The reliability of dying declaration, admissibility of joint recovery, and the severity of the offence are crucial factors in deciding bail applications in serious criminal cases.

JUDGMENT

Jasmeet Singh, J. This is an application seeking bail in FIR No. 244/2020, dated 08.10.2020 under section 302/147/149/34 IPC, registered at PS-Kamla Market.

2.Brief facts of the case are:

The FIR was registered upon the statement of Vakil Mehto, who was a taxi driver. He would visit New Delhi Railway Station for picking up customers. For this reason, he was having enmity with one Munna @ Aaltay, who runs a travel agency. On 7.10.2020 at around 5pm, the deceased was on his way home when his vehicle was stopped near Minto Road, CNG pump and he was attacked by Aaltay and Sammi with lathis and dandas. While he was trying to save himself, three other people, namely Sammi(applicant herein), Aria and Bikki Sardar got off one White Scorpio, joined the attack and mercilessly beat the deceased Vakil Mehto with dandas as a result of which the deceased fell unconscious and the assailants fled from that spot in the white Scorpio. Pursuant to this incident, the son of the deceased Saheb Kumar reached the spot and rushed his father to RML hospital in an Auto. This resulted in filing of the FIR under section 307/34 IPC. However, this incident resulted in the death of the deceased on 13.10.2020 and subsequently, sections 302/147/149/34 IPC were added in the FIR.

3. The allegation against the applicant is that he was one of the assailants who had hit the deceased with dandas resulting in his death.

4. The status report has been filed indicating-

a. MLC of the deceased-The MLC dated 07.10.2020 states that "alleged history of physical assault on 07.10.2020 open fracture over right and left both bone left and both bone forearm left and blunt trauma over chest and abdomen."

b. Statement of the deceased-The I.O. tried to record the statement of the deceased but due to severe pain, he was unable to give his statement. However, on 08.10.2020, SI Jyotirmoy Pandey along with ASI Ganesh reached the RML Hospital when the doctor informed them that the injured is fit for statement. The statement of Vakil Mehto reads as "On 07.10.20 at about 05:00 PM while he was coming back to his house from Himmatgarh and reached near CNG Petrol Pump, Near Minto Road, New Delhi five people namely Munna, Shammi, Tammi, Arif and Vicky Sardar came in a white scorpio and came out of the car with bamboo sticks/Lathis and beaten him severely with intention to kill him. Thereafter, those person fled from the spot in that white scorpio."

c. Recovery of dandas(weapon of offence)-Three accused persons namely Afjal @ Tammi, Arif and Asif (applicant herein) were arrested on 09.10.2020 and as per their disclosure, the blood stained broken bamboo sticks were recovered on the instance of the above said accused persons.

d. Rivalry between the accused and the deceased-The deceased was the leader of Auto Rickshaws and Taxi drivers at New Delhi Railway Station and even the accused persons in the present case have their travel agency at the New Delhi Railway Station. Due to this business rivalry, the accused persons and the deceased frequently indulged in quarrels and the same was ongoing between them from two months before the date of incident.

e. FSL Result-The FSL result of the exhibits were received with remarks that "DNA profile generated from the source of exhibit `2. (blood stained cloth piece of deceased) is similar with the DNA profile generated from the source of exhibit `1. (piece of wooden danda)"

5. Mr. Jain, learned counsel for the applicant states that the statement of the deceased cannot be treated as an FIR as he cannot be in the witness box for his cross examination. In case the statement of the deceased is taken as a dying declaration, then he submits:

(i) The deceased himself gave contrary versions in his two statements and changed the name of the assailants in his supplementary statement.

(ii) Gurdev Singh @ Vicky Sardar was specifically named as an assailant in the statement/dying declaration of the deceased, however, the police neither charge sheeted him nor was he s