of aforesaid
accused persons in
writing to any senior
officer. I had not
described description of
physical appearance of
these persons before any
senior officer. No other
officer had taken
information from me
about the incident with
aforesaid injured, except
for IO.
XXX
This mob consisted of
many persons and may be
around 300-400 persons,
but aforesaid 5 persons
were leading and in the
front part of the mob. When
the aforesaid boy fell
down, this mob including
aforesaid 5 persons
continued beating and
assaulting that boy. Then,
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we the police team charged
towards that mob and the
aforesaid mob took back
steps. Thereafter HC
Naresh, Ct. Piyush and Ct.
Rohit lifted that injured
boy. One TSR was passing
by, which was stopped and
this injured person was put
in that TSR. The TSR driver
was asked to take the
injured to GTB hospital.
15. Upon appreciation of the evidence, the learned Trial Court, vide
judgment dated 30.11.2024, convicted the appellants, for the offences
punishable under Sections 148 and 304 Part I read with Section 149 IPC.
The remaining two accused persons, namely Krishan Kant and Rahul
Bhardwaj, were acquitted of the charges against them. The sentence was
thereafter imposed vide order dated 13.01.2025, as noted hereinabove.
16. Aggrieved by the aforesaid judgment of conviction and order on
sentence, the appellants have preferred the present appeal.
SUBMISSIONS ON BEHALF OF THE APPELLANTS:
17. Learned counsel appearing on behalf of the appellant submits that
the prosecution case arises out of an incident allegedly occurring on
25.02.2020, whereas the FIR came to be registered only on 01.03.2020. It
is contended that the delay assumes significance in the circumstances of
the present case, particularly when the prosecution claims that several
police officials were present at the place of occurrence and had personally
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witnessed the assault upon the deceased. Despite their alleged knowledge
of the incident and the identity of the assailants, no contemporaneous
written complaint or Daily Diary (DD) entry identifying the appellant was
made by any of the said officials.
18. Learned counsel further submits that there are material
discrepancies concerning the identification of the deceased and the place
and time of the alleged occurrence. It is pointed out that the medico-legal
record refers to Chand Bagh as the place of assault, whereas the
prosecution witnesses have referred to Brijpuri Pulia and the area near
Aggarwal Sweets. It is contended that these locations are situated at a
considerable distance from one another. Further, reliance is placed upon
the PCR call attributed to PW-1 Shashi Kant, recorded at approximately
6:10 PM on 25.02.2020, wherein he reported that a boy was lying near
Aggarwal Sweets. However, according to the prosecution, the deceased
had already been identified in the CCTV footage of GTB Hospital at
approximately 5:49 PM on the same day.
19. Learned counsel submits that the prosecution case principally rests
upon the testimonies of PW-1 Shashi Kant, PW-5 Manoj Kaniyal and the
police witnesses, namely PW-10 Ct. Piyush, PW-12 HC Deepak and PW-
13 Ct. Vineet. It is contended that the independent witnesses did not
support the prosecution case regarding the appellant's participation in the
assault. PW-5 Manoj Kaniyal, despite having allegedly identified the
assailants during investigation, categorically stated in his deposition that
he had not identified any person in the mob. He also denied the
prosecution suggestions concerning the identification of the accused
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persons, including the appellant.
20. Learned counsel further submits that the testimony of PW-1 Shashi
Kant is equally unreliable insofar as the alleged participation of the
appellant is concerned. Although PW-1 had initially attributed the assault
to certain accused persons, during his subsequent examination before the
learned Trial Court on 21.02.2022, he stated that none of the accused
persons present before the Court was amongst those who had assaulted the
deceased. Upon being cross-examined by the learned Special Public
Prosecutor, PW-1 identified five accused persons, including the appellant,
but clarified that he had only seen them as members of the mob and had
not witnessed them beating or inflicting injuries upon the deceased. He
further stated that his earlier deposition dated 21.08.2021 had incorrectly
recorded that he had seen the said persons inflicting injuries, attributing
the discrepancy to the fact that his evidence had been recorded through
video conferencing.
21. It is further contended that the statements of PW-1 recorded under
Sections 161 and 164 of the CrPC, could not have been treated as
substantive evidence of the appellant's involvement, particularly when the
witness himself did not maintain the allegation of assault during his
subsequent testimony before the Court. Learned counsel also questions
PW-1's ability to witness the occurrence from the location attributed to
him and submits that the call-detail records do not conclusively establish
his presence at the precise place of occurrence. It is argued that the learned
Trial Court placed undue reliance upon electronic location evidence
despite acknowledging its limitations in determining an individual's exact
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location.
22. Learned counsel further submits that although approximately ten
police officials were stated to be deployed in the area, statements of only
six officials were recorded during investigation, out of whom PW-10, PW-
12 and PW-13 were examined as eyewitnesses. It is contended that the
circumstances in which these witnesses came forward, coupled with the
substantial delay in recording their statements, render their evidence
doubtful. PW-10 Ct. Piyush, who claimed to be the beat constable of the
area and to have known the appellant prior to the incident, admitted during
cross-examination that he neither made any written complaint nor
recorded any DD entry regarding the occurrence. His statement under
Section 161 CrPC was recorded only on 01.04.2020, more than a month
after the alleged incident.
23. Learned counsel submits that PW-10's conduct is inconsistent with
that expected of a police official who had allegedly witnessed a serious
assault and recognised the persons responsible for it. Although PW-10
claimed to have informed the Station House Officer (SHO), no
contemporaneous record of such information was produced. It is further
contended that despite knowing the identities and residential addresses of
the alleged assailants, PW-10 took no effective steps to report their
involvement or secure their apprehension until the Investigating Officer
approached him on 01.04.2020.
24. Learned counsel further submits that the evidence of PW-12 HC
Deepak and PW-13 Ct. Vineet does not independently establish the
appellant's identity. Both witnesses acknowledged that the names of the
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alleged assailants had been communicated to them by PW-10 Ct. Piyush.
PW-12 admitted that he had never served as a beat constable in Brijpuri
and that he had neither furnished a written report identifying the accused
nor previously described their physical appearance to his superior officers.
Similarly, PW-13 categorically stated that he did not personally know any
member of the mob and that PW-10 had pointed out the five persons and
informed him of their names. Learned counsel submits that the
identification by PW-12 and PW-13 was therefore substantially dependent
upon the identification allegedly made by PW-10.
25. It is further pointed out that no test identification parade (TIP) was
conducted in respect of the appellants. PW-12 and PW-13 admitted that
they had not participated in any TIP proceedings before a Magistrate. PW-
13 also stated that he had seen two of the identified persons for the second
time only when he appeared before the learned Trial Court on 02.05.2023.
Learned counsel submits that, in the absence of prior familiarity, a judicial
TIP or other reliable contemporaneous identification material assumed
particular importance. It is argued that the identification of the appellant
in Court, after the witnesses had been exposed to the accused persons
during investigation, ought to have been examined with greater caution.
26. Learned counsel also draws attention to the inconsistencies in the
accounts furnished by the police witnesses concerning the circumstances
of the assault, the movements of the mob and the reporting of the
occurrence. It is submitted that PW-10 claimed to have seen the deceased
being chased and assaulted near the barricade, whereas PW-12 and PW-
13 described the injured person approaching the police picket while
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already bleeding and subsequently being assaulted by the mob. Further,
PW-13 referred to the mob returning approximately 10 to 15 minutes after
the injured had been sent to hospital but admitted that he had not disclosed
this circumstance to the Investigating Officer.
27. Learned counsel further relies upon the testimony of PW-18
Inspector Ritesh Kumar Sharma, the Investigating Officer, who admitted
that no police official had approached him suo motu during his initial visit
to Police Station Dayalpur to claim to be an eyewitness to the incident.
PW-18 further admitted that he had not enquired from the Duty Officer
whether any DD entry or information concerning the incident had been
recorded. He stated that PW-10 had explained his failure to report the
incident until 01.04.2020 on the ground that he was unaware of the injured
person's death and the registration of the FIR. Learned counsel submits
that these admissions materially undermine the prosecution's claim that
the police witnesses had witnessed the incident and identified the
assailants on 25.02.2020 itself.
28. Learned counsel also questions the manner in which the
investigation was conducted and submits that material electronic evidence
was not produced before the learned Trial Court. It is contended that
photographs and video footage allegedly used during investigation for
identifying the deceased and the accused persons were not duly brought
on record in a manner enabling their contents to be tested. Particular
reliance is placed upon the alleged non-production of footage relating to
the rioting and the identification of the appellant.
29. It is further submitted that the call-detail records relied upon by the
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prosecution do not conclusively establish the appellant's presence at the
place of occurrence at approximately 5:00 PM on 25.02.2020. Learned
counsel points out that the records relied upon contain entries before and
after the alleged time of occurrence, but do not establish the appellant's
precise location during the relevant period between approximately 5:00
PM and 6:00 PM.
30. Learned counsel also disputes the evidentiary value of the alleged
recovery of a sword at the instance of the appellant. It is submitted that
PW-17 SI Pawan Malik claimed to have recovered the sword from beneath
a diwan at the appellant's residence pursuant to his disclosure statement.
However, the prosecution failed to establish a reliable forensic connection
between the recovered weapon and the injuries sustained by the deceased.
It is further pointed out that the appellant's father was stated to be present
during the recovery proceedings but did not sign the seizure memo.
31. Learned counsel further submits that the Investigating Officer failed
to trace the autorickshaw driver who allegedly transported the injured
person to GTB Hospital. PW-18 admitted that although the autorickshaw
was visible in certain CCTV recordings, its registration number could not
be ascertained. He further admitted that no public notice was issued to
trace the driver. It is contended that the driver was a potentially material
witness who could have provided independent evidence regarding the
circumstances in which the injured was rescued and transported to
hospital.
32. Learned counsel submits that the learned Trial Court failed to
appreciate the evidence in its entirety and instead proceeded to rely upon
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isolated portions of the testimonies of PW-1, PW-10, PW-12 and PW-13.
It is argued that the rejection of the subsequent clarification furnished by
PW-1, the reliance upon police witnesses whose statements were recorded
after a considerable delay, the absence of contemporaneous reporting and
the deficiencies in the identification process collectively give rise to
reasonable doubt concerning the appellant's participation in the alleged
offence.
33. Learned counsel lastly submits that the ingredients of Sections 148
and 304 Part I read with Section 149 of the Indian Penal Code, 1860 (IPC),
have not been established against the appellant beyond reasonable doubt.
It is contended that the prosecution failed to prove that the appellant was
a member of the unlawful assembly sharing the common object attributed
to it, or that he personally participated in the assault upon the deceased. It
is further argued that the evidence does not establish the requisite intention
necessary to sustain the conviction under Section 304 Part I IPC with the
aid of Section 149 IPC. Mere alleged presence in a large gathering,
without reliable proof of membership of an unlawful assembly and the
requisite common object or knowledge contemplated by Section 149 IPC,
cannot form the basis of criminal liability.
SUBMISSIONS ON BEHALF OF THE RESPONDENT:
34. Per contra , Mr. Rajat Nair, learned Special Public Prosecutor (SPP)
appearing on behalf of the State, submits that the incident occurred during
the communal riots that took place in North-East Delhi on 24.02.2020 and
25.02.2020, when the police machinery was engaged in controlling
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widespread violence and responding to numerous emergency calls. It is
submitted that the circumstances prevailing during the said period are
relevant while appreciating the delay in registration of the FIR and
recording of statements of certain prosecution witnesses. According to the
State, the PCR communication system was experiencing technical
difficulties on account of the unusually high volume of calls.
Consequently, the delay in the receipt and tracing of the PCR call made
by PW-1 Shashi Kant cannot, by itself, be treated as a circumstance
indicating fabrication of the prosecution case.
35. In response to the discrepancies concerning the place of occurrence
and the identification of the deceased, learned SPP submits that the
investigation established the movement of the deceased towards Brijpuri
Road on 25.02.2020. Reliance is placed upon the call-detail records of the
deceased and the information furnished by his cousin, Ibrahim, regarding
his movement towards Mustafabad. It is further submitted that the
deceased was identified by his uncle, Shabir Ali, in the CCTV footage of
GTB Hospital at approximately 5:49 PM on 25.02.2020. Learned SPP
contends that the reference to Chand Bagh in the medico-legal record
cannot be treated as conclusive proof of the precise place of assault,
particularly when the hospital was receiving a large number of injured
persons during the riots and the person who brought the deceased to the
hospital was not identified.
36. Learned SPP further submits that the appellant has incorrectly
suggested that the accused persons were identified through the CCTV
footage of GTB Hospital. It is clarified that the said footage was used for
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identifying the injured person who had been brought to the hospital and
for connecting him with the incident witnessed near Brijpuri T-Point.
According to the prosecution, the accused persons were identified on the
basis of the information furnished by the witnesses during investigation
and their subsequent identification before the learned Trial Court. It is
therefore contended that the appellant's objection concerning non-
production of CCTV footage depicting the accused persons proceeds on
an incorrect understanding of the prosecution case.
37. Learned SPP places reliance upon the evidence of PW-1 Shashi
Kant and submits that the witness had, in his earlier statements and initial
deposition before the learned Trial Court, identified persons involved in
the assault upon the deceased. It is contended that PW-1 subsequently
attempted to resile from the portion of his earlier deposition attributing the
assault to the accused persons. Learned SPP supports the finding of the
learned Trial Court that the subsequent change in the witness's version did
not warrant rejection of his entire testimony, particularly when his account
regarding the occurrence, the presence of the mob and the identity of the
injured person was consistent with other prosecution evidence. It is further
submitted that the statement of PW-1 recorded under Section 164 of the
CrPC, was relevant for corroborating or contradicting his testimony in
accordance with law.
38. Learned SPP further relies upon the testimonies of PW-10 Ct.
Piyush, PW-12 HC Deepak and PW-13 Ct. Vineet, who were deployed at
Brijpuri T-Point on 25.02.2020. It is submitted that the said witnesses
consistently deposed that at approximately 5:00 PM, a young man wearing
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a red T-shirt and yellow lower was chased by a mob, fell near the
barricades adjoining the wall of the water plant and was assaulted by
members of the mob. The police officials thereafter intervened, dispersed
the mob and arranged for the injured person to be transported to GTB
Hospital in an autorickshaw. Learned SPP submits that their testimonies
materially corroborate one another regarding the occurrence, the place of
assault and the circumstances in which the injured person was rescued.
39. Regarding the identification of the appellant, learned SPP submits
that PW-10 Ct. Piyush was the beat constable of the locality and was
acquainted with the appellants and the other accused persons prior to the
incident. PW-10 identified Aman Kashyap, Arun @ Munna, Ashish @
Goli, Pradeep and Devender as persons who were at the forefront of the
mob and were carrying weapons. Learned SPP further submits that PW-
12 and PW-13 identified the said persons in Court and attributed
participation in the assault to the mob led by them. It is contended that the
absence of a test identification parade (TIP) does not, in the circumstances
of the case, render the identification evidence inadmissible, particularly
when PW-10 claimed prior familiarity with the accused persons.
40. Learned SPP submits that the delay in recording the statements of
the police witnesses has been satisfactorily explained by the circumstances
prevailing during the riots and the subsequent investigation of numerous
cases arising therefrom. Reliance is placed upon the testimony of PW-18
Inspector Ritesh Kumar Sharma, who explained that several riot-related
cases were being investigated simultaneously and that the police personnel
deployed at the scene were not necessarily aware of the Investigating
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Officer assigned to the present FIR. It is further submitted that PW-10 was
unaware of the subsequent death of the injured person and the registration
of the present FIR. Learned SPP submits that absence of an immediate
written complaint or DD entry identifying the accused persons does not
justify discarding otherwise reliable eyewitness testimony.
41. Learned SPP also relies upon the investigation conducted after the
identification of the deceased and the examination of the police witnesses.
It is submitted that the witnesses identified the injured person in the
hospital footage and indicated the place where he had been assaulted. The
Investigating Officer thereafter visited the relevant locations and took
steps to apprehend the persons identified during investigation. Learned
SPP submits that the prosecution evidence, when considered
cumulatively, establishes a consistent sequence connecting the assault
near Brijpuri T-Point with the injured person subsequently brought to
GTB Hospital.
42. Learned SPP further submits that the learned Trial Court has duly
considered the medical evidence, particularly the post-mortem findings
concerning the injuries sustained by the deceased and the cause of death.
It is contended that the medical evidence supports the prosecution account
of a violent assault by members of the mob. Learned SPP submits that the
inability to attribute a particular fatal injury to an individual accused does
not absolve the appellants of liability where their membership of the
unlawful assembly and the requisite common object are otherwise
established.
43. Learned SPP submits that the learned Trial Court has correctly
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invoked Section 149 IPC, while determining the criminal liability of the
appellant. It is contended that the prosecution was not required to establish
which particular accused inflicted each injury upon the deceased, once the
participation of the appellant in the unlawful assembly and the common
object of its members stood proved. Learned SPP points out that the
learned Trial Court, after considering the absence of evidence identifying
the author of the fatal injuries, restricted the conviction to the offence of
culpable homicide not amounting to murder under Section 304 Part I read
with Section 149 IPC, besides the offence under Section 148 IPC. It is
therefore submitted that the findings of the learned Trial Court reflect a
considered appreciation of the evidence rather than an indiscriminate
attribution of criminal liability.
44. In support of the aforesaid submissions, learned SPP places reliance
upon Vijaya Singh and Another v. State of Uttarakhand, 2024 SCC
OnLine SC 3510 , and R. Shaji v. State of Kerala, (2013) 14 SCC 266 ,
concerning the evidentiary use of statements recorded under Section 164
CrPC. Reliance is also placed upon Raja v. State, (2020) 15 SCC 562,
and Malkhansingh v. State of M.P., (2003) 5 SCC 746 , concerning
identification evidence and the effect of non-conduct of TIP proceedings.
With respect to reliance upon police witnesses, learned SPP refers to Girja
Prasad v. State of M.P., (2007) 7 SCC 625, Tahir v. State (Delhi), (1996)
3 SCC 338 , and Baldev Singh v. State of Haryana, (2015) 17 SCC 554 .
Learned SPP further relies upon Firoz Khan Akbarkhan v. State of
Maharashtra, 2025 SCC OnLine SC 627 , to contend that procedural or
investigative lapses which do not affect the substance of the prosecution
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evidence cannot, by themselves justify interference with an otherwise
sustainable conviction.
ANALYSIS AND FINDINGS:
45. This Court has heard learned counsel for the parties and perused the
material available on record.
46. At the outset, it is pertinent to note that the factum of death of the
deceased, on account of the injuries sustained during the incident dated
25.02.2020, stands established by the medical evidence. The post-mortem
report attributes the cause of death to shock resulting from ante-mortem
injuries to the brain caused by blunt force impact. Thus, the controversy
in the present appeals principally concerns the identification and
participation of the appellants in the assault and the extent of their criminal
liability for the death of the deceased.
APPRECIATION OF THE OCULAR EVIDENCE:
47. The appellants have primarily assailed the reliability of the
prosecution witnesses, particularly PW-1 Shashi Kant, PW-10 Ct. Piyush,
PW-12 HC Deepak and PW-13 Ct. Vineet. It is contended that PW-1
resiled from his earlier version, that the statements of the police
eyewitnesses were recorded after a considerable delay and that no test
identification parade (TIP) was conducted.
48. Insofar as PW-1 is concerned, the record reveals that although he
initially attributed the assault to the accused persons, during his
subsequent examination dated 21.02.2022, he clarified that he had seen
the five appellants as members of the mob but had not personally
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witnessed them beating or hitting the deceased. The learned Trial Court
was therefore, required to appreciate both portions of his sworn testimony.
His earlier statement recorded under Section 164 of the CrPC, could not
independently establish the participation of the appellants in the assault.
49. In State of U.P. v. M.K. Anthony, (1985) 1 SCC 505 , the Supreme
Court held that while appreciating the evidence of a witness, the Court
must consider whether the testimony, read as a whole, appears to have a
ring of truth. Once that impression is formed, the Court must scrutinise the
deficiencies and inconsistencies to ascertain whether they are sufficiently
material to discredit the witness. The evidence cannot be evaluated by
isolating individual sentences from their context.
50. Applying the aforesaid principle, the testimony of PW-1 requires
careful consideration. Although PW-1 initially attributed the assault to the
accused persons, during his subsequent examination dated 21.02.2022, he
clarified that he had seen the five appellants as members of the mob but
had not personally witnessed them beating or hitting the deceased. The
said clarification cannot be ignored. Nevertheless, PW-1 did not resile
from identifying the appellants as persons present in the mob which was
involved in the occurrence. His testimony, therefore, retains evidentiary
significance to that limited extent.
51. PW-5 Manoj Kaniyal, on the other hand, did not identify any of the
appellants before the learned Trial Court and denied the suggestions put
to him by the prosecution regarding their identification. His testimony,
therefore, cannot be relied upon to establish the identity of the assailants.
However, his statement concerning the presence of a violent mob in the
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Brijpuri area at the relevant time is consistent with the broader
circumstances of the occurrence as described by the other witnesses. The
question of identification must consequently be examined principally on
the strength of the testimonies of PW-10, PW-12 and PW-13.
52. PW-10 Ct. Piyush, who was posted as the beat constable of the
locality specifically identified all five appellants as persons who were
present at the forefront of the armed mob and were exhorting others by
shouting ‘maaro maaro’ . He further stated that he was acquainted with the
appellants prior to the incident, having seen and met them during the
discharge of his official duties. PW-12 and PW-13 substantially
corroborated his account regarding the deceased being pursued by a mob,
the assault near the police barricades and the subsequent intervention of
the police personnel. Although PW-12 and PW-13 derived their
knowledge of the names of the accused persons from PW-10, they claimed
to have personally observed the persons pointed out by him during the
occurrence and identified them before the learned Trial Court.
53. The appellants have also questioned the credibility of PW-10, PW-
12 and PW-13 on the ground that they are police officials. In Girja Prasad
(supra) , the Supreme Court held that the testimony of a police official
cannot be discarded merely because of his official status and that such
evidence must be assessed on its own merits. In the present case, the
presence of the said witnesses at the police picket is supported by the duty
records, and their accounts substantially correspond regarding the manner
in which the deceased was pursued, assaulted and subsequently rescued.
Their official status, therefore, cannot constitute an independent ground
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for rejecting their testimonies.
IDENTIFICATION OF THE APPELLANTS AND ABSENCE OF TIP
54. The appellants have placed considerable emphasis upon the non-
conduct of a TIP. However, in Malkhansingh (supra) , the Supreme Court
explained that identification before the Court constitutes substantive
evidence, whereas a TIP ordinarily serves the purpose of testing the ability
of a witness to identify a person during investigation. The absence of a
TIP does not render identification evidence inadmissible, although its
evidentiary value must be assessed with due caution.
55. In the present case, the identification made by PW-10 stands on a
different footing from the identification of a previously unknown person.
PW-10 claimed prior acquaintance with all five appellants by virtue of his
posting as the beat constable of the locality. PW-12 and PW-13, although
not previously acquainted with the appellants in the same manner, deposed
that PW-10 had pointed out the concerned persons during the occurrence
and that they had personally observed them. Thus, their identification is
not independent of PW-10 insofar as the names of the appellants are
concerned, but their evidence lends support to the occurrence and the
contemporaneous pointing out of the persons allegedly involved.
DELAY IN RECORDING STATEMENTS AND INVESTIGATIVE
DEFICIENCIES:
56. The appellants have further questioned the prosecution case on
account of the delay in recording the statements of the police
eyewitnesses. The occurrence took place on 25.02.2020, whereas the
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statements of PW-10, PW-12 and PW-13 were recorded on 01.04.2020.
The delay is substantial and warrants scrutiny, particularly since PW-10
claimed prior acquaintance with the appellants.
57. In State of U.P. v. Satish, (2005) 3 SCC 114 , the Supreme Court
explained that delay in recording the statement of a witness under Section
161 CrPC does not automatically render the testimony unreliable, the
effect of such delay depends upon the explanation offered and the
surrounding circumstances
58. The delay in recording the statements of the police eyewitnesses is
undoubtedly a circumstance which calls for scrutiny. The incident
occurred on 25.02.2020, whereas their statements were recorded on
01.04.2020. PW-18 Inspector Ritesh Kumar Sharma, the Investigating
Officer, admitted that the police personnel had not approached him suo
motu and that he had called them for examination during investigation. He
also explained that several cases arising out of the riots were being
investigated simultaneously and that PW-10 was unaware of the
subsequent death of the injured person and the registration of the present
FIR.
59. The explanation furnished by PW-18 cannot be accepted
mechanically merely because the incident occurred during the riots.
Nevertheless, the delay must be considered in the factual circumstances
prevailing at the relevant time. The evidence of PW-10 regarding his
presence at the spot and the identification of the appellants has to be
examined in conjunction with the corroborative accounts of PW-12 and
PW-13. On such examination, this Court finds that the delay does not by
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itself discredit the occurrence described by the witnesses or establish that
the appellants were falsely implicated.
60. The contention regarding the discrepancies highlighted by the
appellants regarding the reference to Chand Bagh in the medico-legal
record, the PCR call mentioning Aggarwal Sweets and the place of
occurrence identified by the police witnesses must be considered in the
context of the entire evidence. The description of the place from where an
injured person was reportedly brought to the hospital does not necessarily
constitute independent proof of the exact location of the assault. Likewise,
the hospital CCTV footage was relied upon for identifying the injured
person and not as visual evidence establishing the participation of the
appellants. The absence of footage depicting the appellants committing
the assault cannot, therefore, be treated as the withholding of such direct
evidence where the prosecution case rests upon eyewitness identification.
61. The reliance placed upon the call-detail records also does not
conclusively resolve the issue of identification. Such records may indicate
the approximate location of a mobile device but do not necessarily
establish the precise physical location of its user at a particular moment.
The absence of a call-detail entry placing an appellant at the exact spot of
occurrence is not sufficient to contradict otherwise reliable ocular
evidence. Equally, the Court does not consider the call-detail records as
independent proof of the appellants’ participation in the assault.
62. In Firoz Khan Akbarkhan (supra) , the Supreme Court reiterated
that deficiencies or lapses in investigation do not necessarily justify
rejection of the prosecution case where the evidence otherwise establishes
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the offence. The Court must examine whether the particular omission
affects the credibility of the evidence or causes prejudice in assessing the
guilt of the accused. Applying this principle, the investigative deficiencies
highlighted by the appellants must be acknowledged, but they do not
automatically displace the ocular evidence if that evidence is otherwise
found reliable.
APPLICABILITY OF SECTION 149 IPC:
63. The Court now proceeds to examine the applicability of Section 149
IPC, which forms the principal basis of the conviction. The learned Trial
Court expressly recognized that the prosecution had not established which
particular accused inflicted the fatal head injuries. The conviction was
consequently founded upon the principle of constructive liability under
Section 149 IPC. It is, therefore, necessary to examine whether the
statutory ingredients of the said provision stand established.
64. In Masalti v. State of U.P., AIR 1965 SC 202 , the Supreme Court
explained that where an offence is committed by a member of an unlawful
assembly in prosecution of its common object, the prosecution is not
invariably required to establish an individual overt act on the part of every
member. However, the Court must first be satisfied that the accused was
a member of the unlawful assembly and shared the requisite common
object or knowledge.
65. The aforesaid principle was reiterated in Lalji v. State of U.P.,
(1989) 1 SCC 437, wherein the Supreme Court held that the common
object of an unlawful assembly may be inferred from the nature of the
assembly, the weapons carried by its members and their conduct before
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and during the occurrence. Once the statutory requirements of Section 149
IPC are established, the prosecution is not required to prove which
particular member inflicted each injury.
66. However, in Kuldip Yadav v. State of Bihar, (2011) 5 SCC 324 ,
wherein the Supreme Court emphasised that before recording a conviction
with the aid of Section 149 IPC, the Court must arrive at a clear finding
regarding the nature of the common object and its unlawful character.
Mere presence in an assembly or possession of a weapon, without the
requisite common object or knowledge, is insufficient. Thus, Section 149
IPC cannot be invoked merely because an offence has been committed by
one or more persons forming part of a gathering.
67. In the present case, the evidence establishes more than the mere
presence of the appellants in a crowd. PW-10 identified all five appellants
at the forefront of the armed mob, exhorting others to assault the deceased.
The deceased was pursued, surrounded and assaulted even after he had
fallen near the police barricades. The conduct attributed to the appellants,
the weapons carried by members of the mob and the continued assault
upon the deceased provide the factual basis for concluding that the
assembly had an unlawful common object of assaulting the deceased and
causing bodily harm to him.
68. Once the membership of the appellants in the unlawful assembly
and the requisite common object or knowledge are established, the
absence of proof identifying the individual author of the fatal injuries does
not, by itself, absolve them of liability under Section 149 IPC. The
appellants cannot claim acquittal merely because the prosecution was
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unable to determine which member of the mob inflicted the particular head
injuries recorded in the post-mortem report. The offence must, however,
be shown to have been committed in prosecution of the common object of
the assembly, or to have been one which its members knew to be likely to
be committed in prosecution of that object.
NATURE OF THE OFFENCE UNDER SECTION 304 PART I IPC:
69. The final question concerns the nature of the offence for which the
appellants have been convicted. The factum of death of the deceased
stands established by the medical evidence, which attributes the cause of
death to shock resulting from ante-mortem injuries to the brain caused by
blunt force impact. However, the mere fact that death resulted from the
assault does not, by itself, determine whether the offence falls under
Section 304 Part I or Part II IPC.
70. Section 304 Part I IPC applies where the act causing death is
accompanied by the intention to cause death or such bodily injury as is
likely to cause death. Part II, on the other hand, applies where there is
knowledge that death is likely to result, without the intention contemplated
under Part I. In Virsa Singh v. State of Punjab, AIR 1958 SC 465, the
Supreme Court explained the distinction between the intention to inflict a
particular bodily injury and the consequences of that injury while
considering the ingredients of culpable homicide and murder. Although
the said decision was rendered in the context of Section 300 IPC, the
distinction between intention and knowledge remains material to the
present enquiry.
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71. The manner in which the deceased was assaulted is relevant to
determining the requisite mental element. The prosecution evidence
describes the deceased being pursued by an armed mob, assaulted after
falling near the barricades and subjected to repeated blows, including
injuries to the head. These circumstances are capable of bearing upon the
inference of an intention to cause bodily injuries likely to result in death.
72. In the present case, the prosecution evidence concerning the
weapons carried by the assembly, the exhortations attributed to the
appellants and the manner in which the deceased was assaulted must be
considered together. These circumstances are relevant to determining
whether the offence involving the requisite intention under Section 304
Part I IPC was committed in prosecution of the common object of the
assembly, or was known by its members to be likely to be committed in
prosecution of that object. The conclusion must rest upon these proved
circumstances, rather than upon the mere occurrence of death.
CONCLUSION
73. Accordingly, CRL.A. 133/2025, CRL.A. 180/2025, CRL.A.
181/2025, CRL.A. 185/2025 and CRL.A. 289/2025 are hereby dismissed.
The common judgment of conviction dated 30.11.2024 and order on
sentence dated 13.01.2025 passed by the learned Additional Sessions
Judge-03, North-East District, Karkardooma Courts, Delhi, in Sessions
Case No. 199/2021, arising out of FIR No. 87/2020 registered at Police
Station Dayalpur, are upheld insofar as the present appellants are
concerned.
74. Pending applications, if any, shall stand disposed of in accordance
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with the aforesaid decision.
75. A copy of this judgment, along with the Trial Court Record, be sent
to the concerned Jail Superintendent and the learned Trial Court for
information and necessary compliance.
MADHU JAIN
(JUDGE)
OCTOBER 27, 2026/P
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