Sandeep vs State
2009 Latest Caselaw 3650 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+       Bail Appn. 1781/2008

%                                     Date of reserve : 04.09.2009
                                      Date of decision: 09.09.2009


        SANDEEP                                          ...Petitioner
                                Through:     Mr. K.B. Andley, Sr. Adv. with
                                             Mr. M.L.Yadav, Adv.


                                  Versus


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


        CORAM:
        HON'BLE MR. JUSTICE MOOL CHAND GARG

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

2.      To be referred to Reporter or not?                           No

3.      Whether the judgment should be reported in the Digest?       No


:       MOOL CHAND GARG, J.

1. This bail application has been filed by the petitioner, Sandeep,

who is facing trial in a Sessions Case arising out of FIR No. 235/2005

under Section 365/302/120-B/201/182/34 IPC registered at Police

Station Welcome, Delhi on the allegations that he was seen going to

the room of Brijpal by PW-11 Shweta, who has supported the case of

the prosecution. Another circumstance against the petitioner is the

recovery of a wrist watch at his instance. He was arrested on

29.5.2006.

2. Briefly stated, the facts giving rise to the filing of the present

case are that on 5.6.2005 FIR No. 235/2005 was registered under

Section 365 IPC at Police Station Welcome,Delhi on the statement of

Kavita, wife of Brijpal, wherein she alleged that she was married to one

Omkar Singh and out of the said wedlock she had two sons and one

daughter. However, in the year 1994 she was thrown out of the house

by her husband Omkar Singh and subsequently, she was brought to

Delhi by her dever Brijpal, whom she ultimately married in February,

2003. According to Kavita, her husband Brijpal used to go to his job at

Pilibhit and would return after 8 or 10 days. She also stated that on

2.5.2005 her husband Brijpal left for his duty as usual along with an

airbag containing Rs. 10,000/- in cash. On 7.5.2005 in the evening she

received a call from Anil that Brijpal had not reached to his duty.

Brijpal could not be located anywhere either by the complainant or by

her brothers. Subsequently, the complainant went to the police station

and gave her statement there. Thereafter, after about a month the

complainant Kavita with the help of Harinder got the plot of Brijpal

located at Param Hans Vihar, Loni Border, Ghaziabad, transferred in

her name. All this was done by the complainant, Kavita allegedly with

the connivance of Harinder, who was residing on the first floor of her

house, where she was residing on the ground floor. During

investigation the statement of Shweta @ Meenu daughter of Kavita

was recorded. According to her, Harinder, Sanjeev and Sandeep, the

present petitioner, had come to their house and had an altercation with

the deceased Brijpal Singh. Further, according to her, on 30.4.2005,

Brijpal Singh and her mother Kavita quarreled with each other

throughout the day and at night Harinder joined the quarrel. On

2.5.2005 at about 11.30 pm the said girl Shweta had seen Harinder

and co-accused Sanjeev and Sandeep, the present petitioner, going

inside the room of Brijpal Singh. At about 2.30 am she again noticed

Harinder coming to her house and climbing up the stairs. Thereafter,

she did not see Brijpal. On suspicion Harinder and Kavita were

arrested. On the pointing out of co-accused Harinder, the present

petitioner, Sandeep was arrested. During interrogation, the petitioner

allegedly disclosed that for the removal of the dead body of Brijpal, his

car was used. The said dead body was thrown in Ganga Canal. The

petitioner also allegedly produced a writ watch of deceased Brijpal.

The petitioner had been in custody since 29.5.2006.

3. The petitioner seeks bail on the ground that he is innocent and

has been falsely implicated in the present case. There is no legal

evidence against him. All the material witnesses have been examined

and nothing has come out of those statements which could implicate

him in the alleged murder of Brijpal. The only evidence which has

been relied upon by the learned Trial Judge for rejecting the bail of the

present petitioner is the statement of PW-11, Shweta. However, the

said statement does not in any manner implicate the petitioner in the

alleged murder. The statement of Shweta was recorded by the Police

after about a year of the disappearance of Brijpal, which factor alone

makes the statement unreliable. The alleged disclosure statement of

the petitioner is also incorrect and unbelievable. The alleged recovery

of the wrist watch of the deceased from the petitioner is also wholly

unbelievable and unreliable and the same cannot be the circumstance

to convict the petitioner in the present case. The petitioner has been

in custody since 29.5.2006 and has four minor children to support. He

is also not a previous convict. The petitioner had earlier applied for bail

in the Court of Sessions but his application for bail was dismissed vide

order dated 11.8.2008. The petitioner had earlier also applied for bail

being Bail Application No. 251/2007 but the said application was

dismissed by this Court vide order dated 7.2.2007.

4. I have Heard counsel for the parties. I find that the case of the

prosecution regarding recovery of the wrist watch is not free from

doubt inasmuch as the factum of wrist watch born by the deceased

was first mentioned by PW-1 Iqbal Singh in his statement recorded

under Section 161 Cr.P.C. on 21.02.2006 where no particulars as to the

make of the watch was mentioned by him. In his cross-examination

dated 23.7.2008, this witness stated, "I had not stated to the Police

about the make of the watch and name of the company." The co-

accused Harinder, who is also in custody since 2006, is also stated to

have made a disclosure statement wherein there is a mention about

the wrist watch of the deceased but at his instance no recovery was

affected. Harinder has also not given any particulars of the watch. It

is only on 29.05.2006, it is stated that the petitioner, Sandeep also

made a disclosure statement regarding the wrist watch of the

deceased in his possession, which is stated to be of 'Maxima', which is

the name of company. The fact that the deceased was wearing a

watch was not a new fact as it was known to the prosecution right from

21.02.2006. Moreover, when the particulars were not available or

were not disclosed in any of the statements made by the witnesses,

the recovery of wrist watch of 'Maxima' from the petitioner would not

prove that the said wrist watch was that of the deceased. It is not

disputed even by the prosecution that such wrist watches are easily

available in the market. A perusal of the TIP proceedings goes to show

that nothing was mentioned about any special mark on the wrist watch

or about the colour of the strap or the dial in the TIP proceedings. The

particulars of other watches, including the colour of strap or the colour

of dial, are also not mentioned in the TIP proceedings. Thus, merely

because some other watches of 'Maxima' make were mixed up with

the watch in question, the TIP proceedings cannot be taken as the sole

basis for the conviction of the petitioner in isolation. As stated above,

the statement of PW-11, Shweta recorded after a year of the

registration of the FIR that she saw the petitioner along with two other

co-accused persons entering into the room of Brijpal at about 11:30pm

again does not prove the case of the prosecution against the petitioner

of having murdered Brijpal.

5. This Court at this stage is not required to analyze the merits of

the case to the hilt but taking into consideration that the petitioner is

in custody since 29.05.2006, it would be appropriate to release the

petitioner on bail on his furnishing bail bond in the sum of Rs.50,000/-

(Rupees Fifty Thousand only) with one surety in the like amount to the

satisfaction of the trial court. Ordered accordingly. Nothing stated

herein would have any reflection on the merits of the case before the

trial court.

6. Bail Application stands disposed of.

MOOL CHAND GARG, J.

SEPTEMBER 09, 2009 dc