Sharif vs State
2009 Latest Caselaw 932 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI


+      Bail Application No. 1937/2008


%                                       Date of reserve: 18.03.2009
                                        Date of decision: 23.03.2009



       SHARIF                                     ...PETITIONER
                              Through:       Mr.Abhinav Bajaj, Adv.


                                          Versus


       STATE                                      ...RESPONDENT
                            Through:         Mr.Navin Sharma, APP


                                          WITH


+      Bail Application No. 160/2009

       KAMLESH KUMAR SINGH                        ...PETITIONER
                    Through:                 Mr.Subhash C. Buttan, Adv.

                                          Versus

       STATE                                  ...RESPONDENT
                            Through: Mr.Navin Sharma, APP

CORAM:
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.     Whether the Reporters of local papers            No
       may be allowed to see the judgment?

2.     To be referred to Reporter or not?               Yes

3.     Whether the judgment should be                   Yes
       reported in the Digest?


MOOL CHAND GARG, J.

1. By this common order I shall dispose of the aforesaid two bail

applications filed by two co-accused for grant of bail in FIR

No.946/2004, under Sections 302/365/364-A/201/34 IPC, registered

at Police Station Shalimar Bagh. The aforesaid FIR was originally

filed under Section 365 IPC but was later on converted under

Section 302 IPC after the arrest of Mukesh Vats/co-accused as well

as the present petitioners who in their disclosure statements

informed the Police that the deceased Shri Ramesh Gupta was

murdered by all of them and at their instance not only the dead

body was recovered but also the weapon of offence i.e. knife by

which the throat of the deceased was cut was recovered. The blood

stains from the car belonging to Mukesh Vats were also recovered in

which the deceased was taken by the petitioners from his house on

the fateful day.

2. The present petitioners, namely, Sharif and Kamlesh Kumar

Singh also moved the bail applications before the trial court but the

same were dismissed vide order dated 25.4.2008 and 13.1.2009

respectively. Thereafter, the petitioners approached this court by

way of the present bail applications.

3. It is submitted that the petitioners are in judicial custody since

4.11.2004 and as such, no useful purpose will be served by keeping

the petitioners in custody further, more so when the principal

accused, Mukesh Vats, has already been granted bail by this Court

vide order dated 29.11.2007 passed in Bail Application No.

2191/2007 on the ground of long detention.

4. It is also submitted that the case of the petitioners is based on

circumstantial evidence only and there is no direct evidence except

the disclosure statement of the co-accused which is doubtful. It is

stated that so far no incriminating evidence has come against the

petitioners.

5. It is stated that there is no chance that petitioners will

tamper with the evidence inasmuch as all the material witnesses

have been examined and only police witnesses remain to be

examined and thus, no useful purpose will be served by keeping

them behind the bars.

6. It is also submitted that as one of their co-accused, namely,

Mukesh Vats, has been granted bail, they are also entitled to be

released on bail on parity as there is no likelihood of trial being over

in the recent future.

7. It is also submitted that the fact of recovery of knife and

spray is shrouded by suspicion inasmuch as no independent

witness was joined by the prosecution at the time of alleged

recovery. It is further stated that the petitioners are sole bread

earner of their family and a request for compassionate and liberal

view is also made on their behalf.

8. On behalf of Sharif, it is submitted that he has deep roots in

the society and there are no chances of his evading and/or

absconding from the process of law and he is ready and willing to

abide by any condition as imposed by this Court while admitting

him to bail.

9. It is submitted on behalf of Kamlesh Kumar Singh that as

per the case of the prosecution the gunny bag allegedly

containing the dead body had been recovered on 4.11.2004 at

the instance of the co-accused, however, no entry to that effect

was made in the Roznamcha, nor the recovery of the dead body

has been mentioned though as per the DD No. 25A the arrest of

the petitioner was shown to be at 11 PM on 4.11.2004. However,

as per the Arrest Memo the time of arrest has been shown as 1

PM which is contrary to the record and is motivated for falsely

implicating the present petitioner. It is also submitted that no

recovery had taken place from the petitioner. Neither the alleged

knife was recovered nor any property belonging to the deceased

was recovered from his possession which could connect him with

the commission of the alleged offence and therefore, he is

required to be released on bail.

10. It is further submitted that the health of the petitioner is

deteriorating due to long detention and his further detention may

further deteriorate his health. It is also submitted he is the

permanent resident of Delhi and as such there is no likelihood of

his absconding or tampering with the prosecution evidence in

case he is released on bail. It is also stated that Dr.V.K.Jha, SGM

Hospital, Delhi, who conducted the post mortem on the body of

the deceased in his cross-examination had specifically mentioned

that if pepper spray had spread there would be a fragrance of the

same and that there was no smell of such spray over the nose

and since no such fragrance has been found over there,

therefore, it could not be said that any spray had been used. This

witness has also stated that he did not find any spot of blood on

the clothes of the deceased or on the gunny bag. This witness

has further stated that is person is wearing the clothes at the

time of cut throat injury and there is a gush of blood even if the

clothes are washed off or the decomposed body is recovered

from the water, the stains and traces of blood will be found on

the clothes and on the gunny bag.

11. On the other hand, counsel for the State has submitted that

the petitioners cannot claim parity as their role is distinct and

separate. In this regard, in the status report it is stated that at

first the accused Mukesh Vats was arrested from H.No.-52,

Shakar Pur Village at 1 PM on 4.11.04 and his disclosure

statement was recorded. On the instance of Mukesh Vats,

Kamlesh was arrested at 4 PM on the same day, i.e 4.11.2004

from Anand Dham Karala while he along with Sharif was vacating

the rented house and preparing to flee away from there, he also

confessed about the crime and their confessional statement was

recorded. At the same time, the co-accused Sharif was also

arrested with Kamlesh at 4.30 PM on 4.11.2004 at the same

address and Sharif also confessed about the crime and his

confessional statement was also recorded. The petitioners Sharif

and Kamlesh Kumar cannot claim parity with Mukesh Vats

because Sharif cut the neck of the deceased with knife and

Kamlesh Kumar also participated actively in the murder.

12. In a status report filed by the learned APP for the petitioner,

it is also stated that All the three arrested persons namely

Mukesh Vats Kamlesh and Sharif confessed that they alongwith

Sipahi lal and Raju @ Rajesh had abducted Ramesh Gupta for

ransom and when he died in there custody, they disposed of his

body after packing in a bag in a nala situated between Karala and

Kanjhawala. At the instance of Mukesh Vats and other co-

accused, the body of deceased Ramesh Gupta and a knife used

for slitting the throat of deceased Ramesh Gupta were recovered.

Blood spilled on the rear seat of Car no. DL-8CB-0341 used for

disposing of the body along with some fibres of hair lying on the

seat were lifted as exhibits and sent to CFSL for comparison and

expert opinion. Hair strands lifted from the seat of the car

matched with the hair of deceased. Viscera (Lever, splin and

both kidneys) contained the contents of common poison known

as Capsaicin (an active ingredient of chilli). Blood on the

recovered knife and the blood on cloth of the seat matched.

Remaining co-accused Sipahi Lal and Raju @ Rajesh could not be

arrested. Sipahi lal and Raju @ Rajesh were declared as

Proclaimed offenders by the Court.

13. From the perusal of the case diaries produced by the

prosecution before me and the record, it appears that Mukesh

Vats was arrested at 9 am and in his disclosure statement he has

narrated all the facts. It is thereafter the present petitioners were

arrested sometimes at about 4/4.30 pm. The prosecution relies

upon their disclosure statements which they submit have been

made independently and after the arrest of Mukesh Vats. It is

possible that separate disclosure statement might have been

recorded subsequently but most of the facts are similar. The

statement of the doctor also requires consideration.

14. In the facts and circumstances of this case, the evidence

which the prosecution wants to rely upon needs to be very

carefully scrutinized by the Court while taking a final view of the

matter. At this stage, this Court is not required to go into the

merits of the allegation but taking into consideration the overall

circumstances of this case and the fact that the principal accused

Mukesh Vats has already been enlarged on bail on the ground of

his prolonged detention that is for a period of more than four

years which is also the case of the present petitioners and the

said order has not been challenged by the prosecution before any

higher authority, it would be appropriate to admit the petitioners

on bail on their furnishing personal bond in the sum of

Rs.25,000/- each with two sureties each in the like amount to the

satisfaction of the Trial Court subject to the condition that the

petitioners will not tamper with the evidence of the prosecution,

they will not leave the territory of Delhi without the permission of

the Trial Court and would cooperate with the Trial Court in

disposing of the matter expeditiously and in case they have any

passport they would surrender the same to the concerned SHO

and will report to the concerned SHO once in every month.

15. With these observations, the bail applications are allowed.

However, it is made clear that nothing stated herein will affect

the case on merits.

MOOL CHAND GARG, J.

March 23, 2009 dc