Full Text
HIGH COURT OF DELHI
JUDGMENT
VARSHA @ RAHUL SINGH ..... Petitioner
For the Petitioner : Mr. Kirtiman Singh, Mr. Kanhaiya Singhal, Mr. Ujwal Ghai, Mr. Prasanna, Mr. Teeksh Singhal, Mr. Udit Bakshi and Mr. Ajay Kumar, Advocates.
For the Respondent : Mr. Ajay Vikram Singh, APP for State with Insp. Arun Kumar and SI Arjun
Singh SHO/IO North Avenue, PS-GTB Enclave.
Mr. Nipun Katyal, Ms. Anam Siddiqui, Mr. Naved Ahmed, Mr. Rohit Yadav, Mr. Deepak Sharma and Mr. Piyush Arora, Advocates for Complainant.
[ The proceeding has been conducted through Hybrid mode ]
1. The present application is being filed under section 439 Cr.P.C, 1973 seeking Regular Bail in FIR No. 289/2020, u/s 302/34 IPC, 1860 & 25/27 Arms Act, 1959 at P.S. GTB Enclave, Delhi.
2. Mr. Kirtiman Singh, learned counsel appears on behalf of the applicant and submits that the Applicant has been in judicial custody from 31.10.2020 till date and incarcerated for a period of 2 years 10 months approx.
3. Mr. Singh submits that the brief facts of the case as alleged by the prosecution are as under:-
(i) On 05.09.2020, the information was received regarding shooting of a deceased by some unknown persons. Later, it was found that it was Ekta Joshi (deceased/victim herein), who have been shot by two unknown assailants. It is further stated by the prosecution that by the time they reached at the spot, injured was already taken to the Max Hospital, where Ekta Joshi was declared dead.
(ii) That on reaching at the spot again, alleged eye witness
Ashish Joshi and Anita Joshi were found present and statement of Ashish Joshi was recorded which later on, was sent for the registration of the case. It is the case of the prosecution that the deceased along with Ashish Joshi and Anita Joshi at around noon went to Laxmi Nagar, Delhi in their car Brezza No. DL-S-CN-2577. Then at around 8.30 PM, they all returned home, and as soon as the deceased stepped out from the car, two persons came riding a Scooty and then shot at the deceased Ekta Joshi 3-4 times.
(iii) It is the matter of fact as per the prosecution that during the investigation, CCTV footages of cameras installed around the scene of crime by the Delhi Government was downloaded and analysed. That on the detailed analysis of the CCTV footages, it was found that the two persons were taking rounds of the road around the residence of the deceased. The two persons were later revealed to be Aamir (rider) and Gagan Pandit (pillion rider).
(iv) It is submitted that as per the prosecution case, a secret informer disclosed the involvement of Manjur Ilahi (coaccused in the present case). Thereby, the concocted story of the prosecution begins, whereby it was stated that due to the hostile attitude of the deceased towards co-accused Manjur Ilahi and Simran and Varsha (Applicant), the co-accused and the applicant conspired to eliminate the deceased and hired Gagan Pandit for Rs.55,00,000/- to kill the deceased Ekta Joshi.
4. According to Mr.Singh, there is no evidence, oral or documentary placed on record by the prosecution to even prima facie show the culpability of the applicant in any of the offences.
5. Learned counsel draws attention of this Court at the outset to the statements of the witnesses recorded under Section 161 Cr.P.C., 1973. According to Mr.Singh, a plain reading of the statements made by prime witnesses would at best or at worst, show that the applicant was known to the accused persons as also the deceased Ekta Joshi being part of the same community. Other than that, none of the witnesses have ascribed any active role to the applicant.
6. In support of the aforesaid submission, learned counsel refers to the statements under Section 161 Cr.P.C. of Anita Joshi (PW-3) who according to the prosecution is one of the prime witnesses of its case alongwith Sheikh Jamila, Sanjana & Gori Sharma. He submits that neither the PW-3 nor any witness have given any specific statement or particular allegation or any proof as to complicity of the present applicant. All that they have said in their statements is that the applicant would accompany the main accused Simran at all the meetings (Sammelans) of the community and specifically stated that it was the coaccused who alone would extend alleged threats to the deceased.
7. In fact, by referring to the cross examination of PW-3 Anita Joshi, placed subsequently on record, Mr.Singh submits that even in their examination or cross examination, no such statement incriminating the applicant in any of the offences has at all been stated. Learned counsel submits that in the absence of any other corroborative evidence, the lack of specific imputation against the applicant would, prima facie entitle the applicant for regular bail.
8. Learned counsel referred to the chargesheet to submit that the reference to the applicant would at worst for the applicant, impute the allegations of conspiracy alone which in any case have to be tested for their veracity only during the trial. He submits at the stage of bail the allegation of conspiracy cannot be considered.
9. Learned counsel next argues that the applicant has been arraigned as an accused only on the basis of, either the disclosure statement of coaccused or the applicant’s own confessional statement. Either way, unless there is strong corroborative evidence, the disclosure statement of the co-accused or the applicant’s own confessional statement is hit by the provisions of law.
10. Learned counsel submits that so far as motive is concerned, the statements of the witnesses under section 161 Cr.P.C. coupled with the allegations in the chargesheet only point towards the co-accused Simran and in no case is there any motive or mens rea alleged against the applicant.
11. Mr.Singh points out that though the alleged incident is stated to have occurred on 05.09.2020, yet, the statement of Anita Joshi (PW-3) under Section 161 Cr.P.C., was recorded only on 06.11.2020. Learned Counsel submits that in case the version of the prosecution is to be believed, in that, PW-3 is stated to be eye witness, there was neither any requirement nor any plausible reason why the statement of PW-3 was recorded after almost 2 months of the alleged incident. According to Mr. Singh, the entire time was spent in manipulations, additions and embellishments in the prosecution story by including and implicating persons like the applicant.
12. Learned counsel referred to the order on charge dated 22.08.2022 particularly to Para 6 to submit that the table extracted contains the analysis conducted on the mobile numbers used by the accused persons, their locations, sim cards ownerships and users and the handsets used by the accused persons. According to Mr. Singh, barring one or two calls between the applicant (A-2) and co-accused Simran (A-3), in the months of June and July of 2020 and 23rd of August 2020, there were no calls between the applicant and co-accused Simran thereafter. He further submits that the incident is alleged to have occurred on 05.09.2020. By that, he implies that even the theory of conspiracy fails.
13. Learned counsel further submits that even the location of the mobile numbers arrived at by the analysis of CDRs, shows prima facie and without admitting, that the applicant had met A-1 & A-3 on 08.07.2020 and 15.07.2020, if at all. He submits that the further analysis does not show the presence of the applicant in any of the subsequent dates right uptill 03.09.2020. According to him, the electronic evidence, in fact, corroborates the stand of the applicant that the applicant is innocent and not involved in the alleged offences.
14. Learned counsel further submits that examination and cross examination of PW-3 Anita Joshi, the alleged eye witness, in so far as the present applicant is concerned, is complete and therefore, the opportunity for the applicant to induce, threat or otherwise influence the said witness does not survive.
15. Learned counsel, thus submits that in view of the aforesaid facts and circumstances, the applicant be released on bail. STATE’S CONTENTIONS:
16. Mr. Ajay Vikram Singh, learned APP for the State at the very outset submits that the link of the present applicant to the offences alleged can be established on the basis of the link as provided from the Call Detail Records and the location of the applicant during such calls and incidences of meeting of minds for the said conspiracy.
17. Learned APP further handed over the bench copy of the disclosure statement made by the applicant under Section 161 Cr.P.C. before the police officials to submit that the applicant had itself disclosed the name of shooter or the actual perpetrator of the crime, who was allegedly hired by the applicant for the commission of the said offence. Learned APP further took this Court to the relevant lines of the said statement to show that the entire conspiracy viz. factum of hiring of the shooter (co-accused) and the transactions made thereto between the shooter(co-accused) and applicant to submit that the conspiracy which was hatched in secrecy has been entirely disclosed by the applicant which shows the involvement of the applicant in the commission of the said offence.
18. Learned APP further submits that 1 week after the commission of the said offence, the applicant had deliberately destroyed its mobile phone alongwith the sim card, which clearly points out towards the possible subsequent conduct manifesting the complicity of the applicant in the offence as alleged and is bound to be taken against the applicant.
19. Learned APP lastly contends and explains the possible motive for the alleged commission of the offence by the applicant, in that, he submits that community to which applicant belongs to has a strong sense of affinity to the territories or areas marked by them for their activities and also the fact that the deceased victim, who belonged to other area/territory, had tried to encroach upon the said areas, becomes one of the reasons for the applicant to commit the said offence.
20. Learned APP, with that, had also pointed out towards the statements of various witnesses recorded under Section 161 Cr.P.C., to submit that apart from the fact of such clashes over the territories, the growth of the deceased/victim in the community and the brooding animosity and occurrence of acts of acrimony between the applicant and the deceased/victim clearly shows that the applicant is directly involved in the commission of the offence as alleged. COMPLAINANT’S CONTENTIONS:
21. Mr. Tanveer Ahmed Mir, learned counsel appearing on behalf of the complainant had extensively argued on the reasons, according to him, which disentitles the applicant to be enlarged on bail. The said reasons are enumerated hereunder.
22. Learned counsel submits that the co-accused Gagan Pandit is actually a paid assassin/ shooter who was duly hired by the applicant as evident from the material on record. In that, learned counsel further submits that shooting so happened upon the deceased was a result of such hiring and conspiracy hatched by the applicant and there is no iota of evidence to show that Gagan Pandit (shooter-co-accused) has personal animosity or any reason whatsoever to kill the deceased and had committed the said offence under the instructions of the applicant only.
23. Learned counsel further submits that offence so committed, whereby the shooting was done, was actually committed with the intention to kill and finish off the deceased and not to just scare off, which clearly establishes the mens rea and actus reus of the shooter who was actually working under the paid instructions of the applicant who had its own personal motives for commission of the said offence upon the deceased.
24. Learned counsel further submits that there are 3 eye witnesses to the said incident of shooting alongwith 8 other witnesses who fall under the category of vulnerable witnesses because of the apprehension of immediate injury or harm to the body or person at the hands of the applicant while considering the antecedents of the applicant alongwith the other co-accused persons. Learned counsel further argues that the said apprehension stems out from the fact of depravity and perverse mentality of the applicant to which the said witnesses are prone to.
25. Learned counsel further contends that the community to which applicant and deceased belongs to, have a strong and impeccable sense of territorial affinity, sense of belonging and solidarity among themselves, which got perturbed after the death of one Vimla Haji (authority in the said community), subsequent to which there is great animosity, acrimony and enmity developed between the applicant and the deceased on the issues of distribution of the said areas/territories for their practice.
26. Learned counsel further submits that chargesheet is replete with the incidents of enmity happened between the parties, which were actually the small uprisings of the feelings of revenge and vendetta which had poisoned the mind of the applicant to such an extent that had actually led them for the commission of the said offence.
27. Learned counsel for the complainant, to support his such submissions also relied upon the judgements of State of Bihar vs. Rajballav Prasad (2017) 2 SCC 178, Anil Kumar Yadav vs. State of NCT of Delhi (2018) 12 SCC 129, Central Bureau of Investigation vs. Vijay Sai Reddy (2013) 7 SCC 452, Balchand Jain vs. State of Madhya Pradesh (1976) 4 SCC 572, and contends that in view of the same, the bail application should be dismissed out rightly.
OPINION & DECISION RENDERED
28. This court has heard the arguments of Mr. Kirtiman Singh and Mr. Kanhaiya Singhal, learned counsel for the applicant, Mr. Ajay Vikram Singh learned APP for the State and Mr. Tanveer Ahmed Mir, learned counsel for the complainant and considered the records placed before this Court.
29. The nominal roll dated 20.04.2023 placed on record indicates that as on 19.04.2023, the applicant had undergone custody for a period of 2 years 5 months and 19 days. As on today, the applicant has undergone judicial custody approximately for a period of 2 years 9 months. As per the nominal roll, the jail conduct of the applicant is “Good”.
30. This Court has at the outset considered the statements of various public witnesses recorded under Section 161 Cr.P.C., 1973, including that of, Anita Joshi (PW-3) who is stated to be the guru/mother of the deceased. A closer scrutiny of the statement of Anita Joshi under Section 161 Cr.P.C. would reveal that the main emphasis of the said witness is in respect of the allegations against the co-accused Simran and so far as the present applicant is concerned, the said witness has made very general and omnibus allegations to the extent that the applicant was also a part of the meetings(Sammellans) of the community alongwith the co-accused Simran. Other than that, there is no active or specific role ascribed to the applicant by the said witness. This Court has also perused the statements of Sheikh Jamila & another witness, recorded under Section 161 Cr.P.C. A complete and a holistic reading of the statements also reveals that the said witnesses had only made general allegations of the applicant accompanying the co-accused Simran, other than that there is no allegation much less any specific or active role ascribed to the applicant by any of the said witnesses.
31. The emphasis of learned APP on the confessional statement of the applicant as also the co-accused namely Manzoor Ilahi, for the purposes of establishing conspiracy to eliminate the deceased by hiring a sharpshooter who was paid money in lieu of such shooting, cannot be taken into consideration being confessional statements made before police officials which are to be proved during trial with cogent and corroborative evidence.
32. This Court is also constrained to consider the examination of PW-
3 Anita Joshi before the learned Trial Court as also the crossexamination conducted thereon, placed on record by the learned counsel for the applicant. A perusal of the examination-in-chief of PW-3, yet again shows general participation of the applicant in the meetings (Sammellans) of the community where there alleged to be verbal altercations between co-accused Simran alongwith the applicant on the one hand & others and the deceased on the other. Apart from this, the witness referred to one or two more such verbal altercations in such meetings.
33. Other than that, the witness is silent about any active role of the applicant in the shooting of the deceased. Even in the crossexamination, the witness did not refer to any active or even passive role played by the applicant in the killing of the deceased. Merely because the applicant was a participant, even if assumed, in the verbal altercations, that would not necessarily, even prima facie, lead this Court to lean in favour of the accusation that the applicant was a participant in the murder of the deceased. This aforesaid observation is only restricted for the purposes of deciding the present bail application.
34. It would also be of some relevance, particularly, at the stage of considering the present bail application, that the statement of Anita Joshi(PW-3) under Section 161 Cr.P.C. was recorded only 06.11.2020 whereas the incident is alleged to have occurred on 05.09.2020. This delay requires explanation by the prosecution.
35. It appears that the only basis for the implication of the applicant in the offences is the confessional statements of the applicant as also that of the co-accused Mangur Ilahi. So far as the allegation in respect of the payments made to sharpshooter is concerned, the same are subject matter of trial and cannot be looked into or considered by this Court at this stage.
36. Much emphasis was laid by the learned counsel for the applicant, learned APP for the State as also Mr. Mir, learned counsel for the complainant, on the analysis of CDRs as also the location of the mobile phones during the period preceding and succeeding the date of incident. On a perusal of the said records, the only thing revealed is that the applicant had met A-1 & A-3 on 08.07.2020 & 15.07.2020, if at all, however the further analysis does not show the presence of the applicant in any of the meetings with the other co-accused persons in any of the subsequent dates right uptill 05.09.2020. Even subsequently, there are no records to show that the applicant had met the other co-accused persons after the date of the incident.
37. The argument of learned APP regarding the post incident conduct of the applicant in destroying her mobile phone is concerned, that alone by itself without any other corroborative or electronic evidence may not necessarily implicate the applicant. It could also be a reaction of a person who is apprehending a false implication resulting in possible arrest that the person may undertake such exercise. In any case, suitable charge under Section 201 IPC has already been framed against the applicant which is pending adjudication before the learned Trial Court.
38. That so far as the argument of learned counsel for the complainant in respect of vulnerability of the witnesses is concerned, the same can be resolved by the learned Trial Court by passing appropriate orders directing the police authorities to provide protection. Even otherwise, the witnesses are at liberty to invoke specific provisions seeking protection under the witness protection program.
39. Keeping in view of the observations made above, the judgements relied upon by the learned counsel for the complainant, would not impede the entitlement of the applicant to be released on bail. This is also for the reason that neither the statement of any of the witnesses nor any corroborative evidence implicating the applicant, as of now, has seen the light of the day, for this Court to consider at the present stage.
40. In view of the above, the applicant is enlarged on bail on furnishing a personal bond in the sum of Rs.[1] Lakh with one surety of the like amount subject to the following conditions:a. The applicant shall surrender the passport, if any, to the learned trial Court concerned and shall under no circumstances leave Delhi without prior permission of the Court concerned; b. The applicant shall cooperate in the trial and shall appear before the Court as and when required; c. The applicant shall provide the mobile number(s) to the SHO/IO of concerned Police Station and keep it on their person and operational at all times; d. The applicant shall not indulge in any criminal activity whatsoever; e. The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case or tamper with the evidence of the case, in any manner whatsoever; and f. In case of change of residential address and/or mobile number, the same shall be intimated to the Investigating Officer/ Court concerned by way of an affidavit.
41. Any infraction of the aforesaid conditions shall make the applicant liable for revocation of the bail.
42. It is made clear that the present order shall not be treated as a precedent for future purposes and nothing in this order shall be considered as an expression of opinion on the merits of the pending matter.
43. With the aforesaid direction, the present bail application stands disposed off.
TUSHAR RAO GEDELA, J. SEPTEMBER 13, 2023