Jogender vs State
2021 Latest Caselaw 1416 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                              Reserved on: 03.05.2021
                                          Pronounced on: 11.05.2021
+     BAIL APPLN. 1262/2021
      JOGENDER                                               ..... Petitioner
                          Through:      Mr. Rakesh Khanna, Senior Advocate
                                        with Mr. Varun Tyagi & Mr. Vishesh
                                        Chauhan, Advocates

                          Versus

      STATE                                                  ..... Respondent
                          Through:      Mr. Amit Chadha, Additional Public
                                        Prosecutor for State with SI Naresh
                                        Ahlawat

      CORAM:
      HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                          JUDGMENT

1. Petitioner in this petition, along with three other persons, namely,

Rahul @ Jat, Dharmender Dubey and Aatur Tyagi is accused in FIR No.

448/2020 under Section 307/34 of Indian Penal Code, 1860 (IPC) and

Sections 27/54/59 of Arms Act, 1959, registered at police station Moti

Nagar, Delhi. He was taken into custody on 23.06.2020 and since then he is

behind the bars. By the present petition, he is seeking his release on bail.

2. Charge sheet and supplementary charge sheet in this case have

already been filed against the petitioner and other accused persons.

3. As per the charge sheet, case of the prosecution is that on 13.06.2020

on receipt of DD No.4A, Investigating Officer reached ABG Hospital and

collected MLC No. 3289/2020 of injured- Dhurender Singh and came to

know about referral of injured to the RML Hospital. On the MLC, doctor

had opined "A/ H/O assault followed by gunshot injury at Basai Darapur.

Entry wound approx. 1.5-2 cm present over (R) Gluteal region (approx. 4-5

cm Deep) and patient was conscious and oriented". Nature of injury on the

MLC has been mentioned as "OR". Thereafter, Investigating Officer recorded

statement of the injured.

4. In his statement, the injured/complainant stated that on 13.06.2020 at

about 11.45 P.M. when he was going from Basai Darapur to his house at

Ramgarh Colony and reached in front of Super Medicos near Union Bank,

Ramgarh Colony near channel, Joginder, Rahul @ Jat, who lives in Basai

Darapur and Aatur Tyagi, who lives in Ramgarh Colony, met him there.

These three persons were known to him and a few days ago, a quarrel had

taken place between them. Further stated that these persons started beating

him and then Dharmender, real brother of Joginder also came there and

started beating him. Thereafter, Dharmender, Rahul @ Jat and Aatur Tyagi

caught hold of him and said "Joginder, he will not mend his ways in this

manner, let' s eliminate his life today." On hearing this, Joginder took out a

pistol and fired a shot upon him and when he tried to escape, the shot hit his

right hip portion. All the afore-noted four persons fled from the spot leaving

behind him in a pool of blood. Someone informed his brother Deepak, who

picked him in unconscious state and took to the Acharya Bhikshu Hospital,

Moti Nagar, New Delhi, where the Doctor referred him to another hospital

and so, he was brought to the RML hospital for treatment.

5. Thereafter, crime team inspected the place of incident, picked up the

blood on gauge with the help of one white strip, kept in a white colour

transparent box and numbered it. Blood stains and earth control were also

picked up with the help of chisel and hammer and kept in sealed cover.

6. On the basis of secret information, the investigating team

apprehended Aatur Tyagi, who during interrogation revealed that he along

with his friends Joginder, Rahul and Dharmender had committed the crime

in question. During further investigation, petitioner -Joginder was also

apprehended, who during interrogation revealed that he often had a quarrel

with injured- Durender @ Bali on money matters. He disclosed that on the

day of incident, he along with his friends Aatur Tyagi, Rahul @ Jat and his

brother Dharmender went in front of Super Medicos, near nala Basai,

Darapur at around 11:30-45 P.M., Aatur Tyagi hold Dhurender's left arm,

Rahul @ Jat hold his right arm by twisting it, Dharmender hold behind both

his arms and he (petitioner) had shot pistol fire on him with an intention to

kill him. Further disclosed that Dhurender tried to free himself from manual

binding and it is then the pistol shot hit his hips, thereafter they ran away

from the spot, leaving injured behind.

7. Petitioner- Joginder further disclosed that while escaping he had

hidden the arm in the bushes near ESI hospital quarters, which was given to

him by his brother Dharmender. During investigation accused Rahul @ Jat

also disclosed that he had picked up the empty shell after the incident and

hidden near vacant quarter of ESI hospital. At the instance of both the above

accused persons, weapon of offence, i.e. a country made pistol in a broken

condition was recovered from the bushes of the ESI hospital quarters and

the Investigating Officer found three live cartridges in the magazine

available in the pistol. Similarly, empty cartridges were also recovered from

the bushes near ESI hospital quarters.

8. The Investigating officer also collected the packet containing blood-

stained cloth and one sample seal, given by the doctor at Acharya Bhikshu

Hospital, Moti Nagar. All the other recovered exhibits were sent to FSL for

opinion.

9. At the hearing learned senior counsel for petitioner submitted that

complainant is a habitual offender and has earlier also been convicted in FIR

No. 440/2007, under Sections 411/34 IPC, registered at Moti Nagar, Delhi.

Petitioner had no prior intention to cause any bodily harm to the

complainant, as the weapon of offence was not in his possession but in the

possession of his brother Dharmender. Further submitted that if the

petitioner had intention to kill complainant, he would have directly shot on

any vital part and it is so apparent from the fact that the complainant was

caught hold by Aatur Tyagi, who is a body builder and from whose capture,

complainant would not have been able to move an inch and the pistol shot

would have hit the target and not the hip portion of the complainant.

10. Learned senior counsel next submitted that the allegation of

complainant that he was mercilessly beaten by the accused persons, is not

borne out as no injuries of beating were there on the person of complainant

and even the prosecution has not charged the accused persons for the said

offence.

11. Learned senior counsel further submitted that complainant has neither

been inflicted with any life-threatening injury nor the injury was inflicted on

any of his vital part and so, offence under Section 307 IPC is not made out.

Moreover, MLC prepared by the doctor at Acharya Bhikshu Hospital opined

the injury as 'OR' and not as grievous or dangerous. Further submitted that

in the MLC doctor has also stated that injured was in stable and oriented

state of mind, which falsify the assertion of complainant that he became

unconscious due to the alleged incident.

12. Learned senior counsel also submitted that the two accused, namely,

Aatur Tyagi and Rahul @ Jat have been granted bail by this Court and

accused Dharmender has been granted bail by the court of Sessions. Further

submitted that even on parity, the present petitioner deserves bail in this

case.

13. Refuting the submissions advanced by learned senior counsel for

petitioner, Mr. Amit Chadha, learned Additional Public Prosecutor for State

submitted that the case of petitioner is not at par with other accused, as he is

the one who had fired on the victim with an intention to kill him while the

other accused persons caught hold of him. As per the FSL report, the bullet

taken out from the thigh of the injured was fired from the pistol recovered at

the instance of petitioner. He is a habitual offender and also accused in FIR

No. 421/2020, under Sections 188/269 IPC and a kalandra framed under

Sections 107/51 Cr.P.C. Lastly, learned Additional Public Prosecutor

submitted that petitioner has committed a heinous offence and if released on

bail, he may harm the complainant and his family members, therefore, the

present petition deserves to be dismissed.

14. The arguments advanced by both the sides were heard at length.

Keeping in mind that the charge sheet and supplementary charge sheet in

this case have already been filed and trial is in progress, a cursory look has

been given to the material placed on record to arrive at a prima facie opinion

whether petitioner deserves bail or not.

15. In the alleged incident, a grievous attack has been made upon the

complainant which could have resulted fatal for him. While dismissing

petitioner's first bail application vide order dated 16.09.2020, the learned

trial court has observed that considering the facts and circumstances of the

case and the gravity of offence and his involvements/role in the present

crime, no ground is made out to release the petitioner on bail. Similarly,

while dismissing petitioner's another bail application vide order dated

02.03.2021, the learned trial court has observed that because of the graver

role played by the petitioner, no ground for parity is made out to release him

on bail. Pertinently, petitioner's first application for bail [BAIL APPLN.

2902/2020] was dismissed as withdrawn before this Court.

16. On perusal of FIR of this case, copy of charge sheet and status report

placed on record, it is revealed that the role played by petitioner in the

offence in question, is on different footing than of other co-accused. The

allegations levelled against other accused persons are of catching hold

complainant, whereas the complainant has specifically alleged that

petitioner had fired a pistol shot on him with an intention to kill him and in

this background, petitioner cannot claim parity with other accused for bail.

17. Furthermore, co-accused Aatur Tyagi in his disclosure statement has

supported the allegations put-forth by the complainant and stated that the

shot was fired by the petitioner. The weapon of offence i.e. a country made

pistol has been recovered at the instance of petitioner only.

18. Moreover, in the MLC dated 14.06.2000 prepared by the doctor of

Acharyashree Bhikshu Govt. Hospital, Moti Nagar, Delhi, the nature of

injuries suffered by the complainant have been opined as "Dangerous". As

per FSL report the bullet recovered from the thigh of injured was fired from

the pistol recovered at the instance of petitioner herein.

19. Even if the factum of petitioner having been involved in other

criminal cases is not given weightage, the chain of events and scientific and

medical evidence place on record in the present case, dissuades this Court to

release petitioner on bail. The apprehension expressed by the prosecution of

harming the complainant or his family, since they are living in

neighbourhood, cannot be ruled out.

20. Finding no substance in the pleas taken by the petitioner, the present

petition is accordingly dismissed at this stage, while making it clear that

anything stated herein shall not be construed as an expression on the merits

of the prosecution case.

21. A copy of this order be transmitted to the trial court concerned for

information.

(SURESH KUMAR KAIT) JUDGE MAY 11, 2021 r