Vidya vs State
2009 Latest Caselaw 3795 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      Bail Appn. 1283/2009

%                                           Date of reserve : 09.09.2009
                                            Date of decision:16.09.2009


#      VIDYA                                     ...PETITIONER
!                               Through: Mr.S.P.Kaushal, Advocate

                                        Versus

$      STATE                                      ...RESPONDENT
^                               Through: Mr.Navin Sharma, APP along with
                                       Inspector T.C. Khola, P.S.Najaf Garh

                                                              FIR NO. 102/2005
                                                 U/S 365/302/201/120B/420 IPC&
                                                              P.S. NAJAFGARH

       CORAM:
       HON'BLE MR. JUSTICE MOOL CHAND GARG

1.     Whether the Reporters of local papers
       may be allowed to see the judgment?              YES

2.     To be referred to Reporter or not?               YES

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

:      MOOL CHAND GARG, J.

1. This order shall dispose of the bail application filed by the petitioner,

Vidya, who is facing trial in a case arising out of FIR No. 102/2005 under

Sections 365/302/201/120-B/420 IPC registered at Police Station Najafgarh

and is in judicial custody since 21.02.2005. The case of the prosecution

against the petitioner is based upon the circumstantial evidence, which is

basically consisted of two facts:-

(i) She narrated her involvement in this case i.e. regarding

the murder of Raj Kumar @ Raju in the presence of Pradeep

Sharma, who appeared before the trial Court as PW-6.

However, this witness has not supported the case of the

prosecution and was declared hostile.

(ii) The recovery of katta, which as per the prosecution story

was arranged by the petitioner to commit the murder of Raj

Kumar @ Raju as the also the recovery of gold chain of the

deceased from the residence of the petitioner at the instance of

disclosure statement by co-accused Rajeev @ Monu, an English

translation of which is annexed with this petition as Annexure

A-7.

2. Briefly stated, the facts of this case are that on 15.1.2005 pursuant to

an information received in the Police Station Uttam Nagar vide DD No.51-B

with regard to a 'missing report', police reached House No.201, Gali No.2,

Sainik Enclave, Near Gandhi Chowk, Mohan Garden, Uttam Nagar, New

Delhi. The statement of Smt. Mor Kali @ Rani w/o Ram Chander was

recorded there. In her statement, she complained about the 'missing' of her

son. She stated that her son had left home at about 12.00 noon on

13.01.2005 for going to the house of the petitioner. Later, when it was

revealed to the Police Officials that the matter pertained to the area of Police

Station Najafgarh, the complaint was referred to Police Station Najafgarh

vide DDNo. 6-B on 16.01.2005. According to the case of prosecution,

efforts were made to trace out Raj Kumar @ Raju but to no effect.

Subsequent thereto on 12.02.2005 Smt.Mor Kali made another statement

stating about her family background and antecedents of her son Raj Kumar

@ Raju. In her statement she had stated that her son had left home for gong

to the house of the petitioner. She also stated that her son was having two

mobile phones but had left one mobile phone at the residence. She further

stated that her son called up and asked for a diary containing telephone

numbers of his acquaintances. She has also stated that when she asked about

the return of her son, he told that he would be back within 1 to 1-1/2 hours,

but he did not return. According to the complainant she made efforts to

know about the whereabouts of her son but all in vain. It is also said in the

statement that when she contacted the petitioner, it was told to her that the

deceased had accompanied his friend Rajeev @ Monu and also that she did

not know as to where they both had gone. Later, on the basis of a statement

allegedly made on 12.02.2005 a case vide FIR No. 102/2005 under Section

365 IPC was registered with Police Station Najafgarh. On 21.01.2005 an

unclaimed, unidentified dead body was discovered in the area of Police

Station Bahadurgarh. According to the police the dead body had injuries on

the head and an FIR vide No. 21/05 under Section 302/201 IPC was

registered with Police Station Bahadurgarh. The said dead body was then

connected with this case and thereafter, the co-accused Rajeev @ Monu was

arrested and interrogated on 18.02.2005. Later, on the basis of his disclosure

statement recorded on 21.02.2005, the present petitioner was apprehended

on 21.02.2005. Upon completion of the investigation, the charge sheet was

filed in the Court and the charges were framed in this case on 10.11.2005.

The prosecution has already examined 9 witnesses. The petitioner moved an

application for bail before the trial court which was dismissed vide order

dated 03.10.2008. Subsequent thereto, another application was moved but

the same was also dismissed by the trial court vide order dated 17.01.2009.

Aggrieved of the orders dated 17.01.2009 and 03.10.2008, the petitioner

preferred a bail application bearing No. 455/2009 in this Court. However, in

view of the fact that during the pendency of the bail application some more

witnesses were examined in the trial court, who did not support the case of

the prosecution, the petitioner wanted to invoke the jurisdiction of the trial

court again and thus, moved an application for withdrawal of bail

application No. 455/2009 and this court vide order dated 1.5.2009 granted

permission to withdraw the bail application. Thereafter, the petitioner

preferred another application for bail before the trial court, however, the

same was dismissed vide order dated 19.05.2009. Hence, the present bail

application before this court.

3. It is submitted on behalf of the petitioner that the petitioner is innocent

and has been wrongly implicated in this case. It is further submitted that the

name of the petitioner did not find mention in the first disclosure statement

of the co-accused Rajeev @ Monu made on 18.02.2005 and that there is an

inordinate delay in the registration of the FIR in this case as the incident

occurred on 13.01.2005 whereas the FIR was registered on 12.02.2005. It is

also submitted that the petitioner has been arrayed as an accused only as a

conspirator. Admittedly, there is no evidence/allegation of her involvement

in the alleged offence. The prosecution has not been able to establish the

motive of the petitioner either in the chargesheet or in the evidence of the

complainant, who was examined as PW-1 before the trial court. The trial

court dismissed the application for bail vide order dated 17.01.2009 without

appreciating the material change in the circumstance that PW-3 Hoshiar

Singh, an independent witness to the recovery of katta (weapon of offence),

had not supported the case of the prosecution even remotely and was

declared hostile. Even PW-6 Pradeep Sharma, who allegedly over heard the

conversation between the petitioner and co-accused Monu on 9.1.2005 at the

house of the petitioner while they were planning to commit the murder of

Raju (now deceased) has not supported the case of the prosecution and was

declared hostile. It is further submitted that there are other serious lacunae

in the case of the prosecution with regard to the alleged dead body. As per

the record of the prosecution the age of the alleged deceased in the death

report is 35-36 years whereas in the 'missing report' the age is stated to be

23 years. Besides that, length of the body also does not tally with the height

given in the missing report. It is further submitted that the alleged dead

body was recovered on 21.01.2005 and the probable time of death in the post

mortem report is given as 48-72 hours, whereas the whole case of the

prosecution is that the deceased was allegedly killed on 13.01.2005 itself,

which further demolishes the case of the prosecution to a great extent. It is

an admitted fact that co-accused Rajeev @ Monu and the deceased were

friends and knew each other very well before the alleged incident. Thus,

even the inference cannot be drawn that the petitioner was instrumental in

introducing them to each other. It is also submitted that the alleged phone

diary, containing the phone numbers of the acquaintances of the deceased,

has also not been seized/placed in the judicial file. The recovery of the

alleged dead body had taken place on 21.01.2005 whereas the present case

was registered on 12.02.2005 i.e. after a lapse of about 23 days of the

alleged discovery of the dead body. PW Ramesh, the witness to the effect of

last seen, has also not supported the case of the prosecution. It is further

submitted that the petitioner is a woman and is languishing in jail for the last

more than 4 years. It is further submitted that earlier she was admitted to

interim bail and she never misused the liberty granted to her and as such,

there is no likelihood of the petitioner fleeing from justice or tampering with

the evidence. The petitioner is a permanent resident of Delhi and as such

she undertakes to attend the court and to face the trial.

4. On the other hand, the learned APP appearing for the State has

submitted that it is the case of circumstantial evidence and the petitioner is

facing trial as a conspirator with the other co-accused person. It is also

submitted that merely because one of the witnesses has not supported the

extra-judicial statement made by the petitioner that does not shatter the case

of the prosecution. It is also submitted that the recovery of weapon also

proves the complicity of the petitioner in this case.

5. At this stage, suffice it to say that the evidence prima facie relied upon

by the prosecution against the petitioner is not sufficient to keep the

petitioner further in judicial custody. Moreover, she is a lady and is in

judicial custody for more than four years. Her custody cannot be continued

awaiting some other evidence which may or may not come against her and

that also of the police witnesses with regard to the recovery of katta and gold

chain from her residence at the instance of co-accused, Rajeev @ Monu.

Even if any other evidence comes on record, the same will have to be taken

into consideration along with other facts at the time of final disposal of the

case.

6. Taking into consideration that the petitioner is in judicial custody for a

period of more than four years, she is admitted to bail on her furnishing bail

bond in the sum of Rs.25,000/- with one surety in the like amount to the

satisfaction of the trial court.

7. The Petition stands disposed of.

MOOL CHAND GARG, J.

SEPTEMBER 16, 2009 anb