Balkishan v. Govt of NCT of Delhi

1. This petition is filed for grant of bail to the petitioner herein. The petitioner is in custody for about three years and three months in the present matter.

2. The allegation against the present applicant are of criminal conspiracy to commit murder of the deceased, hence, he is being tried along with co-accused person. It is alleged deceased Babu Ram gave his statement which culminated into the registration of FIR No.216/2019 Signing Date:10.05.2023 15:56 under Sections 302/34/120B IPC dated 30.08.2019 wherein he alleged of being inflicted two gunshot injuries at dhalaan of G-Block, Sonia Vihar, Delhi at about 5:45 PM and he named the assailants Charat Singh, Bharat Singh and Pritam Singh. It is alleged this was the last statement of the deceased and may be considered as dying declaration and the deceased did not name the petitioner to be the perpetrator of the crime and as such has allegedly exonerated the petitioner.

3. Further the petitioner herein claimed parity on the ground the main assailant who was accused of firing gunshots has since been granted bail as it could not be proved the co-accused was present near or at the place of alleged incident. He was spotted at Bikanerwala, Connaught Place, Delhi at the time of incident and his CDR(s) also corroborate this fact. Thus, he being the main accused, yet was found far off the place of incident, hence was granted bail. It is thus alleged co-accused Charat Singh to whom active role was ascribed has since been granted bail, the present applicant against whom there is no cogent evidence, may also be admitted to bail.

4. Thirdly, it is argued there is no CCTV footage of the alleged incident and the prosecution has relied upon the CCTV footage of three cameras viz. a) at Chauhan Patti; b) MCD Toll Tax and c) G-3/153, Main 25 ft. Road, Sonia Vihar. However, the FSL results pertaining to cameras a)and b) are found to be discontinuous and there is no CCTV footage to show the incident and it is alleged the prosecution has based his case only on presumption that the petitioner was seen going at the alleged spot of incident to support the assailants.

5. Moreso, vide order dated 11.04.2023 this Court observed two timings one of recording of CCTV cameras and another the actual timings as per observation of the Investigating Officer which further allegedly create a doubt. It is pertinent to note none of the cameras a), b) and c) were remotely close to the place of alleged incident and camera c) was at the distance of 500 meters from the place of incident. It is alleged prosecution has failed to procure the CCTV footages of cameras installed at the place of incident i.e., at Hero Honda Showroom and a shop namely Jai Hind Band.

6. Reference was made to Azad @ Gourav vs. State of GNCT of Delhi and Anr. in CRL.A.593/2022 wherein the Court held conviction cannot be made solely on the basis of CDRs as such data may facilitate and assist the Court in ascertaining the presence of different participants of the commission of offence and can be used only for supportive/corroborative piece of evidence. Lastly, it was argued the prosecution has failed to obtain the CDRs of petitioner along with the location chart to establish his presence at the scene of crime. Though, the prosecution has obtained the CDRs of the other co-accused persons but the CDRs of mobile phones rather establish his alleged presence accompanying the co-accused Charat Singh at the time of alleged incident.

7. Considering the submissions viz a) dying dec laration of the deceased; b) the issue of parity with co-accused Charat Singh; c) no CCTV footage of the alleged incident; d) distance of CCTVs from the place of incident and failure to obtain the CDRs of the petitioner; and the custody of the petitioner herein being of three years and three months, I admit the petitioner herein on bail on his executing a personal bond of Rs.50,000/- with one surety of like amount to the satisfaction of the learned Trial Court. The petitioner shall furnish his contact/address details to the SHO/Investigating Officer concerned and shall keep his mobile location app open at all time. He shall not try to contact/threaten/coerce the witnesses/complainant in any manner, lest it shall be a ground for cancellation of his bail.

8. Anything stated above shall not be treated as an opinion of this Court on the merits of the case.

9. With these observations the petition stands disposed of along with pending application(s), if any.

10. A copy of this order be communicated to the learned Trial Court/Jail Superintendent for information and compliance.

11. Order dasti.

YOGESH KHANNA, J. MAY 10, 2023