Shahrukh Pathan, who had allegedly pointed a gun at a Delhi Police Head Constable during the 2020 communal riots, on Monday moved a court here seeking discharge from all the offences in the case.
A photograph of Pathan pointing a gun at an unarmed cop Deepak Dahiya had gone viral on social media during the communal riots last year. He was arrested on March 3, 2020 and is currently lodged in Tihar Jail.
He is facing charges of offences such as rioting with deadly weapon, attempt to murder, assault and obstructing public servant in the discharge of duty under the Indian Penal Code (IPC) and the Arms Act.
The application will be heard by Additional Sessions Judge Amitabh Rawat on September 21, said Pathan's counsel.
In the discharge application, Pathan, through his counsel, referred to a 26-second-long video of the incident and stated that "attempt to murder" offence is not made out as he shot in the air and not aimed at Dahiya, even though it made the cop move upon hearing it.
"Shahrukh Pathan should be discharged of the offence under section 307 (attempt to murder) and the prosecution can claim at best the requirement of framing of charge under section 336 IPC, for 'Act endangering life or personal safety of others'," the plea said.
Besides this, Pathan is not seen pelting stones along with others, nor is he shown strategising any collective action in the evidence produced by the police, the application said, adding that no offence of "rioting" is made out.
It further stated that the case of the police rests upon a statement made by Dahiya where he alleged that Pathan was leading people who were raising anti-government and anti-CAA slogans, firing and throwing stones at police and the general public.
"There is no evidence on record that the accused [Pathan] instigated the other accused, and it must be noted that the accused is not seen in any footage presented by the prosecution throwing stones along with the other accused," the plea added.
Merely being in front of one side of two large groups engaging in both protesting and violent activities does not by itself make Pathan the leader of the crowd, the plea filed by advocates Khalid Akhtar and Mohammad Shadan on Pathan's behalf said.
"It is therefore, most respectfully prayed that this Court may be pleased to issue an order discharging the accused Shahrukh Pathan from all offences cited against him pursuant to investigation in FIR No. 51/2020," it added.
The Code of Criminal Procedure (CrPC) empowers the court to discharge the accused for any specific offence alleged if there is no "sufficient ground" for proceeding against them.
Pathan is accused in two cases, one related to pointing a gun at head constable Dahiya and the other for an attempt to murder of one Rohit Shukla during the violence in northeast Delhi.
Communal clashes had broken out in northeast Delhi in February 2020, after violence between the Citizenship (Amendment) Act supporters and its protesters spiraled out of control leaving at least 53 people dead and over 700 injured.
