Facts
The applicant sought regular bail in FIR No. 634/2022 (PS Swaroop Nagar) registered under Sections 302/34 of the IPC and Section 27 of the Arms Act
Source reference: p. 1, para 1The prosecution alleged that on 22.10.2022, the applicant, riding a motorcycle with two others (Lokesh and Hemant), engaged in a scuffle with the deceased over a cigarette refusal
Source reference: p. 2, para 2It was alleged that a fatal shot was fired at the deceased, and three suspects were seen fleeing in CCTV footage
Source reference: p. 2, para 2The applicant was arrested based on a co-accused’s disclosure statement, and the weapon was allegedly recovered from him
Source reference: p. 3, para 2In the trial, eyewitnesses Prince Kumar and Rohit identified the applicant but attributed the shooting to co-accused Lokesh, while PW-2 Shubham failed to identify anyone due to darkness
Source reference: p. 4, para 8The applicant has been in custody since 10.11.2022
Source reference: p. 3, para 3Issues
1. Whether the applicant is entitled to regular bail given the nature of the evidence and his period of incarceration.
Source reference: p. 3-4, paras 7-102. Whether the lack of corroborative evidence regarding the recovery of the weapon and the delay in investigative reports (FSL) warrants the release of the accused.
Source reference: p. 5, para 10Law Applied
The Court considered Section 302/34 (Murder/Common Intention) of the IPC and Section 27 of the Arms Act
Source reference: p. 1, para 1It applied the principle that a confessional statement made while in police custody is hit by the Indian Evidence Act and is generally inadmissible against a co-accused
Source reference: p. 5, para 11The court emphasized the right to liberty, noting that an accused cannot be kept in jail in perpetuity due to the "lethargy" or "deliberate abstinence" of the investigating machinery in securing forensic evidence or maintaining proper records
Source reference: p. 5, para 10Reasoning
The Court noted significant gaps in the prosecution's case. Firstly, the identity of the shooter was shifted to co-accused Lokesh by eyewitnesses during testimony, reducing the applicant's role to that of the motorcycle driver
Source reference: p. 4, para 8One witness (PW-2) categorically failed to identify the assailants
Source reference: p. 4, para 6, 8Secondly, the Court highlighted severe procedural lapses: the IO could not produce the Recovery Memo for the pistol, was unaware of the recovery site, and failed to include it in the chargesheet's list of documents
Source reference: p. 4-5, para 9Furthermore, despite the passage of several years, the IO had not obtained the FSL report to link the weapon to the fatal bullet
Source reference: p. 5, para 10The Court found that the only remaining evidence was a custodial confession of a co-accused
Source reference: p. 5, para 11Considering the lack of legally admissible evidence and the poor conduct of the investigating officers, the Court determined there was no justification for continued detention
Source reference: p. 5, para 10-12Holding
The Court allowed the bail application, answering that the applicant cannot be held indefinitely when evidence is primarily custodial and investigations are lethargic
The applicant was ordered to be released on a personal bond of Rs. 10,000/- with one surety
Source reference: p. 5-6, para 12The Court imposed conditions that the applicant shall not contact prosecution witnesses and clarified that the findings would not affect the final trial outcome
Source reference: p. 6, para 13, 15Original Court PDF
Mohd. Shamsher AnsarivsState Of Nct Delhi & Anr.
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