Sameer Khan vs The State Of Delhi
2021 Latest Caselaw 1351 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                            Reserved on:28.04.2021
                                        Pronounced on: 03.05.2021
     (i) + BAIL APPLN. 1344/2021
       SAMEER KHAN                                      ..... Petitioner
                         Through:     Mr. Dinesh Tiwari, Advocate

                         Versus

       THE STATE OF DELHI                                ..... Respondent
                     Through:         Mr. Amit Mahajan & Mr. Rajat Nair,
                                      Special Public Prosecutors for State
                                      with Mr. Shantnu Sharma &
                                      Mr.Dhruv Pande, Advocates


     (ii) + BAIL APPLN. 1166/2021
       KASIM                                            ..... Petitioner
                         Through:     Mr. Salim Malik, Advocate

                         Versus

       STATE                                             ..... Respondent
                         Through:     Mr. Amit Mahajan & Mr. Rajat Nair,
                                      Special Public Prosecutors for State
                                      with Mr. Shantnu Sharma &
                                      Mr.Dhruv Pande, Advocates

       CORAM:
       HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                         JUDGMENT

1. On 25.02.2020 riots took place in various areas of North East Delhi,

in which a mob of rioters not only destructed public properties but also

caused injuries upon hundreds of persons of other community and around

forty-two people lost their lives. On that unfortunate day, one Ankit Sharma,

a young Officer of Intelligence Bureau, also lost his life.

2. On 26.02.2020, complainant Ravinder Kumar, father of Ankit

Sharma, registered a complaint with police station Dayalpur, Delhi that on

the previous day i.e. 25.02.2020 his son had returned from office and at

about 05:00 PM had gone out of the house to buy some household goods but

he did not return home and so, a search was made at nearby places, hospitals

etc. and after waiting overnight, had made the complaint regarding missing

of his son. Then, he came to know from the local boys that a boy had been

thrown into the Khajuri Khas nala from the Masjid of Chand Bagh Pulia

after he was killed. Dead body of his son, Ankit Sharma, was recovered and

he was found without clothes and with only underwear on his body. The

deceased had sharp injuries on his head, face, chest, back and his waist. His

face and other body parts were burnt with acid to conceal his identity. In the

complaint, father of Ankit Sharma had specifically stated that he had a

strong suspicion that his son was killed by Tahir Hussain and his goons,

who had gathered in his office and after killing him, his body was thrown

into the nala from Masjid.

3. On the basis of aforesaid complaint, crime spot was inspected,

bloodstained samples were drawn and sent to FSL, site plan was prepared

and statements of eye witnesses were recorded. During the course of

investigation, one video footage of the incident showing three persons

throwing body of a person in Khajuri nala near Chand Bagh pulia was

received and its source was traced and was sent to FSL for verifying its

authenticity. Based on the aforesaid complaint, FIR No. 65/2020 was

registered at police Station Dayalpur, Delhi on 26.03.2020.

4. Since a large mob was involved in the riots, many of them were

arrested and their photographs were thereafter shown to the eye witnesses

and in the identification process, witnesses Pradeep Verma and Shamshad

Pradhan specifically identified five accused persons, namely, Anas, Firoj,

Gulfam and Shoaib Alam of having been actively involved in the riots at the

instigation of accused Tahir Hussain. Another witness Vikalp Kochar on

seeing the photographs identified Anas being involved in riots and also

identified Haseen @ Mullaji @Salman, who had stabbed Ankit Sharma with

knife. Eye witnesses, Pradeep Verma, Bharat @ Kalu and Girish

Yaduvanshi identified Nazim and Kasim and stated that they were involved

in the killing of Ankit Sharma.

5. During further investigation, accused Haseen @ Mullaji @ Salman

was arrested on 12.03.2020 on the basis of interception of his mobile phone

linking him with the murder of Ankit Sharma, who during police remand

disclosed names of Sameer, Nazim, Kasim and Sabir of having accomplice

him in the killing of Ankit Sharma.

6. Further investigation was carried out and accused Sameer Khan was

apprehended on 09.04.2020 and during interrogation he admitted his

involvement in the murder of Ankit Sharma. He was rightly identified by

witness Akash as the same person who killed Ankit Sharma amongst the

mob.

7. Accused Kasim was apprehended from Sambal, Uttar Pradesh on

30.03.2020 and during interrogation he admitted his involvement in the

murder of Ankit Sharma. He was rightly identified by witnesses namely,

Pradeep Verma, Bharat @ Kalu and Girish Yaduvanshi.

8. Petitioner-Sameer Khan [in BAIL APPLN. 1344/2021] preferred an

application for bail before the learned trial court and the same was dismissed

vide order of 22.10.2020 by passing a detailed order. Petitioner-Kasim [in

BAIL APPLN. 1166/2021] also preferred an application for bail, which was

also dismissed by the court below vide order dated 26.02.2021. This is how

these petitioners are before this Court seeking bail in FIR in question.

9. Since the subject matter of these two petitions pertain to similar FIR,

therefore, with the consent of learned counsel representing both the sides,

these petitions were heard together and are being disposed of by this

common judgment.

10. At the hearing, Mr. Dinesh Tiwari, learned counsel for petitioner-

Sameer Khan, submitted that petitioner has been falsely implicated in this

case and there is no evidence on record to connect petitioner in the present

case. Further submitted that there is no electronic evidence like CCTV

footage and video clip of the incident in question and merely on the basis of

disclosure of Salman, petitioner has been roped in this case. He also

submitted that witness Bharat @ Kalu, who claim to be an eye witness, did

not make any PCR call nor did he name petitioner in his first disclosure

statement and that the due procedure of Test Identification Parade (TIP) has

not been followed in this case. Next submitted that nothing incriminating

has been recovered from the possession of petitioner-Sameer Khan and

despite being innocent, he has been languishing in jail and therefore, his

application deserves to be allowed.

11. On behalf of petitioner-Kasim, Mr. Salim Malik, learned counsel

submitted that eye witnesses Girish Yaduvanshi and Bharat @ Kalu in their

statements recorded under Section 164 Cr.P.C. have not stated even a single

word about the alleged incident or the petitioner. Further submitted that

another eye witness, Pradeep Verma also in his statement recorded under

Section 164 Cr.P.C., did not give any description of the present petitioner

and he was in regular touch with local police. However, only when he was

brought near SOC, he identified the petitioner being present in the mob.

Learned counsel next submitted that there is no electronic evidence to

connect the petitioner with the offence in question and based upon

concocted stories, petitioner has falsely been implicated in this case by the

prosecution.

12. Lastly, learned counsel submitted that besides the present FIR,

petitioner has been made accused in three other FIRs wherein he has been

granted relief of bail. In the present case petitioner was arrested on

30.03.2020 and since then he is behind bars and deserves to be released on

bail.

13. On the other hand, Mr. Amit Mahajan, learned Special Public

Prosecutor for respondent/State vehemently opposed these petitions and

submitted that the petitioners were not only part of the large mob of the

alleged incident, which led to destruction of public property but also took

life of deceased Ankit Sharma, a young officer of Intelligence Bureau.

14. Learned Special Public Prosecutor submitted that post mortem report

of deceased Ankit Sharma revealed that the cause of his death was due to

shock and haemorrhage due to injury to lung & brain and all these injuries

were sufficient to cause death in ordinary course of nature both

independently and collectively. Further revealed that injuries upon the

deceased were 52 in number and were inflicted by sharp edged weapon,

heavy cutting weapon and rest were by blunt force and all injuries were

fresh before death. He further submitted that eye witness Akash has

identified accused Sameer Khan and three eye witnesses, namely, Pradeep

Verma, Bharat @ Kalu and Girish Yaduvanshi, who have categorically

identified petitioner-Kasim in the killing of deceased Ankit Sharma. Further

submitted that besides the statement of eye witnesses, statements of public

witnesses of nearby shops and residences have also been recorded and if

corroborated with the statements of the eye witnesses, clear case is made out

against these petitioners. It was also submitted that both these petitioners are

bad characters (BC) of their area. Three FIRs pertaining to incident of riots

in the year 2020 are pending to the credit of accused Kasim and besides, he

has been involved in various criminal activities as far back from the year

2005. With regard to accused Sameer Khan, learned Special Public

Prosecutor submitted that three FIRs pertaining to the incident of riots are

pending against him as well.

15. With regard to specific role assigned to these petitioners in the alleged

incident, learned Special Public Prosecutor submitted that prime accused

Haseen @ Salman, had disclosed their names and when accused Kasim and

his brother Nazim, who is also an accused in the incident pertaining to riots,

heard that Haseen @ Salman had been arrested, fled to Sambal, U.P. from

where they were apprehended. Similarly, Sameer Khan was also absconding

and could be arrested only on 09.04.2021.

16. Learned Special Public Prosecutor next submitted that one of the co-

accused Muntajim @ Musa is absconding and has been declared proclaimed

offender and if these petitioners are released on bail, there is every

likelihood they may also abscond from judicial process of law.

17. Lastly, learned Special Public Prosecutor submitted that charge sheet

in this case has already been filed and trial is in progress and therefore, these

petitions deserve dismissal.

18. The rival contentions raised by counsel appearing from both the sides

were heard in detail. I have also perused the impugned orders and material

placed on record.

19. This Court is conscious that while dealing with bail applications of

Liyakat Ali, Arshad Qyauum @ Monu, Gulfam @ VIP and Irshad Ahmad

pertaining to FIR No. 116/2020, registered at police station Dayalpur, Delhi,

with regard to eye witness Pradeep Verma, this Court had made an

observation as to why he had not made any PCR call regarding the incident,

but in the facts and circumstances of the present case, his failure to having

made a call to the PCR cannot be made fatal to the case of the prosecution

wherein life of a young Intelligence Officer has been lost. Moreover, every

case has to be seen in the peculiar facts and circumstances of each case and

observation in one case may not be binding in another case.

20. With regard to petitioner Sameer Khan, trial court in the impugned

order has noted that he is a resident of Nand Nagri and his presence at the

place of occurrence was not natural and therefore, it cannot be said that he

did not have a common object of unlawful assembly. Regarding petitioner

Kasim, learned trial court has observed that he was absconding and could be

apprehended from Sambal, UP and eye witnesses have rightly identified

him. Trial court has further observed that these petitioners were a part of

riotous mob and were involved in looting and vandalizing public and private

property and in the said riots, several persons were injured and Ankit

Sharma had lost his life. This Court finds force in the observations made by

the court below.

21. It is a matter of fact, in such like cases where large mob is involved in

riots and illegal activities causing harm to public property, peace and life,

statement of eye witnesses and corroborative evidence plays a vital role and

at the time of considering the bail application of accused, it would be too

soon to analyse the testimony of eye witnesses and public witnesses to

arrive at a conclusion as to whether any case is made out against the accused

or not. Non availability of technical evidence such like CCTV footage etc.

cannot be accepted as a ground for non-availability of direct evidence, as it

is a matter of record that CCTV cameras installed in the areas in question

were either broken or hidden by the mob. At the time of grant of bail only a

prima facie opinion has to be formed and the facts and circumstances of this

case do not persuade this Court to keep a lenient view towards the

petitioners. Petitioners have been playing hide and seek with the

prosecution. Charge sheet in the FIR in question has already been framed

and trial is in progress. Petitioners will have an opportunity to make their

case at the appropriate stage during the course of trial.

22. With aforesaid observations, these petitions are dismissed, while

making it clear that any observation made herein shall not influence trial of

the prosecution case.

(SURESH KUMAR KAIT) JUDGE MAY 03, 2021 r