JUDGEMENT

1. The present petition has been filed under Section 439 CrPC read with Section 482 CrPC seeking regular bail in connection with FIR No.2/2014 under Sections 302/34 IPC and Sections 25/27 of Arms Act registered at Police Station Kamla Market.

VIKAS MAHAJAN, J. (ORAL)

2. The case of the prosecution is that on 02.01.2014, a person namely Sarfaraz came to Police Station Kamla Market and stated that a girl namely Neha has been found dead at first floor of Kotha No. 57, G.B. Road, Delhi BAIL APPLN. 2331/2023 Page 2 of 8 and accordingly, a DD Entry No.20A was lodged which culminated into present FIR.

3. In the FIR Sarfaraz, who was care taker of that particular Kotha, stated that he reached the said premises at about 09:45 a.m. and inquired whereabouts of Neha and he got to know that a day before at about 11:00 p.m. she had gone to her room with one of his regular customer and has not come downstairs in the morning like normal days.

4. The police initiated the investigation, the petitioner and another co- accused namely, Yogesh were arrested and their disclosure statements were recorded on the basis of which alleged offence weapon i.e. knife and their clothes were recovered.

5. The learned counsel for the petitioner submits that the case of the prosecution is improbable vis-a-vis last seen theory. Elaborating further, he submits that FIR in question was registered at about 12:30 p.m. on 02.01.2014, however, it does not mention the name of the present petitioner.

6. He invites the attention of the Court to the testimony of the chowkidar of the kotha namely, Vasudev Pandey @ Vasu Nepali, who was examined by the prosecution as PW-5, to contend that he has specifically mentioned that the petitioner was present with deceased Neha, on the previous night.

He further contends that though PW-5 has admitted that he was present at kotha at about 10:30 am to 11:00 am when the police arrived and Sarfaraz was also present at that point of time on whose statement the FIR was registered, but the presence of the petitioner with Neha on the previous night does not find mention in the FIR. According to the learned counsel, the FIR only records that an unknown person has committed the murder of Neha.

7. He submits that from the testimony of PW-5, it is also apparent that BAIL APPLN. 2331/2023 Page 3 of 8 apart from the accused persons, there were other persons who were also present in different rooms of the kotha, as well as, in the hall, therefore, the possibility of third party intervention cannot be ruled out.

8. He further submits that deceased Neha was found wearing clothes including a jacket which was bearing the cut marks which itself goes to show that the deceased were not was not having any sexual activity.

9. According to the learned counsel, even the chance fingerprints which were lifted from the spot were not found matching with the present petitioner.

10. He submits that recovery of weapon and clothes is also doubtful, in as much as, the police official SI Rakesh Kumar, who was examined as PW-25 and who is witness to the disclosure statement, as well as, to the recovery, has not supported the case of the prosecution. Further, no independent witness was associated for the recovery of offence weapon and clothes of the petitioner.

11. Inviting the attention to the testimony of PW-25, the learned counsel submits that the said witness has rather stated that the accused had not made any disclosure about the recovery in his presence nor the I.O. asked the accused about the location of the knife when they were travelling to the spot of recovery in question. Another official witness i.e. HC Pardeep Kumar, who was examined as PW28, also deposed on the same lines as he stated that the IO in his presence did not ask the