The violence that hit the national capital in 2020 was a brutal reminder of India and its tryst with those who wish to annihilate Hindus and balkanise the nation. With the violence, the conspiracy of which started germinating right from the 5th of December 2019, a vicious international campaign was unleashed to paint the violence, initiated by Muslim mobs, as an anti-Muslim pogrom. The fact that the first murder during the violence that erupted on the 23rd of February with Muslim mobs running rampage was that of Ratan Lal and soon after him, Dilbar Negi, a young daily wager, was brutally murdered, was swiftly brushed under the carpet.
With several cases pertaining to the Delhi riots being tried in the court of law, the first judgement has been delivered by the honourable court, in all its wisdom. The first conviction in the case was that of Dinesh Yadav, a young Hindu boy who was seen in the vicinity of a mob vandalising Muslim households on the 25th of February, 2 days after Muslim mobs had unleashed violence against Hindus.
Almost simultaneously, those who were accused of murdering Dilbar Negi were awarded bail. On January 18th, the Delhi High Court granted bail to six persons named Mohd Tahir, Shahrukh, Mohd Faizal, Mohd Shoaib, Rashid and Parvez in the Gokulpuri murder case related to the Delhi Riots of February 2020. The bail was granted by Justice Subramonium Prasad. The six were accused of vandalism and setting Anil Sweet Corner on fire “resulting in the death of 22-year-old Dilbar Negi”.
The conviction of Dinesh Yadav, coupled with the bail granted to the murderers of Dilbar Negi, expectedly, created flutters. While the Muslim organisations and the sympathisers of the rioters were rejoicing the conviction of a Hindu man, those who truly wanted to talk about the truth of the riots rued the inconsistencies in the two judgements passed days apart.
Summary of the basis on which Dinesh Yadav was convicted in the Delhi anti-Hindu riots case
The conviction of Dinesh Yadav hinged on certain fundamental points elucidated in the judgement itself.
- Manori, the old woman whose house was vandalised, was not present in the house when the vandalised took place. She said she had left the house at around 4 PM on the 25th and the vandalisation, according to the police personnel (who were also witnesses in the case), began at about 11 PM.
- Manori, her family members Ashiq and Asif could not identify any of the rioters, leave alone Dinesh Yadav, since they were not present when the vandalisation took place. In fact, these witnesses were declared hostile by the prosecution where during cross-questioning, they said that they had never told the police that they were in the house when the vandalisation took place. Essentially, it would appear that the police was under the impression that they were present in the house when the vandalisation took place. The family itself had alluded to it several times, even in an Indian Express interview after the verdict was out.
- The police personnel, Vipin and Sanoj, named Dinesh because they saw him in the vicinity of the mob. They have admitted that Dinesh was in no way involved in the violence. They said they him with a wooden danda, however, no such danda was recovered from Dinesh. In fact, there was no incriminating material found on his person.
- The court in its wisdom said that even though there is no evidence to suggest that Dinesh was involved in the violence, he was a part of the mob and therefore, assumed his intention to further the common goal of the illegal mob – vandalise and commit violence against Muslims.
- The court predicated this conclusion on two factors – a) Section 149 applies, which basically says that even if a person is not committing violence but is a part of an illegal assembly creating violence and if he has the intention to further the same illegal goal of the illegal crowd, he should be held liable, b) the mob was Hindu and since he was Hindu too, it can be assumed that he wanted to further the same cause as that of the rest of the mob.
- One has to keep in mind that other than this assumption, based on the fact that he is a Hindu, there is no evidence on record to suggest that he was not a bystander and wanted to further the cause of the illegal mob, yet, the court sentenced Dinesh to 5 years in prison.
The full article analysing the Dinesh Yadav judgement and the miscarriage of justice can be read here.
The arguments made in the case of those accused in the Dilbar Negi case
It becomes evident from the analysis of the judgement passed convicting and sentencing Dinesh Yadav that there was a thorough lack of evidence to award a 5-year prison sentence. However, to draw conclusions about how the judgement in the Dinesh Yadav case differs from that of giving bail to the accused in the Dilbar Negi case, and thus how it amounts to a miscarriage of justice, we must now analyse the judgement in the bail case.
The judgement stated:
The FIR states that when the Complainant and the Beat Constable reached the said house, they found the door to be broken and the house to be completely burnt. On inspecting the second floor, the Complainant noticed a semi-burnt body lying in the corner. The FIR further states that the deceased seemed to be about 20 years old and that both the arms and legs of the body were chopped off. It is stated that the chopped limbs could not be found and that on inquiry, it was found that the burnt body belonged to a person named Dilbar who was a waiter at the sweet house. The body was then sent to GTB Hospital and then to the GTB Hospital mortuary. The FIR states that it appears that unknown persons belonging to one of the parties opposing and supporting the CAA killed the deceased with a deadly weapon and then set the house ablaze with the intent to destroy the evidence of the crime.
Salman Khurshid, who was representing the accused, said that he was arrested and implicated falsely and that he is a poor boy who works in a repair shop and is the sole breadwinner of the family.
Interestingly, a similar argument that was made in the Dinesh Yadav case was made here by Salman Khurshid. He said that his brother’s shop is in the vicinity where the accused has been working for the past 15 years and therefore he was in the area. It was argued that the Petitioner was only present before Rajdhani Public School to collect certain articles and that he merely closed his shop and returned to his home.
Khurshid submitted that the only evidence against the Petitioner is the CCTV footage, the statement under Section 161 Cr.P.C. of Amit Pal, and the CDR, and these are matters which must go through the rigours of trial. It is pertinent to note here that while CCTV footage did exist in the case of this accused in the Dilbar Negi case, in the Dinesh Yadav case, there was no CCTV footage either. It was only the word of the two policemen who had said they saw Dinesh in the crowd with a lathi, admitting that he was not involved in any violence that had ensued.
Another argument made by Khurshid to ensure bail for the accused was that the body of Dilbar Negi was discovered on the 26th while the FIR was registered only on the 28th. The delay in the filing of the FIR was used to cast aspersion on the role of the accused by the lawyer.
The Public Prosecutor on the other hand had argued that the accused, Md Tahir, had actively participated in the deadly riots on 24.02.2020 wherein the deceased Dilbar Negi was burnt alive. The PP submitted that the Petitioner was identified in the CCTV footage retrieved from Rajdhani Public School where he could be seen instigating others. Pointing at the CCTV footage (CP IP Cam), the learned APP has indicated that the Petitioner has been identified at 3:37:39 PM in a printed white shirt and that the posture of the Petitioner is not that of a curious onlooker. He has submitted that the Petitioner can be seen gesturing and instigating other members of the unlawful assembly.
Interestingly, the public prosecutor in this case also invoked Section 149 saying that in a mob, it is impossible to identify every member of the mob and therefore, any individual who was a part of the mob and identifiable should be held liable for the actions of the mob.
The prosecution also said that on an earlier occasion, Tahir was denied bail by the court on account of the heinousness of the crime. This argument was made by the prosecution after the defence lawyer (Khurshid) had argued that Tahir had been incarcerated for long enough pending trial and therefore should be awarded bail.
Mr. Mahajan has further argued that that Ld. Trial Court vide Order dated 18.08.2020 had also dismissed the Petitioner’s bail application on the ground of the heinousness of the offence. He has, therefore, submitted before this Court that there has been no change of circumstances and that period of incarceration undergone by the accused is not relevant while considering grant of bail. He has submitted that Section 436A of the Code of Criminal Procedure specifically provides for the maximum period for which an accused can be in custody while the trial is underway, and therefore, it should not be a relevant factor for grant of bail. Furthermore, Mr. Mahajan has submitted that the eyewitnesses reside in the same area as the Petitioner and may be susceptible to being influenced or threatened if the Petitioner is enlarged on bail.
What did the court say while granting bail to the accused in the Dilbar Negi murder case
The judgement by the court said that during the course of the investigation, two CCTV footage were discovered by the police. One from the corner wall of the school covering the sweet shop between Rajdhani Public School and Anil Pastry Shop, and another inside Rajdhani School near the main entry gate. The judgement said that though the murder of Dilbar Negi was committed on the 24th of February, the FIR was filed on the 28th of February and that the charge sheet in the case clearly states that the murder was a part of a well-hatched conspiracy.
The judgement states:
The chargesheet additionally states that the CDR of the Petitioner places him at the location of the scene of crime. Further, the statement of Amit Pal under Section 161 Cr.P.C. ascertains that the Petitioner was in front of Rajdhani Public School, raising slogans against Hindus and provoking a crowd of Muslim boys. It states that the Petitioner was involved in pelting stones and setting fire to the shops. A perusal of the video footage shows that the Petitioner was seen on the CCTV camera of CP IP Cam at 03:41:59 PM which shows him before Rajdhani Public School on the day of the incident. It indicates the Petitioner herein calling out to others present in the mob.
The court, in its wisdom, took exception to Section 149 being applied to every individual who was a part of the illegal assembly.
This part of the judgement is extremely important and we will analyse how it differs from the one passed in the case of Dinesh Yadav in the next section of the article. The court here observes:
“…clear finding needs to be given by the Court regarding the nature of unlawful common object. Furthermore, if any such finding is absent or if there is no overt act on behalf of the accused, the mere fact that the accused was present or armed would not be sufficient to prove common object”.
The court, therefore, says that just because someone is armed and a part of an illegal crowd, it does not mean that they should be prosecuted for the crime committed by the crowd unless it can be proven that he was a part of the violence.
Citing the case of Sherey and Ors. v. State of U.P., (1991) Supp (2) SCC 437, the court said:
“We feel it highly unsafe to apply Section 149 IPC and make everyone of them constructively liable. But so far as the above nine accused are concerned the prosecution version is consistent namely that they were armed with lethal weapons like swords and axes and attacked the deceased and others. This strong circumstance against them establishes their presence as well as their membership of the unlawful assembly. The learned counsel appearing for the State vehemently contended that the fact that the Muslims as a body came to the scene of occurrence would show that they were members of an unlawful assembly with the common object of committing various offences including that of murder. Therefore all of them should be made constructively liable. But when there is a general allegation against a large number of persons the Court naturally hesitates to convict all of them on such vague evidence. Therefore we have to find some reasonable circumstance which lends assurance…”
The court further said that Section 149, when read with section 302, cannot be done on the basis of vague evidence and general allegations.
On the question of bail, the court observed that the accused had been in jail for 21 months and therefore, the court has to ensure that the personal liberty of individuals is not compromised in the face of excess state power.
The court said:
“…Bail is the rule and jail is the exception, and Courts must exercise their jurisdiction to uphold the tenets of personal liberty, subject to rightful regulation of the same by validly enacted legislation. The Supreme Court has time and again held that Courts need to be alive to both ends of the spectrum, i.e. the duty of the Courts to ensure proper enforcement of criminal law, and the duty of the Courts to ensure that the law does not become a tool for targeted harassment”.
The court, granting bail, based their decision on the following:
- Court said that the sole evidence available at this juncture against the Petitioner is his presence in the CCTV footage, the statement of Amit Pal, and the CDR which places the Petitioner at the SOC and this evidence has to be examined during trial.
- The court said that the CCTV placed the accused at the spot of the crime at 4 PM, however, the murder happened sometime after 8 PM. Therefore, the evidence is inconclusive at this point and it would be a “bit of a stretch” to say that “the petitioner was present at the SoC when the alleged murder was committed after a gap of almost six hours between the petitioner’s presence at the SoC and the deceased’s alleged time of death”.
- The court said that in this case, there were 72 witnesses and therefore, the trial would take long. Since it would, the prolonged incarceration of the accused was not justified.
- The court, in its infinite wisdom, also said, “The Petitioner has roots in society, and, therefore, there is no danger of him absconding and fleeing”.
- The court makes clear that these observations and only for the purpose of bail and would not be applicable during trial and that the court is not commenting on the merits of the case.
How are the two judgements different? Was conviction of Dinesh Yadav in the Delhi Riots case a miscarriage of justice?
The foundational element in both these cases, the bail order in the Dilbar Negi case and the conviction judgement in the Dinesh Yadav case, was the application of Section 149. This section and its interpretation were used differently in both cases, in one, to convict the Hindu boy Dinesh Yadav in the other, to give bail to the Muslim perpetrators in the Dilbar Negi murder case.
In the case of Dinesh Yadav, where he was convicted, the court said that for Section 149, it does not need to be proved that the individual was a part of the violence at all. The mere fact that Dinesh was allegedly a part of the mob, goes to show that he showed a common goal with the illegal assembly. In fact, the court convicted Dinesh on the basis of this mere assumption. Going further, the court said that because the crowd was Hindu, and Dinesh was Hindu, it is a reasonable assumption that he was a part of the mob sharing their goal to harm Muslims. Keep in mind, that while interpreting Section 149 and throwing Dinesh in jail for 5 years, the court categorically admitted that there was absolutely no evidence to prove that Dinesh was a part of the violence that ensued and led to the house of the Muslim woman being burnt.
In the case where Md Tahir was given bail, the court also interpreted Section 149 but in a manner diametrically opposed to the interpretation used by the court in the Dinesh Yadav case.
In the case of giving bail to the Muslim accused in the Dilbar Negi case, the court said categorically that “…clear finding needs to be given by the Court regarding the nature of an unlawful common object. Furthermore, if any such finding is absent or if there is no overt act on behalf of the accused, the mere fact that the accused was present or armed would not be sufficient to prove common object”.
It went so far as to say that the court has to be circumspect of the personal liberty of individuals and therefore, granting bail is the norm that the court must follow.
As evident, in the two cases, the court interpreted the provision of the law differently using one to convict a Hindu boy and using the other to grant bail to the Muslim accused.
One has to also bear in mind that in the case of the Muslim accused, the court judgement says that there are over 70 witnesses to examine but in the case of Dinesh Yadav, where he was convicted on the basis of a flawed interpretation of the law, there were witnesses who could not identify anyone from the mob because they were not even there when the violence took place and two other police officers, who merely said they identified Dinesh standing around in the crowd and had no evidence that he participated in any violence.
This was not an average situation where any individual who was a part of the mob was there to further the common objective of the illegal assembly. There were widespread riots in the national capital on those fateful days and incidents of violence aplenty. There were several individuals who were bystanders or stuck in the violence-affected areas. Further, there were people also moving around in groups to ensure some sort of safety for themselves. With no proof that Dinesh was a part of the violence, on the say-so of two police officers, with no evidence like weapons recovered or CCTV footage, the court incarcerated him on the basis of the fact that he was a Hindu, standing near a Hindu mob. Whereas, in the case of the Muslim convicts, they have been granted bail on the basis of a completely different interpretation of Section 149.
While it is true that at the stage of the bail hearing, there is a presumption of innocence, the glaring difference in interpretation of Section 149 and the standard of burden of evidence points towards a gross miscarriage of justice as far as Dinesh Yadav is concerned.
