Beyond WhatsApp transcripts, what evidence does Delhi Police have in murder cases of nine Muslims?

A chance encounter with three curious bystanders led the police to tracking down the murderers of nine Muslim men killed during the communal violence that gripped North East Delhi in February, according to a chargesheet filed in the court on June 4.

In the chargesheet, Delhi Police claims one of its teams was on the ground investigating the murder of a Muslim man in Gokalpuri when the officers noticed three men hovering in the area, trying to snoop on their conversations. The police caught them and inquired about their motives. When Mohit Sharma, Dimple Pal and Shivam Bharadwaj struggled to explain their presence in the area, their mobile phones were checked.

This is how Delhi Police claims it stumbled on a WhatsApp group called “Kattar Hindut Ekta” – extremist Hindu unity. The purported group was created at 12.49 am on February 25 and, according to the chargesheet, contained extrajudicial confessions of rioting and murder by its members.

North East Delhi experienced widespread communal violence between February 24 and 26 in which 53 people lost their lives. The police have claimed nine Muslim men fell to a mob that coordinated violence using WhatsApp groups – a second group was called “Hindu Ekta”. The transcripts of both the purported WhatsApp groups have been submitted in court as part of the chargesheets.

But can the police successfully prosecute the accused based on the WhatsApp chats alone? Do they constitute enough evidence to stand the scrutiny of the courts? What other evidence does the police have to corroborate the crimes with the chats in the WhatsApp group?

The chargesheet, filed in one of the cases relating to the death of a 30-year-old Muslim man from Mustafabad named Aamir Khan, puts together call records, eyewitness statements, mobile phone locations and confessions to build the case. Eleven men have been charged and nine have been arrested so far. The FIR was filed on February 27 at the Gokalpuri police station.

However, there is no mention of any CCTV footage that directly establishes the presence of the accused at the scene of crime. Curiously, the chargesheet only mentions statements to the police recorded under Section 161 of the Criminal Procedure Code and not whether the accused had confessed before a magistrate under Section 164 of the CrPC.

Eyewitness accounts

Scroll.in’s Shoaib Daniyal and Vijayta Lalwani have extensively reported on the transcripts of the purported WhatsApp exchanges here and here. In the summary of the chargesheet, the police have extracted messages that point to the killing of the Muslim men with time stamps that the police say corroborate the time of the incidents.

The Delhi Police has also tried to link the chat messages with eyewitness accounts, which describe in detail the attack on Aamir Khan and the subsequent dumping of the body in a culvert near Bhagirathi Vihar.

According to the chargesheet, there are three eyewitnesses who claimed to have seen the Muslim men being murdered by a Hindu mob that chanted “Jai Shri Ram” and “Har Har Mahadev”.

The first of these eyewitnesses is Narottam Singh, a resident of Ganga Vihar. On February 24 afternoon, according to the chargesheet, Singh said he was stopped on his motorbike in Ganga Vihar by a mob suspecting that he was a Muslim. As he hit the brakes on the motorbike, it skid and Singh fell down. The mob then surrounded him. A few minutes later when he was let go, he realised his bike was missing.

Having failed to locate the motorbike, he went to the Gokalpuri police station to lodge a case, but was sent back as the officers were preoccupied with the communal violence raging in the area. The next day, he visited the police station again but failed to file a complaint.

In a subsequent statement to the police, Singh said when he was returning home from the police station around 4 pm on February 25, he saw a Hindu mob attacking a Muslim man near Johripur puliya and throwing his body into the culvert. As per the chargesheet, a Muslim man named Mursalin was murdered around the same time. A separate case has been filed relating to his murder.

On the evening of February 26, Singh again went out in search of his motorbike. He said in the statement that around 9.30 pm, he saw the mob murder the brothers Hashim Ali and Aamir Khan in Bhagirathi Vihar and throw their bodies into a culvert. He identified 11 persons in the mob since they were from his own locality and he knew them by their names. This included Lokesh Solanki alias Rajput. The police claim he was the main accused who identified himself in the WhatsApp group as he purportedly boasted about killing two Muslim men.

According to the chargesheet, Amit Kumar, another witness, identified 18 persons in the mob and described the murder in a manner similar to Singh. The third eyewitness, Shalu Gaur, identified 10 of the men in the mob and described the murders in detail, including the fact that the mobs were carrying deadly weapons with which they attacked the Muslim men.

Though Amit Kumar had identified 18 persons, only 11 have been listed in the chargesheet and only nine have been arrested so far. The charge sheet said the search to arrest the unlisted others are on and they will added to the case once apprehended.

The police seem to depend on two aspects of the evidence. First, most of the accused who were arrested on the basis of the WhatsApp group chat identified Solanki as the gang leader. Solanki himself mentioned in the purported WhatsApp group chat on February 25 that he had smashed open the heads of 23 “mullahs”, a reference to Muslims. Then, at 11.44 pm on February 26, two hours after the alleged time of the killing of brothers Hashim Ali and Aamir Khan, Solanki said in the purported WhatsApp group that he had killed two Muslims around 9 pm.

In the chargesheet, the police draw a connection between the witness statements, the time of the crime and the time stamp of Solanki’s WhatsApp message allegedly admitting to the murder of two Muslim men, claiming this constitutes strong circumstantial evidence.

This apart, the police present an analysis of mobile phone locations to establish that the accused were in the vicinity of the crime when the incident took place. Narottam Singh had also made a call to the police control room during the incident to report the murders. The police said he called the control room at around 10.05 pm and reported a mob attacking and killing Muslim men.

In his statement that the Delhi Police has claimed to be a confession, Solanki narrated the sequence of events that led to the killing of Hashim Ali and Aamir Khan. It corroborated the witness statements, claiming that he and other members of the mob stopped two Muslim men on a motorcycle, identified their religious identity, bludgeoned them to death and threw the bodies into the culvert. The Delhi Police have also claimed that he had admitted to attacking 20 to 25 Muslims during the riots and setting fire to several Muslim houses.

Solanki’s father Yogendra Kumar has denied all the allegations made by the police against his son.

Missing links

There are, however, some gaps in the police’s presentation of the evidence.

First and foremost is the fact that the chargesheet in the murder of Aamir Khan does not clarify whether the police recorded the statements of the witnesses and the accused before a magistrate under Section 164 of the Code of Criminal Procedure. Scroll.in could not verify if the police had recorded Section 164 statements in the murders relating to the other eight Muslim men.

While this process is not compulsory, recording a confession statement before a magistrate puts the confession on a stronger footing. This is because it would be difficult for the accused to claim later that the confession was obtained under duress, though such a claim is not impossible.

What the Delhi Police has done in the case, at least till June 6 when the charge sheet was filed, is record the statements before the investigating officer under Section 161 alone. Such statements are not admissible in trial due to Section 25 and 26 of the Evidence Act, unless it leads to a fact or a recovery of evidence that could be proved in court.

However, few past judgments of High Courts have said that the statements under Section 164 can be recorded till the commencement of the trial. It remains to be seen if the Delhi Police gets them done.

According to former Madras High Court judge K Chandru, absence of Section 164 statements could be seen as a serious lapse by the court. “If confession is an important part of the evidence, then Section 164 is preferable,” he said. However, he added that accused persons on many occasions dispute the Section 164 statements as well, which is why conviction based solely on confessions are never done.

Magistrate’s role

Why is a statement recorded under Section 164 on a better standing than those recorded by the police under Section 161? This is because Section 164 provides certain safeguards. The magistrate is duty bound to explain to the accused that there is no necessity for him or her to provide a confession. Second, the magistrate will also have to give the accused 24 hours to think over their decision to confess, stating clearly to the accused that the statement could be used against them in court.

The second problem with the evidence presented is that the police have not been able to recover most of the weapons used to commit the murders. In the case of Solanki, for example, it is mentioned in the chargesheet that when he was taken to the crime scene for recovery of evidence, he told the police that he had thrown the weapons in the stream. The police admit in the chargesheet that the weapons were untraceable.

Third, there is no mention of any CCTV footage in the chargesheet to directly establish the presence of the accused at the scene of crime.

Fourth, the chargesheet notes the creator of the WhatsApp group, Ritik Gupta, is yet to be arrested. Nabbing the creator of the group could be crucial in establishing its purpose.

The timeline in the chargesheet also raises serious questions about the efficiency of the Delhi Police. A WhatsApp group to coordinate the rioting was formed just after midnight on February 25. The list of nine Muslim men murdered and the time of their murders mentioned in the case files show that mobs were actively rioting and killing people from around 4 pm on February 25 to 9.40 pm on February 26, when the brothers Hashim Ali and Amir Khan were killed.

By its own admission in the chargesheet, the Gokalpuri police received 1,009 calls on February 25 and 770 calls on February 26 in North East Delhi. Of these, 27 calls about the communal violence were made in the “proximate area” to the murders. Of these, five were of eyewitnesses.

There is no reason provided in the chargesheet for why security forces were not deployed in the areas under Gokalpuri police station limits where rioters had gone on a rampage, stopping people on the road in broad daylight and systematically killing nine Muslim men over a period of 30 hours.

Also read

From planning murder to praising Modi: WhatsApp chats offer a window into the minds of Delhi rioters

‘#I-stand-with-Kapil-Mishra’: BJP leader features prominently in WhatsApp group of Delhi rioters

Scroll.in’s complete coverage of the Delhi violence can be read here.