Point of Law : Rejection of Bail - Several of co-accused are still absconding - There is a likelihood of applicant also jumping bail and flee from justice since many of his associates are yet to be apprehended.

JUDGMENT :

Chandra Dhari Singh, J.

1. The instant application has been filed under Section 439 of the Code of the Criminal Procedure, 1973 (hereinafter “Cr.P.C.”) on behalf of the applicant seeking regular bail in FIR No. 07/2021 under Section 302/147/148/149/34 of the Indian Penal Code, 1860 (hereinafter “IPC”) registered at PS Khyala, New Delhi.

2. Brief facts of the matter are that the complainant, Jitender Kumar Mehta, is the brother of the deceased, Satender @ Bhola, and he lodged the instant FIR against the instant applicant and his associates who have been accused of killing the deceased.

3. On the day of the incident the complainant was returning from his Café when he received a phone call, at about 1:30 am, from one Nitin @ Lussy, a friend of the deceased, who informed him that the deceased had a money issue with one Vicky who was making excuses to pay back money to the deceased. Both the deceased and Nitin went to the house of the accused Vicky to take back the said money and found Vicky consuming alcohol outside his house alongwith two other people. When the deceased asked for his money, accused Vicky started abusing him and conversation between them became heated.

4. Thereafter, accused Vicky called upon three-four other boys and all of them together starting assaulting the deceased and his friends. Accused Vicky picked up a baseball bat and stated hitting the deceased on his head and kept hitting him repeatedly till he became unconscious. When the complainant reached the spot of the incident, he found the deceased lying of the road with his head torn and blood scattered in the street. The complainant took the deceased to the hospital where he was declared ‘brought dead’ . Subsequently, FIR No. 07/2021 was lodged by the complainant. The instant applicant was arrest at the instance of one Pankaj Mehta on 2nd September, 2021.

5. Learned counsel appearing on behalf of the applicant submitted that the instant applicant is innocent and has been falsely implicated in the case only on the statements of the co-accused. There is no evidence against the applicant connecting him, directly or indirectly, to the assault and the consequent murder of the deceased.

6. It is submitted on behalf of the applicant that the instant FIR was lodged on the basis of hearsay statement and the same does not name him. Further, the prosecution witnesses Nitin and Pradeep @ Mannu @ Manish, in their statement, did not name the applicant and would not have been able to identify him had they had been confronted. The statements of the prosecution witnesses do not reveal any role or over act of the applicant in the entire incident. It is submitted that even the CCTV footage of the incident does not show that the applicant had assaulted the deceased. There are serious and material contradictions between the oral evidence and the footage of CCTV.

7. Learned counsel for the applicant submitted that the applicant is a student and has no criminal history and he is not required for the investigation as the challan against him has already been filed. The learned counsel for the applicant, on instructions, undertakes that the applicant shall abide by all conditions that may be imposed upon him.

8. Per Contra, Ms. Kusum Dhalla, learned APP for the State vehemently opposed this instant application and submitted that the applicant was present on the spot at the time of the incident and was actively involved in the murder of the deceased. He was duly identified by the eye-witness Nitin.

9. It is submitted that the applicant brought accused Arun @ Rikki and accused Shahnawaz with him to the scene of crime. It is further submitted that the co-accused Hemraj and other accused persons named the applicant, stated his active involvement and specified his role in the murder of the deceased.

10. Learned APP for the State informed the Court that proclamation proceedings under Section 82 of the Cr.P.C. were initiated against the applicant since he was absconding. It is submitted th