BRAHAM PRAKASH DHIKIA Vs. STATE

JUDGEMENT

(1.) THIS is an application u/s 439 Cr.P.C for grant of bail in FIR No.278/2013 Police Station Nand Nagri u/s 302/120 -B/34 IPC and 25 of Arms Act.

(2.) AS per the case of the prosecution, the aforesaid FIR was registered in pursuance to a PCR call recorded vide D.D.No.5 -A dated 1.6.2013 in Police Station Nand Nagri that a person has been shot at in front of market of A -4, Nand Nagri, Budh Vihar Dharamshala. Upon receipt of the said information, SI Nitin along with Constable Charan Pal had gone to the spot where it was revealed that injured had been shifted to SDN Hospital. Thereafter the police reached the said hospital and MLC of injured Kanwar Pal Singh was obtained. The injured Kanwar Pal Singh was shifted to the Trauma Centre. As per prosecution case, no eye witness was available at the SDN Hospital and at the Trauma Centre. On the basis of information received, case u/s 307 IPC was registered. On the same day, the statement of Dilawar Singh s/o injured was recorded by the IO u/s 161 Cr.P.C wherein he had alleged that for the past few days, his father had been telling him that the present petitioner and co -accused persons namely Sandeep and Sriniwas and one Sunil Rathi had been threatening him by saying that he had to work as per them otherwise he had to face the dire consequences. He had also alleged that aforesaid persons were giving threats to kill his father. Further on the day of occurrence, son of deceased had gone with him in order to leave him at his office and when they had reached at A -3, Nand Nagri, two persons had come and had fired at his father. The son of deceased had alleged that his father had told him that co - accused Sriniwas was driving the motor cycle and co -accused Sandeep was pillion rider who had shot at him. Further, allegations are that his father also told him that same was done with the conspiracy of the present petitioner. On the same day, police had recorded the statements of Kumari Rinku, Municipal Councilor of On 8th Nand Nagri Area, Gyan Singh, Vinod Kumar and Subhash. June, 2013, the victim had died in the hospital. It is alleged that on the said date , the statement of public witness Tahir was recorded by the IO. As per investigation, Tahir is alleged to have seen the occurrence. As per him, after the occurrence present petitioner had come on a motor cycle and looking towards the deceased had abused him and went away by saying "DEKHA HAMARE KHILAF AAWAZ UTHANE KA NATEEJA". It is further alleged that the deceased had told Tahir that the present petitioner was the main conspirator in the episode.

(3.) LEARNED senior counsel for the petitioner has contended that the present petitioner has been falsely implicated in the present case. It is contended that the alleged statement of Dilawar Singh son of the deceased was recorded on 1.6.2013 wherein no active role has been assigned to the present petitioner. It is submitted that even the allegations made by son of deceased that threats were being given by the petitioner along with two co -accused persons to the deceased are false. Learned senior counsel submits that the present petitioner was not present at the time of alleged occurrence. Learned senior counsel has referred to the statements of other P.Ws i.e., Kumari Rinku, Gyan Singh, Vinod Kumar and Subhash recorded by the IO during the course of investigation. It is contended that as per statements of aforesaid witnesses, no eye witness was present at the time of alleged occurrence and it is PW Vinod who had taken the deceased to the hospital. It is further contended that the version of the aforesaid witnesses is contrary to the statements of Dilawar Singh and public witness Tahir. It is further contended that public witness Tahir has made statement after seven days of alleged occurrence. It is contended that reading the statement of other P.Ws recorded by the prosecution, it cannot be said that Dilawar Singh and Tahir were present at the time of alleged occurrence. It is contended that had they been present, they would have taken the deceased to the hospital. It is further contended that call details of Tahir also show that he was not present at the time of alleged occurrence.