A court in Delhi discharged attempt to murder charges against two persons in connection with the communal violence in the Capital last year, after observing that there was nothing in the chargesheet to support the charges against them, Bar and Bench reported on Wednesday. The court observed that presumption “cannot be stretched to take the shape of proof or evidence”.

“From a hundred rabbits you can’t make a horse, a hundred suspicion don’t make a proof,” Additional Sessions Judge Amitabh Rawat of the Karkardooma Court said, quoting Russian novelist Fyodor Dostoevsky’s Crime and Punishment.

Clashes had broken out between supporters of the Citizenship Amendment Act and those opposing it between February 23 and 26 last year in North East Delhi, killing at least 53 people and injuring hundreds. Several arrests were made in connection with the violence.

Among them were the two accused, Babu and Imran. Both of them were facing criminal proceedings for offences under Indian Penal Code Sections 143 (punishment for unlawful assembly),144 (Joining unlawful assembly armed with deadly weapon),147 (Punishment for rioting),148 (Rioting, armed with deadly weapon),149 (common object of unlawful assembly), 307(attempt to murder), as well as under Section 27 (Punishment for using arms) of the Arms Act.

The police have alleged that they had participated in the riots that took place on February 25, 2020 near Maujpur red light. During the hearing, they claimed that Imran and Babu also joined an unlawful assembly armed with weapons, and had “acted with intention or knowledge to cause a gunshot injury” to one Rahul.

After hearing the arguments, the court observed that prima facie there was a case and sufficient grounds for presuming that the accused have committed offences under Sections 143, 144, 147, and 148 as they had been a part of an unlawful assembly armed with weapons, and had resorted to rioting. However, no case of attempt to murder under Section 307 of the Indian Penal Code was made out, the court said.

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The judge further observed that the alleged victim, Rahul, had been absent from the police investigation. In fact, the police have categorically stated that they never even saw him, judge Rawat said.

He then pointed out several other discrepancies in the case.

“The police have, after long investigation, concluded that the Rahul, who is stated to have been shot by the mob/rioters comprising the accused persons, had given a wrong address as also a wrong mobile phone number in his Medico Legal Case (MLC),” he observed. “So by the time, police arrived at the hospital, the alleged victim Rahul had vanished.”

The judge wondered how can the police make out a case of attempt to murder under Section 307 against the accused when the victim had been absent from even the police inquiry. “Who is going to say that who shot whom and by whom and where,” he asked. “The alleged victim has never been seen by the police. He has never given any statement about any gunshot injury or about any mob, or rioters.

In such a scenario, the court asked how can the gunshot injury be established, saying that “there is no murmur of that”. The court thus stated that charges under Section 307 of the Indian Penal Code was “out of bounds”.

The court also rejected the prosecution’s argument that since the accused persons were part of the rioting mob, it must be presumed that they committed the offence under Section 307 of the IPC. “The criminal jurisprudence says that there must be some material against the accused persons to frame a charge,” judge Rawat said. “Presumption can’t be stretched to take the shape of proof/evidence.