Shri Brijesh Kumar S/O Shri Prem ... vs The State
2007 Latest Caselaw 1515 Del

JUDGMENT

V.B. Gupta, J.

1. The petitioner Brijesh Kumar is seeking bail in this case in which he has been charge sheeted under Section 302/34 IPC with another co-accused.

2. On 14th October, 2004, the present case was registered on the statement of deceased Vikas Chauhan who himself had gone to police post Wazirpur while driving his car in injured condition and had told the police that he had been shot by the petitioner Brijesh Kumar and co-accused Hitesh and later on Vikas succumbed to those injuries on 16.10.2004.

3. It is contended by learned Counsel for the petitioner that there are only two eye witnesses to the alleged incident namely PW-5 Suman Chauhan and PW-9 Atul Mittal and both have been examined by the court. The testimony of PW-5 shows that she is not an eye witness to the alleged occurrence and PW-9 examined before the trial court has not supported the case of prosecution and there are no chances of tempering of the evidence by the witnesses in any manner.

4. Another contention raised by the learned Counsel for the petitioner is that in the MLC, name of the present petitioner was nowhere mentioned whereas the statement of PW-5 (wife of the deceased) was recorded after 14 days and during that period she had chosen not to speak about this incident to the police.

5. Counsel for the petitioner has cited certain judgments in support of his contentions namely Rehmat v. State of Haryana 1996 SCC (Crl) 1272 where the complainant had first gone to the primary health centre but had not disclosed the name of the assailant to the Doctor. The other case cited by the learned Counsel for the petitioner is Maruti Rama Naik v. State of Maharashtra and Prem Singh Fauzi v. State of Delhi in Criminal Appeal No. 391/2005, passed by this Court on 22nd May, 2007. The another judgment cited is Shyam Behari v. State of Delhi 1996 JCC 277 where the bail was granted to the application whose role was that he caught hold of the deceased and the other person gave danda blow on the head of the deceased which became fatal.

6. On the other hand, learned PP for the State has contended that the paramount consideration for grant of bail is that the Court has to see the nature of the offence as well as the gravity.

7. Here, in the present case, the deceased Vikas Chauhan at the very initial stage itself has named the present petitioner and the other co-accused and gave his statement that he has been shot by the petitioner and the co-accused and later on after two days the deceased succumbed to his injuries. So the statement given by the deceased is in the form of dying declaration which is the primary evidence and in view of the statement given by the petitioner in the very first instance to the Police, it does not need even corroboration because at the very first stage just after receiving the injuries the deceased has named both the accused persons. Thus the case law cited by learned Counsel for the petitioner are not applicable to the facts of the present case.

8. In Mansab Ali v. Irsan and Anr. it has been laid down by the Apex Court as under:

The provisions of Criminal Procedure Code confer discretionary jurisdiction on the Criminal Courts to grant bails to accused pending trials or in appeals against convictions. Since the jurisdiction is discretionary it is required to be exercised with great care and caution by balancing valuable right of liberty of an individual and the interest of the society in general. In granting or refusing the bail, the Courts are required to indicate, may be very briefly, the reasons for grant or refusal of bail. The jurisdiction has not to be exercised in a casual and cavalier fashion as has been done by the learned Judge in this case.

9. It is also well settled that while granting bail for the non-bailable offence, the primary consideration is the gravity and the nature of the offence. Though it is correct that the general policy of law is to grant bail rather than to refuse it but it has been laid down by the Apex Court in State v. Jaspal Singh Gill as under:

The Court before granting bail in case involving non-bailable offence particularly where the trial has not yet commenced should take into consideration various matters such as the nature and seriousness of the offence, the character of evidence, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of witnesses being tempered with, the larger interest of the public or the State.

10. Statement of PW-5 Suman Chauhan has already been recorded in the trial court and she has supported the case of prosecution and as per her statement prima facie, involvement of the petitioner is very much there as a suggestion was given to this witness that "the incident had taken place at some other place with one of the persons with whom her husband was involved in criminal cases".

11. By way of this suggestion it is clearly implied that the petitioner had the knowledge that the present incident has taken place with the deceased otherwise if the present petitioner is not involved in the present case then he would not have any knowledge of this incident which had taken place with the deceased.

12. Secondly, as PW-9 has stood hostile and has not supported the prosecution's story, there is every likelihood that if the petitioner is released on bail he would temper with the remaining evidence.

13. So keeping in view the prima facie involvement of the present petitioner which is there in the case and keeping in view the gravity of the nature of offence, no ground is made out for grant of bail and the application for bail is hereby dismissed.

14. Trial court record be sent back forthwith.