Point of Law: Grant of Bail - Offence of Murder - Charge in this case has already been framed and matter is now fixed for recording of prosecution evidence before the trial court - Trial shall take substantial time and petitioners cannot be made to stay behind bars till conclusion of trial.

JUDGMENT :

1. The petitioners in above captioned two petitions are seeking regular bail in FIR No. 95/2020, registered at police station New Usmanpur, Delhi. The FIR in question has been registered for the offences under Sections 302/308/201/147/148/149/174A/188 IPC against petitioner-Sunny @ Lalla and petitioner-Brij Mohan Sharma @ Gabbar, for the offences under Sections 149/308/302/201/188 IPC.

2. Since these petitions pertain to common FIR, therefore, with the consent of counsel for the parties, these petitions were heard together and are being disposed of by this common judgment.

3. The case of the prosecution is that on 26.02.2020, DD No. 167A was received at police station Usmanpur, Delhi that the caller has stated that in Gali No. 2, pushta Kartar Nagar, the rioters having lathis in hands are breaking the gates of houses of persons of other community and trying to enter in their houses. Another DD entry vide DD No. 164-A was also received from Jag Pravesh Chandra Hospital regarding an injured person, namely, Irfan, aged around 25 years being admitted in the hospital. Both the calls were assigned to ASI Naushad, who reached the hospital and collected the MLC, wherein the doctor had written that “the patient brought to casualty with alleged history of physical assault, riot and patient unfit for statement.” On the basis of DD No. 167 A, the FIR in question was registered. Later, the injured-Irfan succumbed to the injuries sustained.

4. In the post mortem report, the reason of death is opined as “shock as a result of ante mortem injury to head produced by blunt force impact. Injury No. 9 to 14 is sufficient to cause death independently and collectively. All injuries were ante mortem in nature and produced blunt force impact”.

5. During investigation, statement of mother of deceased, Kuresha, who is allegedly the only eye witness to the incident, was recorded under Section 161 Cr.P.C. wherein she stated that on 26.02.2020 at about 07:30 PM, she along with her son, deceased Irfan, was going to fetch milk, and when they reached Gali No.2, 8 or 10 persons of their locality were standing and they attacked Irfan with iron rod, bat and iron pipes. She named four attackers as Gabbar, Lalla, Pankaj and subzi wala, whom she could identify being resident of the same locality. Her statement under Section 164 Cr.P.C. was also recorded before the learned Metropolitan Magistrate wherein she named Gabbar, Lalla, Pankaj and Rohit as the persons who attacked his son.

6. In view of statement of this eye witness, the petitioners herein were arrested on 28.03.3020 and in their disclosure statements they admitted having been involved in the alleged incident with other co-accused. However, they refused to undergo Test Identification Parade (TIP proceedings). Further investigation was carried out and exhibits were sent to FSL for opinion. After completion of investigation, charge sheet in this case was filed before the trial court on 23.06.2020 and supplementary charge sheet was also filed on 31.12.2020.

7. Bail application of petitioner-Sunny @ Lalla was dismissed by the trial court on 19.05.2020 and 15.03.2021 and that of petitioner-Brij Mohan Sharma was dismissed on 24.11.2000 and 05.03.2021. Thus, the petitioners are before this Court.

8. At the hearing, Mr. Sanjiv Dagar, learned counsel representing petitioner Sunny @ Lalla [in BAIL APPLN. 1413/2021] submitted that name of petitioner was not mentioned in the FIR in question and he has been arrested on 28.03.2020 without substantial material evidence against him in this case.

9. Learned counsel submitted that the prosecution has relied upon the testimony of sole eye witness, Kuresha, mother of deceased who in her statement under Section 161 Cr.P.C. has stated that she along with deceased was going to fetch milk just before the alleged incident and when her son was attacked by a group of rioters and he got injured, she ran home and informed her brother in law’s son-Nafees about the incident, who along