Delhi High Court
Abid vs State (Nct Of Delhi) on 20 October, 2015
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. 1427/2015
Date of Decision: October 20th, 2015
ABID ..... Petitioner
Through Mr.Shivam Chowdhry and Mr.S.K.
Chowdhry, Advs.
versus
STATE (NCT OF DELHI) ..... Respondent
Through Mr.Vinod Diwakar, APP with SI
Gaurav Kumar, PS Nand Nagri.
CORAM:
HON'BLE MR. JUSTICE P.S.TEJI
P.S. TEJI, J
1. The present bail application has been filed under Section 439
of the Code of Criminal Procedure, 1973 seeking grant of regular
bail in the case arising out of FIR No.589/2013 registered at Police
Station Nand Nagri, Delhi under Section 307 IPC and Section 25
of Arms Act.
2. The allegations, as per the FIR, are that on 20th October,
2013 at 10:50 p.m., an intimation was given by Duty Constable
Mahesh from Guru Teg Bahadur Hospital to the effect that a
patient namely Mr.Manoj Kumar with gun shot injury on his back,
was admitted by his brother Mr.Sunil Kumar. The MLC of the
injured was collected on which it was mentioned that the patient
was brought with the alleged history of gun shot and the patient
was fit for statement. As the complainant Mr.Manoj suffered
excessive pain, therefore his statement could not be recorded.
Since no eye witness was found, keeping in view the injuries
sustained by the injured, FIR was registered under Section 307 IPC
and Section 25 of the Arms Act. During the course of
investigation, T-shirt of injured and fired bullet taken out from his
body, were seized.
3. Statement of the injured Manoj was recorded in which he
stated that on 20th October, 2013, his friend Abid (petitioner
herein) came to his house in a drunken state and asked him to visit
Gagan Cinema. Both Manoj and Abid went to Gagan Cinema
where one of their friends Pradeep also met them. When they
were returning home, petitioner-Abid took out a country made
pistol and pointed towards ground. The complainant Manoj asked
the petitioner as to when he brought the pistol, then he fired a shot
at the waist of the complainant due to which he fell down.
Thereafter, the accused took the injured to his brother Sunil who
was standing at a nearby place. The petitioner then left Manoj
there and fled away. It is stated that their friend Pradeep had
already left the place after complainant received gun shot.
Thereafter, the brother of Manoj along with another person,
brought him to GTB Hospital.
4. The petitioner/accused surrendered before the Court on 25th
November, 2013 and he was formally arrested. Accused disclosed
that while going to his paternal village, he threw the country made
pistol from the running train. It is stated that, thereafter, final
opinion regarding nature of injuries of the doctor was received
from the GTB Hospital which were opined as `Grievous'.
5. During the course of trial, charges under Section 307 of the
Indian Penal Code and Sections 25/27 of Arms Act were framed
against the petitioner. Trial of the case is stated to be under
progress and so far five, out of eleven prosecution witnesses have
been examined by the court. Eye witness Pradeep has identified
the accused Abid during his examination.
6. Arguments advanced by the counsel for the petitioner
submits are that the police did not seize any article within twenty
four hours of police custody. He further submits that Sunil Kumar
deposed that the complainant Manoj Kumar never informed him
about the assailant who had attacked him while he was in the
Hospital for two weeks. It is further argued that the prosecution
has to prove mens rea, intention and motive to commit an offence
which is not present in the instant case. It is stated that when these
conditions are not fulfilled, then the allegations levelled will
become irrefutably falsified. It is further argued that the time of
alleged incident has wrongly been described in the charge sheet.
He further stated that it has not been explained by Sunil Kumar as
to why he did not take the injured to a nearby clinic. No eye
witness was joined in the investigation. The investigating agency
failed to seize the country made pistol which is alleged to be used
by the petitioner and not even the left over cartridge of the bullet
were found from the place, thus the chain of events in the instant
case is broken. It is further alleged that the person who took
Manoj Kumar and Sunil Kumar to the Hospital was not made eye
witness nor his name and number were disclosed.
7. The bail application is vehemently opposed by learned
Additional Public Prosecutor. It is stated that the petitioner can
threaten the witnesses of the case and can commit similar offence
again and there is also a possibility of jumping the bail by the
petitioner. It is further argued that due to the acts of the petitioner,
the complainant received grievous injuries. The learned APP has
shown the apprehension that if the petitioner is released on bail, he
may also abscond.
8. Perusal of record reveals that there are specific allegations
against the petitioner/accused that he has given gun shot injury on
the back of the complainant and the injuries sustained by him were
grievous in nature. The petitioner/accused was apprehended at the
spot and was duly identified by the complainant.
9. The trial of the case is at the initial stage and in the
considered opinion of this Court, it is not a fit case to enlarge the
petitioner/accused on bail at this stage, as the possibility of
tampering with the evidence and influencing the prosecution
witnesses cannot be ruled out. Even, there is likelihood of fleeing
of the petitioner/accused, if released on bail. The contentions
made by the accused regarding deposition of witnesses and
absence of mens rea and intention of the accused to commit the
crime in the present case, are a matter of trial and no observation
can be made on the same at this stage.
10. In the facts and circumstances, no ground is made out to
release the petitioner/accused on bail at this stage. The bail
application is accordingly dismissed. However, it is made clear
that the observations made above shall not affect the merits of the
case.
(P.S.TEJI)
JUDGE
OCTOBER 20, 2015
aa
