Delhi High Court
Rishi Raj And Anr vs State Govt Of Nct Delhi on 7 September, 2015
Author: Suresh Kait
$~30
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 7th September, 2015
+ BAIL APPLICATION NO. 726/2015
RISHI RAJ AND ANR ..... Petitioners
Represented by: Mr. Brahm Singh, Mr. Atul
Kumar, Mr. S.S. Bhati and
Mr. Niranjan Singh,
Advocate.
Versus
STATE GOVT OF NCT DELHI ..... Respondent
Represented by: Mr.Hirein Sharma, Addl.
Public Prosecutor for the
State with SI Vipin Yadav,
PS New Ashok Nagar.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
1. By way of this petition filed under Section 439 of the Code of
Criminal Procedure, 1973, petitioners seek directions to release them on
bail in case bearing SC No.61/2012 arisen from FIR No.112/2012,
registered at Police Station New Ashok Nagar, Delhi, for the offences
punishable under Sections 302/364A/201/171 read with Section 120B
IPC.
2. For the same relief, the petitioners approached the learned Trial
Court, however, their joint bail application was rejected vide order dated
04.03.2015.
3. Learned counsel appearing on behalf of the petitioners submits that
the petitioners are in judicial custody since 28.04.2012. Out of 58
witnesses, 27 witnesses have been examined and no public witness
remains to be examined.
4. He further submits that the present case is based upon the
circumstantial evidence. The FIR in question was registered on the
complaint of PW4, Mohd. Murtaza, father of the deceased, who stated
that at about 7.00 PM on 05.04.2012, his son, namely, Sandeep, aged
about 5 years, height about 3 feet, colour brown, wearing white T-Shirt,
had gone to purchase biscuits from the shop, however, did not return.
5. Thereafter, a call was received for ransom of Rs.5,00,000/- (Five
Lacs) on Mobile No.9015422584, which continued upto 21.04.2012. As
per evidence of PW15, Nodal Officer, the said mobile phone does not
belong to the complainant and belonged to one Rakesh Mehto (Tribal).
6. As alleged, six accused including the petitioners were arrested from
different places at Anand Vihar Bus Terminal on the same day within the
gap of 3 to 4 hours, they were produced before the Trial Court and
remanded for six days police custody. Thereafter, they were sent to the
judicial custody vide order dated 28.04.2012.
7. Learned counsel submits that the petitioner No. 1 is from District
Satna (Madhya Pradesh) and the petitioner No. 2 belongs to Jhansi (Uttar
Pradesh). Both were working in a Factory in NOIDA, adjoining to Police
Station New Ashok Nagar. Co-accused Kasim and Tikam remained in
police custody till 04.05.2012. He further submits that thereafter, one
skeleton alleged to be of deceased Sameer was recovered at the instance
of co-accused Kasim and Tikam.
8. Learned counsel further submits that no recovery of any amount
was made from the petitioners. There is no connection of the petitioners
with any of the calls made either to the complainant or any other person
involved in this case. Since the petitioners were working in a factory
adjacent to the jurisdiction of Police Station New Ashok Nagar, therefore,
they were connected in this case and they are in judicial custody since
then.
9. He submits that as per the FSL report qua DNA examination of the
deceased and his parents, it is concluded as under:-
" The STR analysis performed on the exhibit
'1' i.e., femur of deceased Sameer exhibit '2' i.e.,
blood in gauze of Murtaza (father of deceased),
exhibit '3', i.e. blood in gauge of Sahrina (mother
of deceased) are sufficient to conclude that the
exhibit '2' i.e., blood in gauze of Murtaza (father
of deceased), exhibit '3' i.e., blood in gauze of
Sahrina (mother of deceased) are not the
biological parents of (exhibit '1', i.e., femur)
deceased Sameer."
10. Perusal of the aforementioned report shows that the said skeleton
did not match either with the complaint or his wife. Thus, the said
skeleton has become the disputed one.
11. On the other hand, learned Additional Public Prosecutor appearing
on behalf of the State submits that the petitioners were in the conspiracy
with other co-accused. Petitioner No. 1, Rishi Raj was arrested from the
spot, where ransom was to be delivered. They had a direct nexus with the
offence, committed a serious offence and killed a five years old child.
12. Moreover, the case is at the mid of trial. 27 witnesses have already
been examined and the rest witnesses are formal witnesses. Therefore, at
this stage, this Court may not admit the petitioner on bail.
13. It is not in dispute that the petitioner remained in six days police
custody. Despite, no clue of the missing child, namely, Sameer could be
established. The alleged skeleton was recovered at the instance of co-
accused Kasim and Tikam. There is no evidence on record that the
petitioners kidnapped the minor boy and demanded ransom from the
complainant and his family members. There is no evidence that the
skeleton was recovered at the instance of the petitioners.
14. Moreover, DNA examination of the said skeleton is under dispute.
Mobile No.985808258 does not belong to petitioner No.1 Rishi Raj,
however, it belongs to some other person, whose identity is not known.
Thus, there is no evidence of last seen. There is no previous history of
either of the petitioner. All material witnesses have already been
examined. There is no apprehension that the petitioners may tamper with
the evidence and influence the witnesses.
15. In addition, co-accused Sarvinder is already enlarged on bail vide
order dated 31.07.2015 passed by this Court.
16. In view of the facts recorded above and that the case is pending
trial, without commenting upon the merits of the case, I deem it
appropriate to release the petitioners on bail.
17. Accordingly, the petitioners shall be released on bail on their
furnishing a personal bond in the sum of Rs.25,000/-each with one surety
each in the like amount to the satisfaction of the Trial Court.
18. In view of the above, the present petition is allowed.
19. A copy of this order be given dasti to the learned counsel for the
parties.
SURESH KAIT
(JUDGE)
SEPTEMBER 07, 2015
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