AMAN KUMAR MAHAJAN Vs. STATE DELHIADMINISTRATION

JUDGEMENT

(1.) Aman Kumar Mahajan @ Vicky has been charged under Section 302/120-B/34, IPC, in the murder of S/Shri Ved Prakash and Gureharan Kumar @ Lali. The brief facts leading to the filing of this petition are that on 7.6.91, S.H.O. Police Station Saraswati Vihar was present in the area when he received an information on wireless at about 725 a which he alongwith other officials reached road No. 4S DDAPark opposit Chanderlok and found S.I. Gurnam Singh alongwith other official two wheeler scooter bearing No.DDR 5602 was also found parked at the spot where many persons were present and blood was also found at the spot There was no eye witness of the incident at the spot. S.I. Gurnam Singh was left at the spot and the SHO went to ESI Hospital and collected the M.L.C Prakash Kohll who was declared as brought .dead. He also collected the M.L.C of Gureharan Kumar @ Lali who was admitted in the Hospital wiht injurues and that Gureharan Kumar was declared to be fit for making stetment by the doctor. His statement was recorded by S.H.O. It was, injter alia stated by him that he was learning driving and at about 1.30 a.m of the night between 6th and 7th June, 1991, was sleeping on the roofofBusNo.D.E.P.3771 parked near Punjab National Bank, Rishi Nagar and on that day i.e. 7.6.91 at about 6.00 a.m. Ved Prakash @ Veda known to him earlier came and they both went to D.D.A. Park, Chanderlok for morning walk. He went on to state that the scooter of Ved Prakash was parked on Road No. 44 near the gate of the park. It was further stated by him that scooter DDR 5602 was being driven by Ved while he was sitting on the pillion seat when they reached near Lok Vihar one two wheeler, scooter came from behind on which there were three persons. It was further stated by him that there was a firing at him from behind on account of which he fell down and thereafter he did not know what happened and he found himself in the hospital. Rukka was sent by S.H.O. to police station on the basis of which case was registered. On 9.9.91 the accused Harish @ Goga and Nand Kumar @ Balwa were arrested by incharge of P.P. Okhla Phase-11 under Sec. 41(2), 109 Cr.P.C. and during the investigation both these accused gave disclosure statement before the Incharge of P.P. Okhia about the present case and according to prosecution in this disclosure statement both the accused told to the Incharge of P. P. Okhia that on 6.6.91 at about 8.00 p.m. both the accused alongwith Devender @ Kala, Bitta, A jay Yadav and Aman Kumar, Petitioner, hatched a conspiracy in Lal building school to kill Veda and during this period Bitta gave the Revolver to Devender @ Kala. Ajay Yadav gave a knife to Harish and petitioner arranged a scooter for the accused and handed over the sune on.the spot and according to conspiracy or pre-plan Devender @ Kala, Nand Kumar @ Balwa and Harish @ Goga committed murder of Veda and Gurcharan. After three days Kuldip @ Bitta and Aman Kumar-petitioner, met Devender @ Kala near K.M. College and the scooter was returned to the petitioner and the revolver was returned to Kuldip 'a) Bitta (according to disclosure statement of Devender @ Kala at Police Post Shakur Basti). Petitioner was arrested on 19.12.91. Petitioner made a disclosure statement that he arranged the scooter from Mr. Shyam Lal on 6.6.91. The scooter used by the accused persons was recovered on 20.12.91 at the instance of the petitioner, which was parked outside the house of the petitioner i.e. from a common person.

(2.) It is the case of the petitioner that the only eye witness Jitender Bhatia has been examined by the police on 15.9.91, i.e. after the arrest of the main accused, but the said witness has not disclosed either the colour of the scooter or the number of the scooter: Allegation against the petitioner are based on the disclosure statement of co-accused Devender Kumar who has already been granted bail. Even this disclosure statement is hit by the provision of law and cannot be relied upon for implicating the petitioner. Petitioner was not present at the spot of the incident, nor participated in inflicting any injury to the deceased persons. In order to invoke the provision of Section 34, petitioner's physical presence at the spot where the injuries were inflicted is necessary. Moreover the concerned scooter did not belong to the petitioner and as such the petitioner could not have made any disclosure statement. So far the identity of the scooter has not been established. The said scooter has not yet been identified by the eye witness. For all these reasons the petitioner is entitled to bail. Admittedly, in this case co-accused Devender Kumar has already been granted bail by this Court. It is also not the case of the prosecution that the scooter belonged to the p3titioner. Identification of the scooter has not yet been established. Colour of the scooter has not been given either by the deceased or by Jitender Bhatia. Petitioner was apprehended after the main accused was apprehended and his involvement is on account of the statement made by the co-accused.

(3.) This application has been contested by Mr. S.K.. Aggarwal, Counsel for the State as well as by Mr. Tilak Raj Kohli father of the deceased Ved Prakash. on the ground that the conspiracy was hatched by the petitioner in pursuance to which he supplied the scooter and that if this pititioner is allowed the bail there is every chance of tampering with the evidence.