Zahid vs State
2021 Latest Caselaw 1613 Del

$~
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                       Reserved on: 27.05.2021
                                                   Pronounced on: 02.06.2021
+     BAIL APPLN. 1357/2021
      ZAHID                                                     ...... Petitioner
                           Through         Mr. Salim Malik, Advocate

                           Versus

      STATE                                                     ...... Respondent
                           Through         Mr. Anuj Handa, Special Public
                                           Prosecutor for State


      CORAM:
      HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                           JUDGMENT

1. Petitioner is seeking bail in FIR No. 138/2020, under

Sections147/148/149/ 186/188/353/435/302/201/120-B IPC & Section 27 of

Arms Act, registered at police station Welcome, Delhi.

2. In the FIR it is recorded that a GD entry 053/2020 dated 25.02.2020

was received from GTB Hospital that a person, namely, Mohd. Mudhasir,

aged around 30 years, has been admitted in unconscious state and declared

brought dead by the doctor. Upon receipt of above information, SI Amit

Bansal reached hospital and obtained MLC No. 549/09/2020 of deceased

Mudhasir, on which the doctor had opined that "patient brought dead in

main casualty and unconscious, unresponsive state". Post mortem of the

deceased was conducted on 27.02.2020 and in the post mortem report it is

recorded that the deceased was brought to the hospital on 25.02.2020, at

around 02:00 PM. All clothes except underwear and socks were blood

stained. The cause of death was opined "shock as a result of ante mortem

injury to head produced by projectile of firearm. Injury No.1 was ante

mortem in nature and was sufficient to cause death in ordinary course of

nature. Injury No.2 was caused by blunt force impact." After obtaining copy

of MLC, post mortem report and completion of necessary formalities, the

FIR in question was registered on 21.03.2020 at the behest of SI Amit

Bansal.

3. During investigation, it transpired that on 25.02.2020, deceased

Mudashir was brought to the GTB Hospital by his wife Ashiya, who stated

that he was found in unconscious condition in Gali No.1, at Kabir Nagar.

4. On 28.03.2020, statement of wife of deceased- Ashiya, brother of

deceased- Yusuf Khan and father of deceased- Yasin Khan was recorded. In

her statement, Ashiya, wife of deceased stated that on 25.02.2020 some

unknown persons had brought her husband to her gali and told her that he

had sustained bullet injury near Shamshan Ghat and thereafter, she took her

husband to the hospital, where the doctor declared him brought dead. In

their statements, brother of deceased- Yusuf Khan and father of deceased-

Yasin Khan, stated that on 25.02.2020 they had received information from

Muzammil, brother of deceased, that Mudhasir had been admitted to hospital

by his wife.

5. Thereafter on 28.03.2020, FSL team inspected the scene of crime but

no live or empty cartridge were recovered from the spot. During further

investigation, though no CCTV footage from the Shamshan Ghat, nearby

shops and houses could be obtained. However, various images, videos and

recordings were obtained by Cyber Cell through social media and other

sources and upon their scrutiny one video was found which clearly showed

how the deceased had sustained bullet injury.

6. On the basis of afore-mentioned video, on 06.04.2020 the secret

informer identified Zahid, the present petitioner, who was a part of mob and

can be clearly seen in the video standing with the deceased. On the same

day, i.e. on 06.04.2020, petitioner was apprehended from his house. During

interrogation, he disclosed that some of the local leaders asked the people to

gather in front of Shamshan Ghat on 25.02.2020 and he was a part of the

mob and since the police was asking from the other side not to make

unlawful assembly, as they were pelting stones on the police personnel.

7. On 07.04.2020, the investigating team took petitioner to the crime

spot for the purpose of pointing out memo and on the same day, his

statement under Section 161 Cr.P.C. was also recorded.

8. On enquiry, it revealed that the said video was recorded by ASI Satish

and Constable Pushkar and Constable Sunder, Beat Officers, identified

petitioner as being part of mob on the day of riots on 25.02.2020. Statement

of ASI Satish and Constable Pushkar under Section 161 Cr.P.C. was

recorded on 07.04.2020, whereas that of Constable Sunder was recorded on

12.06.2020.

9. All the exhibits i.e. clothes, mobile phone of deceased, petitioner and

other accused in this FIR case, were seized and sent to FSL for analysis. As

per call detail record of petitioner, his location is at the spot of alleged

incident on the said day. However, the FSL report is still awaited.

10. In aforesaid facts and circumstances of this case, the petitioner is in

judicial custody since the day of his arrest on 06.04.2020.

11. At the hearing, learned counsel for petitioner submitted that the role

attributed to the petitioner in the present case is far less than that of co-

accused Bilal, who has already been granted bail by the trial court on

14.10.2020 and, therefore, petitioner also deserves bail on parity.

12. Learned counsel also submitted that there is an exorbitant delay of

approximately one month in registration of the FIR in question and the

entire prosecution case is based upon testimony of official witnesses

Constable Sunder and Constable Pushkar who in their statements under

Section 161 Cr.P.C. have identified the petitioner but did not make any PCR

call regarding the alleged incident, and thus, their credibility is doubtful.

13. It was next submitted that as per call detail record, petitioner's

presence is shown in the area of riots but the fact remains that his minor

children were missing and he had gone out of the house in their search.

14. Learned counsel further submitted that petitioner and deceased both

were part of mob and were standing on the same side and it is highly

unlikely that he would have an intention to kill the person standing by his

side only and so, invocation of Section 302 IPC is bad in law.

15. Lastly, learned counsel submitted that petitioner is innocent and the

only role played by him is that he was part of mob on the fateful day and

trial will take time and so, he deserves concession of bail.

16. On the contrary, learned Special Public Prosecutor for State opposed

the present petition and submitted that Constable Pushkar and Constable

Sunder who were deployed as Beat Constable in the area, have identified the

petitioner having participated in the riots with the mob.

17. Learned Special Public Prosecutor further submitted that the incident

occurred near Shamshan Ghat and the CCTV camera installed at the gate

was not working for last many days and so, efforts were made to collect the

CCTV footage from cameras installed in nearby shops and local persons,

but either the cameras had been turned around or destroyed by rioters under

pre-planned modus. But thereafter, various images, video and recordings

were collected from Cyber Cell Crime Branch through social media and

other sources and this is how one video came across wherein it is clearly

pictured how the deceased had sustained bullet injury. After analysis of the

video and post mortem report, it became clear that the deceased was shot by

a person standing in his right side, as the deceased had sustained injury in

the right side on his head right above the ear. Since the petitioner can be

seen standing right next to him, therefore, he along with other accused has

been implicated in this case.

18. Learned Special Public Prosecutor further submitted that during

interrogation, petitioner has disclosed that he had thrown his clothes which

he wore on the day of riots, as he was apprehending his arrest. He also

disclosed names of other persons as Imran @ Cheera and Asif as part of

rioting mob. He further disclosed that at the relevant time, Imran @ Cheera

was having desi katta in his hands.

19. It was next submitted that the call detail record of petitioner shows his

presence at the place of incident and in the alleged video petitioner can be

clearly seen pelting stones on the police personnel on duty. Learned Special

Public Prosecutor submitted that petitioner-Zahid is a Bad Character (BC) of

Welcome area and he is previously involved in 15 cases of murder, attempt

to murder, robbery, Arms Act etc. and, therefore, this petition deserves to be

dismissed.

20. In rebuttal, learned counsel for petitioner submitted that out of the 15

cases pending against the petitioner, he has already been discharged in 10

cases and the remaining pending against him are regarding Delhi riots only

and petitioner will prove his innocence during trial in those cases.

21. The submissions advanced by learned counsel appearing from both

the sides were heard at length and the material placed on record has been

carefully perused.

22. The FIR in question pertains to unfortunate killing of Mohd.

Mudhasir during riots on 25.02.2020. Allegedly, petitioner was participant

of unlawful assembly, where a fire arm shot had hit the deceased on the

right side of his head just above his ear and proved fatal for him.

23. While seeking bail, petitioner is seeking parity with co-accused Bilal

who is said to have been granted bail by the court below on 14.10.2020. But

a perusal of the order dated 14.10.2020 reveals that the trial court has

granted interim bail of 45 days to Bilal on medical grounds of his wife. So,

this plea does not come to the rescue to petitioner in this petition.

24. However, in the video footage played before this Court, petitioner can

be seen standing just ahead the wall with a large mob, agitating, shouting

slogans and pelting stones on the other side and the deceased is standing

right next to him. So, as per the video, petitioner's exact position of standing

is to the left of the deceased, without any weapon in his hand and pelting

stones upon other side of the group, whereas the deceased was hit by a bullet

shot in the right side of his head just above his ear. However, the source of

fire arm cannot be seen.

25. Pertinently, petitioner and deceased, both were part of same group

and were agitating against the group standing on the opposite side. Though,

it is difficult to believe that when one group is agitating against other group,

a person from the same group will shot a person of his own group but at the

same time, possibility of an open fire shot from the same group also cannot

be ruled out at this stage, which is subject matter of trial. Moreover, in the

MLC or post mortem report, it is not mentioned whether fire shot was from

close range, short range or distance.

26. Prima facie, at best the role attributed to the petitioner appears to be

that he was standing with the mob and participating in agitation and of

pelting stones. He is not seen carrying any weapon etc. in his hands and in

fact, no recovery has been made at his instance. Moreover, the source of fire

shot is yet unknown and will be established by the prosecution during trial.

The plea of petitioner whether or not offence under Section 302 IPC is made

out against him or not, is also subject to trial.

27. Admittedly, petitioner did not abscond and was arrested from his

residence, which prima facie shows his innocence in the present case despite

he being BC of area. Moreover, it is not disputed that petitioner has already

been discharged in 10 cases out of 15 cases in his credit. The remaining

cases pending against him pertain to communal riots, which took place in

North-East part of Delhi in February, 2020.

28. In view of the facts and circumstances of this case and the fact that

charge sheet in this case has been filed, but charge has not yet been framed

and trial will take substantial time, this Court is of the considered opinion

that petitioner deserves bail.

29. In view of the above, without commenting on the merits of the case,

the petitioner is directed to be released on bail forthwith upon his furnishing

personal bond in the sum of Rs.20,000/- with one surety in the like amount,

to the satisfaction of the Trial Court/ Duty Magistrate, while making it clear

that any observation made herein shall not influence the prosecution case

during trial.

30. The petitioner shall not directly or indirectly influence any witness

and shall appear before the trial court as and when directed.

31. A copy of this order be transmitted to the Trial Court and Jail

Superintendent concerned for information and compliance.

(SURESH KUMAR KAIT) JUDGE JUNE 02, 2021 r