Delhi High Court
Lokesh Kumar vs State on 19 October, 2010
Author: Hima Kohli
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLICATION NO. 710/2010
Decided on 19.10.2010
IN THE MATTER OF :
LOKESH KUMAR ..... Petitioners
Through: Mr. Ramesh Gupta, Sr. Adv. with
Mr. Jitender Tyagi, Adv.
versus
STATE ..... Respondent
Through: Mr. M.N. Dudeja, APP for State.
CORAM
* HON'BLE MS.JUSTICE HIMA KOHLI
1. Whether Reporters of Local papers may
be allowed to see the Judgment? No
2. To be referred to the Reporter or not? No
3. Whether the judgment should be No
reported in the Digest?
HIMA KOHLI, J. (Oral)
1. The present petition is filed by the petitioner under Section 439 of Cr.P.C. for grant of bail in FIR No.549/2007 lodged by one Shri Bharampal under Sections 302/307/34 IPC registered with PS M.S. Park, Delhi.
2. As per the FIR, the incident is of 17.11.2007 at 6.15 PM, when the complainant Brahampal and one Satender (deceased) came at Oasis Restaurant situated at Wazirabad Road on a motor cycle, in front of "Nice Chicken Centre" and found that four boys were quarrelling with the staff members of eatry under the influence of liquor. When the complainant and the deceased tried to mediate between them, one of the boys, namely, Lokesh, the petitioner herein, pulled out a revolver and on incitement by one Pravesh and his two other friends, fired a shot at the complainant and the deceased. Both of them tried to catch the petitioner, who ran away. When Satender chased the petitioner and caught him, the petitioner fired a bullet at Satender, who collapsed. The petitioner was caught hold of by Constable Ravipal on the spot. On the basis of the aforesaid complaint, investigation was carried out by the police. As per the status report, all the remaining accused, including the petitioner were arrested on 22.11.2007 and 14.1.2008. The deceased, who was hit in the stomach, was admitted in the G.T.B. Hospital, but he succumbed to his injury on 21.11.2007 and as a result, Section 302 IPC was added to the FIR, which was initially registered under Section 307/34 IPC. As per the prosecution, all the main witnesses have been examined during the trial. Though most of the witnesses have turned hostile, PW-6 Constable Ravipal, who is the eye witnesses to the incident, has fully supported the prosecution case. It is stated that he has also identified all the assailants in the court and has correctly narrated the role of each of the accused during the trial.
3. Counsel for the petitioner on the other hand disputes the aforesaid position and seeks to refer the deposition of PW-6, particularly, his cross-examination to state that the PW-6 had categorically admitted that when he reached in front of Swagat Palace at Wazirabad Road, the deceased was already lying having injury in his stomach. He submits that in view of the aforesaid statement, the deposition of PW-6 in his examination-in-chief that he was an eye-witness to the petitioner firing a shot at the complainant and the deceased stands contradicted. He further states that when the bail application of the petitioner was rejected by the trial court on 6.4.2010, the statement of the learned APP was recorded to the effect that he would be moving an application to re-examine PW-6, being the most material witness in the case. After more than 6 months having passed, no such application for re-examination of the said witness has been filed till date. He further states that out of 34 witnesses, 16 witnesses have already been examined and the 17th witness has been partly examined. Two of the public witnesses, PW-2 and PW-3, who were termed as eye-witnesses, have turned hostile. Similarly, PW-9 & PW-10, the sons of the deceased, have also turned hostile and have not supported the case of the prosecution, which has further weakened its case. Only the evidence of the official witnesses is left to be recorded.
4. Counsel for the petitioner submits that having regard to the fact that all other co-accused are already on bail and the foundation of the present case rests on the testimony of PW-6 alone, which itself is found to be shaky, the petitioner is entitled to the relief of bail in the present case. He further states that the conduct of the petitioner may be also taken into consideration. The petitioner has been granted interim bail on four occasions and on all occasions, his conduct has been satisfactory and on each occasion, he has surrendered on time upon expiry of the period of interim bail.
5. This Court has considered the Status Report as also the submission made by the counsels for the parties. It is an undisputed position that the evidence of the witnesses ought not to be analyzed threadbare by the Court while considering an application for grant of bail, however a prima facie flavor of the trend of the trial would be a persuading factor for considering such a relief. The fact that except for one witness, most of the witnesses, including PW-2, PW-3, PW-9 and PW-10 have turned hostile, would also be a matter of consideration by this Court while considering grant of bail to the petitioner.
6. In the present case, it is not disputed that all the material witnesses have already been examined, thus leaving only the official witness to be examined. The petitioner has remained incarcerated ever since 22.11.2007. All the other co-accused are already on bail. The petitioner's conduct while he remained on interim bail on four occasions, has been found to be satisfactorily.
7. In this view of the matter, the present petition is allowed. The petitioner is directed to be released on bail, on the following terms and conditions :
The petitioner shall furnish a personal bond in the sum of `.50,000/- with two sureties in the like amount to the satisfaction of trial Court.
The petitioner shall not, in any way, tamper with the evidence or intimidate any person who is sought to be questioned by the respondent in any manner.
The petitioner shall furnish a telephone number to the Jail Superintendent on which he can be contacted, if required. After his release, he shall also inform his telephone number to the SHO of the police station concerned.
The petitioner shall keep away from the area around the residence of the victim and his family members.
The petitioner will appear before the trial court on every date the matter is fixed and furnish his correct present address
The petitioner will not impede the fair progress of trial in any manner whatsoever and will not seek unnecessary adjournments.
8. Needless to state that the observations made hereinabove are limited to the scope of grant of bail to the petitioner and shall not be treated as a reflection on the merits of the case, which is pending before the trial court
Trial court record, which had been summoned for perusal, be released forthwith.
Dasti.
(HIMA KOHLI)
OCTOBER 19, 2010 JUDGE
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