Delhi High Court
Ashish Kumar @ Vicky vs Govt. Of Nct Of Delhi on 21 November, 2019
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 21.11.2019
+ BAIL APPLN. 954/2019
Ashish Kumar @ Vicky ..... Petitioner
Through: Mr. Pawan Bahl, Advocate.
versus
STATE (GOVT OF NCT OF DELHI) ..... Respondent
Through Mr. G. M. Farooqui,
APP for State.
CORAM:
HON'BLE MR. JUSTICE BRIJESH SETHI
JUDGMENT
BRIJESH SETHI, J.(oral)
1. Vide this order I shall dispose of a bail application filed u/s. 439
CrPC by the petitioner Ashish Kumar in FIR No. 181/2017 u/s.
302/307/34 IPC, P.S.Malviya Nagar.
2. Ld. Counsel for the petitioner has prayed for bail on the ground
that petitioner is innocent and has been falsely implicated. It is
submitted that petitioner was not named in FIR by the prosecution and
he was arrested on the basis of suspicion on 08.06.2017 and since then
he is in jail. After completion of investigation, the police filed the
charge-sheet against the petitioner and two other accused persons
namely Robi Bahadur @ Ravi and Aman Sethi @ Golu @ Aman for
the alleged murder of Karan @ Aman. Nothing was recovered from
the petitioner during the investigation. It is submitted that prosecution
has so far examined PW-1 Amit Kumar on various dates and he also
been cross-examined by the Addl. PP. The petitioner has not been
identified by the alleged main eye-witness. Ld. ASJ vide order dated
03.10.2019 has dismissed the bail application moved by the petitioner.
It is submitted that Ld. ASJ has failed to appreciate that PW-1 has
clearly stated that he is not able to identify the petitioner Ashish @
Vicky. It is submitted that there is no other cogent evidence except the
witness Amit Kumar. It is, therefore, prayed that petitioner be released
on bail in the interest of justice.
3. Ld. APP for the state has opposed the bail application on the
ground that allegations against the petitioner are serious in nature. He
has, therefore prayed for dismissal of the bail application.
4. I have considered the rival submissions. According to
prosecution, on 05.05.2017, a PCR call vide DD No. 48-A regarding
murder was received at PS Malviya Nagar which was marked to SI
Suraj. SI Suraj along with staff reached at Flat No. E-12/43,, Hauz
Rani, Delhi. where it came to notice that injured persons had already
been taken to Max Hospital, Saket. One injured namely Karan @
Aman was declared brought dead by the doctors whereas another
injured Amit Kumar was admitted in the hospital. He was declared fit
for statement by the doctors. On enquiry, he stated that on 05.05.2017
at about 9.30 pm., he along with his friends namely Tajender @ Golu
& Karan @ Aman went to meet with their another friend Gaurav. At
about 10:45 PM, 4-5 persons namely Aman Sethi @ Golu, Robi,
Nikki, Akshu and Hemant along with stick canes and knives in their
hands, entered there. Aman Sethi @ Golu started attacking Karan @
Aman with Knife. On seeing this, he ran towards toilet to save
himself. He further stated that one stout bearded man attacked on his
face & shoulder with base ball stick. After that, Robi attacked him
with fist and kicks and also caught his hands. Akshu took knife from
Nikki and attacked on his legs. They ran away from there when he
shouted for help. After that, he went at upper floor of building for
help. He made call to Tajender @ Golu from there. On the statement
of injured/eye witness - Amit Kumar, a case vide FIR no. 181/2017
u/s 302/324/34 IPC was registered at PS Malviya Nagar.
5. The prosecution version is that on 7.05.2017, accused Robi
Bahadur @ Ravi was arrested and interrogated and he disclosed that
he and other co-accused are involved in the crime. During course of
investigation, it came on record that after committing the crime
accused Roby Bahadur got injured and with the help of his associates
he reached at Majidia Hospital. In Majidia Hospital accused Roby
Bahadur @ Ravi has given his details by mentioning the father name,
address and mobile number of petitioner Ashish. The SIM Card of the
mobile phone number 9999775820 was also found to be registered in
the name of petitioner Ashish. The CDR of mobile phone number
9999775820 was obtained and on analysis, the location of
abovementioned mobile no. 9999775820 was found in saket (where
the accused gathered before committing crime), Hauz Rani (Place of
occurrence) and Majidia Hospital (where the accused person gathered
after committing crime) which corroborated with the disclosures of
other accused persons.
6. Complainant Amit Kumar identified petitioner at Police Station
and stated that he was the person who had hit him with the baseball
bat on his face and shoulder on 05.05.2017. Though it is submitted by
Ld. Counsel for the petitioner that PW-1 Amit Kumar has not
identified the petitioner. It is a settled law that evidence cannot be
discussed in detail at the stage of consideration of bail application
since no mini trial can be conducted at that stage. The Ld. Trial Court
will no doubt discuss the evidentiary value of the statement of PW-1
at the appropriate time. However, this fact cannot be ignored that the
petitioner has also been charged with an offence u/s. 302/34 IPC
besides Section 307 IPC. There is still other evidence on record and
whether it will help the prosecution or not and whether it will prove to
be relevant or not will be decided by the Ld. Trial Court. The Court
can also not ignore the fact that complainant/ injured in examination in
chief has deposed about the threat extended to him and it runs as
under:-
"After the present incident, on 2-3 occasions,
outside my house, some boys including Bittoo,
Nikki, Babu and other boys came and they
shouted "kya chahta hain, gawahi thodega ya
nahi thodega'.
7. With the above threat extended to the witness coupled with
above discussion and also in view of the nature of allegations leveled
against the petitioner, no grounds for bail are made out. The bail
application is, therefore, dismissed.
BRIJESH SETHI, J
NOVEMBER 21, 2019
Amit
