[Delhi Riots] "No CCTV footage; no recovery of weapon:" Two persons accused in murder of 25-year-old granted bail by Delhi High Court

Two men accused in the February 2020 Delhi riots were granted bail by the Delhi High Court on Tuesday citing lack of substantial evidence including CCTV footage and electronic evidence linking them to the incident (Sunny alias Lalla v. State of Delhi)..Single-judge Justice Suresh Kumar Kait also noted that there was no recovery of any weapon from either of the petitioners.."This Court finds that there is no CCTV footage or any other electronic evidence available on record except the call detail record, which establishes the presence of petitioners in the area in question but again it cannot be lost sight of the fact that these petitioners are residing in the same area so, their location has to be in the same area," the Court said..The court further observed that there were prima facie contradictions in statements of the sole witness. .“The aforesaid two statements prima facie seem to be contradictory on the point of weapon of offence as well as her exact position at the spot of crime. Moreover, in her statement under Section 164 CrPC, this witness is silent on the aspect as to who had informed son of her brother-in-law about the alleged incident and his friends, who reached the spot and took the deceased to the hospital and also she has specifically named four accused persons instead of one 'sabziwala'," the order noted. .The petitioners, Brij Mohan Sharma and Sunny Singh were jointly seeking bail in relation to a First Information Report (FIR) registered against them for commission of offenses during the Delhi riots, including murder under the Indian Penal Code.The case came about based on a complaint received at New Usmanpur Police Station in East Delhi on February 26, 2020 stating that rioters at Kartar Nagar were breaking the doors of people's houses with lathis and sticks. The police also received a call from from Jag Pravesh Chandra Hospital regarding a 25-year-old injured person, Irfan who was admitted to the hospital. The doctor’s written statement said that “the patient had been brought to the casualty with an alleged history of physical assault, riot and was unfit for statement.” Irfan later succumbed to his injuries.Thereafter, an FIR was filed against the accused Brij Mohan Sharma, General Secretary of the BJP’s Brahampuri Mandal and Sunny Singh over the killing of the 25-year-old. Irfan’s mother also testified against the accused and even identified them along with two others, Pankaj and Rohit, a vegetable vendor from the same locality. She also gave her statement under Sections 161 before the police and under Section 164 of the CrPC before a Metropolitan Magistrate..A month later on March 28, 2020, the accused were arrested and they confessed to their involvement in the incident. Following this, a charge sheet was filed followed by a supplementary charge sheet before a trial court in June the same year. Importantly, the accused did not consent to a Test Identification Procedure Protocol, which would have allowed the witness to identify them. Thereafter, Sunny and Brij Mohan Sharma applied for bail before the trial court on multiple occasions in May, 2020 and March, 2021. However, their applications were rejected leading to the present appeal. Advocate Sanjiv Dagar, appearing on behalf of Sunny Singh, argued that his client had been arrested without substantial material evidence like CCTV footage and he was not named in the FIR. He also claimed that the prosecution case was based on a sole eye-witness’s testimony which was conflicting as to the mode of killing of her son. Dagar’s argument was based on the presumption that while Irfan’s relative, who rushed him to the hospital, had said that the deceased was stoned to death, Irfan’s mother’s account shifted between sticks and swords. Dagar also contended that his client’s call records, which traced his location to the scene of incident, cannot be considered material since he resided in that locality..The prosecution on the other hand argued that the nature of the offence committed by the petitioners disallowed them from the grant of bail and doing so would jeopardise the trial as the remaining two accused were absconding or unavailable for trial..Justice Kait cited the judgement of the Supreme Court in Mahipal vs. Rajesh Kumar as the basis to grant bail. “Merely recording “having perused the record” and “on the facts and circumstances of the case” does not subserve the purpose of a reasoned judicial order. It is a fundamental premise of open justice, to which our judicial system is committed, that factors which have weighed in the mind of the Judge in the rejection or the grant of bail are recorded in the order passed. Open justice is premised on the notion that justice should not only be done, but should manifestly and undoubtedly be seen to be done,” the Court said. The Court agreed with the applicants' contention that no CCTV footage was available linking the accused to the incident. As regards call records, the Court noted that the accused were residents of the same area and hence, their call records would also reflect the same. "As far as their involvement in the alleged incident is concerned, how their call details connect them to the offence in question, is subject to trial," the Court added. The Court further said that it did not wish to comment upon the merits of the case. It noted that while charges have already been framed, recording of prosecution’s evidence is yet to be done before the trial court. This process, the Court said, will take substantial time and the petitioners cannot be made to stay behind bars until the conclusion of the trial, the Court ruled.It, therefore, allowed the petitioners to be released on bail upon furnishing a personal bond of Rs. 20,000 each to the trial court.The petitioner was represented by Sanjiv Dagar, Yogesh Verma, Gaurav Arora,Sumit Sehrawat and Pradeep Shukla. The State was represented by Amit Mahajan and Rajat Nair with Shantanu Sharma and Dhruv Pande..[Read Order]