Mr. Jitender Sethi, Senior Advocate with Mr. Hemant Gulati, Mr. Shobit Demri, Mr. Keshav v. STATE GOVT. OF NCT OF DELHI

Judgment

1. The present application under Section 439 of the Code of Criminal Procedure, 19731 seeks regular bail in FIR no. 566/2018 for offence under Section 302 of the Indian Penal Code, 18602 registered at PS: Mukherjee Nagar. Subsequently, chargesheet was filed under Sections 307/302/120- B/109 read with Sections 114/115 of the IPC and 25/27 of the Arms Act,

2. Briefly stated, the case of the prosecution, is as follows: 1 “CrPC” 2 “IPC” Signature Not Verified Digitally Signed By:AKANSHA SINGH Signing Date:20.05.2025 20:17:48 BAIL APPLN. 3129/2024 Page 1 of 11

2.1 On 10th October 2018, at approximately 9:40 PM, a PCR call was received at Police Station Mukherjee Nagar reporting a gunshot incident near Dheerpur, in the vicinity of Sisodia Tent House. The information was recorded vide DD No. 64-A and was assigned to Sub-Inspector Prempal for inquiry and necessary action.

2.2 SI Prempal, accompanied by other police personnel, reached the scene of crime. They were informed that the injured individual had been taken to BJRM Hospital, Jahangir Puri. At the hospital, he obtained the MLC of Shyam Sunder, who had been declared dead during treatment.

2.3 The crime scene was examined and photographed by the Crime Team. One live cartridge and one spent cartridge were recovered from the scene and seized through a seizure memo. No eyewitnesses were located either at

the hospital or at the spot. Based on the DD entry, an FIR was registered, and investigation was formally initiated.

2.4 On 11th October 2018, a post-mortem examination of the deceased, Shyam Sunder, was conducted. Exhibits handed over by the autopsy surgeon were seized through a seizure memo. Eyewitness Parvesh @ Bhola was examined and his statement under Section 161 CrPC was recorded. In his statement, he identified the assailants as Rahul @ Khera, Sonu @ Sam, Kamlesh, and Rahul @ Ganni, all of whom were known to him.

2.5 On 12th October 2018, accused Sonu @ Sam and Rahul @ Ganni were apprehended. Their disclosure statements were recorded, and pointing- out memos were prepared at their instance.

2.6 During interrogation, Rahul @ Ganni disclosed that Parvesh @ Bhola owed him a sum of INR 2.5 lakhs, which he had repeatedly demanded but remained unpaid. In September 2018, Rahul @ Ganni, along with the Signature Not Verified Digitally Signed By:AKANSHA SINGH Signing Date:20.05.2025 20:17:48 BAIL APPLN. 3129/2024 Page 2 of 11 Petitioner (Rahul @ Moni) and others had visited Bhola’s residence and issued threats. Despite repeated demands, no payment was made.

2.7 On 10th October 2018, all the aforementioned individuals gathered at Bhagwan Park, Burari, where they conspired to commit the offence, with Rahul @ Ganni, assuring monetary compensation to each participant as part of the agreement. It was decided that Sonu @ Sam, Kamlesh, and Rahul @ Moni (Petitioner) would confront Parvesh @ Bhola at his residence to demand repayment. In the event of refusal, Bhola was to be killed. It was further agreed that anyone attempting to intervene would also be eliminated. Further, it was agreed that Rahul @ Ganni and Pramod @ Pehlwan were to remain absent from the scene.

2.8 Acting on the plan, the three accused reached Bhola’s residence. A confrontation ensued, and when the deceased tried to intervene, he was shot by the Petitioner. The Petitioner also allegedly fired at Bhola, who managed to escape unhurt.

2.9 On 15th October 2018, accused Kamlesh was arrested. His disclosure statement was recorded, and a pointing-out memo was prepared at his instance.

2.10 On 24th October 2018, the Petitioner was arrested in a separate Arms Act case. During interrogation, he disclosed that the weapon recovered from him was used in the commission of the offence in the present case. He was formally arrested in connection with the current FIR, and his statement was recorded, wherein he confessed to having fired upon both the deceased and Parvesh @ Bhola at the latter’s residence in Dheerpur. A pointing-out memo was also prepared at his instance.

2.11 The exhibits recovered during investigation were sent to the Forensic Signature Not Verified Digitally Signed By:AKANSHA SINGH Signing Date:20.05.2025 20:17:48 BAIL APPLN. 3129/2024 Page 3 of 11 Science Laboratory (FSL), Rohini, Delhi for ballistic examination. The PCR call form was collected. Certified copies of the Call Detail Records and CAFs pertaining to the mobile numbers of the accused were obtained. The CDR analysis established the presence and connectivity of the accused persons with each other and their location at the scene of crime at the relevant time. As regards the Petitioner, it was established that mobile number xxxxxxx954 was registered in his name and was being used by him at the time of the incident. Although the mobile handset was not recovered, the accused disclosed during interrogation that it had been destroyed after the incident. The CDR details of the said number corroborate the Petitioner’s proximity to other co-accused before and after the occurrence of the offence. Moreover, the eyewitness had also identified the Petitioner as one of the assailants.

2.12 As per the ballistic report, the deformed bullet recovered from the deceased’s body had been fired from the weapon recovered from the Petitioner, thereby establishing a forensic link to the offence.

2.13 The Petitioner has also been previously implicated in four other criminal cases, namely: FIR No. 203/2017 under Section 379 IPC, P.S. Kanjhawla; FIR No. 183/2013 under Section 307 IPC and Section 27 of the Arms Act, P.S. Timarpur; FIR No. 487/2012 under Section 307 IPC and Section 27 Arms Act, P.S. Khajuri Khas; and FIR No. 264/2018 under Section 25 Arms Act, P.S. Crime Branch, Delhi.

2.14 Upon completion of investigation, a chargesheet was filed against all the accused persons and the matter is currently pending trial before the competent court.

2.15 A total of 39 prosecution witnesses have been cited in the present Signature Not Verified Digitally Signed By:AKANSHA SINGH Signing Date:20.05.2025 20:17:48 BAIL APPLN. 3129/2024 Page 4 of 11 case, out of which 22 witnesses have been examined thus far.

3. Mr. Jitender Sethi, Senior Advocate representing the Petitioner, urges the following grounds for seeking bail:

3.1 The Applicant has been falsely implicated. There is no direct evidence linking him to the incident. The prosecution’s case hinges primarily on the testimony of the alleged eyewitness, Parvesh @ Bhola (PW-7), who failed to support the prosecution version during his examination before the Trial Court and did not identify the Petitioner in court.

3.2. All co-accused persons namely Rahul @ Ganni, Sonu @ Sam, Pramod @Pehalwan and Kamlesh Kumar have been granted bail. Rahul @ Ganni, according to the prosecution, is the main accused with a motive to extort money from Pravesh @ Bholu and allegedly held a grudge against him. Given that the allegations against the Petitioner are not graver in degree than those against the co-accused, he is entitled to parity in the matter of bail.

3.3. The prosecution’s reliance on Call Detail Records (CDRs) of mobile number xxxxxxx954, allegedly used by the Petitioner, to place him at the scene or in communication with co-accused, is insufficient in the absence of corroborative evidence. Particularly, when the sole eyewitness has failed to identify the Petitioner, CDR evidence, by itself, is not determinative. In this regard, it is noteworthy that while granting bail to co-accused Rahul @ Ganni, this Court has already observed that the evidentiary weight of CDR and location data must be evaluated during trial.

3.4. The Petitioner has been granted interim bail on 3 separate occasions and has never misused the liberty granted. There is no adverse report against the Petitioner during this period. Signature Not Verified Digitally Signed By:AKANSHA SINGH Signing Date:20.05.2025 20:17:48 BAIL APPLN. 3129/2024 Page 5 of 11

3.5. The Petitioner has remained in custody since 27th October, 2018. Over nearly six years, only 22 out of 39 prosecution witnesses have been examined, reflecting minimal progress in the trial. The prolonged pre-trial incarceration violates the Petitioner’s fundamental right to a speedy trial under Article 21 of the Constitution of India, warranting his release on bail.

3.6. The alleged recovery of the pistol from the Petitioner occurred on 22nd October 2018, over 10 days after the date of the incident. While the ballistic report later linked the recovered weapon to the bullet extracted from the deceased, there is no explanation offered regarding the weapon’s custody during the intervening period. No material evidence has been placed on record to show that the Petitioner retained possession of the weapon during that time, nor is there any ocular or forensic proof to establish that he fired the fatal shot. Reliance is placed on the judgment of the Supreme Court in Pancho v. State of Haryana,3 where, in a similar factual scenario involving delayed recovery, the Court found the evidence unreliable and acquitted the accused.

3.7. Furthermore, the ballistic report connecting the weapon to the bullet was issued only after nearly 10 months, on 08th September 2019. There is no evidence on record indicating where the said weapon was kept during this entire period or in whose custody it remained. Such unexplained delay and lack of proper custody cast serious doubt on the integrity of the prosecution’s case. In similar circumstances, the Supreme Court in Baldev Singh v. State.4 has held that such evidence, in the absence of clear custody and chain of possession, is not sufficient for conviction.