Satish vs State (Nct Of Delhi)
2009 Latest Caselaw 1966 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI

+       Bail Application No. 1778/2008

%                                    Date of reserve : 29.04.2009
                                     Date of decision: 11.05.2009

       SATISH                             ...APPLICANT
                                Through: Mr.S.S.Chadha, Advocate

                                       Versus

       STATE (NCT OF DELHI)      ...RESPONDENT
                     Through: Mr.Arvind K.Gupta, Advocate

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. This is a bail application filed under Section 439 read with

Section 482 Cr.P.C. seeking directions from this Court to

release the applicant on bail in case FIR No. 512/2006 dated

30.05.2006 under Sections 302/201/34 IPC registered at Police

Station Sangam Vihar, Delhi. The applicant is in judicial

custody for more than two years

2. The applicant first approached the Additional Sessions Judge

for the grant of bail but the Additional Sessions Judge vide

order dated 13.05.2008 dismissed his bail application holding

that the accusations against the applicant are very serious

and hence, no ground for grant of bail is made out.

3. Briefly stating, the facts of this case are that on 30.05.2006

information was received that a naked dead body of a lady

was lying in a jungle near Nahari Baba Mandir whose face has

been burnt. This information was recorded as DD No. 22A and

Inspector Jai Singh, SHO P.S. Sangam Vihar proceeded at the

spot where he found a naked dead body and its face was

crushed. A bottle was found inserted in the vagina of the dead

body. On these facts, the present FIR was registered.

4. On the body of the deceased name of one Bunty was found

tattooed, who was traced out by the police and told the police

that at the relevant time, the deceased became friendly to Jai

Prakash and was moving with him. On the basis of the

aforesaid information Jai Prakash was interrogated and the

photograph of the deceased was shown to him. According to

him, on 30.05.2006 he left the deceased near L-Block where

she went along with two boys in a TSR. He gave the

description of those boys and informed that word "Master was

written on the back side of the TSR and tapes are attached on

the back side of the TSR". Police traced out this TSR

belonging to one Mohd. Kesar Ansari @ Master. During the

course of interrogation of Kesar Ansari, it transpired that he

had let out his TSR No. UP-16L-8676 to one Riyaz Khan.

Investigating Officer apprehended accused Riyaz Khan. One

Manoj was also apprehended during the course of

investigation. The disclosure statement of Riyaz Khan was

recorded on 30.05.2006, who stated that at about 12 noon

when he was standing with Satish, the present applicant,

Sheetal @ Sarita (deceased) came on motorcycle. The

deceased agreed for sexual intercourse in consideration of

Rs.400/- and she along with accused Riyaz Khan and Satish

sat in the TSR and they reached in room No. G-763, Sangarm

Vihar where accused Manoj was already present. They took

her inside the room and sent Satish for bringing tose liquor

and food. It is alleged that present applicant took TSR while

accused Riyaz Khan told accused Manoj to sit outside the

room so that he may have sex with Sheetal. Thereafter,

accused Riyaz Khan had sex with Sheetal by using a condom.

It is alleged that accused Riyaz Khan threw this condom inside

the room itself. Thereafter, he called Manoj for having sex

with her but accused Manoj could not perform sex. In the

meantime, present applicant also came with the food and also

brought a liquor bottle. All of them consumed the liquor.

Under the influence of liquor, Sheetal started abusing them

and public gathered there. On this accused Manoj slapped

Sheetal and Sheetal threatened to take legal action against

them. On this accused Manoj and present applicant took

Sheetal in the three wheeler towards the jungle behind Nahari

Baba Temple and thereafter, took off her clothes. It is alleged

that accused Riyaz Khan and the applicant caught legs of

Sheetal while accused Manoj crushed her head with a heavy

stone. Thereafter, they poured some liquor on her clothes and

set the same on fire. All this was done so that the deceased

remains unidentified. It is alleged that the accused Riyaz

Khan inserted the liquor bottle in the vagina of the deceased.

It is also alleged that accused Manoj also made the similar

disclosure. At the instance of accused Riyaz Khan the

condoms used for having sex with deceased were also

recovered. The clothes of the deceased were also recovered

at the instance of accused Riyaz Khan. His own clothes i.e.

pant and shirt having blood stains were also got recovered by

him from the house of accused Manoj. Accused Manoj also got

recovered his own cloths i.e. shirt and jeans from his room

having blood stains. They also pointed out the place of

offence.

5. As far as the present applicant is concerned, it is the case of

the prosecution that on 30.6.2006 he was arrested from house

No.G-477, old No.G-161, Sangam Vihar. He made a confession

about the offence and got recovered his clothes i.e. T-shirt and

pant which he was wearing at the time of commission of

offence. After the arrest of the accused persons, the charge

sheet was filed against all the accused persons under Sections

302/201/34 IPC.

6. It is submitted by the applicant that the charge sheet does not

make out a case against the applicant. It is stated that the

case of the prosecution is based on surmises and conjectures.

7. It is pertinent to note that the bail application was moved

before the Additional Sessions Judge a year back and was kept

pending on one pretext or the other and was dismissed only

on 13.05.2008. It is submitted that the applicant had no

motive of killing the deceased as he had no grievance against

her. Moreover, the deceased was drinking with the other co-

accused and the scuffle that took place was in the absence of

the applicant at the house of the other co-accused i.e. Manoj,

which shows the proximity between them. It is also submitted

that the story fabricated by the police does not stand on its

own leg in the test of legal parlance. They themselves say

that the deceased was unconscious when the applicant and

the other co-accused, Riyaz Khan caught her legs when Manoj

hit her with a stone on the face so as to kill her and after that

Riyaz Khan also hit her with the stone so as to smash her face.

In all probability and fairness it is improbable to believe as to

why someone would hold the legs of an unconscious person

when she is lying motionless. It is also submitted that as per

the FSL report annexed with the charge sheet, there is no

blood on the clothes of the applicant of the deceased, which

fact is not appreciated by the Additional Sessions Judge, who

in the impugned order said that the condom was used by the

applicant while doing intercourse, which is factually incorrect

as according to the police it was Riyaz Khan who twice had

intercourse with the deceased using the condoms. It is also

submitted that the applicant is a respectable citizen of this

country permanently residing within the territorial jurisdiction

of this Court and having deep roots in the society, thus, there

is no likelihood of the applicant either fleeing away from

justice or absconding or hampering the trial and therefore, in

view of above circumstances, this Court should grant the relief

prayed for by the applicant. The applicant also undertakes

not to influence any witness. It is also submitted that he

applicant is 22 years old and does not have any previous

antecedents and is in judicial custody for more than two years.

8. As per the prosecution Riyaz Khan along with Satish and Manoj

after having taken the TSR No.UP 16 L 8676 and took the

deceased in that TSR to Sangam Vihar, where sexual

intercourse was committed on the deceased. IN this regard

the prosecution has relied upon the statement of Kesar Ansari

and Jai Prakash.

9. Second circumstance relied by the prosecution is the recovery

of blood stained clothes of the applicant at his instance which

as per the FSL report had blood group „A‟ whereas the blood

group of the deceased is „B‟.

10. The third circumstance is regarding the disclosure statement

of the applicant resulting in discovery of dry blood at the place

of incident on which the group of blood has not been detected,

in fact the Investigating Officer had collected the „earth

material‟ on 31.5.2006 which is Exh.P2 and same was sent for

FSL examination.

11. As far as the recovery of TSR at his instance is concerned, it is

the part of the investigation report that they had found the

owner of the vehicle who informed them that he had let out

the vehicle to Riyaz, before the arrest of the applicant.

12. The fourth circumstance against the applicant is the recovery

of condoms, which as per FSL report, had semen of „A‟ blood

group, which is also the blood group of the applicant. As far

as recovery of condoms Ex.PW6/B containing semen of „A‟

blood group is concerned, it is the prosecution version that

these condoms were recovered at the instance of Riyaz Khan.

13. However, the last circumstance relied by the prosecution is

the last seen evidence which has come in the statement of Jai

Pal, who saw all the three accused taking the deceased in the

TSR driven by one young man accompanied with two persons

at about 3.30 p.m. before her death.

14. In the view of abovementioned facts and circumstance, no

doubt some of the circumstances may not conclusively prove

the role of the applicant in commission of the murder of the

deceased but the last seen evidence is required to be

scrutinized at the stage of framing of the charges which are

yet to be framed and the evidence of relevant witnesses which

are yet to be recorded. It is not appropriate to release the

applicant on bail at this stage.

15. Bail application is accordingly dismissed, at this stage.

MOOL CHAND GARG, J.

May 11, 2009.

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