Suresh @ Bubby vs State

Hon''ble Ms. Justice Mukta Gupta

This is an application for anticipatory bail filed by the Petitioner in case FIR No. 148/2010 under Sections 302/120B/34 IPC read with Sections 25/27 of the Arms Act registered at PS Vasant Vihar on the complaint of one Laxmi Devi.

The prosecution case in brief is that on the night of 3rd/4th April, 2010 one Harvinder @ Binder was killed at his shop. The Complainant/Laxmi Devi in her complaint stated that her younger brother Harvinder @ Binder was residing with her for the past 14 years and running the shop of mobile, CD and videogames in F-66 and A-88, Katwaria Sarai. The family of Harvinder was living in Barthal where he used to visit once a week. On the date of incident at about 11:30 PM like daily routine, she brought meal for her brother at the shop and alter taking the meal both of them were talking when two boys at around 12:00 O''Clock came inside the shop, one of them icling on the other side of counter asked her brother whether he knew who he was. On saying this both of them took out their pistols and pointed towards Harvinder, who while standing up from the chair, tried to snatch the pistol from one of them. Both of them fired a number of bullets on Harvinder with the result blood oozed out of his body and he collapsed on the floor. After firing both of them fled away. On making noise, some people from nearby came and called the police. Her brother was taken to the hospital where he was declared dead. She stated that she could identify the boys who committed the murder of her brother if produced before her. She suspected the boys of Katwaria Sarai namely Nitin, Rahul, Sushil, Manoj and Anand being involved in the murder of her brother as they had given beating to her brother two years back and were threatening him during this period.

Learned counsel for the Petitioner contends that the Petitioner was not at the spot. No overt act is attributed to him as far as the murder is concerned. There is no witness who has stated that the Petitioner was present at the time of commission of offence. The only allegation against the Petitioner is that he conspired with the other co-accused to commit the offence and paid some amount to Ashok Rathi, the gang leader. It is contended that the only evidence for this allegation is the disclosure statement of the co-accused which are inadmissible in evidence. Moreover, Ashok Rathi to whom it is alleged that the Petitioner paid the amount has not been charge sheeted as an accused as no sufficient evidence was found against him. Besides this the prosecution is relying on the statement of Aman Sharma. The statement of Aman Sharma has been recorded belatedly and all that he has said is that he heard from his balcony the petitioner talking to three four people and saying "Binder ko dekh lenge". Aman Sharma was present at the place of incident and had taken the deceased to the hospital yet the statement was recorded only on 18th September, 2010, that is, four days before the filing of the first charge sheet. Even taking the statement of Aman Sharma on its face value it cannot be said that the Petitioner entered into conspiracy to commit the murder of the deceased. It is highly unnatural that a conspiracy would be hatched in the open where the public at large can hear the conspirators. The Petitioner relies upon the decisions in Anter Singh Vs. State of Rajasthan, ; Satpal vs. State of NCT of Delhi, Bail Application No. 65/2008 and Parvez Akhtar vs. State, 2006 III AD Criminal DHC 697.

Learned APP for the State on the other hand contends that the present is a case of conspiracy wherein hired assassins have been used and the role assigned to the Petitioner is that he had given money to hire the said assassins. As per the confessional statements of Anil, Nitin and Sudhir, Sudhir had met the Petitioner after the incident. As part of previous conduct statement of Aman Sharma is relied upon who was the tenant in the Petitioner''s premises and was working as an employee with the deceased.

I have heard learned counsel for the parties. A perusal of the FIR shows that the murder of the deceased Harvinder @ Binder was committed as a counter blast to the murder of one Honey, the nephew of the Petitioner, who was killed on 10th May, 2010. The Petitioner and his other family members suspected the hand of Harvinder @ Binder as he had distributed sweets on the death of Honey. On this Nitin contacted his friends Vikas, Mukesh, Rahul, Amit @ Anni, Vinod and Ashok Rathi and then contacted two criminals Sudhir @ Sidhu and Anil. On 3rd June, 2010, accused Sudhir and Anil entered into the shop of Harvinder @ Binder and on the pointing out of Nitin and Vikas, they fired on him. On 26th June, 2010 Anil, son of Satpal Singh was arrested by Crime Branch in FIR No. 94/2010 u/s 25 Arms Act where he disclosed having committed this murder besides the other offences. He disclosed that he along with Sudhir, Nitin, Satpal and Vikas went to the shop of Harvinder and on pointing of Nitin and Vikas he and Sudhir entered into the shop and fired at Harvinder @ Binder. Thereafter Nitin and Vikas were arrested who disclosed about the involvement of Mukesh and the Petitioner, that is, Nitin''s father. The role attributed to the Petitioner in the disclosure statement of the co-accused persons is that after, the murder of Honey, the Petitioner and his family being the uncle of deceased Honey came to know that Binder distributed sweets and celebrated and stated that this was to happen. Thereafter they met Ashok Rathi, who hired Sudhir @ Sidhu and Anil. Sudhir visited the house of the Petitioner after the incident. Besides the disclosure statement of all the co-accused there is no other evidence, except the statement of Aman Sharma who has stated that after the murder of Honey he saw the Petitioner talking with three four other persons and they were talking about the murder of Honey. The other persons wanted to know that whether there was hand of Binder in the murder of Honey on this the Petitioner stated that if it was the hand of Binder then they would see him. No date and time has been assigned when this conversion between the Petitioner and the other person was heard by Aman Sharma. During the arguments learned learned APP for the State submitted that both Aman Sharma and Sudhir were tenants in the premises of the Petitioner.

The Hon''ble Supreme Court in Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Others, , has held that the Court must evaluate the available material against the accused very carefully and must also clearly apprehend the exact role of the accused in the case and cautioned that even greater care should be taken in cases where accused are implicated with the help of Section 34 and 149 of the IPC because over-implication in the cases is a matter of common knowledge and concern.

A perusal of the evidence at this stage shows that the allegations against the Petitioner are of involvement in a conspiracy to commit murder unlike a case in which a person is implicated with the aid of Section 34 and 149 IPC. The evidence against the Petitioner at the moment is disclosure statement of the co-accused stating that Sudhir met the Petitioner after the incident and that he gave money to Ashok Rathi. As regards Sudhir meeting the Petitioner, learned APP has accepted the fact that Sudhir is the tenant in one of the rooms of the Petitioner''s premises. As regards Ashok Rathi, no charge sheet has been filed against him as there was no sufficient evidence available against him to show that he took money for hiring the assassins. As noted above, the statement of Aman Sharma is that just after Honey''s death he heard three-four persons standing and wondering whether there was hand of Binder in the murder of Honey or not, in which the Petitioner stated that if it was the hand of Binder, they would see him.

In view of the fact that there is no cogent material except the disclosure statement of the co-accused against the Petitioner deem it fit to grant of anticipatory bail to the Petitioner. Consequently, the Petitioner be released on his furnishing a personal bond in the sum of Rs. 1 lakh with two sureties of the like amount subject to the satisfaction of the Arresting Officer. However, the Petitioner will join the investigation as and when directed by the Investigating Officer.

Petition is disposed of Order dasti.