Deepak vs Govt. Of Nct Of Delhi
2015 Latest Caselaw 7103 Del

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        IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                     Date of decision: 18.09.2015

BAIL APPLN.689/2015

DEEPAK                                             ..... Petitioner
                                  Through:   Mr. Samrat Nigam and Mr. Amit
                                             Punj, Advocates


                                  versus


GOVT. OF NCT OF DELHI                               ..... Respondent
                  Through:                   Mr. Rajat Katyal, APP with SI Raj
                                             Kumar, PS- Neb Sarai
                                             Mr. Chandan Malik, Advocate for the
                                             victim

BAIL APPLN.1928/2015

MUKESH KUMAR                                       ..... Petitioner
                                  Through:   Mr. Samrat Nigam and Mr. Amit
                                             Punj, Advocates

                                  versus


GOVT. OF NCT OF DELHI                               ..... Respondent
                  Through:                   Ms. Radhika Kolluru, APP with SI
                                             Raj Kumar, PS- Neb Sarai
                                             Mr. Chandan Malik, Advocate for the
                                             victim




BAIL APPLN.689/2015 & 1928/2015                                        1 of 12
 CORAM:
HON'BLE MR JUSTICE SIDDHARTH MRIDUL

                                  JUDGMENT

SIDDHARTH MRIDUL, J (ORAL)

1. The present are the applications under section 439 of the Code of

Criminal Procedure, 1973 (hereinafter referred to as „the Code‟) for grant of

regular bail in FIR No.1120/2014, under sections 308 IPC, registered at

Police Station- Neb Sarai, New Delhi.

2. The applicants have been in judicial custody since 12.12.2014.

3. Mr. Nigam, learned counsel appearing on behalf of the applicants

while inviting my attention to the First Information Report and the charge

sheet filed in the subject matter, would urge that there are no eye witnesses

in the present case. Mr. Nigam, would then urge that the applicants have,

therefore, been falsely implicated in the present case by the officers of Police

Station- Neb Sarai, New Delhi. Furthermore, Mr. Nigam invites my

attention to the deposition of the alleged eye witness namely Ms. Shama

Parveen, PW-4 in the subject FIR to urge that she has not supported the case

of the prosecution. Mr. Nigam would lastly urge that that the registration

number of the vehicle owned by the father of the applicant Deepak is similar

to the registration numbers of numerous other vehicles, however, the IO in

BAIL APPLN.689/2015 & 1928/2015 2 of 12 the subject FIR has failed in his duty to investigate and enquire into the

ownership of other vehicles bearing similar registration numbers and has

only zeroed in on the applicant without any cogent material.

4. The case of the prosecution is that one Mr. Stanley Stephen was found

lying unconscious on the IGNOU Road off Mehrauli Badarpur Road in

South Delhi on 02.12.2014. Mr. Stanley Stephen was taken to Saket City

Hospital where he was declared unfit for statement. The MLC of Mr. Stanley

Stephen demonstrates that he suffered a severe head injury. The police

officer whilst registering the subject FIR clearly stated that despite attempts,

no eye witness was found at the spot. The subject FIR was, therefore,

registered against unknown persons and investigation was taken up.

According to the prosecution, during investigation it came to their

knowledge that a Maruti Esteem Car with the registration No.9972 and its

occupants were allegedly involved in the incident. Upon verification from

the record of the Road Transport Officer, the vehicle owned by Hawa Singh,

father of the applicant Deepak, resident of village Neb Sarai, bearing

registration No.DL 2CV 9972 was identified. In response to the notice under

section 133 of the Motor Vehicle Act, applicant Mukesh wrote to the I.O.

that on the date of the incident he was driving the said car and his friend

BAIL APPLN.689/2015 & 1928/2015 3 of 12 Deepak/applicant was sitting beside him. He further stated that a Swift Car

dashed his car from behind due to which a quarrel took place. Applicant

Deepak slapped the occupant of the Swift Car consequently, the occupant of

the swift car fell down and thereafter the applicants fled away.

5. On 12.12.2014, both the applicants were intercepted while driving the

said vehicle. It is the case of the prosecution that the present applicants have

disclosed their complicity in the commission of the offence in their

disclosure statements. During subsequent investigation, statement of the

purported eye witnesses Ms. Shama Parveen (PW-4) and Mr. Hari Ram

Yadav, son of Mr. Siddeshwar Yadav, resident of IGS Security Services,

Anupam Apartment, New Delhi were recorded under section 161 of the

Code. It is stated on behalf of the prosecution that the applicants refused to

participate in the Test Identification Parade (TIP) proceedings. The medical

opinion qua Mr. Stanley Stephen reveals that he could have sustained

injuries either owing to a fall or physical assault.

6. In the present case, it is noticed that Stanley Stephen, the victim, is

currently incoherent and under constant medical treatment and, therefore, not

in a position to understand the questions put to him by the trial court nor able

to depose clearly with regard to the incident. However, the other purported

BAIL APPLN.689/2015 & 1928/2015 4 of 12 eye witness Mr. Hari Ram Yadav, whose name also figures as an eye witness

on behalf of the prosecution in the subject charge sheet, is yet to be

examined.

7. In the present case, it is observed that the charge sheet against the

applicants has already been filed and charges have been framed against

them. The applicants have been charged for the offences punishable under

sections 308/34 IPC. Ten out of seventeen prosecution witnesses have

already been examined before the trial court. However, the victim Stanley

Stephen has not been examined on account of the medical reasons stated

above. Insofar as the other purported witness namely, Hari Ram Yadav is

concerned, he has not been examined for reasons best known to the official

respondent.

8. In State of U.P. Through CBI v. Amarmani Tripathi, reported as

(2005) 8 SCC 21 the Hon‟ble Supreme Court in paragraph 18 observed as

follows:-

"18. It is well settled that the matters to be considered in an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail;

(v) character, behaviour, means, position and standing

BAIL APPLN.689/2015 & 1928/2015 5 of 12 of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail[see Prahlad Singh Bhati v. NCT, Delhi [(2001) 4 SCC 280 : 2001 SCC (Cri) 674] and Gurcharan Singh v. State (Delhi Admn.) [(1978) 1 SCC 118 :

1978 SCC (Cri) 41 : AIR 1978 SC 179] ]. While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused. We may also refer to the following principles relating to grant or refusal of bail stated in Kalyan Chandra Sarkar v. Rajesh Ranjan [(2004) 7 SCC 528 : 2004 SCC (Cri) 1977] : (SCC pp. 535-36, para 11) "11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:

(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

BAIL APPLN.689/2015 & 1928/2015 6 of 12

(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh[(2002) 3 SCC 598 : 2002 SCC (Cri) 688] and Puran v. Rambilas[(2001) 6 SCC 338 : 2001 SCC (Cri) 1124] .)"

9. In Prahlad Singh Bhati vs. NCT of Delhi reported as (2001) 4 SCC

281 the Hon‟ble Supreme Court reiterated that if a person was suspected of

the commission of an offence punishable with death or imprisonment for life

then there must exist grounds which specifically negate the existence of

reasonable ground for believing that such an accused is guilty of an offence

punishable with sentence of death or imprisonment for life. The jurisdiction

to grant bail must be exercised on the basis of well-settled principles having

regard to the circumstances of each case. While granting bail, the court has

to keep in mind the nature of accusations, the nature of evidence in support

thereof, the severity of the punishment which conviction will entail, the

character, behaviour, means and standing of the accused, circumstances

which are peculiar to the accused and reasonable apprehension of witnesses

being tampered with.

10. In Gurcharan Singh vs. State (Delhi Admn.) reported as (1978) 1

SCC 118 it was observed that if the accused is of such character that his

BAIL APPLN.689/2015 & 1928/2015 7 of 12 mere presence at large would intimidate the witnesses or if there is material

to show that he will use his liberty to subvert justice or tamper with the

evidence, then bail will be refused.

11. In the recent past, denizens of Delhi have demonstrated a growing and

alarming tendency to indulge in senseless violence. Even a minor scrape

between vehicles driven by two individuals has the effect of enraging them

to such an extent that it is common place for one or the other to be physically

assaulted and on occasion even threatened with fire arms. The police and the

administration are helpless bystanders, and are unable to either uphold the

rule of law or investigate scientifically and thoroughly.

12. In the present case, the applicants have been charged under section

308 of the Code, conviction for which c\ould lead to a maximum sentence of

seven years. Therefore, the present is not a case for believing that the

offence is grave in itself. In the present case, however, the apathy of the

populace of the city in the face of a human lying injured on a road is spine

chilling. Added to this apathy is the cynical and almost ruthless approach of

the perpetrators of such incidents to leave the victims unattended and on

occasion facing severe complications and sometimes even death.

BAIL APPLN.689/2015 & 1928/2015 8 of 12

13. There is yet another aspect of the public spiritedness of the witnesses

of these incidents. They either resile from the statements made by them

under section 161 of the Code when called upon to depose before a Court or

they conveniently make themselves unavailable, seriously hampering the

investigation and trial into the truth behind these incidents. The present case

is no exception. PW-4 Shama Parveen has deposed against the prosecution

and contradicted her own statement to the police under section 161 of the

Code. The other purported eye witness of the incident Mr. Hari Ram Yadav

for whom summons have been issued for 09.10.2015 by the trial court, is

keeping himself away so far for reasons I would not like to comment upon.

14. The Supreme Court in State vs. TRPS Lodhi vs. Sanjeev Nanda

reported as (2012) 12 SCR 881 held as follows:-

"40. Witness turning hostile is a major disturbing factor faced by the criminal courts in India. Reasons are many for the witnesses turning hostile, but of late, we see, especially in high profile cases, there is a regularity in the witnesses turning hostile, either due to monetary consideration or by other tempting offers which undermine the entire criminal justice system and people carry the impression that the mighty and powerful can always get away from the clutches of law thereby, eroding people‟s faith in the system. This court in State of U.P. v. Ramesh Mishra and Anr. [AIR 1996 SC 2766] held that it is equally settled law that the evidence of hostile witness could not be totally rejected, if spoken in favour of the prosecution or the

BAIL APPLN.689/2015 & 1928/2015 9 of 12 accused, but it can be subjected to closest scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted. In K. Anbazhagan v. Superintendent of Police and Anr. [AIR 2004 SC 524], this Court held that if a court finds that in the process the credit of the witness has not been completely shaken, he may after reading and considering the evidence of the witness as a whole with due caution, accept, in the light of the evidence on the record that part of his testimony which it finds to be creditworthy and act upon it. This is exactly what was done in the instant case by both the trial court and the High Court and they found the accused guilty."

15. In Phool Singh vs. State of Haryana reported as (2012) ILR 2

Punjab and Haryana 809, the Hon‟ble Supreme Court expressed serious

concern over increase in number of hostile witnesses. The relevant portion

of the decision is reproduced herein below:-

"30. In the present case the PW had the courage to state in his cross-examination that whatever was stated by him in his examination-in-chief was not the correct version. He clearly stated that the occurrence did not take place in the manner as written in his statement and as deposed by him in the court in his examination- in-chief. These types of witnesses are required to be dealt with sternly. They cannot be permitted to take the courts for a ride. Legislature measures to emphasis prohibition against tampering with witness, victim or informant have become the imminent and inevitable need of the day. Conducts which illegitimately affect the presentation of evidence in proceedings before the courts have to be seriously and sternly dealt with.

Efforts should be to ensure fair trial where the accused and the prosecution both get a fair deal. Public interest in the proper administration of justice must be given as

BAIL APPLN.689/2015 & 1928/2015 10 of 12 much importance if not more, as the interest of the individual accused. Witnesses assume a vital role in the Criminal Justice System. The successful working of such system depends critically on the witnesses who assist the court in discovering the truth by tendering evidence. However, the increase in the number of instances of witnesses turning hostile and resiling blatantly from their earlier statements is a matter of serious concern. Once there is complete somersault in the two versions recorded in examination-in-chief and the cross-examination, one of them is certainly false. However, in a case of minor discrepancy, the matter is different. Such a witness should be required to explain his conduct. There are provisions in IPC to take care of such situation. Hon‟ble the Supreme Court had also dealt with such a witness in Zahira Habibullah Sheikh‟s case (supra) popularly known as "Best Bakery case". The learned court below is directed to take appropriate action against the witnesses whose version given in cross-examination is totally different than what was given in their examination-in-chief. The petition stands disposed of."

16. The right to life and personal liberty is a fundamental right enshrined

in the Constitution of India. There is no gainsaying the fact that this right

can be curtailed only on occasions where the liberty of an individual would

conflict with interests of society at large. There is no inexorable formula in

matters granting bail. The facts and circumstances of each case govern

exercise of judicial discretion in granting or rejecting bail.

17. It is also to be considered that the deposition of witnesses cannot

either be weighed nor their credibility and veracity judged at the time of

BAIL APPLN.689/2015 & 1928/2015 11 of 12 adjudication of an application seeking bail. In my view, therefore, in the

present case, the applicants are not entitled to regular bail at this stage. The

present applications are dismissed whilst reserving liberty to the applicants

to approach the trial court once the victim as well as the purported eye

witness Mr. Hari Ram Yadav have been examined. Since the trial is now

listed for conclusion of prosecution evidence on 09.10.2015, the concerned

Court is requested to expedite the trial and conclude it within a reasonable

period of time, bearing in mind the principle that the right of an accused to

expeditious trial is the cornerstone of the criminal justice system.

18. With the above observations, which prima facie are not an expression

on the merit of the case, the applications are dismissed.

19.    Dasti
                                               SIDDHARTH MRIDUL, J

       SEPTEMBER 18, 2015
       dn




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