BAIL APPLN./2562/2016 of ISLMA @ CHHOTE Vs THE STATE (GOVT. OF NCT OF DELHI)

*IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment delivered on : December 23[rd], 2016

+BAIL APPLN. 2562/2016

ISLMA @ CHHOTE..... Petitioner

ThroughMr.Rajender Yadav, Adv.

versus

THE STATE (GOVT. OF NCT OF DELHI)..... Respondent

ThroughMr.Ashish Dutta, APP with SI JasmerSingh, PS Jahangir Puri.

CORAM:

HON'BLE MR. JUSTICE P.S.TEJIORDER

%P.S. TEJI, J.

1.The present application under Section 439 of Code of CriminalProcedure, 1973 (hereinafter referred to as the Cr. P.C.), has been filedby the petitioner for seeking regular bail in case registered as FIRNo.407/2013, under Sections 302/34 of Indian Penal Code, at PoliceStation Jahangirpuri.

2.The allegations leveled in the instant case are that on17.10.2013 at about 06.10 a.m., an information regarding anunidentified dead body lying in street near Madarsa, Darul UlamHamidiya CD Park, Jahangir Puri was received at the police station.One Mohd. Azim @ Cheikh came at the spot and identified the deadbody as of his son Amir. He informed that since Amir indulged in bad

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company, he was sent to his native place in West Bengal. Amir cameto Delhi on 08.10.2013 to attend hearing of his case. On 16.10.2013,Amir came to the house to celebrate Eid festival. At about 08.30 p.m.,Amir left the house to see his friends.Mohd. Azim and his wifeAmina saw Amir at about 11 p.m. standing in the street talking to hisfriends who were drinking. Amir did not come home that night. On17.10.2013, somebody informed him that one dead body of boy waslying near Madarsa and on seeing the dead body he identified the sameto be of his son Amir. FIR of the instant case was registered.3.During investigation, accused persons were arrested at theinstance of Smt.Amina who stated that she had seen her son Amir lasttime in the company of accused persons.She also stated that theaccused persons, who came to her jhuggi and were talking about theirshare in some robbed amount, have murdered her son. Investigationfurther revealed that the petitioner/accused along with deceased Amirindulged in robbery and similar activies and Amir used to share therobbed articles with the co-accused persons.During one of suchincidents, Amir found handsome valuables and did not share it withthem and ran away to West Bengal.On 16.10.2013, they came toknow that Amir had come to his home. They met Amir who deniedhaving any such cache of valuables.Thereafter, accused Islam @Chhote and Sikandar hold the hands of Amir and Kallu and Jamshuhold his feet. Accused Anabul and Jaggu hit the deceased on his headand face with stones till he died.

4.Argument advanced by the counsel for the petitioner/accused is

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that the accused has been falsely implicated at the instance of thecomplainat who had enmity with the family of the accused.Thealleged eye witnesses have not supported the case of prosecution andhave not identified the accused/petitioner.Nothing has beenrecovered at the instance of the accused. It was further submitted thatall the public witnesses have already been examined and the remainingwitnesses are the police officials, therefore, there is no chance toinfluence the witnesses.

5.Per contra, learned APP for the State has opposed the bailapplication.It was argued that the petitioner/accused is alreadycharged under Section 302/34 IPC along with co-accused persons.The allegations leveled against the accused are serious in nature.Evidence is still continuining and 12 witnesses are yet to be examined.There is apprehension that if the accused is enlarged on bail, he mayinfluence the witnesses.

6.As per the allegations leveled, the accused/petitioner along withhis co-accused persons has committed the murder of the deceased.The present case is based on circumstantial evidence and not on thebasis of direct evidence.The instant case is based on last seenevidence. In the cases based on circumstantial evidence, no evidencecan be read in piece meal. The contentions raised by the counsel forthe petitioner that the public witnesses examined so far have notsupported the case of prosecution and no recovery was affected fromthe petitioner, is matter of trial and no comment on the same can bemade at this stage. The said contentions can be answered only at the

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time of passing the judgment after conclusion of evidence.

7.Keeping in view the seriousness of the offence and in view ofthe facts and circumstances mentioned, this Court is not inclined togrant bail to the petitioner/accused.

8.However, the trial court is directed to expedite the trial.

9.Before parting with the order, this court would like to place iton record by way of abundant caution that whatever has been statedhereinabove in this order has been so said only for the purpose ofdisposing of the prayer for bail made by the petitioner. Nothingcontained in this order shall be construed as expression of finalopinion on any of the issues of fact or law arising for decision in thecase which shall naturally have to be done by the Trial Court seized ofthe trial.

10.Bail application is accordingly dismissed.

DECEMBER 23, 2016dd

(P.S.TEJI)JUDGE