New Delhi: From non-seizure of the constable’s phone who made the video of the alleged incident, to non-examination of important witnesses — an Ajmer court cited several loopholes in the prosecution case to acquit Gauhar Chishti, the Khadim of Ajmer Sharif Dargah, and five others who were arrested for allegedly raising controversial slogans targeting suspended Bharatiya Janata Party (BJP) leader Nupur Sharma in 2022.
The court ruled that the prosecution had failed to prove their guilt beyond reasonable doubt and acquitted Syed Gauhar Hussain Chishti, Tajim Siddiqui, Fakhar Jamali, Riyaz Hasan Dal, Moin Khan, and Nasir Khan.
“The evidence on file also does not prove the fact that the accused had gathered at the spot to commit any crime, because the spot of the incident is the Dargah area, where a large number of people were present while offering Namaz. They were not gathered by the accused to commit a crime,” judge Ritu Meena concluded.
They were acquitted under Sections 143 (unlawful assembly), 117 (abetting commission of offence by the public or by more than ten persons), 188 (disobedience to order duly promulgated by public servant), 504 (intentional insult with intent to provoke breach of peace), 506 (criminal intimidation), 149 (every member of unlawful assembly guilty of offence committed in prosecution of common object) and Section 115 (abetment of offence punishable with death or imprisonment for life if offence not committed) read with Section 302 (murder).
The FIR in the case was registered on the basis of a complaint by constable Jayanarayan, who said that on 17 June, 2022, at around 3 pm, provocative speeches were made during a procession in Ajmer when he was on duty. The authorities had given permission for a silent procession, to protest against Sharma’s comments. However, the FIR claimed that provocative slogans such as “Gustakh-e-nabi ki ek hi sazaa, sar tan se juda, sar tan se juda (there’s only one apt punishment for wrongdoing, off with their heads)” were raised at the time.
Sharma had made allegedly derogatory remarks about Prophet Mohammad during a television debate in 2022, triggering widespread anger and protests. She was suspended from the BJP shortly after.
Examining allegations of violation of section 504 of the Indian Penal Code, the court noted that the witnesses have claimed that the alleged slogan was the only one raised at the beginning at the procession, and that the slogan “is related to the religious sentiments of a particular religion, for which it cannot be assumed that through the said slogan the accused have asked to cause harm to any particular person or that any specific person has been insulted through the said slogan.”
“It is also proved from the evidence on file that when the procession started, the slogan…was raised at the Nizam Gate. After that the procession passed peacefully and no untoward incident occurred thereafter,” the court noted, adding, “From the evidence presented, it doesn’t seem obvious that the accused have threatened to cause harm to a particular person or have instigated other people to cause harm to a particular person.”
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‘Doubtful prosecution story’
The court noted that Jayanarayan had recorded the alleged incident on his mobile phone on 17 June, 2022, but filed the complaint only on 25 June, 2022. The court opined that the delay was not explained with a proper reason, “which makes the prosecution story doubtful”.
The court noted that after Jayanarayan made the video on his phone, he kept the video with him from 17 June, 2022, to 25 June, 2022, but his mobile wasn’t seized.
Jayanarayan claimed that his mobile phone stopped working in 2023. The prosecution had submitted the recording in a CD. However, there were conflicting dates with regard to when the CD was made.
The court noted that the CD of the incident that has been submitted in court was made on 30 June, 2022, as per the file details on the CD. However, Jayanarayan had told the court that he had made a CD of the incident from his phone recording on 26 June, and presented it to the officer in the case. It, therefore, opined that the CD becomes “doubtful” in such a scenario.
The court also found “contradiction” between the Section 65B certificate presented by Jayanarayan and the evidence before the court, noting that while the certificate claimed he made the CD on his computer, he told the court in his statements that he made the CD on the police station computer.
Additionally, the court described the two videos submitted before it. While the prosecution claimed that both the videos were made by Jayanarayan from his phone, the court noted that one video showed the sloganeering from the front, while the other showed the sloganeering from behind the person raising the slogans.
“Thus, both the videos have been recorded from front and back at the same time and it is not possible for Jayanarayan to make a video from behind the person giving speech and at the same time from in front of him,” the court, therefore, said, adding, “Thus, the CD which has been produced in connection with the video also ceases to be credible.”
‘Slogans raised before procession’
Besides, the court took note of witness statements which claimed that the alleged provocative slogan was raised near Nizam gate, from where the procession was to begin. “After that, no untoward incident of any kind took place in the procession, as stated by the prosecution witness,” the court noted.
It cited two witness statements, which seemed to conclude that the sloganeering happened before the procession began.
The court, therefore, concluded, “Thus, the evidence of the said witness reveals the fact that as per the approval for the silent procession…the silent procession was taken out from Nizam Gate to Collectorate Ajmer and the slogans (were) raised at the Nizam gate from where the silent procession started. It is known that the Nizam Gate comes under the Dargah area and due to Friday prayers being held on 17.06.2022, there was a crowd there and many people were present.”
“The said procession was about to start from Nizam Gate itself and the sloganeering by the accused even before the commencement of the procession is evident from the evidence of the witness. After that the procession reached Collectorate Ajmer continuously and peacefully and no untoward incident took place during that time,” it added, concluding that there was no violation for the conditions of the silent procession.
The court also noted that while the accused were charged under Section 188 (disobedience to order duly promulgated by public servant) of the IPC, it cannot convict them under the provision because for this provision to apply, the complaint must be submitted by the public servant whose lawful order had not been complied with. Therefore, it noted that in this case, the officer who had given the permission for the silent procession should have given a written complaint for its alleged violation, which wasn’t the case here.
‘Important’ witnesses missing
The court also noted that the permission for the silent procession was asked by one M.S. Akbar and Mohammad Alimuddin. However, the duo was neither questioned, nor presented as witnesses or accused in the case. It asserted that the duo could have been “important” witnesses in the case, who could have confirmed that the conditions for the silent procession were disregarded by the accused.
This, the court concluded, puts the prosecution story “under doubt”.
The prosecution had further alleged that the accused incited the public to commit a crime like murder, through speeches and sloganeering. The prosecution had blamed the sloganeering for the killings of a tailor in Udaipur, Rajasthan, and a veterinary pharmacist in Amravati, Maharashtra back in 2022.
However, the court rejected this assertion, pointing out that the accused have neither been added as accused in the two cases in Amravati and Udaipur, not been charged with abetting those crimes.
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