Shebu v. The State Govt. of NCT of Delhi

1. The petitioner has prayed for his regular bail in case FIR NO. 425/2017, under Section 302/365/506/34 IPC registered with PS Harsh Vihar and he is stated to be in Judicial Custody since 20.10.2017. 1.[2] The petitioner has submitted that according to the FIR, police station Harsh Vihar had received an information about a dead body lying near Mandoli Shukra Bazar, Delhi-110093. The ASI Illa Khan was deputed to the spot to conduct the initial investigation. Crime team was also called at the spot. One brick with mark SSB, one toilet seat and stones having blood stains were found near the spot and at the instance of ASI Illa Khan, case under Section 302 IPC was registered. The present accused was arrested on 20.10.2017, his disclosure statement under Section 27 of the Evidence Act was recorded in which he is alleged to have admitted his role in commission 2022:DHC:1918 of the offence and he had stated that he, alongwith Mukin, caught hold of the deceased and thereafter accused Golu assaulted the deceased with brick and later on the present petitioner also assaulted him with the same brick and lastly Mukin assaulted the deceased with stone and toilet seat. 1.[3] The police did not seize these articles at the spot but they were seized at the police station and then they were sent to FSL to ascertain whether the blood found on the said articles was of the deceased or not but opinion of the finger print expert has not been sought to connect these articles of offence with the present petitioner. The police was duty bound to take finger prints of the present petitioner and to send them to FSL to match with the finger prints found on the offence objects. In the FIR it is mentioned that the brick found near dead body has mark of SSB on it but the brick seized by the police has no such marking. In the disclosure statement, the petitioner had stated that he had changed his clothes which he was wearing at the time of incident but on the other hand the police seized his clothes which he was wearing on 20.10.2017 and it was shown that blood stains were there on the said clothes. As per the petitioner, the police had planted those clothes. As the inscription on the seized shirt was not given in the disclosure statement. 1.[4] It is further submitted that the version of the last seen witness, namely, Akash is not trustworthy as he stated to have seen Golu and his associates taking away the deceased forcibly and as per him, he followed them, those people threatened him of dire consequences but he did not disclose these facts to family members of the deceased or to the police, hence his statement is not reliable. No authentic proof has been given by this witness to prove that he was with the deceased on the fateful night. Statement of this witness was not recorded under Section 164 Cr.P.C. This witness neither came to the spot nor got his statement recorded at the spot but the statement was recorded on 20.10.2017, after lodging of the FIR. 1.[5] During recording of his evidence before Court on 18.09.2018, PW Akash could not disclose the correct date of the incident and on cross question he remained silent, hence the investigation of this case is tainted and benefit of doubt goes to the petitioner. There is no proof of as to what was the blood group of the petitioner and the deceased and the police has failed to ascertain the same. There is a long list of witnesses and because of Covid, there is no significant progress in trial so the present petitioner deserves to be released on bail.

2. Notice was issued. Status Report has been filed.

3. The incident leading to registration of FIR, as mentioned above, has been reiterated in the Status Report. It is mentioned that PW Akash saw Golu and one of his friend taking away the deceased and he tried to save him but he was threatened and these two accused took away Sandeep @ Chirkut with them. The said witness went to the house of his friend Firoz and from his mobile phone he informed the brother of the deceased, namely, Amit about the incident. Amit came to the residence of Firoz and all three of them searched for Sandeep @ Chirkut but he could not be found, so they returned home. Thereafter they again went in search of Sandeep @ Chirkut and near Fanney Khan Mor they saw police officials and came to know that dead body of a person was found lying there. They also met brother of Sandeep @ Chirkut i.e. Dinesh there, who informed them that someone had murdered Sandeep @ Chirkut. 3.[1] During the course of investigation accused Raza Hasan @ Golu, Shebu, the present petitioner and Mukim, all three were arrested on secret information. All the three accused admitted their involvement in the commission of offence. Blood stains were there on the wearing clothes of the present petitioner, which were taken in possession. Blood-stained clothes of Raza Hasan and Mukim were recovered from their residence/house and taken into possession vide seizure memo on 24.10.2017. Raza Hasan @ Golu and present petitioner refused to join judicial TIP. All the three accused were taken on police remand on 02.11.2017 and blood samples of all the three accused persons were got preserved during their medical examination and they were taken in possession through seizure memo. CCTV footage was searched from the nearby areas in the presence of last seen witness Akash and it was found that accused Golu with his one associate had taken Sandeep forcibly. The CCTV footage was also taken in police possession. The cause of death, as pronounced in the post-mortem report is ‘shock due to head injury produced by blunt force impact’. Viscera of the deceased was sent to FSL and the report received thereon was again shown to the doctor, who conducted postmortem and he reconfirmed his earlier report and also observed that the deceased had consumed alcohol prior to his death. 3.[2] The DNA profile generated from Sandeep is similar to the DNA profile found on clothes of the present applicant and the clothes of Mukim and Raza Hasan. The case is pending for further prosecution evidence and is now listed on 20.07.2022 and the evidence of the material last seen witness Akash is in progress and other material witnesses are still to be examined. In the evidence recorded so far Akash had named Golu and Shebu as the persons who had forcibly taken Sandeep with them and he had correctly identified the accused Golu and Shebu and his further evidence is still to be recorded. 3.[3] The bail has been opposed on the ground of gravity and seriousness of offence; the material witnesses are still to be fully examined and merely the point that the present petitioner has undergone certain period of incarceration cannot be by itself a ground to be enlarged on bail.

4. I have heard arguments in which both the sides have reiterated the above grounds.

5. In the present case the material witnesses, namely, Akash is still under examination. He is witness who had last seen the deceased being forcibly taken away by accused Golu and the present petitioner and he has stated so in his examination recorded so far. Moreover, the DNA profile of the blood of the deceased stands matched with the DNA profile of the blood found on the clothes of the present petitioner. Other material witnesses are yet to be examined. The mere technical grounds that the finger prints of the petitioner were not taken to be matched with the finger prints ought to have been found on the weapons of offence or he had disclosed in his confessional statement that he had changed the clothes or the brick seized by the police is not the brick, which was found at the spot at the initial stage etc., are the grounds which are to be considered at the time of final arguments in the present case, which the present accused may raise as a defence.

6. Keeping in view the gravity and seriousness of the offence under which the charges have been framed against the present petitioner; the evidence of the last seen material witness is yet to be concluded and there being scientific evidence linking the present petitioner with the crime; I am not inclined to grant bail to the present accused at this stage.

7. Hence, the bail application is hereby dismissed.