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IN THE HIGH COURT OF DELHI AT NEW DELHI
Tushar Rao Gedela, J.
Varsha @ Rahul Singh – Appellant
Versus
State NCT of Delhi – Respondent
Bail Appln. 559 of 2023
Decided On : 13-09-2023
Regular Bail - Criminal Procedure - FIR No. 289/2020, u/s 302/34 IPC, 1860 & 25/27 Arms Act, 1959 - [Regular Bail] - [Criminal Procedure] - [Section 439 Cr.P.C, 1973] - [IPC 302/34, Arms Act 25/27] - The court analyzed the statements of witnesses, confessional statements, and electronic evidence to determine the applicant's involvement in the alleged offenses. The lack of specific imputation against the applicant and the absence of corroborative evidence led the court to grant bail to the applicant.
Fact of the Case:
The applicant sought regular bail in a case involving charges under IPC 302/34 and Arms Act 25/27. The prosecution alleged that the applicant conspired to eliminate the deceased and hired a shooter to commit the offense.
Finding of the Court:
The court found that the statements of witnesses and confessional statements did not specifically implicate the applicant in the offenses. The court also considered the electronic evidence, which did not conclusively establish the applicant's involvement. As a result, the court granted bail to the applicant.
Issues: The issues revolved around the sufficiency of evidence to establish the applicant's involvement in the alleged offenses, the credibility of confessional statements, and the significance of electronic evidence in determining the applicant's actions.
Ratio Decidendi: The court's decision was influenced by the lack of specific allegations against the applicant, the absence of corroborative evidence, and the inconclusive nature of the electronic evidence. These factors led the court to grant bail to the applicant.
Final Decision: The court granted bail to the applicant on the conditions of surrendering the passport, cooperating in the trial, providing mobile numbers to the police, refraining from criminal activity, and not tampering with evidence. The court emphasized that any violation of these conditions would result in the revocation of bail.
JUDGMENT
Tushar Rao Gedela, J.
[The proceeding has been conducted through Hybrid mode]
1. The present application is being filed under section 439 Cr.P.C, 1973 seeking Regular Bail in FIR No. 289/2020, u/s 302/34 IPC, 1860 & 25/27 Arms Act, 1959 at P.S. GTB Enclave, Delhi.
2. Mr. Kirtiman Singh, learned counsel appears on behalf of the applicant and submits that the Applicant has been in judicial custody from 31.10.2020 till date and incarcerated for a period of 2 years 10 months approx.
3. Mr. Singh submits that the brief facts of the case as alleged by the prosecution are as under:
(i) On 05.09.2020, the information was received regarding shooting of a deceased by some unknown persons. Later, it was found that it was Ekta Joshi (deceased/victim herein), who have been shot by two unknown assailants. It is further stated by the prosecution that by the time they reached at the spot, injured was already taken to the Max Hospital, where Ekta Joshi was declared dead.
(ii) That on reaching at the spot again, alleged eye witness Ashish Joshi and Anita Joshi were found present and statement of Ashish Joshi was recorded which later on, was sent for the registration of the case. It is the case of the prosecution that the deceased along with Ashish Joshi and Anita Joshi at around noon went to Laxmi Nagar, Delhi in their car Brezza No. DL-S-CN-2577. Then at around 8.30 PM, they all returned home, and as soon as the deceased stepped out from the car, two persons came riding a Scooty and then shot at the deceased Ekta Joshi 3-4 times.
(iii) It is the matter of fact as per the prosecution that during the investigation, CCTV footages of cameras installed around the scene of crime by the Delhi Government was downloaded and analysed. That on the detailed analysis of the CCTV footages, it was found that the two persons were taking rounds of the road around the residence of the deceased. The two persons were later revealed to be Aamir (rider) and Gagan Pandit (pillion rider).
(iv) It is submitted that as per the prosecution case, a secret informer disclosed the involvement of Manjur Ilahi (co accused in the present case). Thereby, the concocted story of the prosecution begins, whereby it was stated that due to the hostile attitude of the deceased towards co-accused Manjur Ilahi and Simran and Varsha (Applicant), the co-accused and the applicant conspired to eliminate the deceased and hired Gagan Pandit for Rs.55,00,000/- to kill the deceased Ekta Joshi.
4. According to Mr.Singh, there is no evidence, oral or documentary placed on record by the prosecution to even prima facie show the culpability of the applicant in any of the offences.
5. Learned counsel draws attention of this Court at the outset to the statements of the witnesses recorded under Section 161 Cr.P.C., 1973. According to Mr.Singh, a plain reading of the statements made by prime witnesses would at best or at worst, show that the applicant was known to the accused persons as also the deceased Ekta Joshi being part of the same community. Other than that, none of the witnesses have ascribed any active role to the applicant.
6. In support of the aforesaid submission, learned counsel refers to the statements under Section 161 Cr.P.C. of Anita Joshi (PW-3) who according to the prosecution is one of the prime witnesses of its case alongwith Sheikh Jamila, Sanjana & Gori Sharma. He submits that neither the PW-3 nor any witness have given any specific statement or particular allegation or any proof as to complicity of the present applicant. All that they have said in their statements is that the applicant would accompany the main accused Simran at all the meetings (Sammelans) of the community and specifically stated that it was the co accused who alone would extend alleged threats to the deceased.
7. In fact, by referring to the cross examination of PW-3 Anita Joshi, placed subsequently on record, Mr.Singh submits that even in their examination or cross examination, no such statement incri
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