Braham Prakash Dhikia vs State
2013 Latest Caselaw 4967 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                            Date of Decision: 29.10.2013
+   BAIL APPLN. 2002/2013

    BRAHAM PRAKASH DHIKIA                     ..... Petitioner
                Through: Mr.Ramesh Gupta, Sr.Advocate along
                     with Ms.Nandita Abrol, Adv.

                           versus

    STATE                                               ..... Respondent
                           Through: Mr.Satish Kumar Verma, APP.
    CORAM:
    HON'BLE MS. JUSTICE VEENA BIRBAL

    VEENA BIRBAL, J.

1. This is an application u/s 439 Cr.P.C for grant of bail in FIR No.278/2013 Police Station Nand Nagri u/s 302/120-B/34 IPC and 25 of Arms Act.

2. As per the case of the prosecution, the aforesaid FIR was registered in pursuance to a PCR call recorded vide D.D.No.5-A dated 1.6.2013 in Police Station Nand Nagri that a person has been shot at in front of market of A-4, Nand Nagri, Budh Vihar Dharamshala. Upon receipt of the said information, SI Nitin along with Constable Charan Pal had gone to the spot where it was revealed that injured had been shifted to SDN Hospital. Thereafter the police reached the said hospital and MLC of injured Kanwar Pal Singh was obtained. The injured Kanwar Pal Singh was shifted to the

Trauma Centre. As per prosecution case, no eye witness was available at the SDN Hospital and at the Trauma Centre. On the basis of information received, case u/s 307 IPC was registered. On the same day, the statement of Dilawar Singh s/o injured was recorded by the IO u/s 161 Cr.P.C wherein he had alleged that for the past few days, his father had been telling him that the present petitioner and co-accused persons namely Sandeep and Sriniwas and one Sunil Rathi had been threatening him by saying that he had to work as per them otherwise he had to face the dire consequences. He had also alleged that aforesaid persons were giving threats to kill his father. Further on the day of occurrence, son of deceased had gone with him in order to leave him at his office and when they had reached at A-3, Nand Nagri, two persons had come and had fired at his father. The son of deceased had alleged that his father had told him that co- accused Sriniwas was driving the motor cycle and co-accused Sandeep was pillion rider who had shot at him. Further, allegations are that his father also told him that same was done with the conspiracy of the present petitioner. On the same day, police had recorded the statements of Kumari Rinku, Municipal Councilor of Nand Nagri Area, Gyan Singh, Vinod Kumar and Subhash. On 8th June, 2013, the victim had died in the hospital. It is alleged that on the said date , the statement of public witness Tahir was recorded by the IO. As per investigation, Tahir is alleged to have seen the occurrence. As per him, after the occurrence present petitioner had come on a motor cycle and looking towards the deceased had abused

him and went away by saying "DEKHA HAMARE KHILAF AAWAZ UTHANE KA NATEEJA". It is further alleged that the deceased had told Tahir that the present petitioner was the main conspirator in the episode.

3. The petitioner has been arrested in the present case on 8.6.2013 and since then he is in custody. After completion of investigation, charge sheet has been filed against the present petitioner and against two co-accused i.e., Sandeep and Sriniwas u/s 302/120B/34 IPC and 25 of the Arms act. In the charge sheet, Sunil Rathi had been kept in column no.12.

4. Learned senior counsel for the petitioner has contended that the present petitioner has been falsely implicated in the present case. It is contended that the alleged statement of Dilawar Singh son of the deceased was recorded on 1.6.2013 wherein no active role has been assigned to the present petitioner. It is submitted that even the allegations made by son of deceased that threats were being given by the petitioner along with two co-accused persons to the deceased are false. Learned senior counsel submits that the present petitioner was not present at the time of alleged occurrence. Learned senior counsel has referred to the statements of other P.Ws i.e., Kumari Rinku, Gyan Singh, Vinod Kumar and Subhash recorded by the IO during the course of investigation. It is contended that as per statements of aforesaid witnesses, no eye witness was present at the time of alleged occurrence and it is PW Vinod who had taken the deceased to the

hospital. It is further contended that the version of the aforesaid witnesses is contrary to the statements of Dilawar Singh and public witness Tahir. It is further contended that public witness Tahir has made statement after seven days of alleged occurrence. It is contended that reading the statement of other P.Ws recorded by the prosecution, it cannot be said that Dilawar Singh and Tahir were present at the time of alleged occurrence. It is contended that had they been present, they would have taken the deceased to the hospital. It is further contended that call details of Tahir also show that he was not present at the time of alleged occurrence.

5. It is further contended that as per FIR of the case, no eye witness was available at the hospital or at the spot. It is further contended that deceased was fit for making statement but his statement was not recorded by the police. In these circumstances, the petitioner be admitted to bail.

6. On the other hand, learned APP has submitted that the case is at initial stages. Even charge is yet to be framed. As per evidence on record, there is a prima facie case against the present petitioner and there is clear involvement of the present petitioner in the alleged occurrence. Learned APP submits that reading the statements of Dilawar and Tahir made during investigation, present is not a fit case for the grant of bail. Learned APP further submits that the condition of the deceased deteriorated in the hospital and he was shifted to the Trauma Centre and was declared unfit for making statement due to which his statement could not be recorded.

7. I have considered the submissions made.

8. It is settled law that in granting or non granting of bail in non bailable offence, the primary consideration is the nature and gravity of the offence. In the present case, the allegations against the petitioner are u/s 302/120-B/34 IPC.

9. The date of alleged occurrence is 1.6.2013. As per allegations, the present petitioner and co-accused persons are working as Safai Karamchari in MCD. It has also come in the investigation that the deceased was working as Daroga/Inspector in MCD and the present petitioner and co-accused persons were working under him. In the statement Dilawar Singh s/o deceased made to the IO there are allegations that prior to the alleged occurrence, deceased had been telling him that the present petitioner and two more persons namely Sandeep and Sriniwas had been threatening him to mark their presence on duty without they being present there and if he would not do the same, he would have to face the consequences and that the aforesaid persons are Badmash people and they are not allowing him to do the duty peacefully and they had threatened to kill him. Further allegations are that on the day of occurrence at about 6 am, deceased had told his son i.e. Dilawar that he was afraid of aforesaid persons and told him to leave him at his office. Further allegations are that on the day of occurrence, when they had reached A-3 market ahead of bus stand, two persons came on a motor cycle from behind and fired shot at his father. Further allegations are that his father had told him

that the motor cycle was being driven by Sriniwas and Sandeep was pillion rider who had fired at him. During the course of investigation, statement of other public witness Tahir has also been recorded who as per prosecution case had known the petitioner as well as two other co-accused persons and the deceased. He has also described the role of co-accused persons and as per his statement to the police, he had seen the present petitioner who had arrived at the spot on a motor cycle and had abused the deceased.

10. There are serious allegations against the petitioner. The case is at initial stages. As per allegations, the present petitioner is the main person in the alleged incident. The contentions raised by the learned senior counsel for the petitioner cannot be examined at this stage as the trial is yet to commence. The court at this stage cannot go into the question of credibility and reliability of the witnesses put up by prosecution. The same can only be tested during trial. Reference is made to the judgment of the Supreme Court in Satish Jaggi vs. State of Chhattisgarh and others: (2007)11SCC195.

Considering the seriousness of allegations, nature of offence, present is not a fit case for the grant of bail. The bail application is rejected.

VEENA BIRBAL, J OCTOBER 29, 2013 ssb