BRIJ MOHAN ALIAS MOHAN ALIAS PAPPU Vs. STATE

JUDGEMENT

(1.) This is an application for bail by one of the accused. I have heard the parties at length. In this case the only role assigned to the petitioner is that of exhortation and not handling fire arm or taking part in actual shooting which resulted in killing of one person and injuries to another.

(2.) As per the allegations contained in the charge-sheet, one Pawan Kumar Gulati alongwith his cousins who had their office at 26, Parda Bagh, Darya Ganj, New Delhi had come down to his office at 4.30 p.m. allegedly to go back to his house. While they were standing on the side walk near the car, the petitioner and his brothers Mohar Singh and Jai Chand alongwith a fourth un-identified person came from their office across the road, also in Daryaganj, in white Maruti Car. It is further alleged that the car by which the petitioner was travelling was being driven by his brother Mohar Singh, the principal accused, who turned back the car and stopped it near the deceased and his cousins. Mohar Singh came out of the car. Jai Chand and the petitioner came out of the car and exhorted their brother Mohar Singh to finish the deceased and others. It was at that time Mohar Singh took out the revolver and fired at the complainant Raj Kumar and his cousins who were injured with bullet injuries. As a consequence thereof, the deceased Pawan Gulati succumbed to the injuries before reaching the L.N.J.P. hospital. The prosecution has alleged bad blood between the victims and the assailants on the ground of some previous dispute which led to registration of a case under Section 324 of Indian Penal Code . vide FIR No. 435/95. On further checking up, it is found that the present petitioner is not named in the said FIR. On the first day, the counsel for the complainant who was permitted to assist the Court pointed out that the petitioner apart from his brothers was a history sheeter. For that reason I wanted to check up the details in the history sheet and had adjourned the matter to 30th May, 1997. The Investigating Officer has filed an affidavit wherein he has categorically stated that in the complaint against the petitioner and his brothers the complainant in the supplementary statement had stated that the petitioner was not present at the place of occurrence and that the charge-sheet was not presented against the petitioner. Therefore, to that extent the information of the counsel for the complainant was incorrect. The second matter which was registered under section 107/150 of Cr.P.C. because of alleged incident of 15th February, 1997 reported vide D.D. entry No. 14, was also found not to be a fit case for proceeding against the petitioner and the petitioner in this case was also discharged. Nothing by way of history sheet could be produced before me in respect of the present petitioner. It appears that there is bad blood on both sides. However, despite best efforts the respondents have not been able to make good even one allegation of the petitioner's involvement in any of the incidents alleged against him. The petitioner is not having any other case pending against him. Admittedly, there cannot be a case against the petitioner under Arms Act as he was not having any arm on his person at the time of the incident nor was he in any manner actively participating in the shoot-out. Exhortation is altogether different from participation.

(3.) Mr. Lekhi has relied upon the following decisions of the Hon'ble Supreme Court and a decision of this Court which are set out as mentioned hereunder:-