Vijay Bahadur vs State (Nct) Of Delhi
2010 Latest Caselaw 4363 Del

*                   IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     Crl. MB No. 980/2010 in Crl.A. No.826/2010

%                                Date of Decision: 16.09.2010

Vijay Bahadur                                                    .... Appellant
                             Through Ms. Charu Verma, Advocate

                                               Versus

State (NCT) of Delhi                                        .... Respondent
                             Through Mr. Lovkesh Sawhney, APP


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR.JUSTICE SURESH KAIT

1.        Whether reporters of Local papers may                 YES
          be allowed to see the judgment?

2.        To be referred to the reporter or not?                NO
3.        Whether the judgment should be                        NO
          reported     in the Digest?


ANIL KUMAR, J.

*

Crl. MB No. 980/2010

The applicant has filed this application for suspension of his

sentence and to enlarge him on bail in the above noted appeal against

his conviction and sentence by order dated 15th February, 2010 and

18th February, 2010 in SC No. 55/2008 arising out of FIR 787/2005

under Section 302 of IPC, PS Punjabi Bagh to undergo rigorous

imprisonment for life and a fine of Rs. 3,000/- and in default of

payment of fine to further undergo six months rigorous imprisonment.

The applicant has sought suspension of his sentence and to

enlarge him on bail on the ground that he has already undergone

incarceration for about 4 ½ years. The applicant has contended that he

is innocent and the prosecution has failed to prove his case because the

applicant was not arrested at the spot. The assertion of the applicant is

that though he was apprehended from a public place where a number

of witnesses were present, however, no one was joined as a witness.

The applicant has further contended that there are material

contradictions and improvements in the testimony of witnesses,

especially Prem Singh, PW-2. Reliance has been placed on the

deposition of Prem Singh-PW-2 deposing that at the time of drinking,

when the quarrel took place and till the murder of the deceased, Lal

Singh, was the only person who was present with them at the place of

incident. Lal Singh was neither cited nor examined as prosecution

witness, who was the only direct witness in the present case according

to the applicant. The applicant has also challenged the recovery of

blood stained knife/dagger from his house and non-recovery of finger

prints from the alleged knife.

This has not been disputed that the applicant was living with his

brother-in-law at address C-102/103, JJ Colony, Madipur, Delhi. From

the evidence, it is apparent that accused Vijay Bahadur, his father-in-

law and Dalip were consuming liquor in the room of the accused.

Dalip had demanded Rs. 100/- from the accused Vijay Bahadur, which

was given to the accused by him. The accused, Dalip and his father-in-

law had gone to the roof/top of the house in an inebriated condition

and the applicant was seen coming from the roof having blood stained

knife in his right hand and he had told that he has finished Dalip,

"Maine Dalip ka kaam tamam kar diya hai" and thereafter he ran away

from the stair case. Prem Singh went to the roof and saw Dalip lying in

a pool of blood. Prem Singh, thereafter, went to his elder brother-in-law

Lal Singh who lives in Paschim Vihar on cycle and the police was called

subsequently. Dalip was declared "brought dead" by the doctors.

Thereafter the accused was arrested on 11th November, 2005.

The learned counsel for the applicant has relied on (1984) SCC

(Cri) 164, Tholan Vs. State of Tamil Nadu that in case the death is

caused by a single knife blow though inflicted in the chest of the

deceased on the spur of the moment and the deceased having no

previous dispute with the accused and the presence at the scene of

occurrence was wholly accidental. In these circumstances, even if

Exception-I to Section 300 is not attracted, yet the requisite intention

under Section 300 is absent and therefore, conviction under Section

302 is not proper and in such circumstances, the accused must be

convicted under Section-304 part II.

This is not disputed that the applicant is a resident of Village

Chandani, Ward No. 7, PS Baba Than, District Kanchanpur (Nepal) and

his family consists of his two wives, four children and two unmarried

sisters. The alleged murder had taken place where his father-in-law

was also present. Though the applicant has stated the he comes from a

poor segment of society, but he would be able to furnish a surety of

minimum amount, if the bail is granted to him.

With the minimum amount of surety it will be difficult to ensure

the presence of the applicant, in case he absconds after his sentence is

suspended and he is released on bail. Even if the surety amount is

enhanced, it will be difficult to ensure his presence considering that the

family of the applicant is at Nepal and it will be very probable that he

will go to Nepal where he has two wives and children.

In the totality of facts and circumstances and on the basis of

judgment relied on by the learned counsel for the applicant, this Court

is not inclined to suspend the sentence of the applicant and to enlarge

him on bail.

The appeal of the appellant is also likely to listed for hearing in the

near future as all the appeals where the appellants are under custody

are to be decided first in preference to appeals where the appellants

have been released on bail after suspension of their sentence.

The application for suspension of sentence and to enlarge the

applicant on bail, is therefore, dismissed.

ANIL KUMAR, J.

SURESH KAIT, J.

SEPTEMBER, 16, 2010 „rs‟