Delhi High Court
Vishal Balguer vs State Of Nct Of Delhi on 2 June, 2022
#
IN THE HIGH COURT OF DELHI AT NEW DELHI
Order reserved on: 30.05.2022
Order delivered on: 02.06.2022
+ BAIL APPLN. 1319/2021
VISHAL BALGUER ..... Petitioner
Through: Mr.Tanmaya Mehta, Mr.Pranshu
Gosain and Mr.Lalit Valecha,
Advocates.
versus
STATE OF NCT OF DELHI ..... Respondent
Through: Ms. Rajni Gupta, APP for the State
along with SHO/Inspector Shivani and
Inspector Satinder Sangwan.
Mr. Aman Usman, Advocate for the
victim.
CORAM:
HON'BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA
ORDER
ANOOP KUMAR MENDIRATTA, J.
1. This is an application filed under Section 439 Cr.PC for grant of bail
in FIR No.1187/2015 registered at Police Station Hauz Khas under Sections
302/308/201/212/34 IPC.
2. In brief, as per the case of the Prosecution, the FIR was registered on
the complaint of Rohit Bansal, who alleged that in the intervening night of
21/22.10.2015, he along with his friends namely Vineet, Sonu, Rupesh and
Monu had visited Shanghai-30 Bar and Restaurant, E-Block Market, Hauz
Khas. About 12:30 AM, a quarrel took place between the complainant and
accused party on the issue of dancing on the floor in the Bar which was
Signature Not Verified
By:DINESH CHANDRA
Signing Date:04.06.2022
12:36:26
sorted out by the bouncers. Thereafter, the complainant along with his
friends left the Bar. Meanwhile, since the complainant realized that he had
forgotten his mobile phone in Shanghai Bar, he along with his friends
returned back and saw that the persons who had clashed with him in the Bar
were standing near the Bar blocking his way. A quarrel took place in which
the complainant and his friend Rupesh (deceased) were brutally assaulted by
cement bricks, rod and baseball bat. Rohit Bansal suffered head injuries as
mentioned in the MLC while Rupesh expired in the hospital on 26.10.2015.
As per postmortem report, deceased Rupesh sustained 21 injuries and the
cause of death was opined as ''Craneocerebral damage due to head injury".
The case was initially registered under Sections 307/308/34 IPC and on the
death of Rupesh, Sections 302/201/212 IPC were invoked.
3. It is further the case of the prosecution that during the course of
investigation, Anil Kumar Yadav was identified on the basis of CCTV
footage. Remaining accused namely Tarun @ Maddy, Ashish Balguer,
Vishal Balguer, Vikas Balguer and Vikas @ Shammi were also arrested,
who refused TIP. The CCTV footage of the incident was also collected.
4. Learned counsel for the petitioner submits that statement of about 12
material witnesses, including eye-witnesses has been recorded out of 45
witnesses and the accused is in custody for more than six years. It is also
urged that co-accused Anil Kumar Yadav has already been released on bail
vide order dated 12.03.2021 and bail is also sought on the grounds of parity.
It is further submitted that all the material/public witnesses have already
been examined and there is no possibility of influencing the other witnesses
in any manner. Reliance is also placed upon orders passed by Hon'ble
Signature Not Verified
By:DINESH CHANDRA
Signing Date:04.06.2022
12:36:26
Supreme Court in Indrani Pratim Mukerjea Vs. Central Bureau of
Investigation & Anr. S.L.P. (Crl.) No(s) 1627/2022 wherein in a murder
case, the benefit of bail was extended to the petitioner therein considering the
long period of custody in jail.
5. Learned counsel for the petitioner has also vehemently pointed out the
discrepancies and omissions in the statements recorded during the course of
trial and submits that the role of accused has not been supported. It is also
emphasized that it was a sudden quarrel on a trivial issue which was not
premeditated and the offence at the best falls under Section 304-II IPC. It is
also pointed out that on earlier occasion when the applicant was admitted to
bail, the same was not misused and was only cancelled in view of
cancellation of bail of co-accused Anil Kumar Yadav. It is also submitted
that the orders passed by the Hon'ble Supreme Court in S.L.P. (Crl.) No.
1938/2017 merely reflect in para 29 that the trial Court was yet to record the
testimony of the material witnesses at the relevant time and bail was not
granted, only to ensure fair trial and the witnesses may be in a position to
freely depose. The CCTV footage collected during course of trial is also
stated to be of little value as the footage was unclear.
6. On the other hand, learned APP for the State has vehemently opposed
the bail application and submits that the attack had been carried out in a
brutal manner, which is duly supported by the CCTV footage. It is further
urged that inconsistencies in the statement of eye-witnesses are not material
enough to disbelieve the role of applicant. It is also contended that co-
accused Anil Kumar Yadav's role is distinct in the entire incident and, as
such, he was extended the benefit of bail. Reference is also made to the
Signature Not Verified
By:DINESH CHANDRA
Signing Date:04.06.2022
12:36:26
observations of the Hon'ble Supreme Court in para 22 of aforesaid order.
7. I have given considered thought to the contentions raised. At the stage
of bail, the prima-facie case needs to be considered, without delving deep
into the merits of the testimony of the witnesses, lest it may prejudice the
case of the parties. The contradictions may be only considered for limited
purpose of assessing the role of applicants/accused and to assess if the
discrepancies are vital and material to extend the benefit of bail. The Court
also needs to keep in consideration, the nature of seriousness of the offence,
character of other evidence and the peculiar circumstances qua the accused,
likelihood of the accused fleeing from justice and tempering.
8. It may be observed that the incident also stands recorded in the CCTV
footage though it has been pointed out during the course of examination of
the witnesses that CCTV footage was not clear and some of the witnesses
also appear to have been identified by the witnesses after viewing the CCTV
footage. However, it cannot be ignored that the present case, apart from the
CCTV footage, is based upon ocular evidence and FSL results. The
evidence of PW Rohit Bansal supports the involvement of the petitioner. The
assault was admittedly on unarmed victims who merely returned back to the
spot to collect the mobile. The accused acted in a premeditated manner and
did not show any mercy while attacking the deceased with baseball bat, iron
rod and cement bricks. The attack was clearly in furtherance of common
intention which continued, resulting in grievous injuries to PW-1 and about
21 injuries on the person of deceased Rupesh. Even the Hon'ble Supreme
Court in para 26 of aforesaid order observed that the manner in which the
deceased was allegedly attacked and the number of injuries inflicted, prima-
Signature Not Verified
By:DINESH CHANDRA
Signing Date:04.06.2022
12:36:26
facie indicate premeditation. I am of the considered opinion that it may be
preposterous to comment in detail on the discrepancies in the statement of
witnesses relied by learned counsel for the petitioner as they do not dent the
modality of attack and role of the applicants/accused to disbelieve the
prosecution version.
In the facts and circumstances, mere incarceration for six years itself is
not a sufficient ground to enlarge the accused on bail. Further, no grounds
of parity are made out since the role of co-accused Anil Kumar Yadav has
been observed to be distinct.
For the aforesaid reasons, considering the gravity of offence and brutal
nature of attack, the application is dismissed. Nothing stated hereinabove
shall tantamount to an expression on the merits of the case.
A copy of this order be forwarded to learned trial court for information
and with directions to conclude the trial expeditiously in a time bound
manner, within a period of nine months.
(ANOOP KUMAR MENDIRATTA)
JUDGE
June 02, 2022/A
Signature Not Verified
By:DINESH CHANDRA
Signing Date:04.06.2022
12:36:26
