Sunil Chauhan v. Govt. of NCT of Delhi

1. This is an application for grant of regular bail by the petitioner.

2. The prosecution case against the petitioner is that on 30.09.2009 a DD entry No. 69 B was received at Police Station Anand Vihar which was assigned to ASI Chander Pal for enquiry and necessary action. On reaching the spot, it was found that the injured Himanshu Sharma who had received a gun shot injury was declared brought dead. Investigation revealed that Chandgi Ram had fired from his double barrel gun. Subsequent thereto, the present petitioner was also arrested along with the other co-accused and all of them are facing trial under Section 2011:DHC:6723 302, 304, 34 IPG.

3. The learned counsel for the petitioner has prayed for grant of regular bail on the ground that the petitioner who had surrendered had requested for conduct a Test Identification Parade as the complainant Vineet Sharma had made a statement to the Police that he can identify all the accused persons who have participated in the incident, if they are produced before him. As a consequence of this, the Test Identification Parade of # accused Sunil Chauhan was conducted. All the three persons along with complainant Vineet who were the eye witnesses of the incident had not been able to identify the petitioner, Sunil Chauhan as one of the co-accused who have participated in the said incident.

4. It has been contended by the learned counsel for the petitioner since the petitioner has not been identified by these four eye witnesses in the Test Identification Parade, therefore, his identification during the course of the trial by two of the witnesses who have been examined till date namely Anikesh Budhiraja and Rahul is of no consequence and therefore, the petitioner be enlarged on bail

5. The learned APP has opposed the grant of the bail to the petitioner on the ground that there are other witnesses who are to be examined.

6. I have carefully considered the submissions made by the learned counsel fQr the petitioner and perused the record. No doubt the petitioner has not been identified in Test Identification Parade by any of the witnesses, but admittedly he has been identified by two of the eye witnesses nannely Anikesh and Rahul who have testified before the court. Further in addition to Manoj there are two other public witnesses also who are yet to be exannined. Therefore, to express a view at this point of tinne that the non identification of the petitioner by some of the witnesses during # the course of the Test Identification Parade will be going into the arena of appreciation of evidence which this Court refrains to do the same as it may prejudice either of the two parties. The Apex Court has repeatedly observed while considering the question of the grant of the bail, the Court should refrain from considering the case on meritis.

7. For the above mentioned reasons, I feel that the learned trial court has rightly observed that non-identification by the witness during Test Identification Parade is not substantive piece of evidence while as the identification during the course trial is only material. The identification during Test Identification Parade is only corroborative.

8. For the reasons mentioned above, I feel that it will not be appropriate at this stage to exercise the discretion in favour of accused when four material witnesses are yet to be examined and ground for bail would be tantamount to suppressing an -t opinion on the merit.

9. Accordingly, the bail application stands dismissed.

JC SEPTEMBER 09, 2011 b V.K. SHALI,J