SURESH @ BUBBY Vs. STATE

JUDGEMENT

(1.) This is an application for anticipatory bail filed by the Petitioner in case FIR No. 148/2010 under Sections 302/120B/34 IPC read with Sections 25/27 of the Arms Act registered at PS Vasant Vihar on the complaint of one Laxmi Devi.

(2.) The prosecution case in brief is that on the night of 3rd/4th April, 2010 one Harvinder @ Binder was killed at his shop. The Complainant/Laxmi Devi in her complaint stated that her younger brother Harvinder @ Binder was residing with her for the past 14 years and running the shop of mobile, CD and videogames in F-66 and A-88, Katwaria Sarai. The family of Harvinder was living in Barthal where he used to visit once a week. On the date of incident at about 11:30 PM like daily routine, she brought meal for her brother at the shop and alter taking the meal both of them were talking when two boys at around 12:00 O'Clock came inside the shop, one of them icling on the other side of counter asked her brother whether he knew who he was. On saying this both of them took out their pistols and pointed towards Harvinder, who while standing up from the chair, tried to snatch the pistol from one of them. Both of them fired a number of bullets on Harvinder with the result blood oozed out of his body and he collapsed on the floor. After firing both of them fled away. On making noise, some people from nearby came and called the police. Her brother was taken to the hospital where he was declared dead. She stated that she could identify the boys who committed the murder of her brother if produced before her. She suspected the boys of Katwaria Sarai namely Nitin, Rahul, Sushil, Manoj and Anand being involved in the murder of her brother as they had given beating to her brother two years back and were threatening him during this period.

(3.) Learned counsel for the Petitioner contends that the Petitioner was not at the spot. No overt act is attributed to him as far as the murder is concerned. There is no witness who has stated that the Petitioner was present at the time of commission of offence. The only allegation against the Petitioner is that he conspired with the other co-accused to commit the offence and paid some amount to Ashok Rathi, the gang leader. It is contended that the only evidence for this allegation is the disclosure statement of the co-accused which are inadmissible in evidence. Moreover, Ashok Rathi to whom it is alleged that the Petitioner paid the amount has not been charge sheeted as an accused as no sufficient evidence was found against him. Besides this the prosecution is relying on the statement of Aman Sharma. The statement of Aman Sharma has been recorded belatedly and all that he has said is that he heard from his balcony the petitioner talking to three four people and saying "Binder ko dekh lenge". Aman Sharma was present at the place of incident and had taken the deceased to the hospital yet the statement was recorded only on 18th September, 2010, that is, four days before the filing of the first charge sheet. Even taking the statement of Aman Sharma on its face value it cannot be said that the Petitioner entered into conspiracy to commit the murder of the deceased. It is highly unnatural that a conspiracy would be hatched in the open where the public at large can hear the conspirators. The Petitioner relies upon the decisions in Anter Singh v. State of Rajasthan, 2004 10 SCC 657; Satpal vs. State of NCT of Delhi, Bail Application No. 65/2008 and Parvez Akhtar vs. State, 2006 III AD Criminal DHC 697.