Vishan Singh v. State of NCT of Delhi

1. This is an application under Section 483 read with Section 528 BNSS, 2023, filed on behalf of the petitioner Vishan Singh for grant of regular bail in case FIR No.341/2016, PS Harsh Vihar under Sections 302/394/120-B/34 IPC. Factual Background

2. As per the prosecution version, on 27.10.2016 at about 11:15 p.m., an information was received that a dead body was lying at A-3 Block, Harsh Vihar, Jain Colony, 27 Bigha, on the kachcha road leading towards Power House. On receipt of such information, police reached the spot and found an unknown deceased, later identified as Shakir @ Teetar, with firearm injury on the left side of the neck. The scene of crime was inspected, exhibits were seized and the body was sent to GTB Hospital for postmortem. The postmortem report confirmed that the death was a result of shock due to ante-mortem firearm injury to the head.

3. During investigation, the statement of the alleged eye witness Hakim was recorded, wherein, he stated that there was longstanding enmity between two factions of Village Daus Ras. One faction belonged to Fakru and the other faction belonged to Jafru. Hakim, who allegedly accompanied the deceased at the spot, stated that Shakir was lured to Delhi by the petitioner under the guise of friendship. Shakir and Hakim were taken to a deserted place in Harsh Vihar, where petitioner Banne Singh suddenly shot Shakir from behind, thereby, causing his death at the spot. Hakim was also assaulted and his mobile phone was robbed. The statements of family members and the villagers confirmed the animosity and the threats earlier extended by Hanif @ Rodu, an associate of Shaukat, who had been released from jail shortly before the incident.

4. The analysis of call detail records revealed that petitioner had been in frequent telephonic contact with Shaukat and Jafru before, during and after the incident and had used the robbed mobile phone of Hakim.

5. On 09.02.2017, petitioner and the co-accused Durgesh @ Durga were arrested by the Special Cell in case FIR No. 06/2017 under section 25 Arms Act. They admitted their involvement in the present case. Thereupon, they were arrested in this case on 16.02.2017. They refused to join the TIP. The weapon used in the murder of Shakir @ Teetar was recovered by the Special Cell in case FIR No. 06/2017.

6. Upon completion of investigation, charge sheet was filed against the petitioner and co-accused persons under Sections 302/394/120-B/34 IPC read with Section 25/27 Arms Act. Submissions:

7. Learned counsel for the petitioner submitted that the petitioner has been falsely implicated in the present case on the basis of statement of Hakim, who claims to be an eye witness, though, he did not name the petitioner in the FIR dated 28.10.2016 and later falsely introduced him by making baseless allegations. It is stated that the entire prosecution case rests on the doubtful testimony of PW-1 Hakim, whose version is inconsistent and improbable, as it is highly unlikely that in a case of gang rivalry, the eye witness would have been spared if the petitioner was truly the assailant. It was further submitted that there is no ballistic report matching the recovered weapon with the bullets found from the body of the deceased and there is no recovery of mobile phone from the petitioner. Even, the alleged mobile number attributed to the petitioner, is not in his name, as borne out from Customer application Form filed with the charge sheet.

8. The learned counsel further submitted that the deceased himself had a criminal history, was part of the gang rivalry in Village Daus Ras and had earlier committed the murder of one Hanif. It is argued that petitioner has been roped in only because he was the known person of the opposite faction and PW-1 exploited this fact to implicate him falsely.

9. It was further submitted that the Petitioner has been in custody since 16.02.2017 and has thus undergone more than six years of incarceration without conclusion of trial. Though he was granted interim bail during the COVID period, he did not misuse the liberty and surrendered in time. The charge sheet cites 44 witnesses, out of whom only 16 have been examined till date, and the trial is unlikely to conclude in the near future. It was further submitted that the right of the Petitioner to speedy trial under Article 21 of the Constitution stands violated, and prolonged incarceration by itself is a ground to enlarge the Petitioner on bail, as held in a catena of judgments of the Supreme Court. Learned counsel emphasized that bail is not to be withheld as a punishment and that its object is merely to secure the attendance of the accused during trial. In such circumstances, the seriousness of the allegations cannot override the constitutional mandate of personal liberty, and prolonged pre-trial detention warrants the grant of bail.

10. Bail application has been vehemently opposed by the learned APP, arguing that the testimony of eye witness Hakim, who is the star witness of the present case, has already been recorded and he has identified the petitioner. He further submits that petitioner and coaccused were arrested in case FIR No. 06/2017 under Section 25 Arms Act, wherein, they pleaded guilty. In that case, weapons were recovered from their possession and the ballistic report establishes that the bullets recovered from the body of the deceased were fired from the recovered weapon. Petitioner and co-accused made disclosure statements in the Arms Act case, admitting their involvement in the present case, pursuant to which, they were taken into custody in the present case. They refused to take part in the judicial TIP, but have been identified in court by PW Hakim. He further submitted that the period of long incarceration cannot be a sole ground for grant of bail, and therefore, keeping in view the gravity of the offence, recovery of weapons and refusal to take part in the TIP, no ground is made out for grant of bail. Analysis and Conclusion

11. The Court has considered the rival submissions advanced by learned counsel for the petitioner as also the learned APP appearing for the State and has perused the material on record.

12. The case arises out of a brutal and cold-blooded murder, where the deceased was lured to Delhi on a false pretext, taken to a deserted spot, and shot point blank in the head. The manner of commission, the preparation preceding it, and the subsequent conduct of the petitioner/Vishan Singh indicate that the act was not spontaneous but was a premeditated and carefully executed conspiracy to eliminate the deceased.

13. The material on record, particularly the testimony of PW-1 Hakim, who was present at the spot, points to the complicity of the petitioner. The witness identified the petitioner and the co-accused Durgesh as the perpetrators. The contention of the petitioner that Hakim is an interested or unreliable witness cannot, at this stage, dislodge the evidentiary worth of his statement, which will be tested during the trial. Further corroboration emerges from the recovery of weapons in the Arms Act case, in which the petitioner and co-accused pleaded guilty, and the ballistic report matching the recovered weapon with the bullet extracted from the deceased. These circumstances lend substantial weight to the prosecution case.

14. The right to speedy trial, though a valuable constitutional protection under Article 21, cannot be stretched to a point where it overshadows the overwhelming circumstances of guilt that stand against the accused at this stage. Delay in trial, though regrettable, is not by itself a ground for bail in cases involving grave and heinous offences, particularly where the evidence links the accused to the commission of the crime. It is well settled that though bail is the rule and jail an exception, the nature and gravity of the offence, the role attributed to the accused and the societal impact of releasing an accused charged with heinous offences are relevant considerations which cannot be overlooked.

15. Petitioner is the hired killer and stated to be the main person involved in the commission of offence, he having murdered the victim, causing him gunshot injury. His role is different from coaccused Durgesh @ Durga, who has been enlarged on bail vide separate order passed today.