Point of Law: Grant of Bail - Injuries/Wounds/Weapons - Murder - Petitioners even though were present as members of a mob at Gali No. 1 Akhadewali gali after 11.00 PM when some members of this mob were armed however there is no material even prima facie on record to show that petitioners were members of mob that was present at Gali No. 1 Brahmpuri at around 10.30 P.M. which mob indulged in pelting stones causing injuries to Nitin and death of decased, this Court deems it fit to grant bail to petitioners.

JUDGMENT :

MUKTA GUPTA, J.

1. By these petitions, petitioners seek regular bail in case FIR No. 153/2020 under Sections 302/307/188/147/148/153/323/505/435/ 120B/34 IPC registered at PS Jafrabad, Delhi.

2. Learned counsels for the petitioners contend that the petitioners were not named in the main charge-sheet filed on 27th June, 2020 which was filed against Arshad @ Sonu, Aleem Saifi, Javed Khan and Naved Khan. Aleem Saifi has already been granted bail by the learned Additional Sessions Judge vide order dated 26th November, 2020. The entire case of the prosecution is based on the statements of two constables namely Constable Deepak and Constable Rajeev who were examined on 14th July, 2020 and 21st July, 2020 respectively, who identified the people who were seen in the footage of CCTV installed by the PWD at Gali No. 1, Akhadewali Gali on 24th February, 2020. The alleged incident took place at around 10.30 PM in Gali No. 1, Brahmpuri which is on the opposite side of the main road towards a distance and none of the accused was seen near Gali No. 1, Brahmpuri at the relevant time. Merely because the petitioners along with the other people of the gali Akhadewali, in view of the informations which were pouring in, gathered at the corner of the gali at around 11.10 to 11.15 PM on 24th February, 2020 the same would not be attributed the common object of the mob which committed the murder of Vinod and caused injury to Nitin in Gali No. 1, Brahmpuri.

3. Learned counsel for Shabir Ali further states that even as per the prosecution, Shabir Ali is seen for just two seconds coming out of the gali wearing vest and is admittedly not armed with any weapon. Even the face of the person in vest is not clear to be that of the petitioner. Constable Rajeev who was examined on 21st July, 2020 in the absence of a clear picture of Shabir Ali strangely is in a position to give even the parental details of the petitioner. The CDRs of the petitioner have no relevance for the reason, the petitioner is a resident of the said gali and thus his location would be in the gali. No injured witness had stated that the petitioner was part of the mob which caused injuries to Nitin and Vinod Kumar resulting in death of Vinod Kumar at gali No. 1 Brahmpuri.

4. Learned counsel for Mehtab @ Fulley states that the petitioner has been identified on the statement of Constable Deepak and is in custody since 16th July, 2020. Nitin in his statement has not stated anything about the petitioner. The only evidence against the petitioner is the CCTV footage at Gali No. 1, Akhadewali Gali which is not the place of incident. As per the rough site plan the CCTV is shown next to point ‘B’ where motorcycle of Nitin is parked however, the charge-sheet is silent about the footage from the CCTV installed at Point ‘B’ which has neither been relied upon nor given to the accused. Even according to Nitin, the mob came from No. 2, Kalyanwali Gali which is opposite to Brahmpuri Gali and not from Gali Akhadewali. Mehtab who is seen at Gali Akhadewali is unarmed and does not appear to be going aggressively as a mob but a curious onlooker. In the scaled site plan, the camera adjacent to ICICI ATM shown in the rough site plan is missing. Further there were cameras installed even at Gali Kalyanwali however, no footage from the said CCTV has been collected. Statement of Constable Deepak recorded after a period of four-five months of the incident cannot be relied upon. Reliance is placed on the decisions reported Rohit @ Nanhe vs. State, 2014 SCC Online Del. 2136 and Noor Fatma vs. The State Govt. of NCT of Delhi, Crl. Rev. Pet. No. 164/2015 decided on 20th October, 2016.

5. Learned counsel for Rais Ahmed states that from Annexures-P-7 to P- 20 filed with the petition it is evident that the petitioner has been falsely implicated. The petitioner was rather helping the police at the relevant time to maintain peace and harmony when riots took place. Further two FIRs for the same offence have been registered