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IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBRAMONIUM PRASAD, J.
In the matter of : Farman - Petitioner
Versus
The State - Respondent
Bail Appln. 291 of 2021
Decided On : 26-03-2021
Indian Penal Code, 1860 - Sections 365, 302, 201, 120B, 34 and 506 – Criminal Procedure Code, 1973 - Section 161 - Section 164 - Grant of bail – Murder - Deceased, Farman/petitioner herein and one Vakil were co-accused in many cases and that differences had developed between deceased and other co-accused - Deceased was shot in his presence by petitioner.
Finding of the Court:
Even if statements before Magistrate, which though are only used for purpose of contradiction, are to be believed to be correct that deceased was shot dead by petitioner herein but dead body which has been recovered and identified by family members of deceased as one of Firoz does not contain any bullet wounds - In view of fact that 26 witnesses have been examined and co-accused has been granted bail and petitioner has already been in jail for last two years and ten months this Court is inclined to grant bail to petitioner.
Result: Bail application is disposed of
JUDGMENT :
Subramonium Prasad, J.
1. The petitioner is seeking bail in FIR No. 465/2017 dated 21.04.2017, registered at Police Station New Ashok Nagar, Delhi for offences punishable under Sections 365, 302, 201, 120B, 34 and 506 IPC.
2. The brief facts leading to this bail application are as follows:
(b) The statement of the complainant was recorded wherein he has stated that his son, Firoz (hereinafter referred as 'the deceased') left home on 11.04.2017 at about 5:40 PM to meet one Gopal. FIR No.465/2017 dated 21.04.2017, was registered at Police Station New Ashok Nagar, Delhi for offences under Sections 365 and 34 IPC. During investigation it was found that the deceased, Gopal, Farman/petitioner herein and one Vakil were co-accused in many cases and that the differences had developed between the deceased and the other co-accused. The investigation in the case was transferred to the Crime Branch.
(c) During investigation the statement of one Monty was recorded. In his statement, he stated that the deceased was shot in his presence by the petitioner herein, one Raja and other associates at a place around 30-35 Km away from Kanpur. The said Monty also disclosed that since he and Vakil were present there, they were dragged out of the car by the petitioner herein and Raja. It is stated that he succeeded to escape but Vakil was caught by the petitioner herein and Raja, who threatened him of dire consequences if he disclosed the incident to anyone. Gopal was arrested and he disclosed about his involvement and the involvement of the petitioner, Raja, Deepak and Vishal. It was disclosed by Gopal that prior to the murder of the deceased they stayed at Hotel Swami at Kanpur. The evidence of stay of the accused and the deceased was obtained by the Investigating Officer. As per the disclosure, the place where the deceased was shot was identified and formalities were completed. It was disclosed that the dead body of the deceased was thrown into Gang Nahar, Bulandshahr.
(d) One unidentified body was found in April, 2017 in District Bulandshahr. Photographs of the dead body were taken and the dead body was identified by photographs by the family members of the deceased. However the DNA could not be generated from the teeth and bone of the dead body.
(e) Statements of Monty and Vakil were recorded under Section 161 Cr.P.C. They were also produced before the Magistrate and their Statement under Section 164 Cr.P.C. were also obtained. The petitioner was arrested on 14.05.2018.
(f) On the statements under Section 164 Cr.P.C., made before the Magistrate, Section 302, 201 and 120B IPC were added in the present case.
(g) Charges were framed. The petitioner and the other accused denied the charges and claimed trial.
(h) During trial the eye witnesses, Vakil and Monty, turned hostile and have not supported the case of the prosecution. Material on record also discloses that the other relevant witnesses have also not supported the case of the prosecution.
(i) Co-accused Gopal has been granted bail by this Court vide order dated 21.01.2021 in Bail Appln.189/2021.
(j) The petitioner herein has filed the instant bail application for grant of bail on the ground of parity.
3. Mr. Akshay Chandra, learned counsel for the petitioner states that the petitioner is in custody since 14.05.2018. He would contend that the eye-witnesses have turned hostile. He contends that the eye-witnesses during the investigation had stated that the petitioner had shot the deceased and since the eye-witnesses
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